EXHIBIT 4.3
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PLATINUM UNDERWRITERS FINANCE, INC.,
AS ISSUER
AND
PLATINUM UNDERWRITERS HOLDINGS, LTD,
AS GUARANTOR
TO
JPMORGAN CHASE BANK,
AS TRUSTEE
FORM OF FIRST SUPPLEMENTAL INDENTURE
DATED AS OF -, 2002
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FIRST SUPPLEMENTAL INDENTURE, dated as of -, 2002 (the "First Supplemental
Indenture"), among PLATINUM UNDERWRITERS FINANCE, INC., a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
PLATINUM UNDERWRITERS HOLDINGS, LTD., a Bermuda corporation (the "Guarantor"),
and JPMORGAN CHASE BANK, a New York banking corporation, as trustee (the
"Trustee").
WHEREAS, the Company and the Guarantor executed and delivered the
indenture, dated as of -, 2002 (the "Base Indenture"), to the Trustee to provide
for the future issuance of the Company's guaranteed debt securities (the
"Securities"), to be issued from time to time in one or more series as might be
determined by the Company under the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its -% Senior Guaranteed Notes due 2007 (the "Notes"), the form and substance
of such Notes and the terms, provisions and conditions thereof to be set forth
as provided in the Base Indenture and this First Supplemental Indenture
(together, the "Indenture"); and
WHEREAS, the Company and the Guarantor have requested that the Trustee
execute and deliver this First Supplemental Indenture and satisfy all
requirements necessary to make this First Supplemental Indenture a valid
instrument in accordance with its terms, and to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee, the valid
obligations of the Company and all acts and things necessary have been done and
performed to make this First Supplemental Indenture enforceable in accordance
with its terms, and the execution and delivery of this First Supplemental
Indenture has been duly authorized in all respects:
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company and the Guarantor covenant and agree with
the Trustee as follows:
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITION OF TERMS.
Unless otherwise provided herein or unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when used
in this First Supplemental Indenture;
(b) a term defined anywhere in this First 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;
(e) the following terms have the meanings given to them in the Purchase
Contract Agreement (as defined below): Failed Remarketing; Last Failed
Remarketing; Normal Units; Purchase Contract Agent; Remarketing Agreement;
Remarketing Date; Remarketing Value; Separate Notes; Subsequent Remarketing
Date; and Underwriting Agreement;
(f) the following terms have the meanings given to them in this Section
1.1(f):
"Interest Rate" shall have the meaning set forth in Section 2.5.
"Over-Allotment Option" shall mean the option granted to the
underwriters pursuant to the Underwriting Agreement to purchase up
to an additional 750,000 Normal Units.
"Purchase Contract Agreement" shall mean the Purchase Contract
Agreement, dated as of -, 2002, between the Company and -, as
purchase contract agent.
"Reset Agent" means a nationally recognized investment banking firm
chosen by the Company to determine the Reset Rate.
"Reset Date" shall mean the date following the Remarketing Date or a
Subsequent Remarketing Date, as applicable, on which the trades in a
successful remarketing of the Notes pursuant to the Purchase
Contract Agreement and the Remarketing Agreement settle.
"Reset Rate" means the lowest interest rate per annum (rounded to
the nearest one-thousandth (0.001) of one percent per annum), as
determined by the Reset Agent, that the Notes shall bear in order
for the Notes to have a market value at the Remarketing Date or any
Subsequent Remarketing Date, as the case may be, of at least 100.25%
of the Remarketing Value, assuming, for this purpose, even if not
true, that all of the Notes are held as components of Normal Units
and will be remarketed.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1. DESIGNATION, PRINCIPAL AMOUNT AND AUTHORIZED DENOMINATION.
There is hereby authorized a series of Securities designated the -% Senior
Guaranteed Notes due 2007, limited in aggregate principal amount to
$125,000,000, which amount to be issued shall be as set forth in any Company
Order for the authentication and delivery of Notes pursuant to the Base
Indenture and which amount may be increased by up to $18,750,000 in the event
the Over-Allotment option is exercised. The Notes shall be issuable in
denominations of $1000 and integral multiples thereof except that a Note held as
part of a Normal Unit represents an ownership interest of 1/40th, or 2.5%, of a
Note in aggregate principal amount of $1000 and will therefore correspond to the
stated amount of $25 per Normal Unit.
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Section 2.2. MATURITY.
The Stated Maturity Date of the Notes will be -, 2007.
Section 2.3. FORM AND PAYMENT.
