Exhibit 1.1
Execution Version
ALLEGHANY CORPORATION
$400,000,000 4.950% Senior Notes due 2022
UNDERWRITING AGREEMENT
June 21, 2012
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
U.S. Bancorp Investments, Inc.
214 N. Tryon Street, 26
th
Floor
Charlotte, North Carolina 28202
Wells Fargo Securities, LLC
301 S. College Street
Charlotte, North Carolina 28288
As Representatives of the Underwriters
Ladies and Gentlemen:
Alleghany Corporation, a Delaware corporation (the
“
Company
”), proposes to issue and sell to the several underwriters (the “
Underwriters
”) named in
Schedule 1
attached to this agreement (this “
Agreement
”) acting severally
and not jointly, the respective amounts set forth in such
Schedule 1
of $400,000,000 aggregate principal amount of its 4.950% Senior Notes due 2022 (the “
Securities
”). The Securities will be issued pursuant to an
Indenture dated as of September 20, 2010 (the “
Base Indenture
”) between the Company and The Bank of New York Mellon, as trustee (the “
Trustee
”), as supplemented by a first supplemental indenture
dated as of September 20, 2010 (the “
First Supplemental Indenture
”) and as supplemented by a second supplemental indenture to be dated as of June 26, 2012 (the “
Second Supplemental Indenture
”
and together with the Base Indenture and the First Supplemental Indenture, the “
Indenture
”). This is to confirm the agreement concerning the purchase of the Securities from the Company by the Underwriters.
1.
Representations, Warranties and Agreements of the Company
. The Company represents, warrants and agrees that:
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(a)
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A registration statement on Form S-3 relating to the Securities (i) has been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the “
Securities Act
”), and the rules and regulations (together, the “
Rules and Regulations
”) of the Securities and Exchange Commission (the
“
Commission
”) thereunder; (ii) has been filed with the Commission under
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the Securities Act; and (iii) is effective under the Securities Act. Copies of such registration statement and any amendment thereto have been delivered by the Company to Morgan
Stanley & Co. LLC, U.S. Bancorp Investments, Inc., and Wells Fargo Securities, LLC as the representatives (“
you
or the “
Representatives
”) of the Underwriters. For the avoidance of doubt, the
availability to the Underwriters of such registration statement and any amendment thereto on the Commission’s EDGAR database shall satisfy the Company’s delivery obligation with respect thereto. As used in this Agreement:
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(i) “
Applicable Time
” means June 21, 2012 at 4:30 p.m. (New York
City time);
(ii) “
Effective Date
” means any date as of which any part of such
registration statement relating to the Securities became, or is deemed to have become, effective under the Securities Act in accordance with the Rules and Regulations;
(iii) “
Issuer Free Writing Prospectus
” means each “issuer free writing prospectus” (as
defined in Rule 433(h) of the Rules and Regulations) prepared by or on behalf of the Company or used or referred to by the Company in connection with the offering of the Securities, including the road show attached as
Schedule 2
hereto;
(iv) “
Preliminary Prospectus
” means the prospectus relating to the Securities dated
September 15, 2010 together with the preliminary prospectus supplement dated June 21, 2012 relating to the Securities filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;
(v) “
Pricing Disclosure Package
” means, as of the Applicable Time, the Preliminary Prospectus,
together with the information included in
Schedule 3
hereto and each Issuer Free Writing Prospectus filed or used by the Company on or before the Applicable Time, other than the road show that is an Issuer Free Writing Prospectus, attached as
Schedule 2
hereto;
(vi) “
Prospectus
” means the final prospectus relating to the
Securities, including any prospectus supplement thereto relating to the Securities, as filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(vii) “
Registration Statement
” means, collectively, the various parts of the registration
statement on Form S-3 relating to the Securities (File No. 333-169373), each as amended as of the Effective Date for such part, including the Preliminary Prospectus or the Prospectus and all exhibits to such registration statement.
Any reference to the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Form S-3 under the Securities Act as of the date of the Preliminary Prospectus or the Prospectus, as the case may be, any reference to the Registration Statement shall be deemed to refer to and
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include the documents incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the date of this Agreement; and all references to information that is
“included” or “contained” in the Preliminary Prospectus, the Prospectus, the Registration Statement or the Pricing Disclosure Package (and any similar references) shall mean and include all information that is incorporated by
reference therein pursuant to Form S-3 under the Securities Act. Any reference to any amendment or supplement to the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange
Act of 1934, as amended (the “
Exchange Act
”), after the date of the Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference in the Preliminary Prospectus or the Prospectus, as the case may
be; and any reference to any amendment to the Registration Statement shall be deemed to refer to any document filed under the Exchange Act after the date of this Agreement that is incorporated by reference in the Registration Statement. The
Commission has not issued any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or examination for such purpose has been instituted
or, to the Company’s knowledge, threatened by the Commission. The Commission has not notified the Company of any objection to the use of the form of the Registration Statement.
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(b)
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The Company has been since the time of initial filing of the Registration Statement and continues to be a “well-known seasoned issuer” (as defined in Rule
405) eligible to use Form S-3 for the offering of the Securities, including not having been an “ineligible issuer” (as defined in Rule 405) at any such time or date. The Registration Statement is an “automatic shelf registration
statement” (as defined in Rule 405) and was filed not earlier than the date that is three years prior to the Closing Date (as defined in Section 4).
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(c)
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The Registration Statement conformed and will conform in all material respects on the Effective Date and on the Closing Date, and any amendment to the Registration
Statement filed after the date hereof will conform in all material respects when filed, to the requirements of the Securities Act, the Rules and Regulations and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “
Trust Indenture Act
”). The Preliminary Prospectus conformed in all material respects when filed with the Commission pursuant to Rule 424(b) to the requirements of the Securities Act
and the Rules and Regulations, and the Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) and on the Closing Date to the requirements of the Securities Act and the Rules and Regulations. The
documents incorporated by reference in the Preliminary Prospectus or the Prospectus conformed, and any further documents so incorporated will conform, when filed with the Commission, in all material respects to the requirements of the Exchange Act
or the Securities Act, as applicable, and the rules and regulations of the Commission thereunder.
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(d)
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The Registration Statement did not, as of the Effective Date, contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided
that
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no representation or warranty is made as to information contained in or omitted from the Registration Statement in reliance upon and in conformity with (i) written information furnished to
the Company through the Representatives by or on behalf of any Underwriters specifically for inclusion therein, which information is specified in Section 8(e) and (ii) that part of the Registration Statement that constitutes the Statement
of Eligibility and Qualification (the “
Form T-1
”) of the Trustee under the Trust Indenture Act.
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(e)
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The Prospectus will not, as of its date and on the Closing Date, contain an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no representation or warranty is made as to information contained in or omitted from the
Prospectus in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriters specifically for inclusion therein, which information is specified in Section 8(e).
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(f)
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The documents incorporated by reference in the Preliminary Prospectus or the Prospectus did not, and any further documents filed and incorporated by reference therein
will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading.
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(g)
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The Pricing Disclosure Package did not, as of the Applicable Time, contain an untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no representation or warranty is made as to information contained in or omitted from the Pricing Disclosure Package in reliance
upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriters specifically for inclusion therein, which information is specified in Section 8(e).
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(h)
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Each Issuer Free Writing Prospectus (including, without limitation, any road show that is a free writing prospectus under Rule 433), when considered together with the
Pricing Disclosure Package as of the Applicable Time, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(i)
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Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Securities Act and the Rules and
Regulations on the date of first use, and the Company has complied or will comply, as applicable, with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The Company has not made any
offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Representatives (such consent not to be
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unreasonably delayed or withheld). The Company has retained in accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not required to be filed pursuant to the
Rules and Regulations. No Issuer Free Writing Prospectus conflicted with or will conflict with the information in the Registration Statement, the Preliminary Prospectus or the Prospectus.
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(j)
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Each of the Company and its subsidiaries listed on
Schedule 4
hereto (herein called, collectively, the “
Significant Subsidiaries
”) has
been duly incorporated, organized or formed and is validly existing in good standing under the laws of the jurisdiction of its incorporation, organization or formation, with full power and authority to own, lease and operate its properties and
conduct its business; and each of the Company and its Significant Subsidiaries is duly qualified to do business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties
owned, leased or operated by it make such qualification necessary, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), results of operations, properties or business of the Company and its subsidiaries taken as a whole or on the performance by the Company of this Agreement (a “
Material Adverse Effect
”). Except for
Transatlantic Holdings, Inc. (“
Transatlantic
”) and subsidiaries of Transatlantic which are listed in Exhibit 21 to Transatlantic’s Annual Report on Form 10-K for the year ended December 31, 2011, and BKH Holdings,
Inc., the Company does not have any subsidiaries or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the Company’s Annual Report on Form 10-K for the year ended
December 31, 2011. None of the subsidiaries of the Company (other than the Significant Subsidiaries) is a “significant subsidiary” (as defined in Rule 405).
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(k)
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The authorized, issued and outstanding common stock, par value $1.00 per share (the “
Common Stock
”) and other capital stock of the Company is as
set forth in each of the Preliminary Prospectus and the Prospectus (except for subsequent issuances of Common Stock (i) in connection with the acquisition of Transatlantic completed on March 6, 2012 (the “Transatlantic
Acquisition”) and (ii) pursuant to employee or director stock option or stock purchase plans). The shares of issued and outstanding Common Stock have been duly authorized, validly issued, fully paid and non-assessable and were issued in
compliance with federal and state securities laws. All of the outstanding shares of capital stock of each Significant Subsidiary of the Company that is a corporation have been duly authorized and validly issued and are fully paid and non-assessable.
All of the outstanding shares of capital stock, partnership interests or other ownership interests of each Significant Subsidiary of the Company are owned directly or indirectly by the Company, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer, preemptive rights or any other claim of any third party (collectively, “
Liens
”), except such Liens as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
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(l)
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The Indenture has been duly authorized by the Company and, upon effectiveness of the Registration Statement, was or will have been duly qualified under the Trust
Indenture Act and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability (collectively, the
“
Enforceability Exceptions
”).
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(m)
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The Securities have been duly authorized by the Company and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as
provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the Enforceability Exceptions, and
will be entitled to the benefits of the Indenture.
