EXHIBIT 4.1
EXECUTION COPY
XL CAPITAL LTD
TO
THE BANK OF NEW YORK,
AS TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 12, 2004
SENIOR DEBT SECURITIES
SUPPLEMENT TO INDENTURE DATED AS OF JUNE 2, 2004
SECOND SUPPLEMENTAL INDENTURE, dated as of November 12, 2004 (the
"SECOND SUPPLEMENTAL INDENTURE"), by and between XL CAPITAL LTD, a Cayman
Islands exempted limited company (the "COMPANY"), having its principal office at
XX Xxxxx, Xxx Xxxxxxxxxx Xxxx, Xxxxxxxx XX00, Xxxxxxx, and THE BANK OF NEW YORK,
a New York banking corporation, having a Corporate Trust Office at 000 Xxxxxxx
Xxxxxx, Xxxxx 8 West, New York, New York 10286, as trustee (the "TRUSTEE"),
under the Indenture.
WHEREAS, the Company and the Trustee have as of June 2, 2004
entered into an Indenture (the "BASE INDENTURE") providing for the issuance by
the Company from time to time of its senior debt securities;
WHEREAS, the Company issued a series of its 5.25% Senior Notes due
2014 (the "2014 SECURITIES") under the Base Indenture and provided for certain
additional provisions of such 2014 Securities in the First Supplemental
Indenture, dated as of August 23, 2004 (the "FIRST SUPPLEMENTAL INDENTURE");
WHEREAS, the Company desires to issue additional 2014 Securities
as part of the same series of its 5.25% Senior Notes due 2014 as issued under
the Base Indenture, as amended and supplemented by the First Supplemental
Indenture;
WHEREAS, the Company desires to issue a second series of senior
debt securities under the Base Indenture, and has duly authorized the creation
and issuance of such second series of senior debt securities and the execution
and delivery of this Second Supplemental Indenture to modify the Base Indenture
and provide certain additional provisions as hereinafter described (the Base
Indenture, as amended and supplemented by the First Supplemental Indenture and
this Second Supplemental Indenture, is hereinafter referred to as the
"INDENTURE");
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 second series of senior debt securities and providing for the
rights, obligations and duties of the Trustee with respect to such second series
of senior debt securities;
WHEREAS, the execution and delivery of this Second Supplemental
Indenture has been authorized by a resolution of the Board of Directors of the
Company or a duly authorized committee thereof;
WHEREAS, concurrently with the execution hereof, the Company has
delivered an Officers' Certificate and has caused its counsel to deliver to the
Trustee an Opinion of Counsel; and
WHEREAS, all conditions and requirements of the Base Indenture
necessary to make this Second Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and fulfilled by the
parties hereto and the execution and delivery thereof have been in all respects
duly authorized by the parties hereto.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the mutual premises and agreements
herein contained, the Company and the Trustee covenant and agree, for the equal
and proportionate benefit of all Holders of the 2014 Securities and the 2024
Securities (as defined below), as follows:
ARTICLE I
ADDITIONAL 2014 SECURITIES
Section 1.1. Issuance of Additional 2014 Securities.
Pursuant to Sections 2.01 and 3.01 of the Base Indenture and
Section 2.4(b) of the First Supplemental Indenture, the Company hereby issues
$300,000,000 of 5.25% Senior Notes due 2014, which shall be part of the same
series of 5.25% Senior Notes due 2014 as issued under the Base Indenture, as
supplemented by the First Supplemental Indenture, and the terms of which shall
be governed by the First Supplemenal Indenture and not by the other provisions
of this Second Supplemental Indenture.
Section 1.2. Form of 2014 Securities.
The definitive form of the 2014 Securities issued hereby shall be
substantially in the form set forth in EXHIBIT A to the First Supplemental
Indenture.
ARTICLE II
DEFINITIONS
Section 2.1. Definition of Terms.
Unless otherwise provided herein or unless the context otherwise
requires:
(a) a term defined in the Base Indenture has the same meaning
when used in this Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not
affect interpretation; and
(e) the following terms have the meanings given to them in this
Section 2.1(e):
"ADDITIONAL AMOUNTS" has the meaning set forth in Section 3.13(b).
