EXHIBIT 4.5
XL CAPITAL LTD
FORM OF
[NOTE: FORM TO BE REVISED, AS APPROPRIATE, TO REFLECT SECURITIES ACT REFORM]
, dated as of [_________ __], 2009 (the "Agreement")
by and between XL Capital Ltd, a Cayman Islands exempted limited company (the
"Company"), and [________] (the "Remarketing Agent"), and confirmed and accepted
by The Bank of New York, not individually but solely as Purchase Contract Agent
(the "Purchase Contract Agent") and as attorney-in-fact of the Holders of
Purchase Contracts (as defined in the Purchase Contract Agreement (as defined
herein)).
WHEREAS, the Company issued an aggregate of 29,800,000 of its Normal
Units (the "Normal Units") under the Purchase Contract Agreement, dated as of
December 9, 2005, by and between the Purchase Contract Agent and the Company
(the "Purchase Contract Agreement"); and
WHEREAS, the 5.25% Senior Notes due 2011 forming a part of the Units (the
"Notes") have been pledged pursuant to the Pledge Agreement (the "Pledge
Agreement"), dated as of December 9, 2005, by and among the Company, The Bank of
New York, as collateral agent (the "Collateral Agent"), custodial agent and
securities intermediary and The Bank of New York, as Purchase Contract Agent, to
secure the obligations of Holders of Normal Units under the related Purchase
Contracts on the Stock Purchase Date; and
WHEREAS, the Remarketing Agent will attempt on February 3, 2009 (the
"Remarketing Date") to remarket all of (i) the Notes of Holders of Normal Units
and (ii) the Separate Notes of Holders who elect to participate in the
remarketing, pursuant respectively to the procedures set forth in Section 5.4(b)
of the Purchase Contract Agreement, Section 4.5(d) of the Pledge Agreement and
Sections 2.19 and 2.20 of the Third Supplemental Indenture, dated as of December
9, 2005, between the Company and The Bank of New York, as trustee (the
"Supplemental Indenture"), to the Indenture, dated as of June 2, 2004 (the "Base
Indenture"), between the Company and The Bank of New York, as trustee (each of
which Sections is incorporated herein by reference); and
WHEREAS, in the event the remarketing on the Remarketing Date is
unsuccessful, the Remarketing Agent will remarket the Notes to be included in
the remarketing on February 4, 2009, and, if necessary, will attempt to remarket
such Notes on February 5, 2009 and, if necessary, will attempt to remarket such
Notes on February 6, 2009 and, if necessary, will attempt to remarket such Notes
on February 9, 2009 and, if
necessary, will attempt to remarket such Notes on February 10, 2009 and, if
necessary, will attempt to remarket such Notes on February 11, 2009 (any such
date after the Remarketing Date on which a subsequent remarketing is attempted,
a "Subsequent Remarketing Date"); and
WHEREAS, in the event of a successful remarketing on the Remarketing Date
or any Subsequent Remarketing Date, as the case may be, the applicable interest
rate on the Remarketed Notes (as defined below) included in such successful
remarketing will be reset on the settlement date of such Remarketing Date or
Subsequent Remarketing Date to the rate determined by the Remarketing Agent in
good faith that will result in the aggregate market value of the Remarketed
Notes to equal 100.25% of the aggregate principal amount of such Remarketed
Notes, as of such Remarketing Date or Subsequent Remarketing Date (the "Reset
Rate"), provided that the Reset Rate shall be limited to the maximum rate
permitted by applicable law; and
WHEREAS, the Company has requested [________] to act as the Remarketing
Agent, and as such to perform the services described herein; and
WHEREAS, [________] is willing to act as the Remarketing Agent and as
such to perform such duties on the terms and conditions expressly set forth
herein;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. DEFINITIONS.
(a) Capitalized terms used and not defined in this Agreement, in the
recitals hereto or in the paragraph preceding such recitals shall have the
meanings assigned to them in the Purchase Contract Agreement or, if not therein
defined, the Pledge Agreement.
(b) As used in this Agreement, the following terms have the following
meanings:
"Preliminary Prospectus" means any preliminary prospectus relating
to the Remarketed Notes included in the Registration Statement (including
any preliminary prospectus supplement), including the documents
incorporated by reference therein as of the date of such Preliminary
Prospectus; and any reference to any amendment or supplement to such
Preliminary Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus, under the
Exchange Act, and incorporated by reference in such Preliminary
Prospectus.
"Prospectus" means the prospectus relating to the Remarketed Notes
(including any prospectus supplement), in the form in which first filed,
or transmitted for filing, with the Commission after the effective date
of the Registration Statement pursuant to Rule 424(b), including the
documents incorporated by reference therein as of the date of such
Prospectus; and any
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reference to any amendment or supplement to such Prospectus shall be
deemed to refer to and include any documents filed after the date of such
Prospectus, under the Exchange Act, and incorporated by reference in such
Prospectus.