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(n)
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The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement, the Securities and the Indenture
(collectively, the “
Transaction Documents
”). This Agreement has been duly authorized, executed and delivered by the Company.
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(o)
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None of the execution, delivery and performance of the Transaction Documents by the Company, the issuance, sale and delivery of the Securities by the Company,
compliance by the Company with any of the provisions of the Transaction Documents nor the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the Pricing Disclosure Package and the Prospectus
will (i) conflict with or result in a breach or violation of any agreement, indenture or other instrument to which the Company or any of its subsidiaries is a party or by which any of them is bound, or to which any of their properties is
subject; (ii) result in the creation or imposition of any Lien upon any property or asset of the Company or any of its subsidiaries; (iii) result in a breach or violation of, or constitute a default under, the certificate of incorporation,
by-laws, partnership agreement or other organizational documents of the Company or any of its subsidiaries; or (iv) violate any law, rule, administrative regulation or decree of any court or any governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or any of their respective properties, except, with respect to clauses (i), (ii) and (iv), conflicts or violations that would not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(p)
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No permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required for the issue and
sale of the Securities, the execution, delivery and performance of the Transaction Documents by the Company, or the application of the proceeds from the sale of the Securities as described under “Use of Proceeds” in the Pricing Disclosure
Package and the Prospectus, except for the registration of the Securities under the Securities Act,
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the qualification of the Indenture under the Trust Indenture Act, and such consents, approvals, authorizations, orders, filings, registrations or qualifications as may be required under the
Exchange Act and applicable state or foreign securities laws in connection with the purchase and sale of the Securities through the Underwriters.
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(q)
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There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed by the Company under the Securities Act.
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(r)
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The Company has not sold or issued any securities that would be integrated with the offering of the Securities contemplated by this Agreement pursuant to the Securities
Act, the Rules and Regulations or the interpretations thereof by the Commission.
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(s)
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Since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus, neither the
Company nor any of its subsidiaries has (i) sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action,
order or decree, (ii) except for the issuance of shares of Common Stock by the Company in connection with the Transatlantic Acquisition, issued or granted any securities (other than the shares of capital stock issued pursuant to employee
benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants or rights not issued under one of those plans), (iii) incurred any material
liability or obligation, direct or contingent, other than liabilities and obligations that were incurred in the ordinary course of business, (iv) except for the completion of the Transatlantic Acquisition on March 6, 2012, entered into any
material transaction not in the ordinary course of business, or (v) declared or paid any dividend on its capital stock, and since such date, except for the issuance of shares of Common Stock by the Company in connection with, and except as a
result of, the Transatlantic Acquisition, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any adverse change, or any development involving a prospective adverse change, in or
affecting the condition (financial or otherwise), results of operations, properties or business of the Company and its subsidiaries taken as a whole, except, in each case in this paragraph (s) (other than clause (v) hereof), as would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(t)
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The financial statements (including the related notes and supporting schedules) included or incorporated by reference in the Pricing Disclosure Package
and the Prospectus present fairly in all material respects the financial condition, results of
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operations and cash flows of the entities purported to be shown thereby at the dates and for the periods indicated (subject to year-end adjustments in the case of unaudited interim financial
statements) and have been prepared in accordance with U.S. generally accepted accounting principles applied on a consistent basis throughout the periods indicated and conform in all material respects with such generally accepted accounting
principles, except as otherwise noted therein; and the supporting schedules included or incorporated by reference in the Registration Statement present fairly in all material respects the information required to be stated therein. The pro forma
information (including the related notes and supporting schedules) included or incorporated by reference in the Pricing Disclosure Package and the Prospectus has been prepared on a basis consistent with the historical financial statements of the
Company and its subsidiaries, except for the pro forma adjustments specified therein (which such pro forma adjustments are and, when made, were reasonably estimated and supportable), and such pro forma information fairly presents in all material
respects, and gives effect to, the transactions described therein.
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(u)
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The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus fairly presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
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(v)
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KPMG LLP, who have reported on certain historical financial statements of the Company included or incorporated by reference in the Pricing Disclosure Package and the
Prospectus and whose report is incorporated by reference in the Preliminary Prospectus and the Prospectus, were independent public accountants with respect to the Company as required by the Securities Act and the rules and regulations thereunder
during the periods covered by the financial statements on which they reported contained or incorporated by reference in the Pricing Disclosure Package and the Prospectus.
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(w)
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Ernst & Young, LLP, who have reviewed certain financial statements of the Company included or incorporated by reference in the Pricing Disclosure Package and
the Prospectus, are independent registered public accountants with respect to the Company as required by the Securities Act and the rules and regulations thereunder, and were independent public accountants with respect to the Company as required by
the Securities Act and the rules and regulations thereunder during the periods covered by the financial statements on which they reviewed contained or incorporated by reference in the Pricing Disclosure Package and the Prospectus.
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(x)
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PricewaterhouseCoopers LLP, who have reported on certain historical financial statements of Transatlantic Holdings, Inc. included or incorporated by reference in the
Pricing Disclosure Package and the Prospectus and whose report is incorporated by reference in the Preliminary Prospectus and the Prospectus, were independent registered public accountants with respect to Transatlantic Holdings, Inc. as required by
the Securities Act and the rules and regulations thereunder during the periods covered by the financial statements on which they reported contained or incorporated by reference in the Pricing Disclosure Package and the Prospectus.
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(y)
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The statistical and market-related data, if any, included in the Pricing Disclosure Package and the Prospectus and the consolidated financial statements of the Company
and its subsidiaries included or incorporated by reference in the most recent Pricing Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all material respects.
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(z)
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Neither the Company nor any subsidiary is, and as of the Closing Date and, after giving effect to the offer and sale of the Securities and the application of the
proceeds therefrom as described under “Use of Proceeds” in the Pricing Disclosure Package and the Prospectus, none of them will be, (i) an “investment company” within the meaning of such term under the Investment Company Act
of 1940, as amended (the “
Investment Company Act
”), and the rules and regulations of the Commission thereunder.
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(aa)
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There is no litigation or governmental proceeding to which the Company or any of its subsidiaries is a party or to which any property or assets of the Company or any of
its subsidiaries is subject or which is pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
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(bb)
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There are no statutes or regulations, legal or governmental proceedings or contracts or other documents that would be required to be described in the Registration
Statement, the Pricing Disclosure Package or the Prospectus (in each case including, without limitation, the documents incorporated by reference therein) or, in the case of documents, to be filed as exhibits to the Registration Statement, that are
not described and filed as required.
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(cc)
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To the knowledge of the Company, no labor disturbance by or dispute with the employees of the Company or any of its subsidiaries exists or is imminent that would
reasonably be expected to have a Material Adverse Effect.
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(dd)
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(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each “employee
benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”)) for which the Company or any of its subsidiaries would have any liability, including,
but not limited to, any liability relating to the Company or any of its subsidiaries being a member of a “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of
Section 414 of the Internal Revenue Code of 1986, as amended (the “
Code
”) (each, a “
Plan
”)), has been maintained in compliance with its terms and with the requirements of all applicable statutes,
rules and regulations
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including ERISA and the Code; (ii) no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan
excluding transactions effected pursuant to a statutory or administrative exemption; (iii) with respect to each Plan subject to Title IV of ERISA (A) no “reportable event” (within the meaning of Section 4043(c) of ERISA) has
occurred or is reasonably expected to occur, (B) there has been no failure to satisfy the minimum funding standard under Section 302 of ERISA or Section 412 of the Code and (C) neither the Company or any member of its Controlled
Group has incurred, or reasonably expects to incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guaranty Corporation in the ordinary course and without default) in respect of a Plan
(including a “multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and (iv) each Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
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(ee)
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The Company and each of its subsidiaries have filed all Federal and all material state, local and foreign tax returns required to be filed through the date hereof,
subject to permitted extensions, which returns are complete and correct in all material respects, and have paid all taxes due, and neither the Company nor any subsidiary is in default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto, except for any such taxes or assessments which are being contested in good faith by appropriate proceedings and for which appropriate reserves, if any, have been established in accordance with U.S.
generally accepted accounting principles and statutory accounting principles, and no tax deficiency has been determined adversely to the Company or any of its subsidiaries, nor does the Company have any knowledge of any tax deficiencies that have
been, or could reasonably be expected to be, asserted against the Company that would, in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(ff)
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Neither the Company nor any of its Significant Subsidiaries is in violation of its certificate of incorporation or by-laws or other organizational documents and neither
the Company nor any of its subsidiaries (i) is in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (ii) is in violation of any law,
ordinance, rule, regulation or order of any court or governmental agency or body having jurisdiction over it or its property or assets, except in the case of clauses (i) and (ii), to the extent any such conflict, breach, violation or default
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(gg)
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The Company is and, to the knowledge of the Company, its officers and directors are, in compliance in all material respects with the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated in connection therewith.
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(hh)
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Each of the Company and its subsidiaries hold such orders, consents, permits, licenses, patents, franchises, certificates of need, registrations, qualifications and
other approvals or authorizations from governmental or regulatory authorities (collectively, the “
Permits
”) (including, without limitation, insurance or reinsurance licenses from the foreign and domestic insurance regulatory
agencies or bodies of each jurisdiction in which it conducts its business (the “
Insurance Licenses
”)) which are necessary under applicable law to own its properties and conduct its businesses as presently operated and in the
manner described in the Pricing Disclosure Package and the Prospectus; each of the Company and its subsidiaries has fulfilled and performed all of its obligations necessary to maintain the Permits (including, without limitation, the Insurance
Licenses); there is no past, pending or, to the knowledge of the Company or any of its subsidiaries, threatened action, suit, proceeding or investigation that may reasonably be expected to lead to the revocation, termination or suspension of any
Permit (including, without limitation, the Insurance Licenses); except, in each of the foregoing cases, as to Insurance Licenses, the failure of which to obtain or maintain would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect; and, except as disclosed in the Preliminary Prospectus and the Prospectus, no foreign or domestic insurance regulatory agency or body has issued any order or decree impairing, restricting or prohibiting the payment of
dividends by any of the Company’s subsidiaries to their respective parent companies. Neither the Company nor any of its subsidiaries has received notice of any revocation or modification of any such Permits (including, without limitation, the
Insurance Licenses) or has any reason to believe that any such Permits (including, without limitation, the Insurance Licenses) will not be renewed in the ordinary course.