"COMPARABLE TREASURY ISSUE" means the United States Treasury
security selected as having a maturity comparable to the remaining term of the
2024 Securities to be redeemed that would be used, at the time of selection and
under customary financial practice, in pricing
-2-
new issues of corporate debt securities of comparable maturity to the remaining
term of the 2024 Securities.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption
Date, the average of the Reference Treasury Dealer Quotations for the Redemption
Date, after excluding the highest and lowest Reference Treasury Dealer
Quotations, or if the Trustee obtains fewer that four Reference Treasury Dealer
Quotations, the average of all Reference Treasury Dealer Quotations.
"DEPOSITARY" has the meaning set forth in Section 3.7.
"DESIGNATED SUBSIDIARY" means any present or future consolidated
subsidiary of the Company that is a regulated insurance company, the assets of
which constitute at least 20% of the Company's consolidated assets.
"GLOBAL NOTE" means a Global Security representing the 2024
Securities.
"ISSUE DATE" means November 12, 2004.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by the Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day before the Redemption Date.
"REFERENCE TREASURY DEALERS" means each of Credit Suisse First
Boston LLC and Xxxxxx Xxxxxxx & Co. Incorporated and their respective successors
and any other primary Treasury dealer the Company selects. If any of the
foregoing ceases to be a primary U.S. government securities dealer in New York
City, the Company must substitute another primary Treasury dealer.
"RELEVANT DATE" means, in respect of any payment, the date on
which such payment first becomes due and payable, but if the full amount of the
moneys payable has not been received by the Trustee on or prior to such due
date, it means the first date on which, the full amount of such moneys having
been so received and being available for payment to Holders, notice to that
effect shall have been duly given to the Holders of the 2024 Securities.
"TAX EVENT" means if the Company determines that, as a result of
(1) any change in, or amendment to, the law or treaties (or any regulations or
rulings promulgated thereunder), including the enactment of any legislation or
the publication of any regulatory determination, of the Cayman Islands, Bermuda
or any other jurisdiction from or through which the Company makes a payment on
the 2024 Securities or in which the Company generally becomes subject to
taxation; or (2) any change in, or amendment to, a position regarding the
application, administration or interpretation of such laws, treaties,
regulations or rulings (including a holding, judgment or order by a court of
competent jurisdiction) (each of the foregoing in clauses (1) and (2), a "CHANGE
IN TAX LAW"), the Company is, or on the next Interest Payment Date in respect of
the 2024 Securities would be, required to pay Additional Amounts with respect to
the 2024 Securities as described under Section 3.13(b), and such obligation
cannot be avoided by taking
-3-
commercially reasonable measures available to the Company. The Change in Tax Law
must become effective on or after November 8, 2004. In the case of a successor
entity, the Change in Tax Law must become effective after the date that such
successor entity first becomes an obligor on the 2024 Securities (unless the
Change in Tax Law had already occurred prior to such date, but on or after
November 8, 2004, with respect to the original entity).
"TREASURY RATE" means, with respect to any Redemption Date, the
rate per year equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Redemption Date.
ARTICLE III
CREATION OF THE 2024 SECURITIES
Section 3.1. Designation of Series.
Pursuant to the terms hereof and Sections 2.01 and 3.01 of the
Base Indenture, the Company hereby creates a series of its senior debt
securities designated as the 6.375% Senior Notes due 2024 (the "2024
SECURITIES"), which 2024 Securities shall be deemed "Securities" for all
purposes under the Indenture.
Section 3.2. Form of 2024 Securities.
The definitive form of the 2024 Securities shall be substantially
in the form set forth in EXHIBIT A attached hereto, which is incorporated herein
and made part hereof (and the 2024 Securities shall be referred to as the
"Notes" in Exhibit A).
The Final Maturity of the 2024 Securities shall be November 15,
2024.
Section 3.3. Interest and Interest Rate Reset.
(a) The 2024 Securities will bear interest from the Issue Date
or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, as the case may be, to maturity or early
redemption, as the case may be, at the rate of 6.375% per annum payable
semi-annually on May 15 and November 15 of each year, commencing on May
15, 2005, to the persons in whose names the 2024 Securities were
registered at the close of business on the preceding May 1 and November
1, respectively.
(b) Interest on the 2024 Securities will be computed on the
basis of a 360-day year comprised of twelve 30-day months. The amount of
interest payable for any period shorter than a full semi-annual period
for which interest is computed will be computed on the basis of the
actual number of days elapsed in the 180-day period.