(a) The Notes, on original issuance, shall be issued in the form of (i)
one or more definitive, fully registered Notes registered initially in the name
of JPMorgan Chase Bank, as Purchase Contract Agent and (ii) one fully registered
Global Notes registered in the name of The Depository Trust Company ("DTC"), as
Depository, or its nominee, and deposited with the Trustee, as custodian for
DTC, for credit by DTC to the respective accounts of beneficial owners of the
Separate Notes represented thereby (or such other accounts as they may direct).
(b) The principal of and the interest on the Notes shall be payable at
the Office or Agency of the Company maintained for that purpose; PROVIDED,
HOWEVER, that payment of interest may be made at the option of the Company by
check mailed to the registered Holder at such address as shall appear in the
Register or by wire transfer to an account appropriately designated by the
Holder entitled thereto.
Section 2.4. GLOBAL NOTE.
(a) DTC shall serve as the initial Depository for the Global Note.
(b) Unless and until it is exchanged for definitive Notes in registered
form in accordance with Section 305 of the Base Indenture, a Global Note may be
transferred, in whole but not in part, only to another nominee of the
Depository, or to a successor Depository selected or approved by the Company or
to a nominee of such successor Depository.
Section 2.5. INTEREST AND INTEREST RATE RESET.
(a) Each Note will bear interest from its 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, initially at the rate of -% per annum (the "Interest
Rate") up to but excluding the Reset Date; provided, however, that in the event
that a Last Failed Remarketing occurs, each Note shall continue to bear interest
at the Interest Rate until the principal of the Notes is paid or made available
for payment. In the event the Notes are successfully remarketed pursuant to the
Purchase Contract and Remarketing Agreement, each Note shall bear interest at
the Reset Rate from the Reset Date to the date on which the principal of the
Notes is paid or made available for payment; PROVIDED that any principal and
installment of interest which is overdue shall bear interest (to the extent that
payment of such interest is enforceable under applicable law) at the Interest
Rate up to but excluding the Reset Rate, if any, and thereafter at the Reset
Rate, from the dates such amounts are due until they are paid or made available
for payment, and such interest shall be payable on demand. Interest on the Notes
initially shall be payable quarterly in arrears on [-, -, - and -] of each year
(each, an "Interest Payment Date"), commencing [-], 2002, and then semi-annually
in arrears on the Interest Payment Dates of - and - of each year, commencing -,
2005, until the principal thereof is paid or made available for payment.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year consisting of twelve 30-day months. Except as
provided in the following sentence,
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the amount of interest payable for any period shorter than a full quarterly or
semi-annual, as applicable, period for which interest is computed will be
computed on the basis of the actual number of days elapsed in such a 90-day or
180-day period, as applicable. In the event that any date on which interest is
payable on the Notes is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date.
The Notes do not have the benefit of any sinking fund obligation.
ARTICLE III
FORM OF NOTE
Section 3.1. FORM OF NOTE.
The Notes and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the following forms:
[IF THE NOTE IS A GLOBAL NOTE, INSERT - This Note is a Global Note
within the meaning of the Indenture hereinafter referred to and is
registered in the name of the Depository or a nominee of the Depository.
This Note is exchangeable for Notes registered in the name of a person
other than the Depository or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Note (other than a
transfer of this Note as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited
circumstances.
Unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the
issuer 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 A PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.]
No.
CUSIP No. $
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PLATINUM UNDERWRITERS FINANCE, INC.
