Exhibit 1.4a
EXECUTION COPY
XL CAPITAL FINANCE (EUROPE) PLC
Senior Debt Securities
Unconditionally Guaranteed by XL Capital Ltd
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Underwriting Agreement
January 7, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representatives of the several
Underwriters named in the Pricing
Agreement hereinafter described
Ladies and Gentlemen:
From time to time XL Capital Finance (Europe) plc, a public limited company
organized under the laws of England and Wales (the "Issuer") and XL Capital Ltd,
a Cayman Islands exempted limited company (the "Company" or the "Guarantor") and
the ultimate parent of the Issuer, propose to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain debt securities of the Issuer (the "Debt
Securities"), specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Debt Securities"). The Debt
Securities will be fully and unconditionally guaranteed by the Company on an
subordinated and unsecured basis (the "Guarantee") as provided in the Indenture.
The Securities are to be issued under an indenture (the "Indenture") to be dated
as of January 10, 2002, between the Issuer, the Guarantor and State Street Bank
and Trust Company, as trustee (the "Trustee").
The terms and rights of any particular issuance of Designated Debt
Securities shall be as specified in the Pricing Agreement relating thereto.
1. Particular sales of Designated Debt Securities may be made from time to
time to the Underwriters of such Debt Securities, for whom the firms designated
as representatives of the Underwriters of such Debt Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as their representative. This Underwriting Agreement shall not
be construed as an obligation of the Issuer or the Company to sell any of the
Debt Securities or as an obligation of any of the Underwriters to purchase any
of the Debt Securities. The obligation of the Issuer to issue and sell any of
the Debt Securities, the obligation of the Guarantor to issue the Guarantee and
the obligation of any of the Underwriters to purchase any of the Debt Securities
shall be evidenced by the Pricing Agreement with respect to the Designated Debt
Securities specified therein. Each Pricing Agreement shall specify the aggregate
principal amount of such Designated Debt Securities, the initial public offering
price of such Designated Debt Securities, the purchase price to the Underwriters
of such Designated Debt Securities, the names of the Underwriters of such
Designated Debt Securities, the names of the Representatives of such
Underwriters, the principal amount of such Designated Debt Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Debt Securities, if any, and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Debt Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Issuer and the Company, jointly and severally, represent and warrant
to, and agree with, each of the Underwriters that:
(a) Each of the Issuer and the Company meets the requirements for use
of Form S-3 under the Act; and a registration statement on Form S-3 (File
No 333-75240) (the "Initial Registration Statement") in respect of the Debt
Securities has been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be delivered
to the Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus included therein, to the Representatives for each of the other
Underwriters has been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed, or transmitted for filing, with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission; any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant to
Rule 424(a) under the Act, including the related preliminary
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prospectus supplement with respect to the Debt Securities, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by reference
in the prospectus contained in the Initial Registration Statement at the
time such part of the Initial Registration Statement became effective, each
as amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration Statement, if
any, became or hereafter becomes effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the Debt
Securities, in the form used to confirm sales of the Debt Securities
(including the related prospectus supplement with respect to the Debt
Securities) and filed with the Commission pursuant to Rule 424(b), under
the Act, is hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of the
Issuer or the Company filed pursuant to Section 13(a), 13(c) or 15(d) of
the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Debt Securities in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, 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 the
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 become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, 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 the light of the
circumstances under which they were made, not misleading;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
rules and regulations of the Commission thereunder, and do not and
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will not, as of the applicable effective date, as of the date hereof and as
of the date of execution of the Pricing Agreement with respect to such
Designated Debt Securities as to the Registration Statement and any
amendment thereto and as of the applicable filing date and as of the Time
of Delivery as to the Prospectus and any amendment or supplement thereto,
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 in
the Registration Statement not misleading and the statements in the
Prospectus, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Debt Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Debt Securities; and on the applicable effective date and at the Time
of Delivery, the Indenture did and will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
and regulations thereunder;
(d) None of the Issuer, the Company nor any of the Significant
Subsidiaries (as defined below) has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, which loss or interference would have a Material Adverse
Effect (as defined below), or would reasonably be expected to have a
prospective Material Adverse Effect; and, since the respective dates as of
which information is given in the Registration Statement and the Prospectus
as amended or supplemented, there has not been any change in the capital
stock (other than changes resulting from the exercise of stock options or
the conversions of warrants or capital stock which were outstanding as of
such date, or from the exercise of options granted after such date in the
ordinary course of business or from repurchases of capital stock) or
long-term debt of the Issuer or the Company or any of the Significant
Subsidiaries or any material adverse change, or any development that would
reasonably be expected to involve a prospective material adverse change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Issuer or the Company
and the Significant Subsidiaries, taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Issuer has been duly formed and is validly existing as a
public limited company in good standing under the laws of England and
Wales, with power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign company for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification,
except where such failure to be so qualified in any such jurisdiction or to
have any such power or authority would not have a material adverse effect
on the current or future condition (financial or other), business,
properties or results of operations of the Issuer.