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(ii)
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The Company and its subsidiaries own or possess, or have the ability to acquire, all patents, patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated by them, except where
the failure to own, possess or have the ability to acquire such patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and none of the Company nor its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the foregoing which, individually or in the aggregate, if subject to any unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect.
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(jj)
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The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, Federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“
Environmental Laws
”), (ii) have received all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
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(kk)
|
Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director, officer, agent, employee or other person acting on behalf of the
Company or any of its subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; or (iii) made any bribe or other unlawful payment.
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(ll)
|
Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without
limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the
FCPA, and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance therewith.
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(mm)
|
The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any applicable governmental agency (collectively, the “
Money Laundering Laws
”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
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-12-
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(nn)
|
Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“
OFAC
”); and the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
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(oo)
|
The Company has not distributed and, prior to the later to occur of the Closing Date and completion of the distribution of the Securities, will not distribute any
offering material in connection with the offering and sale of the Securities other than the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with Section 1(i)
or 5(a)(vi) (such consent not to be unreasonably withheld or delayed).
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(pp)
|
The Company, or its subsidiaries or affiliates, has not taken and will not take, directly or indirectly, any action designed to or that has constituted or that could
reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities.
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(qq)
|
The Company and its subsidiaries, on a consolidated basis, maintain systems of internal control over financial reporting (as such term is defined in Rule 13a-15(f)
under the Exchange Act) that have been designed by, or under the supervision of, their respective principal executive and principal financial officers, to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles and statutory accounting practices. The Company and its subsidiaries, on a consolidated basis, maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with U.S. generally accepted accounting principles and statutory accounting practices and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization and (iv) recorded assets are compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
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(rr)
|
The Company and its subsidiaries, on a consolidated basis, have established and maintain disclosure controls and procedures (as such term is defined in Rule 13a 15(e)
under the Exchange Act) that have been designed to ensure that material information relating to the Company and its subsidiaries required to be disclosed in the reports the Company files or submits under the Exchange Act is made known to the
Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective in all material respects to perform the functions for which they were established.
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-13-
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(ss)
|
Since the date of the latest audited financial statements incorporated by reference in the Preliminary Prospectus, (i) the Company has not been advised of any
fraud, whether or not material, that involves management or other employees who have a significant role in the internal controls of the Company and each of its subsidiaries, and (ii) there have been no significant changes in internal controls
or in other factors that would significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
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(tt)
|
The Company and each of its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned
by them, in each case free and clear of all Liens, except where the failure to have such good and marketable title or the existence of any such Liens would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. All assets held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as do not materially interfere with the use made and proposed to be made of such assets by
the Company and its subsidiaries, except where the failure of any such leases to be valid, subsisting or enforceable or the existence of such exceptions would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
|
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(uu)
|
The Company is not required to be licensed as an insurance company; each of the Company’s regulated insurance company or reinsurance company subsidiaries (herein
called, collectively, the “
Insurance Subsidiaries
”) is duly licensed to conduct an insurance or reinsurance business, as the case may be, under the insurance laws and regulations of each jurisdiction in which the conduct of
its business requires such licensing; and the Insurance Subsidiaries have filed with the appropriate regulatory authorities all reports, documents and other information required to be filed in each jurisdiction where such filings are required,
except as to filings the failure of which to make would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(vv)
|
All reinsurance ceded treaties, contracts, agreements and arrangements to which the Company or any of the Insurance Subsidiaries is a party are in full
force and effect, other than those that, by their terms, have expired or otherwise terminated, or those the failure of which to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, and none of the Company or any of its Insurance Subsidiaries is in violation of, or in default in the performance, observance or fulfillment of, any obligation agreement, covenant or condition contained therein, which violation or
default would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; none of the Company or any of its Insurance Subsidiaries has received any notice from any of the other parties to such treaties, policies,
contracts,
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-14-
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agreements or arrangements that such other party intends not to perform such treaty, contract, agreements or arrangements or will be unable to perform such treaty, contract, agreement or
arrangement where the failure to perform would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(ww)
|
Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, the Company and its Insurance Subsidiaries have made no material
change in their insurance reserving practices since January 1, 2009. All insurance reserves reflected in the audited statutory financial statements for the year ended December 31, 2011, of each of the Insurance Subsidiaries which filed
audited financial statements for the year ended December 31, 2011 and the unaudited quarterly statutory financial statements for the quarter ended March 31, 2012 of each of the Insurance Subsidiaries which filed unaudited financial
statements for the quarter ended March 31, 2012, each as filed with the insurance regulator of the relevant jurisdiction for such Insurance Subsidiary, were calculated in accordance with applicable statutory accounting practices prescribed or
permitted by the insurance regulator of the relevant jurisdiction and generally accepted actuarial methodologies.
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(xx)
|
Any statutory annual and quarterly statements of each of the Insurance Subsidiaries and any statutory balance sheets and income statements included in such statutory
annual and quarterly statements most recently filed with any applicable regulatory authority have been prepared in conformity with required or permitted statutory accounting principles or practices consistently followed, except as may otherwise be
indicated in the notes thereto, and present fairly in all material respects the statutory financial position of each Insurance Subsidiary as at the dates thereof, and on a statutory basis for the periods covered thereby.
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(yy)
|
No relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers, stockholders, customers or suppliers of the
Company, on the other hand, that is required to be described in the Pricing Disclosure Package or the Prospectus which is not so described.
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(zz)
|
The statements set forth in the Preliminary Prospectus and the Prospectus under the captions “Description of the Notes,” “Description of Debt
Securities” and “Certain Material United States Federal Tax Considerations,” insofar as they purport to describe the Securities and other documents and legal matters referred to therein, are accurate in all material respects.
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(aaa)
|
Neither the Company nor any of its subsidiaries is a party to any contract, agreement or understanding with any person (other than this Agreement) that would give rise
to a valid claim against any of them or the Underwriters for a brokerage commission, finder’s fee or like payment in connection with the offering and sale of the Securities.
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-15-
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(bbb)
|
None of the proceeds from the sale of the Securities has been or will be paid to the Underwriters (except for the payment of the commissions pursuant to this Agreement
or payments to the Underwriters or any affiliate of the Underwriters as a result of payments or prepayments of outstanding loans under the Company’s revolving credit facility) or, to the knowledge of the Company, to any affiliate of the
Underwriters; and the Company is not an “affiliate” (as defined in FINRA Rule 5121) of any member of the Financial Industry Regulatory Authority, Inc. (“
FINRA
”).
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Any certificate signed by any officer of the Company and delivered to the Underwriters or counsel for the Representatives in connection
with the offering of the Securities shall be deemed a representation and warranty by the Company to each Underwriter as to matters covered thereby.
2.
Purchase of the Securities by the Underwriters
. On the basis of the representations and warranties contained in, and subject to the terms and conditions of, this Agreement, the Company agrees to
sell the Securities at a price equal to 99.248% of the aggregate principal amount thereof, plus accrued interest, if any, from June 26, 2012, to the several Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase the principal amount of the Securities set forth opposite that Underwriter’s name in
Schedule 1
hereto.
The Company shall not be obligated to deliver any of the Securities to be delivered on the Closing Date, except upon payment for all such
Securities to be purchased on such Closing Date as provided herein.
3.
Offering of Securities by the Underwriters
.
Upon authorization by the Representatives of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions to be set forth in the Prospectus.
4.
Delivery of and Payment for the Securities
. Delivery of and payment for the Securities shall be made at 10:00 a.m. New York
City time, on June 26, 2012 or at such other date or place as shall be determined by agreement between the Representatives and the Company. This date and time are sometimes referred to as the “
Closing Date
.” Delivery of
the Securities shall be made to Morgan Stanley & Co. LLC against payment by the several Underwriters through the Representatives of the respective aggregate purchase prices of the Securities being sold by the Company by wire transfer in
immediately available funds to the accounts specified by the Company. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Underwriter hereunder. The
Company shall deliver the Securities through the facilities of Depository Trust Company unless the Representatives shall otherwise instruct.
5.
Further Agreements of the Company and the Underwriters
.
(i) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business
on the second business day following the execution and
-16-
delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Closing Date except as provided herein; to advise the
Representatives in writing, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; to advise the Representatives in writing, promptly after it receives notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any
proceeding or examination for any such purpose, of any notice from the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus
or any Issuer Free Writing Prospectus or suspending any such qualification, to use promptly its reasonable best efforts to obtain its withdrawal;
(ii) To pay the applicable Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein;
(iii) To deliver promptly to the Representatives such number of the following documents as the Representatives shall
reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings),
(B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus and (D) any document incorporated by reference in the Preliminary Prospectus or the Prospectus, it
being understood that with regard to (A) and (D) above, availability to the Underwriters on the Commission’s EDGAR database of the documents referenced therein shall satisfy any such delivery obligations with respect thereto; and, if
the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Securities or any other securities relating thereto and if at such time any events shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with
the Securities Act or the Exchange Act, to notify the Representatives in writing and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
-17-
(iv) To file promptly with the Commission any amendment or supplement to the
Registration Statement or the Prospectus that may, in the judgment of the Company, be required by the Securities Act or requested by the Commission,
provided
,
however
, that the Company shall consider in good faith any recommendations
of the Representatives related thereto;
(v) Prior to filing with the Commission any amendment or supplement to
the Registration Statement or the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the
Underwriters and obtain the written consent (which written consent may be communicated by electronic communication) of the Representatives to the filing (such consent not to be unreasonably delayed or withheld);
(vi) Not to make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus without the
prior written consent (including written consent provided via electronic mail) of the Representatives (such consent not to be unreasonably delayed or withheld);
(vii) To comply with all applicable requirements of Rule 433 with respect to any Issuer Free Writing Prospectus; and if at any time after the date hereof any events shall have occurred as a result of
which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free
Writing Prospectus, to notify the Representatives and, upon their reasonable request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request
of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance;
(viii) As soon as practicable after the Effective Date and in any event not later than 16 months after the date hereof, to make generally available to the Company’s security holders and to deliver to
the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the Rules and Regulations;
(ix) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Securities
for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Underwriters may reasonably request, and to maintain such qualifications in effect for as long as may be necessary to complete the distribution of the
Securities;
provided
that in connection therewith the Company shall
-18-
not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file a general consent to service of process
in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject; and
(x) To apply the net proceeds from the sale of the Securities being sold by the Company as set forth in the Preliminary Prospectus and the Prospectus.