-% SENIOR GUARANTEED NOTE DUE 2007
PLATINUM UNDERWRITERS FINANCE, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
___________________, the principal sum of ______ dollars ($______________) on
[-], 2007 (such date is hereinafter referred to as the "Stated Maturity Date"),
and to pay interest on said principal sum from -, 2002, or from the most recent
interest payment date initially at the rate of -% per annum (the "Interest
Rate") up to, but excluding, the Reset Date; provided, however, that in the
event a Last Failed Remarketing occurs, this Note shall continue to bear
interest at the Interest Rate until the principal of the Notes is paid or made
available for payment. In the event the Notes are successfully remarketed
pursuant to the Purchase Contract and Remarketing Agreement this Note shall bear
interest at the Reset Rate, from the Reset Date to the date on which principal
hereof is paid or made available for payment; PROVIDED that any principal and
installment of interest which is overdue shall bear interest (to the extent that
payment of such interest is enforceable under applicable law) at the Interest
Rate up to but excluding, the Reset Date, if any, and thereafter at the Reset
Rate, from the dates such amounts are due until they are paid or made available
for payment, and such interest shall be payable on demand. Interest on this Note
initially shall be payable quarterly in arrears on [-, -, -, and -] of each year
(each, an "Interest Payment Date"), commencing -, 2002, and then semi-annually
in arrears on the Interest Payment Dates of - and - of each year, commencing on
-, 2005 until the principal hereof is paid or made available for payment. The
amount of interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year consisting of twelve 30-day months. Except as provided
in the following sentence, the amount of interest payable for any period shorter
than a full quarterly or semi-annual period, as applicable, for which interest
is computed will be computed on the basis of the actual number of days elapsed
in such a 90-day or 180-day period. In the event that any date on which interest
is payable on this Note is not a Business Day, then payment of interest payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date. The interest installment 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 is registered at the close of business on the regular record date for such
interest installment, which as long as any Notes are represented by a Global
Note shall be the close of business on the Business Day next preceding such
Interest Payment Date; PROVIDED, HOWEVER, if pursuant to the terms of the
Indenture the Notes are no longer represented by a Global Note, the Company may
select such regular record date for such interest installment which shall be
more than one Business Day but less than 60 Business Days prior to such Interest
Payment Date. Any such interest installment not punctually paid or duly provided
for shall forthwith cease to be payable to the registered Holders on such
regular record date and may be paid to the Person in whose name this Note is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Notes not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange all as more fully provided in the Indenture. The principal of and
the interest on this Note shall be payable at the Office or Agency of the
Company maintained for that purpose in any coin or currency of the United States
of America that at the
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time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that payment of interest may be made at the option of the
Company by check mailed to the registered Holder at such address as shall appear
in the Register or by wire transfer to an account appropriately designated by
the Holder entitled thereto.
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 authorization hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note and the
Guarantee endorsed herein shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed
under its corporate seal.
Dated:
PLATINUM UNDERWRITERS FINANCE, INC.
By:
--------------------------------
Name:
Title:
Attest:
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated herein referred to in
the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
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Authorized Officer
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(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of the Senior Guaranteed
Notes of the Company (herein sometimes referred to as the "Securities"),
specified in the Indenture hereinafter referred to, all issued or to be issued
in one or more series under and pursuant to an Indenture dated as of -, 2002
(the "Base Indenture"), duly executed and delivered among the Company, Platinum
Underwriters Holdings, Ltd., as guarantor (herein called the "Guarantor") and
JPMorgan Chase Bank, as Trustee (the "Trustee") (such Base Indenture as
supplemented by the First Supplemental Indenture, dated -, 2002, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities. By the terms of the Indenture, the Securities are
issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This series of
Securities is limited in aggregate principal amount as specified in said First
Supplemental Indenture.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Notes then Outstanding in whole (but not in part) at any time
("Tax Event Redemption") at a Redemption Price equal to, for each Note, the
Redemption Amount (as herein defined) plus accrued and unpaid interest thereon,
to the date of redemption (the "Tax Event Redemption Date"). If such Tax Event
Redemption occurs prior to a successful remarketing pursuant to Section - of the
Purchase Contract Agreement, the Redemption Price payable with respect to the
Notes pledged to the Collateral Agent (as herein defined) under the Pledge
Agreement dated as of -, 2002 by and among the Company, State Street Bank, as
Collateral Agent, Custodial Agent and Securities Intermediary (the "Collateral
Agent"), and JPMorgan Chase Bank, as Purchase Contract Agent and Trustee (the
"Pledge Agreement"), will be paid to the Collateral Agent on the Tax Event
Redemption Date on or prior to 12:00 p.m., New York City time, by wire transfer
in immediately available funds at such place and at such account as may be
designated by the Collateral Agent in exchange for the Notes pledged to the
Collateral Agent; in such event, the Collateral Agent shall apply such
Redemption Price pursuant to the terms of the Purchase Contract Agreement and
the Pledge Agreement.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Tax Event Redemption Date to each registered Holder of Notes
of this Series to be redeemed at its registered address as more fully provided
in the Indenture. Unless the Company defaults in payment of the Redemption
Price, on and after the Tax Event Redemption Date interest shall cease to accrue
on such Notes of this Series.
"Tax Event" means the receipt by the Company of an opinion of a nationally
recognized tax counsel experienced such matters, to the effect that there is
more than an insubstantial risk that interest payable by the Company on the
Notes on the next Interest Payment Date will not be deductible, in whole or in
part, by the Company for United States federal income tax purposes as a result
of (a) any amendment to, or change (including any announced proposed change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation (other
than any such amendment, change or announced proposed change to the so-called
"earnings stripping" provisions of Section 163(j) of the Internal Revenue Code,
which limit the ability of U.S. corporations to deduct interest on certain debt
owed to or guaranteed by related foreign persons), (b) any amendment to or
change in an official interpretation or application of such laws or regulations
by any legislative body,
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court, governmental agency or regulatory authority or (c) any official
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the generally accepted position on -,
2002, which amendment, change or proposed change is effective or which
interpretation or pronouncement is announced on or after -, 2002.