"Registration Statement" means a registration statement under the
Securities Act of 1933, as amended (the "Securities Act") filed and
prepared by the Company covering, inter alia, the Remarketing of the
Remarketed Notes pursuant to Section 5(a) hereunder, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in such registration statement, and any
post-effective amendments thereto.
"Remarketed Notes" means the Pledged Notes and the Separate Notes,
if any, subject to Remarketing as identified to the Remarketing Agent by
the Purchase Contract Agent and the Custodial Agent, respectively, prior
to 10:00 a.m., New York City time, on the Business Day immediately
preceding the Remarketing Date, and shall include: (a) the Notes of the
Holders of Normal Units who have not notified the Purchase Contract Agent
prior to 5:00 p.m. on the thirteenth Business Day prior to the Stock
Purchase Date of their intention to effect a Cash Settlement of the
related Purchase Contracts pursuant to the terms of the Purchase Contract
Agreement or who have so notified the Purchase Contract Agent but failed
to make the required cash payment on the thirteenth Business Day prior to
the Stock Purchase Date pursuant to the terms of the Purchase Contract
Agreement, and (b) the Separate Notes of the holders of Separate Notes,
if any, who have elected to have their Separate Notes be remarketed in
such Remarketing pursuant to the terms of the Purchase Contract Agreement
and the Supplemental Indenture.
"Remarketing" means the remarketing of the Remarketed Notes
pursuant to this
"Remarketing Agent" means [________] appointed as the Remarketing
Agent by the Company pursuant to Section 2(a) hereof.
"Remarketing Materials" means the Preliminary Prospectus and the
Prospectus furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing.
"Transaction Documents" means this Agreement, the Purchase
Contract Agreement, the Pledge Agreement, the Indenture and the
Supplemental Indenture, in each case as amended or supplemented from time
to time.
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Section 2. APPOINTMENT AND OBLIGATIONS OF REMARKETING AGENT.
(a) The Company hereby appoints [________] and [________] hereby
accepts such appointment, (i) as the Remarketing Agent to determine, in
consultation with the Company, in the manner provided for herein, in the
Purchase Contract Agreement and in the Notes, the Reset Rate that, in the
opinion of the Remarketing Agent, will, when applied to the Remarketed Notes,
enable the aggregate market value of the Remarketed Notes equal 100.25% of the
aggregate principal amount of such Remarketed Notes as of the Remarketing Date
or as of any Subsequent Remarketing Date, as the case may be, and (ii) as the
exclusive Remarketing Agent (subject to the right of such Remarketing Agent to
appoint additional remarketing agents hereunder as described below) to remarket
the Remarketed Notes to be included in the remarketing on the Remarketing Date,
and, if necessary, on February 4, 2009 and, if necessary, on February 5, 2009
and, if necessary, on February 6, 2009 and, if necessary, on February 9, 2009
and, on February 10, 2009 and, if necessary, on February 11, 2009, as the case
may be. The Remarketing Agent shall have the right, on 15 Business Days' notice
to the Company, to appoint one or more additional remarketing agents so long as
any such additional remarketing agents shall be reasonably acceptable to the
Company; provided that any such appointment shall not increase the Remarketing
Fee (as defined in Section 4 hereof). Upon any such appointment, the parties
shall enter into an appropriate amendment to this Agreement to reflect the
addition of any such additional remarketing agent.
(b) Subject to the terms and conditions set forth herein and in the
Purchase Contract Agreement, the Remarketing Agent shall use its reasonable best
efforts to (i) remarket on the Remarketing Date the Remarketed Notes at the
Reset Rate, (ii) in the event the Remarketing Agent cannot establish such a
Reset Rate on the Remarketing Date, attempt to remarket such Notes on February
4, 2005, and, if necessary, on February 5, 2009 and, if necessary, on February
6, 2009 and, if necessary, on February 9, 2009 and, if necessary, on February
10, 2009 and, if necessary, on February 11, 2009, in each case at the Reset Rate
and (iii) in the event of a Last Failed Remarketing, promptly return the Pledged
Notes, if any, included in such Last Failed Remarketing to the Collateral Agent
to be held by the Collateral Agent in accordance with Section 4.5(b) of the
Pledge Agreement (which Section is incorporated herein by reference) and return
any Separate Notes included in the remarketing to the Custodial Agent in
accordance with Section 4.5(d) of the Pledge Agreement, Section 5.4(b)(ii) of
the Purchase Contract Agreement and Section 2.19 of the Supplemental Indenture
(which Sections are incorporated herein by reference). After deducting the fee
specified in Section 4 below, the proceeds of any such successful remarketing
shall be delivered to the Purchase Contract Agent or the Custodial Agent, as
applicable, in accordance with Sections 4.5(a) and 4.5(d) of the Pledge
Agreement (which Section is incorporated herein by reference) and Section 5.4(b)
of the Purchase Contract Agreement (which Section is incorporated herein by
reference). The right of each Holder of Normal Units or Separate Notes to have
Notes included in any remarketing shall be subject to the conditions that (i)
the Remarketing Agent conducts a remarketing on such date pursuant to the terms
of this Agreement, (ii) the Notes included in a remarketing have not been called
for redemption upon the occurrence
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of a Special Event, (iii) the Remarketing Agent is able to find a purchaser or
purchasers for the Remarketed Notes at the Reset Rate and (iv) such purchaser or
purchasers deliver the purchase price therefor to the Remarketing Agent as and
when required.