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 433)
in any “free writing prospectus” (as defined in Rule 405) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent,
“
Permitted Issuer Information
”), such consent not to be unreasonably withheld, delayed or conditioned;
provided
that (i) no such consent shall be required with respect to any such issuer information contained in
any document filed by the Company with the Commission prior to the use of such free writing prospectus and (ii) “issuer information,” as used in this Section 5(b), shall not be deemed to include information prepared by or on
behalf of such Underwriter on the basis of or derived from issuer information.
6.
Expenses
. The Company agrees,
whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, to pay all costs, expenses, fees and taxes incurred by the Company and, to the extent expressly provided in this Section 6 and in
Sections 8 and 11, incurred by the Underwriters incident to and in connection with (a) the authorization, issuance, sale and delivery of the Securities and any stamp duties or other taxes payable in that connection, and the preparation and
printing of the Securities; (b) the preparation, printing and filing under the Securities Act of the Registration Statement (including any exhibits thereto), the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, the
Indenture, the Form T-1 and any amendment or supplement thereto; (c) the distribution of the Registration Statement (including any exhibits thereto), the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus, the Indenture,
the Form T-1 and any amendment or supplement thereto, or any document incorporated by reference therein, all as provided in this Agreement; (d) the production and distribution of this Agreement and any other related documents in connection with
the offering, purchase, sale and delivery of the Securities; (e) any required review by FINRA of the terms of sale of the Securities (including related reasonable and reasonably documented fees and expenses of counsel to the Underwriters not to
exceed $25,000); (f) the qualification of the Securities under the securities laws of the several jurisdictions as provided in Section 5(a)(ix) and the preparation, printing and distribution of a Blue Sky Memorandum (including related
reasonable and reasonably documented fees and expenses of counsel to the Underwriters not to exceed $10,000); (g) the preparation, printing and distribution of one or more versions of the Preliminary Prospectus and the Prospectus for
distribution in Canada, in the form of a Canadian “wrapper”; (h) the fees, costs and charges of the Trustee, including the fees and expenses of counsel for the Trustee; (i) the investor presentations on any “road show”
undertaken in connection with the marketing of the Securities, including, without limitation, expenses associated with any electronic road show, travel and lodging expenses of the Representatives and officers of the Company; (j) any fees
required to be paid to rating agencies incurred in connection with the ratings of the Securities; and (k) all other costs and expenses incident to the performance of the obligations of the Company under this Agreement;
provided
that,
except as expressly
-19-
provided in this Section 6 and in Sections 8 and 11, the Underwriters shall pay their own costs and expenses, including the costs and expenses of their counsel, any transfer taxes on the
Securities which they may sell and the expenses of advertising any offering of the Securities made by the Underwriters.
7.
Conditions of Underwriters’ Obligations
. The respective obligations of the Underwriters hereunder are subject to the accuracy, when made and on the date of the Prospectus and on the Closing Date, of the representations and warranties of
the Company contained herein, to the performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions:
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(a)
|
The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i); the Company shall have complied with all filing requirements
applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission; any request of the Commission for inclusion of additional information in the Registration Statement or the
Prospectus or any document incorporated by reference therein or otherwise shall have been complied with; and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement.
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(b)
|
No Underwriter shall have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement, the Prospectus or the Pricing
Disclosure Package, or any amendment or supplement thereto, contains an untrue statement of a fact which, in the reasonable opinion of Willkie Farr & Gallagher LLP, counsel for the Underwriters, is material or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
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(c)
|
All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Securities, the Indenture, the Registration
Statement, the Prospectus and any Issuer Free Writing Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
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(d)
|
Day Pitney LLP shall have furnished to the Underwriters its written opinion and letter, as counsel to the Company, addressed to the Underwriters and delivered and dated
the Closing Date, in form and substance reasonably satisfactory to the Underwriters, substantially in the forms attached hereto as Exhibit A-1 and Exhibit A-2.
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-20-
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(e)
|
Christopher K. Dalrymple, Esq., Senior Vice President, General Counsel and Secretary of the Company, shall have furnished his written opinions addressed to the
Underwriters and delivered and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, substantially in the form attached hereto as Exhibit A-3.
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(f)
|
Day Pitney LLP shall have furnished to the Underwriters its written opinion and letter, as special tax counsel to the Company, addressed to the Underwriters and
delivered and dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters, substantially in the form attached hereto as Exhibit A-4.
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(g)
|
The Representatives shall have received from Willkie Farr & Gallagher LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
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(h)
|
At the time of execution of this Agreement, the Representatives shall have received from KPMG LLP a letter, in form and substance reasonably satisfactory to the
Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they were at all applicable times independent registered public accountants with respect to the Company within the meaning of the Securities Act and
were at all applicable times in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters
involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
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(i)
|
With respect to the letter of KPMG LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of
this Agreement (the “
initial letter
”), KPMG LLP shall have furnished to the Representatives a letter (the “
bring-down letter
”) of such accountants, addressed to the Underwriters and dated the Closing
Date (i) confirming that they were at all applicable times independent registered public accountants with respect to the Company within the meaning of the Securities Act and were at all applicable times in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the bring-down letter), the conclusions and findings of such firm with
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-21-
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respect to the financial information and other matters covered by the initial letter, (iii) covering financial information in the Prospectus and (iv) confirming in all material respects
the conclusions and findings set forth in the initial letter.
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(j)
|
At the time of execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, in form and substance reasonably
satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are and at all applicable times were independent registered public accountants with respect to the Company within the meaning
of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters
involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such
firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
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(k)
|
With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of
this Agreement (the “
E&Y initial letter
”), Ernst & Young LLP shall have furnished to the Representatives a letter (the “
E&Y bring-down letter
”) of such accountants, addressed to the
Underwriters and dated the Closing Date (i) confirming that they are and at all applicable times were independent public accountants with respect to the Company within the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the E&Y bring-down letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the E&Y bring-down letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the E&Y initial letter, (iii) covering financial information in the Prospectus and (iv) confirming in all material respects the conclusions and findings set forth in the E&Y
initial letter.
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(l)
|
At the time of execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers LLP a letter, in form and substance
reasonably satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they were at all applicable times independent registered public accountants with respect to Transatlantic Holdings, Inc.
within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus, as of
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-22-
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a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by
accountants’ “comfort letters” to underwriters in connection with registered public offerings.
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(m)
|
With respect to the letter of PricewaterhouseCoopers LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of
this Agreement (the “
PWC initial letter
”), PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter (the “
PWC bring-down letter
”) of such accountants, addressed to the
Underwriters and dated the Closing Date (i) confirming that they were at all applicable times independent public accountants with respect to Transatlantic Holdings, Inc. within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the PWC bring-down letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date of the PWC bring-down letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the PWC initial letter, (iii) covering financial information in the Prospectus and (iv) confirming in all material respects the conclusions and findings set forth in the PWC initial
letter.
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(n)
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The Company shall have furnished to the Representatives a certificate, dated the Closing Date, of any two of its President, Senior Vice President-Finance or Treasurer
to the effect that:
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(A) The representations and warranties of the Company in Section 1 that
are qualified by materiality or similar qualifiers are true and correct on and as of the Closing Date and the representations and warranties of the Company in Section 1 that are not qualified by materiality or similar qualifiers are true and
correct in all material respects on and as of the Closing Date, and the Company has complied in all material respects with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(B) No stop order suspending the effectiveness of the Registration Statement has
been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement
or any post-effective amendment thereto; and
(C) They have examined the Registration Statement, the Prospectus
and the Pricing Disclosure Package, and, in their opinion, (1) the Registration Statement, as of each Effective Date, (2) the Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, and (3) the Pricing
Disclosure Package, as of the Applicable Time and as of the Closing Date, did not and do not
-23-
contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case
of the Registration Statement, in the light of the circumstances under which they were made) not misleading.
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(o)
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At the time of execution of this Agreement, the Company shall have furnished to the Representatives a certificate, dated the Closing Date, of its Chief Financial
Officer, in form and substance satisfactory to the Underwriters, substantially in the form attached hereto as Exhibit A-4.
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(p)
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Except as described in the Pricing Disclosure Package and the Prospectus, (i) neither the Company nor any of its subsidiaries shall have sustained, since the date
of the latest audited financial statements incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree or (ii) since such date, except for the issuance of shares of Common Stock by the Company in connection with, and except as a result of, the Transatlantic Acquisition, there shall not
have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations,
stockholders’ equity, business or properties of the Company and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the reasonable judgment of
the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or sale of the Securities being delivered on the Closing Date on the terms and in the manner contemplated in the Pricing Disclosure
Package, the Prospectus or this Agreement.
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(q)
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Subsequent to the execution and delivery of this Agreement, (i) no downgrade in the rating of the Company or any of its Material Insurance Subsidiaries (as defined
below) or their respective financial strength or claims paying ability or the rating of any of the Company’s securities by A.M. Best Company, Inc. (“
A.M. Best
”) or by any other “nationally recognized statistical
rating organization”, as that term is defined in Section 3(a)(62) of the Exchange Act (together with A.M. Best, the “
Rating Agencies
”) shall have occurred or be pending and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Company or any of its Material Insurance Subsidiaries or their respective financial strength or claims paying ability or the rating
of any of the Company’s securities. As used herein, “
Material Insurance Subsidiaries
” means those subsidiaries listed on
Schedule 5
attached hereto.
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(r)
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Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally
on the New York Stock Exchange or the NASDAQ National Market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been
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-24-
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suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal or New York state authorities,
(iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of international
conditions on the financial markets in the United States shall be such), as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offering or sale of the Securities being delivered on the Closing Date
on the terms and in the manner contemplated in the Pricing Disclosure Package, the Prospectus or this Agreement.
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All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
8.
Indemnification and Contribution
.