-4-
Section 3.4. Limit on Amount of 2024 Securities.
(a) The 2024 Securities initially will be limited in aggregate
principal amount to $350,000,000 and may, upon execution of this Second
Supplemental Indenture, be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said 2024 Securities in accordance with a Company Order.
(b) The Company may issue from time to time, without giving
notice to or seeking the consent of the Holders of the 2024 Securities,
additional notes having the same terms as the 2024 Securities (except for
the initial public offering price, first Interest Payment Date and the
Issue Date). Any such additional notes, together with the 2024
Securities, will constitute a single series of Securities under the
Indenture.
Section 3.5. Nature of 2024 Securities/Minimum Denomination.
(a) The 2024 Securities shall constitute senior, unsecured and
unsubordinated obligations of the Company and shall rank pari passu with
all other unsecured and unsubordinated indebtedness of the Company from
time to time outstanding.
(b) The 2024 Securities shall be issuable only in registered
form and without coupons in denominations of $1,000 and any integral
multiples thereof.
Section 3.6. No Sinking Fund.
The 2024 Securities do not have the benefit of any mandatory
redemption or sinking fund obligation and are not redeemable at the option of
the Holders.
Section 3.7. Issuance of 2024 Securities and Payment.
(a) The 2024 Securities, on original issuance, shall be issued
in the form of one fully registered Global Note registered in the name of
The Depository Trust Company, as Depositary (the "DEPOSITARY"), or its
nominee, and deposited with the Trustee, as custodian for the Depositary,
for credit by the Depositary to the respective accounts of beneficial
owners of the 2024 Securities represented thereby (or such other accounts
as they may direct).
(b) The payment of principal of and the interest on the 2024
Securities will be payable at the Corporate Trust Office or, at the
option of the Company, by check mailed to each Holder at its address set
forth in the Security Register; PROVIDED HOWEVER, that if a Holder has
given wire transfer instructions to the Company and the Paying Agent and
Security Registrar at least ten Business Days prior to the applicable
payment date, payment of principal of and the interest on the 2024
Securities will be payable by wire transfer of immediately available
funds to the account specified in such instructions.
Section 3.8. 2024 Securities Not Convertible or Exchangeable.
The 2024 Securities will not be convertible or exchangeable for
other securities or property.
-5-
Section 3.9. Redemption.
Pursuant to Section 3.01(6) and Section 11.01 of the Base
Indenture, so long as any of the 2024 Securities are Outstanding, the following
provisions shall be applicable to the 2024 Securities:
(a) The 2024 Securities will be redeemable, in whole at any
time or in part from time to time, at the Company's option, at a
redemption price equal to accrued and unpaid interest on the principal
amount of the 2024 Securities being redeemed to the Redemption Date plus
the greater of: (A) 100% of the principal amount of the 2024 Securities
to be redeemed, and (B) the sum of the present values of the remaining
scheduled payments of principal and interest on the 2024 Securities to be
redeemed (not including any portion of such payments of interest accrued
to the Redemption Date) discounted to the Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate, plus 25 basis points.
(b) If a Tax Event occurs and is continuing, the Company may,
at its option, redeem the 2024 Securities in whole, but not in part, at
any time at a redemption price equal to 100% of the principal amount of
the 2024 Securities, plus accrued and unpaid interest, if any, to the
Redemption Date and Additional Amounts, if any, then due or that will
become due on the date fixed for redemption as a result of such
redemption. Installments of interest on 2024 Securities which are due and
payable on or prior to a Redemption Date will be payable to Holders of
the 2024 Securities registered as such at the close of business on the
relevant record dates.
(c) (i) Notwithstanding Section 11.04 of the Base Indenture,
any notice of redemption pursuant to Section 3.9(a) or (b) shall (i) be
sufficient if instead of setting forth a specific price with respect to
the Redemption Price, it sets forth the manner of calculation thereof and
(ii) be mailed to the Holders not less than 30 nor more than 60 days
prior to the Redemption Date.