(c) It is understood and agreed that the Remarketing Agent shall not
have any obligation whatsoever to purchase any Notes, whether in a remarketing
held on the Remarketing Date or on any Subsequent Remarketing Date or otherwise,
and shall in no way be obligated to provide funds to make payment upon tender of
Notes for remarketing or to otherwise expend or risk its own funds or incur or
be exposed to financial liability in the performance of its duties under this
Agreement, and, without limitation of the foregoing, the Remarketing Agent shall
not be deemed an underwriter of the Remarketed Notes. The Company shall not be
obligated in any case to provide funds to make payment upon delivery of Notes
for remarketing.
(d) The Remarketing Agent shall also, if required by the Securities
Act or the rules and regulations promulgated thereunder, deliver to each
purchaser a Prospectus in connection with the Remarketing.
(e) If, by 4:30 p.m., New York City time, on the Remarketing Date, the
Remarketing Agent is unable to remarket all Remarketed Notes included in the
Remarketing, a failed Remarketing (the "Failed Remarketing") shall be deemed to
have occurred, and the Remarketing Agent shall so advise by telephone the
Depositary and the Company.
(f) The Remarketing Agent shall advise, by telephone, the Company of
the Reset Rate determined in a Successful Remarketing (as defined in Section 4
hereof) as soon as practicable after such determination.
(g) By approximately 4:30 p.m., New York City time, on the Trading Day
following the Remarketing Date, PROVIDED that there has not been a Failed
Remarketing, the Remarketing Agent shall advise, by telephone, (i) the
Depositary of the Reset Rate determined in the Remarketing and the number of
Remarketed Notes sold in the Remarketing, (ii) each purchaser (or the Depositary
Participant thereof) of the Reset Rate and the number of Remarketed Notes such
purchaser is to purchase and (iii) each purchaser to give instructions to its
Depositary Participant to pay the purchase price on the Settlement Date in same
day funds against delivery of the Remarketed Notes purchased through the
facilities of the Depositary.
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Section 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Remarketing Agent (i) on and
as of the date any Remarketing Materials are first distributed in connection
with the Remarketing (the "Commencement Date"), (ii) on and as of the
Remarketing Date or any Subsequent Remarketing Date and (iii) on and as of the
settlement date relating to such Remarketing Date or Subsequent Remarketing Date
(the "Settlement Date"), that:
(a) Each of the representations and warranties of the Company as set
forth in Sections 2(a) through 2(gg) of the Underwriting Agreement dated
December 6, 2005 (the "Underwriting Agreement") among the Company and the
Underwriters identified in Schedule I thereto, was true and correct when made on
December 6, 2005; [Note: representations and warranties similar to those
contained in the Underwriting Agreement to be included and agreed upon; provided
that for purposes of such representations and warranties, any reference in such
sections of the Underwriting Agreement to (i) the "Registration Statement", the
"Prospectus" or the "Preliminary Prospectus" shall be deemed to refer to such
terms as defined herein and (ii) the "Closing Date" shall be deemed to refer to
the applicable Remarketing Date or Subsequent Remarketing Date.]
(b) The Registration Statement, if any, in the form heretofore
delivered or to be delivered to the Remarketing Agent, has been declared
effective by the Commission in such form; and no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) The Registration Statement, if any, conforms (and the Prospectus,
if any, and any further amendments or supplements to the Registration Statement
or the Prospectus, when they become effective or are filed with the Commission,
as the case may be, will conform) in all material respects to the requirements
of the Securities Act, the Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated thereunder, and the Registration Statement and
the Remarketing Materials (and any
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amendment or supplement thereto) as of their respective effective or filing
dates and as of the Commencement Date, applicable Remarketing Date or Subsequent
Remarketing Date and Settlement Date do not and will not contain any 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 no representation and warranty is made as to any statement of
eligibility on Form T-1 filed or incorporated by reference as part of the
Registration Statement or the Remarketing Materials, or as to information
relating to the Remarketing Agent or the Holders of the Remarketed Notes
contained in or omitted from the Registration Statement or the Remarketing
Materials in reliance upon and in conformity with written information furnished
to the Company by the Remarketing Agent expressly for use therein.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Remarketed Notes will conform to the descriptions thereof
contained in the Prospectus and in any other Remarketing Materials.