(a) The Company shall indemnify and hold harmless each Underwriter, its affiliates,
directors, officers, members and employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Securities), to which that Underwriter or that affiliate, director, officer, member, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in (A) the
Preliminary Prospectus, the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment or supplement thereto or (C) any Permitted Issuer Information used or
referred to in any “free writing prospectus” (as defined in Rule 405) used or referred to by any Underwriter or (ii) the omission or alleged omission to state in the Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information, any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse each Underwriter and each such director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by the Underwriter or that affiliate,
director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred;
provided
,
however
, that the
Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the
Preliminary Prospectus or
-25-
the Prospectus, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Underwriter or to
any affiliate, director, officer, member, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally
and not jointly, shall indemnify and hold harmless the Company, its directors, officers and employees, and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof, to which the Company or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Prospectus or the Prospectus, or (ii) the omission or alleged omission to
state in the Preliminary Prospectus or the Prospectus, any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability that any Underwriter may
otherwise have to the Company or any such director, officer, employee or controlling person of the Company.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the claim or the commencement of that action;
provided
,
however
, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have
under this Section 8 except to the extent it has been materially prejudiced by such failure and,
provided
,
further
, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with one counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable costs of investigation;
provided
,
however
, that the indemnified party shall have the right to employ one counsel to represent jointly the indemnified party and those
other indemnified parties and their respective directors, officers, members, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought under this Section 8 if
(i) the indemnified party and the indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party;
-26-
(iii) the indemnified party and its directors, officers, members, employees and controlling persons shall have reasonably concluded that there may be legal defenses available to them that are
different from or in addition to those available to the indemnifying party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnified parties or their respective directors, officers,
members, employees or controlling persons, on the one hand, and the indemnifying party, on the other hand, and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between
them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying party as incurred. No indemnifying party shall (i) without the prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include any
findings of fact or admissions of fault or culpability as to the indemnified party, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled
with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any reason be
unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company, on the one hand, and the Underwriters, on the other, from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other, with respect to the statements or
omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the
other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Securities purchased under this Agreement (before deducting expenses) received by the Company, as set forth in the
table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the principal amount of Securities purchased under this Agreement, as set forth in the
table on the cover page of the Prospectus, on the other hand. The relative fault of the Company, on the one hand, and the Underwriters, on the other, shall be determined by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were to be determined by pro rata allocation (even if the Underwriters were treated as
-27-
one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Underwriter shall be required to contribute any amount in excess of the amount by which
the net proceeds from the sale of the Securities underwritten by it exceeds the amount of any damages that such Underwriter has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute as provided in this Section 8(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm, and the Company acknowledges and agrees, that the statements set forth in the concession figure appearing in the first paragraph under the caption
“Underwriting – Commissions and Discounts”, the third sentence in the first paragraph under the caption “Underwriting - New Issue of Notes” and the first paragraph under the caption “Underwriting - Short
Positions” in the Preliminary Prospectus and the Prospectus, are correct and constitute the only information concerning such Underwriters furnished in writing to the Company by or on behalf of the Underwriters specifically for inclusion in the
Preliminary Prospectus or the Prospectus.
9.
Termination
. The obligations of the Underwriters hereunder may be
terminated by the Representatives by written notice given to and received by the Company prior to delivery of and payment for the Securities if, prior to that time, any of the events described in Sections 7(p), 7(q) and 7(r) shall have occurred, or
if the Underwriters shall decline to purchase the Securities for any reason permitted under this Agreement.
10.
Default of
One or More of the Several Underwriters.
If, on the Closing Date any one or more of the several Underwriters shall fail or refuse to purchase Securities that it or they have agreed to purchase hereunder on such date, and the aggregate principal
amount which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate principal amount of the Securities to be purchased on such date, the other Underwriters shall be obligated,
severally, in the proportions that the principal amount of Securities set forth opposite their respective names on Schedule 1 bears to the aggregate principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as may be specified by the Representatives with the consent of the non-defaulting Underwriters, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on
such date. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Securities and the aggregate principal amount of Securities with respect to which such default occurs exceeds 10% of the aggregate principal
amount of Securities to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party except that the provisions of Section 6, Section 8, and Section 11 shall at all
-28-
times be effective and shall survive such termination. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer
than seven days in order that the required changes, if any, to the Registration Statement and the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
11.
Reimbursement of Underwriters’ Expenses
. If (a) the Company shall fail to tender the Securities for delivery to the Underwriters by reason of any failure, refusal or inability on the
part of the Company to perform any agreement to be performed on its part hereunder, or because any other condition of the obligations hereunder required to be fulfilled by the Company is not fulfilled for any reason, or (b) the Underwriters
shall decline to purchase the Securities for any reason permitted under this Agreement, the Company will reimburse the Underwriters for all reasonable out-of-pocket expenses (including reasonable fees and disbursements of one counsel) not to exceed
$250,000 incurred by the Underwriters in connection with this Agreement and the proposed purchase of the Securities and upon demand the Company shall pay the full amount thereof to the Representatives.
12.
Research Analyst Independence
. The Company acknowledges that the Underwriters’ research analysts and research departments
are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by
law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from
or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the Company.
13.
No Fiduciary Duty
. The Company acknowledges and agrees that in connection with this offering, sale of the Securities or any
other services the Underwriters may be deemed to be providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the
Underwriters: (i) no fiduciary or agency relationship between the Company and any other person, on the one hand, and the Underwriters, on the other, exists; (ii) the Underwriters are not acting as advisors, expert or otherwise, to the
Company, including, without limitation, with respect to the determination of the public offering price of the Securities, and such relationship between the Company, on the one hand, and the Underwriters, on the other, is entirely and solely
commercial, based on arms-length negotiations; (iii) any duties and obligations that the Underwriters may have to the Company shall be limited to those duties and obligations specifically
-29-
stated herein; and (iv) the Underwriters and their respective affiliates may have interests that differ from those of the Company. The Company hereby waives any claims that the Company may
have against the Underwriters with respect to any breach of fiduciary duty in connection with this offering. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Underwriters and shall not be on behalf of the Company.
14.
Notices, Etc
. All
statements, requests, notices and agreements hereunder shall be in writing, and:
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(a)
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if to the Underwriters, shall be delivered or sent by mail to Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Facsimile
(212) 507-8999, Attention: Investment Banking Division; U.S. Bancorp Investments, Inc., 214 N. Tryon Street,
26
th
Floor, Charlotte, North Carolina 28202; and Wells
Fargo Securities, LLC, 301 S. College Street, Charlotte, North Carolina 28288, Facsimile (704) 383-9165, Attention: Transaction Management; and
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(b)
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if to the Company, shall be delivered or sent by mail or facsimile transmission to the address of the Company c/o General Counsel.
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Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the Underwriters by the Representatives.
15.
Persons
Entitled to Benefit of Agreement
. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except that (A) the representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the directors, officers, members and employees of the
Underwriters and each person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act and (B) the indemnity agreement of the Underwriters contained in Section 8(b) of this Agreement shall
be deemed to be for the benefit of the directors of the Company, the officers of the Company who have signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 15, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.
16.
Survival
. The respective indemnities, representations, warranties and agreements of the Company and the
Underwriters contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any of them.
17.
Definition of the Terms
“Business Day” and “Subsidiary”
. For purposes of this Agreement, (a) “
business day
” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New
York are generally authorized or obligated by law or executive order to close and (b) “
subsidiary
” has the meaning set forth in Rule 405.
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18.
Governing Law
. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflicts of laws rules of such state.
19.
Waiver of Jury
Trial
.
THE COMPANY AND THE UNDERWRITERS HEREBY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
The Company and the Underwriters
agree that a final judgment in any such proceeding brought in any court shall be conclusive and binding upon the Company and the Underwriters, as applicable, and may be enforced in any other courts in the jurisdiction of which the Company or the
Underwriters are or may be subject, by suit upon such judgment.
20.
Counterpart
s
. This Agreement may be
executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument.
21.
Headings
. The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
-31-
If the foregoing correctly sets forth the agreement between the Company and the
Underwriters, please indicate your acceptance in the space provided for that purpose below.
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Very truly yours,
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ALLEGHANY CORPORATION
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By:
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/s/ Roger B. Gorham
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Name:
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Roger B. Gorham
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Title:
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Senior Vice President and Chief Financial Officer
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Accepted:
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MORGAN STANLEY & CO. LLC
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By:
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/s/ Yuri Slyz
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Name:
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Yuri Slyz
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Title:
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Executive Director
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U.S. BANCORP INVESTMENTS, INC.
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By:
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/s/ Chris Cicoletti
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Name:
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Chris Cicoletti
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Title:
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Managing Director
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WELLS FARGO SECURITIES, LLC
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By:
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/s/ Carolyn Hurley
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Name:
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Carolyn Hurley
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Title:
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Director
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-32-
Exhibit 4.1
ALLEGHANY CORPORATION
as Issuer
AND
THE BANK OF NEW YORK MELLON
as Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 26, 2012
Supplement to Indenture dated as of
September 20, 2010
Table of Contents
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Page
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A
RTICLE
1
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C
REATION
O
F
T
HE
N
OTES
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Section 1.01.
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Designation of Series
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1
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Section 1.02.
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Form of Note; Denomination
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2
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Section 1.03.
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Limit on Amount of Series
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2
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Section 1.04.
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Interest
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2
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Section 1.05.
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Certificate of Authentication
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3
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Section 1.06.
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No Sinking Fund
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3
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Section 1.07.
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Issuance in Global Form
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3
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Section 1.08.
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Other Terms Of Notes
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3
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Section 1.09.
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Additional Definitions
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3
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A
RTICLE
2
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R
EDEMPTION
O
F
N
OTES
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Section 2.01.
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Optional Redemption by the Company.
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5
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Section 2.02.