(ii) Notwithstanding the foregoing, in case of a Tax
Event redemption, no such notice of redemption will be given (a)
earlier than 90 days prior to the earliest date on which the payor
would be obliged to make such payment or withholding if a payment
in respect of 2024 Securities by it were then due and (b) unless
at the time such notice is given, such obligation to pay such
Additional Amounts remains in effect. Prior to the publication or
mailing of any notice of redemption of 2024 Securities pursuant to
the foregoing, the Company will deliver to the Paying Agent (a) an
Officers' Certificate stating that the Company is entitled to
effect such redemption and setting forth a statement of facts
showing that any factual conditions precedent to the Company's
right so to redeem have been satisfied and (b) a legal opinion of
an outside nationally recognized tax counsel to the effect that
the circumstances referred to in this clause (ii) and the
circumstances described in the definition of "Tax Event" exist.
-6-
Section 3.10. Guarantees.
The 2024 Securities will not be guaranteed by any third party.
Section 3.11. Place of Payment.
The Paying Agent for the 2024 Securities shall initially be the
Trustee, and the Place of Payment for the 2024 Securities shall initially be the
Corporate Trust Office, which as of the date hereof for such purpose is located
at 000 Xxxxxxx Xxxxxx, Xxxxx 0 Xxxx, Xxx Xxxx, Xxx Xxxx 00000. The Company may
from time to time designate one or more additional offices or agencies where
2024 Securities may be presented or surrendered for payment.
Section 3.12. Events of Default.
The following shall constitute additional Events of Default
pursuant to Section 5.01 of the Base Indenture with respect to the 2024
Securities with the same effect as if expressly set forth in such Section 5.01:
(a) default by the Company under any instrument or instruments
under which there is or may be secured or evidenced any of the Company's
indebtedness (other than the 2024 Securities) having an outstanding
principal amount of $50,000,000 (or its equivalent in any other currency
or currencies) or more, individually or in the aggregate, that has caused
the holders thereof to declare such indebtedness to be due and payable
prior to its stated maturity, unless such declaration has been rescinded
within 30 days;
(b) default by the Company in the payment when due of the
principal of or premium, if any, on any bond, debenture, note or other
evidence of the Company's indebtedness, in each case for money borrowed,
or in the payment of principal or premium, if any, under any mortgage,
indenture, agreement or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness of the Company
for money borrowed, which default for payment of principal or premium, if
any, is in an aggregate principal amount exceeding $50,000,000 (or its
equivalent in any other currency or currencies), if such default shall
continue unremedied or unwaived for more than 30 days after the
expiration of any grace period or extension of the time for payment
applicable thereto;
(c) default in the payment of any Additional Amounts payable
with respect to interest on any 2024 Securities, when such Additional
Amounts become due and payable, and continuance of such default for a
period of 30 days; and
(d) default in the payment of any Additional Amounts payable
with respect to any principal of or premium, if any, on any 2024
Securities, when such Additional Amounts become due and payable either at
maturity, upon any redemption, by declaration of acceleration or
otherwise.
In addition, with respect to the 2024 Securities, the reference to
"60 days" in Section 5.01(1) of the Base Indenture shall be amended to be "30
days" with respect to the 2024 Securities.
-7-
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice of any Event of Default or any event which,
after notice or lapse of time or both, would constitute an Event of Default.
Section 3.13. Covenants.
The 2024 Securities shall be entitled to the benefit of each of
the covenants in Article Ten of the Base Indenture and the following additional
covenants (each of which shall be deemed to be a provision of the Indenture and,
when referred to as a provision of the Indenture, shall be identified by
reference to the Section number that is set forth immediately preceding the
covenant):
(a) SECTION 10.09. LIMITATION ON LIENS ON STOCK OF DESIGNATED
SUBSIDIARIES. The Company covenants that, so long as any 2024 Securities
are outstanding, the Company will not, nor will the Company permit any
Designated Subsidiary to, create, assume, incur, guarantee or otherwise
permit to exist any indebtedness evidenced by notes, debentures, bonds or
similar instruments that is secured by any mortgage, pledge, lien,
security interest or other encumbrance upon any shares of Capital Stock
of any Designated Subsidiary (whether such shares of stock are now owned
or hereafter acquired) without effectively providing concurrently that
the 2024 Securities will be secured equally and ratably with such
indebtedness for at least the time period such other indebtedness is so
secured.