(g) No Event of Default (as defined in the Indenture, as supplemented
by the Supplemental Indenture) has occurred and is continuing.
Section 4. FEES.
In the event of a successful remarketing in which the Remarketed Notes
are sold for an aggregate amount that is equal to 100.25% of the aggregate
principal amount of the Remarketed Notes (a "Successful Remarketing"), the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount not exceeding 25 basis points (0.25%) of the Remarketing Value of the
Remarketed Notes in accordance with Section 5.4(b) of the Purchase Contract
Agreement and Section 2.19 of the Supplemental Indenture.
Section 5. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees as follows:
1. If and to the extent the Remarketed Notes are required (in
the view of counsel, which need not be in the form of a written
opinion, for either the Remarketing Agent or the Company) to be
registered under the Securities Act as in effect at the time of
the Remarketing,
i. to prepare the Registration Statement and the
Prospectus, to file any such Prospectus pursuant to
the Securities Act within the period required by the
Securities Act and the rules and regulations
thereunder and to use commercially reasonable
efforts to cause the Registration Statement to be
declared effective by the Commission
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prior to the second Business Day immediately
preceding the Remarketing Date;
ii. to file promptly with the Commission any amendment
to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the
reasonable judgment of the Company, be required by
the Securities Act or requested by the Commission;
iii. to advise the Remarketing Agent, promptly after it
receives notice thereof, of the time when any
amendment to the Registration Statement has been
filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed
and to furnish the Remarketing Agent with copies
thereof;
iv. to advise the Remarketing Agent, 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,
of the suspension of the qualification of any of the
Remarketed Notes for offering or sale in any
jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any
request by the Commission for the amending or
supplementing of the Registration Statement or the
Prospectus or for additional information, and, in
the event of the issuance of any stop order or of
any order preventing or suspending the use of any
Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its
withdrawal;
v. to furnish promptly to the Remarketing Agent such
copies of the following documents as the Remarketing
Agent 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); (B) the Preliminary
Prospectus and any amended or supplemented
Preliminary Prospectus, (C) the Prospectus and any
amended or supplemented Prospectus; and (D) any
document incorporated by reference in the Prospectus
(excluding exhibits thereto); and, if at any time
when delivery of a Prospectus is required in
connection with the Remarketing, any event shall
have occurred as a result of which the Prospectus as
then amended or supplemented would include any
untrue statement of a material fact or omit to state
any material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or if for
any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or
to file under the Exchange Act any document
incorporated by reference in the Prospectus in order
to comply
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with the Securities Act or the Exchange Act, to
notify the Remarketing Agent and, upon its request,
to file such document and to prepare and furnish
without charge to the Remarketing Agent and to any
dealer in securities as many copies as the
Remarketing Agent may from time to time reasonably
request of an amended or supplemented Prospectus
that will correct such statement or omission or
effect such compliance;
vi. prior to filing with the Commission (A) any
amendment to the Registration Statement or
supplement to the Prospectus or (B) any Prospectus
pursuant to Rule 424 under the Securities Act, to
furnish a copy thereof to the Remarketing Agent and
counsel to the Remarketing Agent;
vii. as soon as practicable, but in any event not later
than eighteen months, after the effective date of
the Registration Statement, to make "generally
available to its security holders" an "earnings
statement" of the Company and its subsidiaries
complying with (which need not be audited) Section
11(a) of the Securities Act and the rules and
regulations thereunder (including, at the option of
the Company, Rule 158 under the Securities Act). The
terms "Generally Available to its Security Holders"
and "Earnings Statement" shall have the meanings set
forth in Rule 158 under the Securities Act; and
viii. to take such action as the Remarketing Agent may
reasonably request in order to qualify the
Remarketed Notes for offer and sale under the
securities or "blue sky" laws of such jurisdictions
as the Remarketing Agent may reasonably request;
provided that in no event shall the Company be
required to qualify as a foreign corporation or to
file a general consent to service of process in any
jurisdiction.