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Applicability of Article
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5
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A
RTICLE
3
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C
OVENANTS
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Section 3.01.
|
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Limitation on Liens; Disposition of Voting Stock.
|
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6
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A
RTICLE
4
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R
EPORTS
BY
THE
C
OMPANY
|
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Section 4.01.
|
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Amendment
|
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6
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|
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A
RTICLE
5
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E
VENTS
OF
D
EFAULT
|
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Section 5.01.
|
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Additional Events Of Default
|
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6
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Section 5.02.
|
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Amendment
|
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7
|
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|
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A
RTICLE
6
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A
MENDMENTS
, S
UPPLEMENTS
AND
W
AIVERS
|
|
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|
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Section 6.01.
|
|
With Consent of Holders
|
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7
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A
RTICLE
7
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D
EFEASANCE
AND
C
OVENANT
D
EFEASANCE
|
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Section 7.01.
|
|
Company’s Option to Effect Defeasance or Covenant Defeasance
|
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8
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- i -
|
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|
|
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Section 7.02.
|
|
Defeasance and Discharge
|
|
|
8
|
|
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Section 7.03.
|
|
Covenant Defeasance
|
|
|
8
|
|
|
Section 7.04.
|
|
Conditions to Defeasance or Covenant Defeasance
|
|
|
9
|
|
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Section 7.05.
|
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
|
|
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10
|
|
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Section 7.06.
|
|
Reinstatement
|
|
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11
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A
RTICLE
8
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M
ISCELLANEOUS
|
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Section 8.01.
|
|
Application of Second Supplemental Indenture
|
|
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11
|
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Section 8.02.
|
|
Effective Date
|
|
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11
|
|
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Section 8.03.
|
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Counterparts
|
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12
|
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Section 8.04.
|
|
Liability of the Trustee
|
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12
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- ii -
SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE, dated as of June 26, 2012 is entered into by and between ALLEGHANY CORPORATION, a Delaware
corporation, as issuer (the “Company”), and THE BANK OF NEW YORK MELLON, as Trustee under the Indenture (as hereinafter defined) (the “Trustee”).
RECITALS
WHEREAS,
the Company and the Trustee are parties
to that certain Indenture dated as of September 20, 2010 (the “Indenture,” all capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Indenture) providing for the issuance by the Company of
securities from time to time;
WHEREAS,
the Company and the Trustee are parties to a First Supplemental Indenture,
dated as of September 20, 2010, which modified the Indenture and provided for the issuance by the Company of a maximum of $300,000,000 aggregate principal amount of 5.625% Senior Notes due 2020;
WHEREAS
, the Company desires to issue a new series of Securities under the Indenture, and has duly authorized the creation and
issuance of such Securities and the execution and delivery of this Second Supplemental Indenture to modify the Indenture and provide certain additional provisions as hereinafter described;
WHEREAS
, the Company and the Trustee deem it advisable to enter into this Second Supplemental Indenture for the purposes of
establishing the terms of such series of Securities;
WHEREAS
, the execution and delivery of this Second Supplemental
Indenture has been authorized by a Board Resolution;
WHEREAS
, concurrent with the execution hereof, the Company has
delivered an Officers’ Certificate and has caused its counsel to deliver to the Trustee an Opinion of Counsel; and
WHEREAS
, all things necessary to make this Second Supplemental Indenture a valid agreement of the Company in accordance with its
terms have been done, and the execution and delivery thereof have been in all respects duly authorized by the parties hereto.
NOW, THEREFORE
, for and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually
agreed, for the equal and proportionate benefit of all Holders of the Notes (as hereinafter defined), as follows:
ARTICLE 1
C
REATION
O
F
T
HE
N
OTES
Section 1.01.
Designation of Series
.
Pursuant to the terms hereof and Section 301 of the Indenture, the Company
hereby creates a series of Securities designated as the “4.950% Senior Notes due 2022” (the “Notes”), which Notes shall be deemed “Securities” for all purposes under the Indenture.
Section 1.02.
Form of Note; Denomination
.
The Notes shall be
substantially in the form set forth in
Exhibit A
attached hereto, which is incorporated herein and made part hereof. The Stated Maturity of the principal amount of the Notes shall be June 27, 2022. The Company will issue the Notes
in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
Section 1.03.
Limit on Amount of
Series
.
The Notes shall not exceed U.S. $400,000,000 in aggregate principal amount, and may, upon the execution and delivery of this Second Supplemental Indenture or from time to time thereafter, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes upon a Company Order and delivery of an Officers’ Certificate and Opinion of Counsel as contemplated by Section 303 of the
Indenture. The Company may, from time to time, without notice to or the consent of the holders of the Notes, increase the principal amount of the series of Securities created hereby (in excess of U.S. $400,000,000 in aggregate principal amount) and
issue such increased principal amount (or any portion thereof), in which case any additional notes so issued will have the same form and terms (other than the date of issuance, the issue price and, under certain circumstances, the initial date from
which interest thereon will begin to accrue), and will carry the same right to receive accrued and unpaid interest, as the Notes, and such additional notes will form a single series with the Notes.
Section 1.04.
Interest
.
The Company shall pay interest on the aggregate principal amount of the Notes at
4.950% per annum until the principal amount of the Notes is paid or made available for payment. The Company shall pay interest, semi-annually in arrears on June 27 and December 27 of each year, or if any such day is not a Business
Day, on the next succeeding Business Day, commencing on December 27, 2012 (each an “Interest Payment Date”) and such interest shall be paid to the Person in whose name the Note is registered at the close of business on the Regular
Record Date (whether or not a Business Day) immediately preceding the Interest Payment Date. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from June 26, 2012. The
Company shall pay interest (including post-petition interest in any proceeding under any bankruptcy law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
Interest, including interest
payable at Stated Maturity, shall be payable at the office of the Company maintained by the Company for such purposes, which shall initially be the Corporate Trust Office, and may, as the Company shall specify to the Paying Agent in writing by each
Regular Record Date, be paid either (i) by check mailed or delivered to the Holders of the Notes at their respective addresses set forth in the Security Register or (ii) by wire transfer of immediately available funds to an account
previously specified in writing by the Holder to the Company and the Trustee;
provided, however
, that payments to the Depositary will be made by wire transfer of immediately available funds to the account of the Depositary or its nominee.
- 2 -
Payment upon maturity or redemption of a Note will cause interest to cease to accrue on such
Note. The Company cannot reissue a Note that has matured or been redeemed or otherwise cancelled, except for registration of transfer, exchange or replacement of such Note.
Section 1.05.
Certificate of Authentication
.
The Trustee’s certificate of authentication to be borne on the Notes shall be substantially as provided in the Form of Note attached
hereto as
Exhibit A
.
Section 1.06.
No Sinking Fund
.
No sinking fund will be provided with
respect to the Notes.
Section 1.07.
Issuance in Global Form.
The Notes shall be issued as one or more
Global Notes, representing the aggregate principal amount of the Notes, and shall be deposited with the Trustee as custodian for the Depositary. The Notes shall be registered in the name of Cede & Co., or other nominee of the Depositary.
Section 1.08.
Other Terms of Notes
.
The other terms of the Notes shall be as expressly set forth in
Article 1, Article 2, Article 3, Article 4, Article 5, Article 6 and Article 7 hereof and
Exhibit A
hereto.
The words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Second Supplemental Indenture as a whole and not to any particular Article,
Section or other subdivision.
Section 1.09.
Additional Definitions
.
For purposes of this Second
Supplemental Indenture, the following terms shall have the following definitions:
“Calculation Date”
means,
with respect to any Redemption Date, the third Business Day immediately preceding the Redemption Date.
“Comparable Treasury Issue”
means the U.S. Treasury security selected by the Independent Investment Banker as
having a maturity comparable to the remaining term (“Remaining Life”) of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the Remaining Life.
“Comparable Treasury Price”
means, with respect to
any Redemption Date, (1) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if fewer than four such Reference
Treasury Dealer Quotations are obtained, the average of all such Reference Treasury Dealer Quotations.
“Depositary”
means The Depository Trust Company, 55 Water Street, New York, New York.
“Global Note”
means a Security that evidences all or part of the Notes and bears the legend set forth in the Form of
Note attached hereto as
Exhibit A
.
- 3 -
“Independent Investment Banker”
means Morgan Stanley & Co. LLC,
U.S. Bancorp Investments, Inc. or Wells Fargo Securities, LLC, as specified by the Company, or, if these firms are unwilling or unable to select the comparable treasury issue, an independent investment banking institution of national standing
appointed by the Company.
“Interest Payment Date”
has the meaning set forth in Section 1 of the Form of
Note attached hereto as Exhibit A.
“Reference Treasury Dealer”
means (1) Morgan Stanley &
Co. LLC and a primary U.S. government securities dealer in New York City (a “Primary Treasury Dealer”) selected by each of (A) U.S. Bancorp Investments, Inc. and (B) Wells Fargo Securities, LLC and their respective
successors, provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer and (2) one other Primary Treasury Dealer selected by the Company.
“Reference Treasury Dealer Quotations”
means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
“Regular Record Date”
means the close of business on each of June 12 and December 12 of each year whether or not such day is a Business Day.
“Restricted Subsidiary”
means each present or future Subsidiary of the Company, the consolidated total assets of which constitute at least fifteen percent of the Company’s total
consolidated assets, together with each successor to any such Subsidiary; each such Subsidiary as of the date hereof being listed in
Schedule 1
to this Second Supplemental Indenture.
“Treasury Rate”
means, with respect to any Redemption Date, (i) the yield, under the heading which represents
the average for the week immediately preceding the Calculation Date, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of
the Federal Reserve System and which establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable
Treasury Issue (if no maturity is within three months before or after the Remaining Life, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be
interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or (ii) if such release (or any successor release) is not published during the week immediately preceding the Calculation Date or does not
contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for such Redemption Date.
“voting stock”
has the meaning as that term is
defined under the definition of “Subsidiary” under Section 101 of the Indenture.
- 4 -
ARTICLE 2
R
EDEMPTION
O
F
N
OTES
Pursuant to Section 301(8) of the Indenture, so long as any of the Notes are outstanding, the following provisions shall be
applicable to the Notes:
Section 2.01.
Optional Redemption by the Company
.
(a) At any time and from time to time, the Notes may be redeemed at the option of the Company for cash, in whole or in part, upon notice
as set forth in Section 1104 of the Indenture, at a redemption price equal to the greater of (a) the principal amount of the Notes or (b) the sum of the present values of the remaining scheduled payments of principal and interest on
the Notes to be redeemed (not including any portion of such payments of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the
applicable Treasury Rate plus 50 basis points,
plus
, in each case (a) and (b), accrued and unpaid interest on the principal amount of the Notes being redeemed to, but excluding, the date of redemption (the
“Redemption Price”). The date of any such redemption is known as the “Redemption Date”. The Treasury Rate will be calculated on the third Business Day immediately preceding the Redemption Date.