"Quotation Agent" means Xxxxxxx, Xxxxx & Co. or any of its successors or
any other primary U.S. government securities dealer in The City of New York
selected by the Company.
"Redemption Amount" means, for each Note, the product of (i) the principal
amount of such Note and (ii) a fraction whose numerator is the applicable
Treasury Portfolio Purchase Price (as herein defined) and whose denominator is
the applicable Tax Event Redemption Principal Amount (as herein defined).
"Tax Event Redemption Principal Amount" means (i) in the case of a Tax
Event Redemption Date occurring prior to a successful remarketing of the Notes
pursuant to the Purchase Contract Agreement, the aggregate principal amount of
Notes included in Normal Units on such date, and (ii) in the case of a Tax Event
Redemption Date occurring after a successful remarketing of the Notes pursuant
to the Purchase Contract Agreement, the aggregate principal amount of the Notes.
"Treasury Portfolio Purchase Price" means the lowest aggregate price
quoted by a primary U.S. government securities dealer in New York City to the
Quotation Agent on the third Business Day immediately preceding the Tax Event
Redemption Date for the purchase of the Treasury Portfolio for settlement on the
Tax Event Redemption Date.
"Treasury Portfolio" means: (i) if a Tax Event Redemption occurs prior to
a successful remarketing of the Notes pursuant to the provisions of the Purchase
Contract Agreement, a portfolio of zero-coupon U. S. Treasury securities
consisting of principal or interest strips of U.S. Treasury securities that
mature on or prior to -, 2005 in an aggregate amount equal to the applicable Tax
Event Redemption Principal Amount and with respect to each scheduled Interest
Payment Date on the Notes that occurs after the Tax Event Redemption Date and on
or before -, 2005, interest or principal strips of U.S. Treasury securities that
mature on or prior to such Interest Payment Date in an aggregate amount equal to
the aggregate interest payment that would be due on the applicable Tax Event
Redemption Principal Amount on such date if the interest rate of the Notes were
not reset on the Reset Date, and (ii) solely for purposes of determining the
Treasury Portfolio Purchase Price in the case of a Tax Event Redemption Date
occurring after a successful remarketing of the Notes pursuant to the Purchase
Contract Agreement, a portfolio of zero-coupon U.S. Treasury securities
consisting of principal or interest strips of U.S. Treasury securities that
mature on or prior to the Maturity Date in an aggregate amount equal to the
applicable Tax Event Redemption Principal Amount and with respect to each
scheduled Interest Payment Date on the Notes that occurs after the Tax Event
Redemption Date and on or before the Maturity Date, interest or principal strips
of U.S. Treasury securities that mature on or prior to such Interest Payment
Date in an aggregate amount equal to the aggregate interest payment that would
be due on the applicable Tax Event Redemption Principal Amount of the Notes
Outstanding on the Tax Event Redemption Date.
The Notes do not have the benefit of any sinking fund obligation.
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In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions 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 Guarantor and the rights of the Holders of the Notes under the
Indenture at any time by the Company, the Guarantor and the Trustee with the
consent of the majority of the Holders in principal amount of the Notes at the
time Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Company or the Guarantor, or both, 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
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
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 and premium, if any, and
interest on this Note at the times, place and rate, and in the coin or currency
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered Holder hereof on the
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Trustee in the City of New York and
State of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company or the Trustee duly executed by the
registered Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such transfer,
but the Company may require payment of a sum sufficient to cover any tax,
assessment or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Guarantor, the Trustee, any paying agent and the Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Registrar) for the purpose of
receiving payment of or on account of the principal hereof and premium, if any,
and interest due hereon and for all other purposes, and neither the Company, the
Guarantor nor the Trustee nor any paying agent nor any Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
shareholder, officer or director, past, present or future, as such, of the
Company or the Guarantor or of any predecessor or successor corporations,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or
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penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Indenture imposes certain limitations on the ability of the Company
and the Guarantor to, among other things, merge or consolidate with any other
Person or sell, assign, transfer, lease or convey all or substantially all of
its properties and assets. All such covenants and limitations are subject to a
number of important qualifications and exceptions. The Company and Guarantor
must report periodically to the Trustee on compliance with the covenants in the
Indenture.