2. To pay: (1) the costs incident to the preparation
and printing of the Registration Statement, if any, any
Prospectus and any other Remarketing Materials and any
amendments or supplements thereto; (2) the costs of
distributing the Registration Statement, if any, any
Prospectus and any other Remarketing Materials and any
amendments or supplements thereto; (3) any fees and
expenses of qualifying the Remarketed Notes under the
securities laws of the several jurisdictions as provided in
Section 5(a)(9) and of preparing, printing and distributing
a Blue Sky Memorandum, if any (including any related fees
and expenses of counsel to the Remarketing Agent); (4) all
other costs and expenses incident to the performance of the
obligations of the Company hereunder and the Remarketing
Agent hereunder; and (5) the reasonable fees and expenses
of
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one counsel to the Remarketing Agent in connection with
their duties hereunder.
3. To furnish the Remarketing Agent with such
information and documents as the Remarketing Agent may
reasonably request in connection with the transactions
contemplated hereby, and to make reasonably available to
the Remarketing Agent and any accountant, attorney or other
advisor retained by the Remarketing Agent such information
that parties would customarily require in connection with a
due diligence investigation conducted in accordance with
applicable securities laws.
(b) The Remarketing Agent covenants and agrees as follows:
1. that it will not disseminate any written material
for or in connection with the Remarketing other than the
Remarketing Materials and agrees that it will not make any
written statements in connection with the Remarketing,
other than statements that are set forth in the Remarketing
Materials unless authorized in advance by the Company;
2. that it will not distribute the Remarketing
Materials if it has been notified by the Company in writing
of (i) the occurrence of any event, or the discovery of any
fact, that could reasonably be expected to cause any
representation or warranty contained in this Agreement to
be untrue or inaccurate in any material respect, (ii) the
issuance of any comment or stop order or the taking of any
other action by the Commission or any other governmental or
regulatory agency with respect to the Remarketing
Materials, (iii) the occurrence of any event, or the
discovery of any fact, that could reasonably be expected to
cause the Company to amend or supplement the Remarketing
Materials and (iv) the occurrence of any event, or the
discovery of any fact, that would cause the Remarketing
Materials to contain any untrue statement of a material
fact or omit to state therein a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading;
3. that if, and for so long as the Notes are in the
possession of the Remarketing Agent prior to the settlement
of the Purchase Contracts, (i) the Remarketing Agent will
hold such Notes for the sole benefit of the Company, (ii)
such Notes will continue to constitute Collateral (as
defined in the Pledge Agreement and (iii) the Company will
retain all of the rights, privileges and benefits with
respect thereto as described in the Pledge Agreement.
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Section 6. REPLACEMENT AND RESIGNATION OF REMARKETING AGENT.
(a) The Company may replace [_______] as the Remarketing Agent by
giving notice prior to 3:00 p.m., New York City time on the [eleventh] Business
Day immediately prior to the Remarketing Date. Upon providing such notice, the
Company shall use all reasonable best efforts to appoint such a successor and to
enter into a with such successor as soon as reasonably
practicable.
(b) [________] may resign at any time and be discharged from its
duties and obligations hereunder as the Remarketing Agent by giving notice prior
to 3:00 p.m., New York City time on the [eleventh] Business Day immediately
prior to the Remarketing Date. Upon receiving notice from the Remarketing Agent
that it wishes to resign hereunder, the Company shall use all reasonable best
efforts to appoint such a successor and enter into a with
it as soon as reasonably practicable.
(c) The Company shall give the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent and the Trustee prompt written notice of any
replacement of the Remarketing Agent pursuant to this section.
(d) The Remarketing Agent shall give the Purchase Contract Agent, the
Collateral Agent, the Custodial Agent and the Trustee prompt written notice of
its resignation pursuant to this section.
(e) Notwithstanding the above, no such resignation nor any such
removal shall become effective until the Company shall have appointed (with
notice to the Purchase Contract Agent, the Custodial Agent, the Collateral Agent
and the Trustee) at least one nationally recognized broker-dealer as successor
Remarketing Agent and such successor Remarketing Agent shall have entered into a
with the Company, in which it shall have agreed to conduct
the remarketing in accordance with this Agreement in all material respects.
Section 7. DEALING IN THE SECURITIES.
The Remarketing Agent, when acting hereunder or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Notes, Normal Units, Stripped Units or any
other securities of the Company; provided, however, that in buying, selling,
holding, or dealing in any of the Notes, Normal Units, Stripped Units or any
other securities of the Company, the Remarketing Agent may not violate any of
its duties under this Agreement. With respect to any Notes, Normal Units,
Stripped Units or any other securities of the Company owned by it, the
Remarketing Agent may exercise any vote or join in any action with like effect
as if it did not act in any capacity hereunder. The Remarketing Agent, in its
individual capacity, either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company as freely as if
it did not act in any capacity hereunder.