(b) SECTION 10.10. ADDITIONAL AMOUNTS. All amounts payable
(whether in respect of principal, interest or otherwise) in respect of
the 2024 Securities will be made free and clear of and without
withholding or deduction for or on account of any present or future
taxes, duties, levies, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of the Cayman Islands or Bermuda
or any political subdivision thereof or any authority or agency therein
or thereof having power to tax, unless the withholding or deduction of
such taxes, duties, levies, assessments or governmental charges is
required by law. In that event, the Company will pay, or cause to be
paid, such additional amounts as may be necessary in order that the net
amounts receivable by a Holder after such withholding or deduction
(including any withholding or deduction on such payment of additional
amounts) shall equal the respective amounts that would have been
receivable by such Holder had no such withholding or deduction been
required ("ADDITIONAL AMOUNTS"), except that no such Additional Amounts
shall be payable in relation to any payment (including a payment made in
connection with a redemption) in respect of any of the 2024 Securities
(a) to, or to a third party on behalf of, a Person who would be able to
avoid such withholding or deduction by complying with such Person's
statutory requirements or by making a declaration of non-residence or
similar claim for exemption but, in either case, fails to do so, or is
liable for such taxes, duties, levies, assessments or governmental
charges in respect of such 2024 Security by reason of his having some
connection with (including, without limitation, being a citizen of, being
incorporated or engaged in a trade or business in, or having a residence
or principal place of business or other presence in) the Cayman Islands
or Bermuda, as the case may be, other than (i) the mere holding of such
2024 Security; (ii) the receipt of principal, interest or other amount in
respect of such 2024 Security; or (iii) the mere enforcement of rights
with respect to such 2024 Security; (b) presented for payment more than
30 days after the Relevant Date, except to the extent that the relevant
Holder would
-8-
have been entitled to such Additional Amounts on presenting the same for
payment on or before the expiration of such period of 30 days; (c) to a
fiduciary, a partnership or person who is not the beneficial owner of a
2024 Security, if and to the extent that, as a result of an applicable
tax treaty, no Additional Amounts would have been payable had the
beneficiary, partner or beneficial owner owned the 2024 Security
directly; (d) on account of any inheritance, gift, estate, personal
property, stamp, sales or transfer or similar taxes, duties, levies,
assessments or similar governmental charges; or (e) on account of any
taxes, duties, levies, assessments or governmental charges that are
payable otherwise than by withholding from payments in respect of such
2024 Security.
In the event that payments in respect of the 2024 Securities are
subject to withholding or deduction for or on account of any taxes, the
Company will (i) make any required withholding or deduction and (ii)
remit the full amount deducted or withheld to the relevant taxing
jurisdiction in accordance with applicable law. The Company will used
commercially reasonable efforts to obtain certified copies of tax
receipts evidencing the payment of any taxes so deducted or withheld from
each relevant taxing jurisdiction imposing such taxes and will use
commercially reasonable efforts to provide or make available such
certified copies to each Holder.
If the Company becomes subject generally at any time to any taxing
jurisdiction other than or in addition to the Cayman Islands or Bermuda,
or makes a payment on the 2024 Securities from any jurisdiction other
than or in addition to the Cayman Islands or Bermuda, references in this
Section 10.10 to the Cayman Islands and Bermuda shall be read and
construed as references to such other jurisdiction(s) and/or to the
Cayman Islands and Bermuda.
Any reference in the Indenture to principal, premium or interest
in respect of the 2024 Securities, any redemption amount and any other
amounts in the nature of principal shall be deemed also to refer to any
Additional Amounts that may be payable under the Indenture, and the
express mention of the payment of Additional Amounts (if applicable) in
any provision hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise provided in or pursuant to the Indenture, if
the 2024 Securities require the payment of Additional Amounts, at least
30 days prior to each date on which any payments under or with respect to
the 2024 Securities are due and payable (unless such obligation to pay
Additional Amounts arises shortly before or after the 30th day prior to
such date, in which case it shall be promptly thereafter) the Company or
its designee shall furnish to the Trustee, the Registrar and the Paying
Agent an Officers' Certificate stating the fact that Additional Amounts
will be payable, the amounts so payable, and any other information to
enable the Trustee or such Paying Agent to pay such Additional Amounts to
Holders on the payment date.