The Notes of this series are issuable only in registered form without
coupons, in denominations of $1000 and any integral multiple thereof except that
a Note held as part of a Normal Unit represents an ownership interest of 1/40th,
or 2.5%, of a Note in aggregate principal amount of $1000 and will therefore
correspond to the stated amount of $25 per Normal Unit. 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 this series of a different authorized denomination, as requested by the
Holder surrendering the same.
[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 305 of the Base Indenture on transfers and exchanges
of Global Notes.]
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note and the Guarantee endorsed herein shall be governed by and
construed in accordance with the laws of the State of New York.
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GUARANTEE
For value received, Platinum Underwriters Holdings, Ltd., a corporation
organized under the laws of Bermuda (herein called the "Guarantor", which term
includes any successor under the Indenture referred to in the Note upon which
this Guarantee is endorsed), hereby fully and unconditionally guarantees to the
Holder of the Note upon which this Guarantee is endorsed, and to the Trustee on
behalf of such Holder, the due and punctual payment of the principal of,
premium, if any, and interest on such Note, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, according to the
terms of such Note and of the Indenture. In case of the failure of the Company
punctually to make any such payment of principal, premium, if any, or interest,
the Guarantor hereby agrees to cause any such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise, and as if such
payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
such Note or the Indenture, the absence of any action to enforce the same, any
waiver or consent by the Holder of such Note or by the Trustee with respect to
any provisions thereof or of the Indenture, the obtaining of any judgment
against the Company or any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives the benefits of division and discussion,
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Note or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in such Note and in this Guarantee.
The Holder of the Note upon which this Guarantee is endorsed is entitled
to the further benefits relating hereto set forth in the Indenture. No reference
herein to the Indenture and no provision of this Guarantee or of the Indenture
shall alter or impair the guarantee of the Guarantor, which is absolute and
unconditional, of the due and punctual payment of the principal of and interest
on the Note upon which this Guarantee is endorsed.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Guarantee which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication on the Note upon which this Guarantee is endorsed
shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized signatories.
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IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed.
PLATINUM UNDERWRITERS
HOLDINGS, LTD.
By:
---------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Name:
Title:
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
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(INSERT ASSIGNEE'S SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
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(INSERT ADDRESS AND ZIP CODE OF ASSIGNEE)
agent to transfer this Note on the Register. The agent may substitute another to
act for him or her.
Dated:
Signed:
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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.
14
ARTICLE IV
ORIGINAL ISSUE OF NOTES
Section 4.1. ORIGINAL ISSUE OF NOTES.
Notes in the aggregate principal amount of $o (which amount may be
increased by up to $o in the event the Over-Allotment Option is exercised) may,
upon execution of this First Supplemental Indenture, be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes in accordance with a Company Order. The
Issue Date of the Notes shall be -, 2002.
ARTICLE V
MISCELLANEOUS
Section 5.1. RATIFICATION OF BASE INDENTURE.
The Base Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Base Indenture in the manner and to the extent
herein and therein provided.
Section 5.2. GOVERNING LAW.
THIS FIRST SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 5.3. NOT RESPONSIBLE FOR RECITALS.
The recitals contained in this First Supplemental Indenture, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company and the Guarantor, and the Trustee assumes no responsibility for their
correctness and makes no representation as to the validity or sufficiency of
this First Supplemental Indenture.
Section 5.4. COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized, on the date or dates indicated in the acknowledgments and as of the
day and year first above written.
PLATINUM UNDERWRITERS
FINANCE, INC.,
as Issuer
[SEAL] By:
---------------------------------
Name:
Title:
Attest:
--------------------
PLATINUM UNDERWRITERS
HOLDINGS, LTD.,
as Guarantor
[SEAL] By:
---------------------------------
Name:
Title:
Attest:
--------------------
JPMORGAN CHASE BANK,
as Trustee
[SEAL] By:
---------------------------------
Name:
Title:
Attest:
--------------------
STATE OF )
) ss.:
COUNTY OF )
On the __ day of _________, 2002, before me personally came ____________,
to me known, who, being by me duly sworn, did depose and say that he is a
__________________ of Platinum Underwriters Finance, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------------
STATE OF )
) ss.:
COUNTY OF )
On the __ day of _________, 2002, before me personally came ____________,
to me known, who, being by me duly sworn, did depose and say that he is a
__________________ of Platinum Underwriters Holdings, Ltd., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
----------------------------------
STATE OF )
) ss.:
COUNTY OF )
On the ___ day of _____________, 2002, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he is a _______________ of JPMorgan Chase Bank, one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that she signed her name thereto by like authority.
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