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The Company or its affiliates may, to the extent permitted by law,
purchase any Notes that are remarketed by the Remarketing Agent.
Section 8. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
The obligations of the Remarketing Agent hereunder shall be
subject to the following conditions:
(a) The Prospectus, if any, shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the Registration
Statement, if any, or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the Commission.
(b) (1) Trading generally shall not have been suspended or materially
limited on the New York Stock Exchange, (2) trading of any securities of the
Company shall not have been materially suspended or limited on the New York
Stock Exchange, (3) a general moratorium on commercial banking activities in New
York, the Cayman Islands or Bermuda shall not have been declared by the relevant
authorities and there shall not have occurred a material disruption in
commercial banking or securities settlement or clearance services in the United
States or other relevant jurisdiction, or (4) there shall not have occurred a
material adverse change in the financial markets, any outbreak or escalation of
hostilities involving the United States, the Cayman Islands or Bermuda or the
declaration by the United States, the Cayman Islands or Bermuda of a national
emergency or war or other calamity or crisis, if the effect of any such event
specified in this clause (4) in the judgment of the Remarketing Agent makes it
impracticable or inadvisable to proceed with the Remarketing or the delivery of
the Remarketed Notes on the terms and in the manner contemplated in the
Transaction Documents.
(c) The representations and warranties of the Company contained herein
shall be true and correct in all material respects on and as of the Remarketing
Date, and the Company, the Purchase Contract Agent and the Collateral Agent
shall have performed in all material respects all covenants and agreements
contained herein or in the Purchase Contract Agreement or Pledge Agreement to be
performed on their part at or prior to the Remarketing Date.
(d) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of the Chief Executive Officer and the
Treasurer satisfactory to the Remarketing Agent stating that: (1) no order
suspending the effectiveness of the Registration Statement, if any, or
prohibiting the sale of the Remarketed Notes is in effect, and no proceedings
for such purpose are pending before or, to the knowledge of such officers,
threatened by the Commission and (2) the representations and warranties of the
Company in Section 3 of this Agreement are true and correct on and as of the
Remarketing Date and the Company has performed in all material respects all
covenants and agreements contained herein to be performed on its part at or
prior to such Remarketing Date.
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(e) On the Remarketing Date, the Remarketing Agent shall have received
a letter addressed to the Remarketing Agent and dated such date, in form and
substance satisfactory to the Remarketing Agent, of PricewaterhouseCoopers LLP,
the independent accountants of the Company, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
with respect to certain financial information contained in the Remarketing
Materials, if any.
(f) Each of (1) the General Counsel to the Company, (2) ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ LLP, counsel to the Company, (3) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Cayman
Islands counsel to the Company and (4) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to
the Purchase Contract Agent and Collateral Agent, shall have furnished to the
Remarketing Agent its opinion, addressed to the Remarketing Agent and dated the
Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent addressing such matters as are set forth in such counsel's
opinion furnished pursuant to Sections 7(c), 7(d), 7(e) and 7(f) of the
Underwriting Agreement except that such opinions (i) shall appropriately address
the and, as to the enforceability of the securities, such
opinions shall be limited to the Remarketed Notes and (ii) may be adapted as
necessary to relate to the Remarketing Materials, if any, or to any changed
circumstances or events occurring subsequent to the date of this Agreement, such
adaptations being reasonably acceptable to counsel to the Remarketing Agent.
(g) [________], counsel for the Remarketing Agent, shall have
furnished to the Remarketing Agent its opinion, addressed to the Remarketing
Agent and dated the applicable Remarketing Date, in form and substance
satisfactory to the Remarketing Agent.
(h) There shall not have been, since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition (financial or otherwise), business, properties or results of
operations of the Company and its subsidiaries taken as a whole.
Section 9. TERMINATION OF .
This Agreement shall automatically terminate (i) as to the Remarketing
Agent on the effective date of the resignation or removal of the Remarketing
Agent pursuant to Section 6 and (ii) on the earlier of (x) any Special Event
Redemption Date and (y) the Stock Purchase Date. If this Agreement is terminated
pursuant to any of the other provisions hereof, except as otherwise provided
herein, the Company shall not be under any liability to the Remarketing Agent
and the Remarketing Agent shall not be under any liability to the Company,
except that if this Agreement is terminated by the Remarketing Agent because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will reimburse the
Remarketing Agent for all of its out-of-pocket expenses (including the
reasonable fees and disbursements of its counsel) reasonably incurred by it.
Section 10, Section 11, Section 12 and Section 14 hereof shall survive the
termination of this Agreement or the resignation or removal of the Remarketing
Agent.