If the Company redeems fewer than all of the outstanding Notes, the Trustee will select the Notes to be redeemed in accordance with the
provisions of Section 1103 of the Indenture.
The Notes will be redeemed in integral multiples of $1,000 principal
amount.
The Company may not give notice of any redemption if the Company has defaulted in payment of interest and the default
is continuing.
(b) At or prior to the time of giving of any notice of redemption to the Holders of any Notes to be redeemed,
the Company shall deliver an Officers’ Certificate to the Trustee setting forth the calculation of the Redemption Price applicable to such redemption. The Trustee shall be under no duty to inquire into, may conclusively presume the
correctness of, and shall be fully protected in relying upon, the Redemption Price as so calculated and set forth in such Officers’ Certificate.
Section 2.02.
Applicability of Article
.
Redemption of the Notes at the election of the Company, as permitted by any provision of the Notes or this Second Supplemental Indenture, shall
be made in accordance with such provision, Article XI of the Indenture and this Article 2.
- 5 -
ARTICLE 3
C
OVENANTS
Pursuant to Section 901(2) of the
Indenture, so long as any of the Notes are outstanding, the following provisions shall be applicable to the Notes:
Section
3.01.
Limitation on Liens; Disposition of Voting Stock
.
(a) Neither the Company nor any Restricted Subsidiaries
may use any voting stock of a Restricted Subsidiary as security for any debt of the Company or other obligations unless all of the Notes are secured to the same extent as and for so long as that debt or other obligation is so secured, provided,
however that such restriction shall not apply to liens existing at the time a corporation becomes a Restricted Subsidiary or any renewal or extension of any such liens.
(b) Except in a transaction otherwise governed by the Indenture, neither the Company nor any Restricted Subsidiary may issue, sell, assign, transfer or otherwise dispose of any of the voting stock of a
Restricted Subsidiary so long as any Note remains outstanding. Notwithstanding the foregoing, this limitation shall not apply to any of the following:
(i) any issuance, sale, assignment, transfer or other disposition made in compliance with the order of a court or regulatory authority, unless the order was requested by the Company or a Restricted
Subsidiary;
(ii) the disposition of any of the voting stock of a Restricted Subsidiary owned by the Company or
by a Restricted Subsidiary for cash or other property having a fair market value that is at least equal to the fair market value of the disposed stock, as determined in good faith by the Board of Directors of the Company; or
(iii) the issuance, sale, assignment, transfer or other disposition of the voting stock of a Restricted Subsidiary made to
the Company or another Restricted Subsidiary.
ARTICLE 4
R
EPORTS
BY
THE
C
OMPANY
Section 4.01.
Amendment
.
Section 704 of the Indenture is hereby amended solely with respect to the series of
Securities that consists of the Notes, to read as follows:
The Company shall file with the Trustee, within 15 days after
it files such annual and quarterly reports, information, documents and other reports with the Securities and Exchange Commission (the “Commission”), copies of its annual and quarterly report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) which the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended. The Company also shall comply with the other provisions of Trust Indenture Act Section 314(a).
ARTICLE 5
E
VENTS
OF
D
EFAULT
Section 5.01.
Additional Events Of Default
.
Pursuant to Sections 301(16) and 501(7) of the Indenture, so long as
any of the Notes are outstanding, the following shall be an Event of Default with respect to the Notes, in addition to the Events of Default contained in Section 501 of the Indenture:
(a) The Company defaults in the payment of the principal amount or Redemption Price with respect to any Note when such becomes due
and payable.
- 6 -
(b) The Company defaults in payment of any accrued and unpaid interest which default
continues for 30 days.
Section 5.02.
Amendment
.
Section 501 of the Indenture is hereby amended
solely with respect to the series of Securities that consists of the Notes, as follows:
(a) By amending paragraph (4) of
Section 501 by deleting the number “90” appearing therein and replacing it with number “60” and by adding the words “of that series” immediately after the words “Outstanding Securities” appearing therein.
(b) By deleting the period at the end of paragraph (7) of Section 501 and replacing it with “; or”, and
adding the following paragraph immediately after paragraph (7) in Section 501:
(8) if any event of default, as
defined in any mortgage, senior indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any indebtedness of the Company for money borrowed, whether such indebtedness now exists or shall hereafter be
created, shall happen and shall result in such indebtedness in principal amount in excess of $70,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such acceleration shall not
be rescinded or annulled within a period of 30 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series, a written notice specifying such event of default and requiring the Company to cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder.
ARTICLE 6
A
MENDMENTS
, S
UPPLEMENTS
AND
W
AIVERS
Section 6.01.
With Consent of Holders
.
Pursuant to Section 902 of the Indenture, so long as any of the Notes are outstanding, without the consent of each Holder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 513 of the Indenture, may not (in addition to the events described in paragraphs (1)
through (3)
of Section 902 of the Indenture)
make any change that impairs or adversely affects the right of a Holder to institute suit for the enforcement of any payment with respect to the Notes.
- 7 -
ARTICLE 7
D
EFEASANCE
AND
C
OVENANT
D
EFEASANCE
Section 7.01.
Company’s Option to Effect Defeasance or Covenant Defeasance
.
The Company may elect, at its option at any time, to have Section 7.02 or Section 7.03 applied
to the Notes (as a whole and not in part) upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution.
Section 7.02.
Defeasance and Discharge
.
Upon the Company’s exercise of its option to have this Section applied to the Notes (as a whole and not in part), the Company shall be
deemed to have been discharged from its obligations with respect to the Notes as provided in this Section on and after the date the conditions set forth in Section 7.04 are satisfied (hereinafter called “Defeasance”). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all its other obligations under the Notes, this Second Supplemental Indenture and the
Indenture insofar as the Notes are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments (in form and substance reasonably acceptable to the Trustee) acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of Notes to receive, solely from the trust fund described in Section 7.04 and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on the Notes when payments are due, (2) the Company’s obligations with respect to the Notes under Sections 304, 305, 306, 1002 and 1003 of the Indenture, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its option to have this Section applied to the Notes (as a whole and not in part) notwithstanding the prior
exercise of its option to have Section 7.03 applied to the Notes.
Section 7.03.
Covenant
Defeasance
.
Upon the Company’s exercise of its option to have this Section applied to the Notes (as a whole and not in part), (i) the Company shall be released from its obligations under Section 3.01 of this Second
Supplemental Indenture and any covenant provided pursuant to Section 901(2) of the Indenture for the benefit of the Holders of the Notes and (ii) the occurrence of any event specified in Section 501(4) of the Indenture (with respect
to Section 3.01 of this Second Supplemental Indenture and any such covenants provided pursuant to Section 901(2) of the Indenture for the benefit of the Holders of the Notes) or Section 501(8) of the Indenture added by
Section 5.02 of this Second Supplemental Indenture, shall be deemed not to be or result in an Event of Default, in each case with respect to the Notes as provided in this Section on and after the date the conditions set forth in
Section 7.04 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to the Notes, the Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 501(4) or 501(8) of the Indenture), whether directly or indirectly, by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of the Indenture, this Second Supplemental Indenture and the Notes shall be unaffected thereby.
- 8 -
Section 7.04.
Conditions to Defeasance or Covenant Defeasance
.
The
following shall be the conditions to the application of Section 7.02 or Section 7.03 to the Notes:
(a) The Company
shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 of the Indenture and agrees to comply with the provisions of this Article applicable to
it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of the Notes, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) 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, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of, premium, if any, and any installment of interest on the Notes on the respective Stated Maturities, in accordance with the terms of the Indenture, this Second Supplemental
Indenture and the Notes. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment 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 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 (y) any depositary receipt issued by a bank (as defined in Section 3(a) (2) of
the Securities Act of 1933, as amended) as custodian with respect to any U.S. Government Obligation which is specified in clause (x) 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 U.S. Government Obligation which is so specified 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 U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(b) In the event of an election to have Section 7.02 apply to the Notes, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with
respect to the Notes and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(c) In the event of an election to have Section 7.03 apply to the Notes, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Notes will not recognize gain or loss for federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to the Notes and will be subject to federal income
tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
- 9 -
(d) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Notes shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(5) and (6) of the Indenture, at any time on or prior to the 90th day after
the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(e) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act with respect to any securities of the Company.
(f) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by which it is bound.
(g) The Company shall have delivered
to the Trustee an Opinion of Counsel (which opinion may be subject to customary assumptions and exceptions) to the effect that after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally.
(h) The Company shall have
delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Notes over the other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others.
(i) No event or condition shall exist that would prevent the
Company from making payments of the principal of, premium, if any, and interest on the Notes on the date of such deposit or at any time ending on the 91st day after the date of such deposit.
(j) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act of 1940, as amended, unless such trust shall be registered under such Act or exempt from registration thereunder.
(k) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent under this Second Supplemental Indenture to either
Defeasance or Covenant Defeasance, as the case may be, have been complied with.
Section 7.05.
Deposited Money and
U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions
.
Subject to the provisions of the last paragraph of Section 1003 of the Indenture, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 7.06, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to
Section 7.04 in respect of the Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes, this Second Supplemental Indenture and the
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Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of the Notes, of
all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 7.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Notes.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in Section 7.04 with respect to the Notes which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to the Notes.
Section 7.06.
Reinstatement
.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Note by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under the Indenture, this Second Supplemental Indenture
and the Notes from which the Company has been discharged or released pursuant to Section 7.02 or 7.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Note, until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 7.05 with respect to such Note in accordance with this Article;
provided
,
however
, that if the Company makes any payment of principal of or
any premium or interest on any such Note following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Note to receive such payment from the money so held in trust.
ARTICLE 8
M
ISCELLANEOUS
Section 8.01.
Application of Second Supplemental Indenture
.
Each and every term and condition contained in this Second Supplemental Indenture that modifies, amends or supplements the
terms and conditions of the Indenture shall apply only to the Notes created hereby and not to any future series of Securities established under the Indenture. Except as specifically amended and supplemented by, or to the extent inconsistent with,
this Second Supplemental Indenture, the Indenture shall remain in full force and effect and is hereby ratified and confirmed.
Section 8.02.
Effective Date
.