The Company will pay any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies that arise in any jurisdiction from the execution,
delivery or registration of any 2024 Securities or any other document or
instrument referred to therein (other than a transfer of the 2024
Securities), or the
-9-
receipt of any payments with respect to the 2024 Securities, excluding
any such taxes, charges or similar levies imposed by any jurisdiction
outside the Cayman Islands or Bermuda in which a Paying Agent is located,
other than those resulting from, or required to be paid in connection
with, the enforcement of the 2024 Securities, the Indenture or any other
such document or instrument following the occurrence of any Event of
Default with respect to the 2024 Securities.
Section 3.14. Non-Applicability of Certain Sections.
Sections 11.08, 11.09 and 11.10 of the Base Indenture shall not apply to
the 2024 Securities.
ARTICLE IV
APPOINTMENT OF THE TRUSTEE FOR THE 2024 SECURITIES
Section 4.1. Appointment of Trustee.
Pursuant and subject to the Indenture, the Company and the Trustee
hereby constitute the Trustee as trustee to act on behalf of the Holders of the
2024 Securities, and as the principal Paying Agent and Security Registrar for
the 2024 Securities, effective upon execution and delivery of this Second
Supplemental Indenture. By execution, acknowledgment and delivery of this Second
Supplemental Indenture, the Trustee hereby accepts appointment as Trustee,
Paying Agent and Security Registrar with respect to the 2024 Securities, and
agrees to perform such trusts upon the terms and conditions set forth in the
Indenture and in this Second Supplemental Indenture.
Section 4.2. Rights, Powers, Duties and Obligations of the Trustee.
Any rights, powers, duties and obligations by any provisions of
the Indenture conferred or imposed upon the Trustee shall, insofar as permitted
by law, be conferred or imposed upon and exercised or performed by the Trustee
with respect to the 2024 Securities.
ARTICLE V
MISCELLANEOUS
Section 5.1. 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 Base Indenture with respect to the 2024 Securities shall apply
only to the 2024 Securities created hereby and not to any past or future series
of Securities issued under the Base Indenture.
-10-
Section 5.2. Benefits of Second Supplemental Indenture.
Nothing contained in this Second Supplemental Indenture shall or
shall be construed to confer upon any person other than a Holder of the 2024
Securities, the Company and the Trustee any right or interest to avail itself or
himself, as the case may be, of any benefit under any provision of the Base
Indenture or this Second Supplemental Indenture.
Section 5.3. Amendment of Second Supplemental Indenture.
The Company and the Trustee, at any time and from time to time,
may amend, modify or supplement this Second Supplemental Indenture in accordance
with the provisions of Article Nine of the Base Indenture.
Section 5.4. 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.
Section 5.5. Governing Law; Waiver of Jury Trial; Submission
to Jurisdiction; Judgment Currency.
THIS SECOND SUPPLEMENTAL INDENTURE AND EACH 2024 SECURITY SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SECOND
SUPPLEMENTAL INDENTURE, THE 2024 SECURITIES OR THE TRANSACTION CONTEMPLATED
HEREBY.
The Company and the Trustee hereby submit to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York state court sitting in the Borough of Manhattan in
New York City for the purposes of all legal proceedings arising out of or
relating to the Indenture. The Company and the Trustee irrevocably waive, to the
fullest extent permitted by applicable law, any objection which they may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum. The Company hereby designates and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its
authorized agent upon which process may be served in any legal suit, action or
proceeding arising out of or relating to the Indenture which may be instituted
in any federal or state court in the Borough of Manhattan, The City of New York,
New York, and agrees that service of process upon such agent, and written notice
of said service to the Company by the Person serving the same, shall be deemed
in every respect effective service of process upon the Company in any such suit,
action or proceeding and further designates its domicile, the domicile of CT
Corporation System specified above and any domicile CT Corporation System may
have in the future as its domicile to receive any notice hereunder (including
service of process). If for any reason CT Corporation System (or any successor
agent for this purpose) shall cease to act as agent for service of process as
provided above, the
-11-
Company will promptly appoint a successor agent for this purpose reasonably
acceptable to the Trustee. The Company agrees to take any and all actions as may
be necessary to maintain such designation and appointment of such agent in full
force and effect.
The Company agrees, to the fullest extent that it may effectively
do so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due (the "REQUIRED CURRENCY") into
a currency in which a judgment will be rendered (the "JUDGMENT CURRENCY"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
requisite amount of the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which a final unappealable judgment is
given and (b) its obligations under the Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under the
Indenture. For purpose of the foregoing, "NEW YORK BANKING DAY" means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day on
which banking institutions in The City of New York are authorized or obligated
by law, regulation or executive order to be closed.