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Section 10. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions of this Agreement and the Transaction
Documents. No implied covenants or obligations of or against the Remarketing
Agent shall be read into this Agreement or any of the Transactions Documents. In
the absence of willful misconduct, bad faith or gross negligence on the part of
the Remarketing Agent, the Remarketing Agent may conclusively rely upon any
document furnished to it which purports to conform to the requirements hereunder
as to the truth of the statements expressed therein. The Remarketing Agent shall
be protected in acting upon any document or communication reasonably believed by
it to be signed, presented or made by the proper party or parties. The
Remarketing Agent shall not have any obligation to determine whether there is
any limitation under applicable law on the Reset Rate on the Remarketed Notes
or, if there is any such limitation, the maximum permissible Reset Rate on the
Remarketed Notes, and it shall rely solely upon timely written notice from the
Company pursuant to Section 2(a) hereof as to whether or not there is any such
limitation and, if so, the maximum permissible Reset Rate. The Remarketing Agent
shall not incur any liability under this Agreement to any beneficial owner or
holder of Remarketed Notes, or other securities, either in its individual
capacity or as Remarketing Agent, as the case may be, for any action or failure
to act in connection with the remarketing of the Remarketed Notes or otherwise
in connection with the transactions contemplated by this Agreement, except to
the extent that such liability has, by final judicial determination, resulted
from the willful misconduct, bad faith or gross negligence of the Remarketing
Agent or from its failure to fulfill its express obligations hereunder. The
provisions of this Section 10 shall survive any termination of this Agreement
and shall also continue to apply to every Remarketing Agent notwithstanding its
resignation or removal. The Remarketing Agent will act as the agent of the
Holders.
Section 11. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless the Remarketing
Agent, against any losses, claims, damages or liabilities to which the
Remarketing Agent may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus, or any amendments or supplement thereto, or any related Preliminary
Prospectus or preliminary prospectus supplement or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Remarketing Agent for any legal expenses of one counsel
(in addition to any local counsel) engaged reasonably incurred by the
Remarketing Agent in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission from any of such
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documents in reliance upon and in conformity with written information furnished
to the Company by the Remarketing Agent specifically for use therein.
(b) The Remarketing Agent will indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus or any amendment or supplement thereto,
or any related Preliminary Prospectus or Preliminary Prospectus supplement, or
any other Remarketing Materials, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by the
Remarketing Agent specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided that in no case will the Remarketing Agent
be liable or responsible for any amount in excess of the fee paid to the
Remarketing Agent pursuant to Section 4.
(c) Promptly after receipt by an indemnified party under this section
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In the case of parties
indemnified pursuant to subsection (a) above, counsel to the indemnified parties
shall be selected by the Remarketing Agent. In case any such action shall be
brought against the indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation (as set forth below). Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying
15
party to represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or the indemnified party which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 11 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
Section 12. CONTRIBUTION.
(a) If the indemnification provided for in Section 11 is unavailable
to or insufficient to hold harmless an indemnified party under Sections 11(a) or
11(b), then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Remarketing Agent on the other
from the offering of the Remarketed Notes or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportions 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
Remarketing Agent on the other in connection with the statements of omissions
which resulted in such losses, claims, damages or liabilities as well as any
relevant equitable considerations. The relative benefits received by the Company
on one hand and the Remarketing Agent on the other hand in connection with the
Remarketing shall be deemed to be in the same proportions as the total net
proceeds of the Remarketed Notes less the fee paid to the Remarketing Agent on
the one hand and the fee paid to the Remarketing Agent on the other hand bear to
the total net proceeds of the Remarketed Notes. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact
16
relates to information supplied by the Company on the one hand or the
Remarketing Agent on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Remarketing Agent agree that it would not be just
and equitable if contribution pursuant to this subsection (a) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(a). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (a) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (a), the Remarketing Agent shall not be required
to contribute any amount in excess of the amount by which the fees received by
it under Section 4 exceeds the amount of any damages which the Remarketing Agent
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(b) The obligations of the Company under Section 11 and this Section
12 shall be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Remarketing Agent and to each person, if any, who controls the
Remarketing Agent within the meaning of the Securities Act; and the obligations
of the Remarketing Agent under Section 11 and this Section 12 shall be in
addition to any liability which the Remarketing Agent may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who signed the Registration Statement
and to each person, if any, who controls the Company within the meaning of the
Securities Act.
(c) The indemnity and contribution provisions contained in Section 11
and this Section 12 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Remarketing Agent or any person controlling the
Remarketing Agent, or the Company, its officers or director or any controlling
person of the Company, and the completion of the Remarketing.
Section 13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT.