This Second Supplemental Indenture shall be effective as of the date first above written
and upon the execution and delivery hereof by each of the parties hereto.
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Section 8.03.
Counterparts
.
This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 8.04.
Liability of the Trustee
.
The Trustee accepts the amendment of the Indenture effected by this Second
Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended. Without limiting the generality of the
foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, or for or with respect to
(i) the validity, efficacy, or sufficiency of this Second Supplemental Indenture or any of the terms or provisions hereof, (ii) the proper authorization hereof by the Company by corporate action or otherwise, or (iii) the due
execution hereof by the Company, and the Trustee makes no representation with respect to any such matters.
[Signature page
follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed by their respective officers hereunto duly authorized, all as of the day and year first above written.
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ALLEGHANY CORPORATION
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By:
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/s/ Roger B. Gorham
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Name:
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Roger B. Gorham
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Title:
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Senior Vice President – Finance and Investments and Chief Financial Officer
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THE BANK OF NEW YORK MELLON, as Trustee
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By:
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/s/ Francine Kincaid
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Name:
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Francine Kincaid
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Title:
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Vice President
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SCHEDULE 1
List of Restricted Subsidiaries
RSUI Indemnity Company
RSUI Group, Inc.
Alleghany Insurance Holdings LLC
Transatlantic Reinsurance Company
Transatlantic Holdings, Inc.
EXHIBIT A
[Face of Security]
4.950% Senior Notes due 2022
If the registered owner of this
security is The Depository Trust Company or a nominee thereof, the following legend is applicable: THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY
(AS HEREINAFTER DEFINED) OR A NOMINEE OF THE DEPOSITARY OR A SUCCESSOR DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET,
NEW YORK, NEW YORK) (THE “DEPOSITARY,” OR “DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY
BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.
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CUSIP No. 017175AC4/US017175AC41
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$400,000,000
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ALLEGHANY CORPORATION, a Delaware corporation, promises to pay to Cede & Co. or registered
assigns, the principal amount of FOUR HUNDRED MILLION and no/100 Dollars ($400,000,000) on June 27, 2022.
Interest
Payment Dates: June 27 and December 27, commencing December 27, 2012.
Record Dates: June 12 and
December 12.
Reference is hereby made to the further provisions of this Security set forth on the reverse side of this
Security, which further provisions shall for all purposes have the same effect as if set forth at this place.
IN WITNESS
WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
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ALLEGHANY CORPORATION
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By:
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Name:
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Title:
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Dated:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON, as Trustee
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By:
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Name:
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Title:
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[Back of Security]
4.950% Senior Notes due 2022
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1.
INTEREST.
Alleghany Corporation, a Delaware corporation (the “Company”) promises to pay interest on the
principal amount of the Notes at 4.950% per annum until the principal amount of the Notes is paid or made available for payment. The Company shall pay interest, semi-annually in arrears on June 27 and December 27 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an “Interest Payment Date”), commencing on December 27, 2012. Interest on the Notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from June 26, 2012. The Company shall pay interest (including post-petition interest in any proceeding under any bankruptcy law) on overdue principal from time to time on demand at a rate equal to the per annum
rate on the Notes then in effect; it shall pay interest (including post-petition interest in any proceeding under any bankruptcy law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
2.
METHOD OF PAYMENT.
Except as provided below, interest will be paid (i) on any Global Notes to DTC by wire transfer of immediately available funds to the account of DTC or its nominee and (ii) on any definitive Notes (A) by
check mailed or delivered to the Holders of the Notes at their respective addresses set forth in the Security Register or (B) by wire transfer of immediately available funds to an account previous specified in writing by the Holder to the
Company and the Trustee.
The Company may pay interest, including interest payable at Stated Maturity, on definitive Notes at
the Company’s office or agency, which initially will be the Corporate Trust Office of the Trustee in The City of New York.
Principal on definitive Notes will be payable, upon Stated Maturity or when due, at the office or agency of the Company, maintained for such purpose, initially the Corporate Trust Office of the
Trustee in The City of New York.
Subject to the terms and conditions of the Indenture, the Company will make payments in cash
in respect of Redemption Prices and at Stated Maturity to Holders who surrender Notes to a Paying Agent to collect such payments in respect of the Notes. The Company will pay cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts.
3.
PAYING AGENT AND SECURITY
REGISTRAR.
Initially, The Bank of New York Mellon will act as Paying Agent and Security Registrar. The Company may appoint and change any Paying Agent, Security Registrar or co-registrar without notice, other than notice to the Trustee. The
Company or any of its Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion Agent, Security Registrar or co-registrar.
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4.
INDENTURE.
The Company issued the Notes under an Indenture, dated as of
September 20, 2010 (the “Base Indenture”), as supplemented by the Second Supplemental Indenture dated as of June 26, 2012 (the “Second Supplemental Indenture” and, together with the Base Indenture, the
“Indenture”), between the Company and The Bank of New York Mellon, as trustee (the “Trustee”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. The Notes issued under the Indenture are general unsecured obligations of the Company limited to
$400,000,000 in aggregate principal amount.
5.
OPTIONAL REDEMPTION.
At any time and from time to time, the
Company may redeem in cash any portion of the Notes, in whole or in part, at a Redemption Price equal to the greater of (a) the principal amount of the Notes or (b) the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes to be redeemed (not including any portion of such payments of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve
30-day months) at the applicable Treasury Rate plus 50 basis points,
plus
, in each case (a) and (b), accrued and unpaid interest on the principal amount of the Notes being redeemed to, but excluding, the date of redemption (the
“Redemption Price”). The date of any such redemption is known as the “Redemption Date”. The Treasury Rate will be calculated on the third Business Day immediately preceding the Redemption Date.
As used in this Note the following terms have the definitions set forth herein:
“Calculation Date”
means, with respect to any Redemption Date, the third Business Day immediately preceding the
Redemption Date.
“Comparable Treasury Issue”
means the U.S. Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining term (“Remaining Life”) of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the Remaining Life.
“Comparable Treasury
Price”
means, with respect to any Redemption Date, (1) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or
(2) if fewer than four such Reference Treasury Dealer Quotations are obtained, the average of all such Reference Treasury Dealer Quotations.
“Independent Investment Banker”
means Morgan Stanley & Co. LLC, U.S. Bancorp Investments, Inc. or Wells Fargo Securities, LLC, as specified by the Company, or, if these firms are
unwilling or unable to select the comparable treasury issue, an independent investment banking institution of national standing appointed by the Company.
“Reference Treasury Dealer”
means (1) Morgan Stanley & Co. LLC and a primary U.S. government securities dealer in New York City (a “Primary Treasury Dealer”)
selected by each of (A) U.S. Bancorp Investments, Inc. and (B) Wells Fargo Securities, LLC and
A-5
their respective successors, provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer and
(2) one other Primary Treasury Dealer selected by the Company.
“Reference Treasury Dealer Quotations”
means, with respect to each Reference Treasury Dealer and any Redemption Date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Treasury Rate”
means, with respect to any Redemption Date, (i) the yield, under the heading which represents the average for the week immediately preceding the Calculation
Date, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on
actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or
after the Remaining Life, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from such yields on a straight line basis,
rounding to the nearest month); or (ii) if such release (or any successor release) is not published during the week immediately preceding the Calculation Date or does not contain such yields, the rate per annum equal to the semiannual
equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
In the event the Company redeems less than all of the outstanding Notes, the Notes to be redeemed shall be selected by the
Trustee in accordance with Section 1103 of the Indenture. The Company may not give notice of any redemption if the Company has defaulted in payment of interest and the default is continuing.
6.
NOTICE OF REDEMPTION.
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of the Notes to be redeemed at such Holder’s address of record. The Notes in denominations larger than $1,000 may be redeemed in part but only in integral multiples of $1,000. On and after redemption of a
Note pursuant to Section 5 and 6, interest shall cease to accrue on such Note.
7.
NO MANDATORY
REDEMPTION.
The Company shall not be required to make mandatory redemption payments with respect to the Notes. There are no sinking fund payments with respect to the Notes.
8.
DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are in registered form without coupons in minimum denominations of $2,000 and
integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Security Registrar may require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by the Indenture.
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9.
PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as
its owner for all purposes.
10.
AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions set forth in the
Indenture, (i) the Second Supplemental Indenture or the Notes may be amended with the written consent of the Holders of a majority in aggregate principal amount of the Notes at the time outstanding and (ii) certain defaults under the
Second Supplemental Indenture or the Notes may be waived with the written consent of the Holders of a majority in aggregate principal amount of the Notes at the time outstanding. Without the consent of any Holder of the Notes, the Second
Supplemental Indenture or the Notes may be amended or supplemented, in addition to other events more fully described in the Indenture, to cure any ambiguity, to correct or supplement any provision in the Indenture which may be defective or
inconsistent with any other provision or to make any other provisions with respect to matters or questions arising under the Indenture, provided such other provisions as may be made shall not adversely affect the interests of the Holders of
Securities of any series in any material respect, to establish the form or terms of the Securities, to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company contained
in the Indenture and to secure the Securities.
11.
DEFAULTS AND REMEDIES.
If any Event of Default with respect to
the Notes shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
12.
TRUSTEE DEALINGS WITH COMPANY.
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
13.
NO RECOURSE AGAINST OTHERS.
A director, officer, employee, incorporator or shareholder of the Company, as
such, shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases
all such liability including any rights against any such person in its capacity relating to the Company. The waiver and release are part of the consideration for the issuance of the Notes.
14.
AUTHENTICATION.
This Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
15.
ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
16.
CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures,
the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a
A-7
convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
17.
UNCLAIMED MONEY OR SECURITIES.
The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities held by them for the payment of any amount with respect to the Notes that remains unclaimed for three years, subject to applicable laws. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment as general creditors, subject to applicable laws.
18.
DEFEASANCE.
Subject to certain conditions set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Second Supplemental
Indenture if the Company deposits with the Trustee money or U.S. Government Obligations for payment of principal and interest on the Notes to the Stated Maturity.
19.
GOVERNING LAW.
THE INDENTURE AND THE NOTES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
Alleghany Corporation
7 Times Square Tower
New York, NY 10036
Attn: Christopher K. Dalrymple
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Insert assignee’s soc. sec. or tax ID no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the other side of this Security)
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