Section 5.6. 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 5.7. Ratification of Base Indenture.
The Base Indenture, as supplemented by this Second Supplemental
Indenture, is in all respects ratified and confirmed, and this Second
Supplemental Indenture shall be deemed part of the Base Indenture in the manner
and to the extent herein and therein provided.
Section 5.8. Validity and Sufficiency.
The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Second Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
are made solely by the Company.
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as a deed by their respective
officers hereunto duly authorized, all as of the day and year first above
written.
XL CAPITAL LTD, as Issuer
By: /s/ Xxxxx X. Luck
-----------------------------------
Name: Xxxxx X. Luck
Title: Executive Vice President of
Group Operations
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
-13-
EXHIBIT A
---------
FORM OF NOTE
[If the Note is a Global Note, insert - THIS NOTE IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH
MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND
HOLDER OF THIS NOTE FOR ALL PURPOSES, INCLUDING THE PAYMENT OF PRINCIPAL AND
INTEREST.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR (II) BY A NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[If the Depository is The Depository Trust Company, insert -
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.]
X-0
Xx.
XXXXX Xx. 00000X AG 3
$_______________
XL CAPITAL LTD
6.375% SENIOR NOTE DUE 2024
XL CAPITAL LTD, an exempted limited company duly organized and
existing under the laws of the Cayman Islands (the "COMPANY", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to __________________ the principal sum
of ________________ United States dollars (U.S.$______________) [If the Note is
a Global Note, insert - , as such amount may be increased or decreased as set
forth on the Schedule of Increases or Decreases in Global Note annexed hereto,]
on November 15, 2024 (such date is hereinafter referred to as the "STATED
MATURITY"), and to pay interest thereon, from November 12, 2004, or from the
most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, at the rate of 6.375% per annum to, but excluding,
the relevant Interest Payment Date, until the Stated Maturity or early
redemption.
Interest on this Note initially shall be payable semi-annually in
arrears on May 15 and November 15 of each year (each, an "INTEREST PAYMENT
DATE"), commencing May 15, 2005 through and including November 15, 2024, until
the Stated Maturity or early redemption. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the May 1 and November 1,
respectively (whether or not a Business Day) preceding the relevant Interest
Payment Date.
Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice of
which shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date and shall otherwise be payable, all as
more fully provided in the Indenture.
Principal of and the interest on the Notes will be payable at the
Corporate Trust Office, or, at the option of the Company, by check mailed to
each Holder at its address set forth in the Security Register; PROVIDED HOWEVER,
that if a Holder has given wire transfer instructions to the Company and the
Paying Agent and Security Registrar at least ten Business Days prior to the
applicable payment date, principal of and the interest on the Notes will be
payable by wire transfer of immediately available funds to the account specified
in such instructions.
A-2
Interest on the Notes will be computed on the basis of a 360-day
year comprised of twelve 30-day months. The amount of interest payable for any
period shorter than a full semi-annual period for which interest is computed
will be computed on the basis of the actual number of days elapsed in the
180-day period.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if fully set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by the manual signature of one
of its authorized signatories, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be
executed and delivered as a deed.
Dated:
XL CAPITAL LTD
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
A-4
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By:____________________________
Authorized Officer
A-5
[FORM OF REVERSE]
This Note is one of a duly authorized issue of securities of the
Company designated as its "6.375% Senior Notes due 2024" (herein sometimes
referred to as the "NOTES"), initially limited in aggregate principal amount to
$350,000,000, issued under and pursuant to an Indenture, dated as of June 2,
2004 (the "BASE INDENTURE"), duly executed and delivered, between the Company
and The Bank of New York, as Trustee (the "TRUSTEE"), and a Second Supplemental
Indenture, dated as of November 12, 2004 (the "SECOND SUPPLEMENTAL INDENTURE"),
between the Company and the Trustee (such Base Indenture as amended and
supplemented by the Second Supplemental Indenture, the "INDENTURE"), to which
Indenture and all subsequent indentures supplemental thereto relating to the
Notes reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered.