This Agreement shall inure to the benefit of and be binding upon each
party hereto and its respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(x) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
Remarketing Agent and the person or persons, if any, who control the Remarketing
Agent within the meaning of Section 15 of the Securities Act and (y) the
indemnity agreement of the Remarketing Agent contained in Section 11(b) of this
Agreement shall be deemed to be for the benefit of the Company's directors and
officers who sign the Registration Statement, if any, and any person controlling
the Company within the meaning of Section 15 of
17
the Securities Act. Nothing contained in this Agreement is intended or shall be
construed to give any person, other than the persons referred to herein, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
Section 14. GOVERNING LAW; SUBMISSION TO JURISDICTION; JUDGMENT CURRENCY.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
The Company irrevocably (i) agrees that any legal suit, action or
proceeding against the Company brought by the Remarketing Agent or by any person
who controls the Remarketing Agent arising out of or based upon this Agreement
or the transactions contemplated hereby or thereby may be instituted in the
federal district court for the Southern District of New York and the New York
County Court, (ii) waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding and (iii) submits to the exclusive jurisdiction of such courts in any
such suit, action or proceeding. The Company has appointed CT Corporation
System, New York, New York, as its authorized agent (the "Authorized Agent")
upon whom process may be served in any such action arising out of or based on
this Agreement or the transactions contemplated hereby or thereby which may be
instituted in the federal district court for the Southern District of New York
and the New York County Court by the Remarketing Agent or by any person who
controls the Remarketing Agent, expressly consents to the jurisdiction of any
such court in respect of any such action, and waives any other requirements of
or objections to personal jurisdiction with respect thereto. Such appointment
shall be irrevocable. The Company represents and warrants that the Authorized
Agent has agreed to act as such agent for service of process and agrees to take
any and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full force
and effect as aforesaid. Service of process upon the Authorized Agent and
written notice of such service to the Company shall be deemed, in every respect,
effective service of process upon the Company.
In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company will indemnify the Remarketing
Agent against any loss incurred by the Remarketing Agent as a result of any
variation between (i) the rate of exchange at which the United States dollar
amount is converted into the judgment currency for the purpose of such judgment
or order and (ii) the rate of exchange at which the Remarketing Agent is able to
purchase United States dollars with the amount of judgment currency actually
received by the Remarketing Agent. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and
18
shall continue in full force and effect notwithstanding any such judgment or
order aforesaid. The term "rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of or conversion into
United States dollars.
Section 15. SURVIVAL.
The respective indemnities, representations, warranties and agreements of
the Company and the Remarketing Agent contained in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall survive any
Remarketing 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.
Section 16. SUCCESSORS AND ASSIGNS.
The rights and obligations of the Company hereunder may not be assigned
or delegated to any other Person without the prior written consent of the
Remarketing Agent. The rights and obligations of the Remarketing Agent hereunder
may not be assigned or delegated to any other Person (other than an affiliate of
the Remarketing Agent) without the prior written consent of the Company.
Section 17. HEADINGS.
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and such section headings are not a part of this
Agreement and will not be used in the interpretation of any provision of this
Agreement.
Section 18. SEVERABILITY.
If any provision of this Agreement is invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provisions of any constitution, statute, rule or
public policy or for any other reason, then, to the extent permitted by law,
such circumstances shall not have the effect of rendering the provision in
question invalid, inoperative or unenforceable in any other case, circumstances
or jurisdiction, or of rendering any other provision or provisions of this
Agreement, as the case may be, invalid, inoperative or unenforceable to any
extent whatsoever.
Section 19. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 20. AMENDMENTS.
This Agreement may be amended only by an instrument in writing signed by
the Company and the Remarketing Agent.
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Section 21. NOTICES.
Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder shall be made in writing or transmitted
by any standard form of telecommunication, including telephone or telecopy, and
confirmed in writing. All written notices and confirmations of notices by
telecommunication shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid. All such notices, requests, consents or other communications
shall be addressed as follows: if to the Company, to XL Capital Ltd, ▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, fax number: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: General Counsel; if to the Remarketing Agent, to [________],
[________], [________], fax number [________], Attention: General Counsel; if to
the Collateral Agent, to The Bank of New York, [________], [________], fax
number [________], Attention: [________]; and if to the Purchase Contract Agent,
to The Bank of New York, [________], [________], fax number [________],
Attention: [________], or to such other address as any of the above shall
specify to the others in writing.
20
IN WITNESS WHEREOF, each of the Company, the Purchase Contract Agent and
the Remarketing Agent has caused this Agreement to be executed in its name and
on its behalf by one of its duly authorized signatories as of the date first
above written.
XL CAPITAL LTD
By: ______________________________
Name:
Title:
21
[________], as Remarketing Agent
By: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
THE BANK OF NEW YORK
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the Holders of the Purchase Contracts
By:__________________________
Name:
Title:
22