The Notes are issuable only in registered form without coupons, in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series so issued are exchangeable for a like aggregate principal amount of Notes
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Notes will be redeemable, in whole at any time or in part from
time to time, at the Company's option, at a redemption price equal to the
accrued and unpaid interest on the principal amount of the Notes being redeemed
to the Redemption Date plus the greater of: (A) 100% of the principal amount of
the Notes to be redeemed, and (B) the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes to be redeemed (not
including any portion of such payments of interest accrued to the Redemption
Date) discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 25
basis points, as provided in, and subject to the terms of, the Indenture.
If a Tax Event occurs and is continuing, the Company may, at its
option, redeem the Notes in whole, but not in part, at any time at a redemption
price equal to 100% of the principal amount of the Notes, plus accrued and
unpaid interest, if any, to the Redemption Date and Additional Amounts, if any,
then due or that will become due on the Redemption Date as a result of the
redemption, as provided in, and subject to the terms of, the Indenture.
No sinking fund is provided for the Notes.
The Notes shall constitute the senior, unsecured and
unsubordinated obligations of the Company and shall rank equally in right of
payment with all existing and future senior, unsecured and unsubordinated
obligations of the Company.
In the case of an Event of Default described in Section 5.01(5) or
5.01(6) of the Indenture, all unpaid principal of and accrued interest and
Additional Amounts on the Notes then Outstanding shall be due and payable
immediately without any declaration or other act on the part of the Trustee or
the Holders of any Notes. In the case of all other Events of Default, if any
A-6
such Event of Default shall occur and be continuing, the principal of all of the
Notes, together with accrued interest to the date of declaration, may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the written consent of the Holders of not less than a majority
in principal amount of the Securities at the time Outstanding and affected
thereby. The Indenture also contains, with certain exceptions as therein
provided, provisions permitting Holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding, on behalf of the
Holders of all the Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note
or such other Note.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless (i) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, (ii) the Holders of
not less than 25% in principal amount of the Notes that are Outstanding shall
have made a written request to the Trustee to institute proceedings in respect
of such Event of Default as Trustee and offered the Trustee indemnity
satisfactory to it, (iii) the Trustee shall have failed to institute any such
proceeding for 60 days after receipt of such notice, request and offer of
indemnity, and (iv) the Trustee shall not have received from the Holders of a
majority in principal amount of the Notes that are Outstanding a direction
inconsistent with such written request during such 60-day period. The foregoing
shall not apply to any suit instituted by any Holder of this Note for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note at the times, places and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable on the Security
Register upon surrender of this Note for registration of transfer at the
Corporate Trust Office of the Trustee or at such other office or agency of the
Company as may be designated by it for such purpose in the Borough of Manhattan,
The City of New York (which shall initially be an office or agency of the
Trustee), or at such other offices or agencies as the Company may designate,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Security Registrar duly executed by, the Holder thereof or
his attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees by the Security Registrar. No
A-7
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to recover any tax or
other governmental charge payable in connection therewith.
Prior to due presentation of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner thereof
for all purposes, whether or not such Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal of (and premium, if
any on) or interest on this Note and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer or director or subsidiary, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of consideration for the issue hereof, expressly waived and
released.
[If Note is a Global Note, insert - This Note is a Global Note and
is subject to the provisions of the Indenture relating to Global Notes,
including the limitations in Section 2.03 of the Base Indenture on transfers and
exchanges of Global Notes.]
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
All capitalized terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
A-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT- ______ Custodian _______
(Cust) (Minor)
TEN ENT--as tenants by the entireties under Uniform Gifts to
JT TEN--as joint tenants with rights of
survivorship and not as tenants in common Minors Act ________________
(State)
Additional abbreviations may also be used though not on the above list.
A-9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
(Insert assignee's social security or tax identification number)
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints ________________ agent to transfer this Note on the
Security Register. The agent may substitute another to act for him or her.
Dated:
Signed:
Signature Guarantee:
(Sign exactly as your name appears on the other side of this Note)
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-10
[TO BE ATTACHED TO GLOBAL NOTE]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Amount of Amount of
Decrease in Increase in Stated Amount of Signature of
Stated Amount Stated Amount the Global Note Authorized
of the Global of the Global Following Such Officer of
Note Note Decrease/Increase Trustee Date
--------------- --------------- ----------------- -------------- ---------------
A-11