(f) The Company has been duly incorporated and is validly existing as
an exempted limited company in good standing under the laws of the Cayman
Islands, with power and authority to own its properties and conduct its
business as described in the Prospectus, and
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has been duly qualified as a foreign company for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, except where such failure to be so qualified in
any such jurisdiction or to have any such power or authority would not have
a material adverse effect on the current or future condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole or the transactions contemplated by this
Agreement (a "Material Adverse Effect"); and each Significant Subsidiary
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(g) The Company had, on September 30, 2001, an authorized
capitalization as set forth in the Prospectus under the caption "Actual"
under the heading "Capitalization", and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable;
(h) The Debt Securities have been duly authorized and, when the
Designated Debt Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated Debt
Securities, and when authenticated by the Trustee in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters, such Designated Debt Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Issuer, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, conveyance and other similar laws now or hereafter in
effect relating to or affecting creditors' rights or remedies generally and
to general equity principles and to the discretion of the court before
which any proceedings therefor may be brought (regardless of whether
enforcement is sought in a proceeding at law or in equity), and will be
entitled to the benefits provided by the Indenture under which they are to
be issued; the Indenture has been duly authorized and, when executed and
delivered by the Issuer, the Company and the Trustee, the Indenture will
constitute a valid and legally binding instrument of the Issuer and the
Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, conveyance and
other similar laws now or hereafter in effect relating to or affecting
creditors' rights or remedies generally and to general equity principles
and to the discretion of the court before which any proceedings therefor
may be brought (regardless of whether enforcement is sought in a proceeding
at law or in equity); the Indenture has been duly qualified under the Trust
Indenture Act; and the Securities and the Indenture will conform to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Debt Securities;
(i) The Guarantee endorsed on the Designated Debt Securities pursuant
to the Indenture has been duly authorized by the Company and, when executed
by the Company, and when the Designated Debt Securities are executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters, will constitute a valid and
legally binding instrument of the Company, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, conveyance and other similar laws now or hereafter in
effect relating to or affecting creditors' rights or remedies generally and
to general equity principles and to the discretion of the court before
which any proceedings therefor may be brought (regardless of whether
enforcement is sought in a proceeding at law or in equity); and the
Guarantee will conform to the description
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thereof contained in the Prospectus as amended or supplemented with respect
to the Designated Debt Securities;
(j) This Agreement has been duly authorized, executed and delivered by
the Issuer and the Company, and each Pricing Agreement has been duly
authorized by and, on the date thereof, will be duly executed and delivered
by, the Issuer and the Company;
(k) The issue and sale of the Debt Securities, the issue of the
Guarantee, the execution and delivery of the Indenture, this Agreement and
any Pricing Agreement and the compliance by the Issuer and the Company with
all of the provisions of the Securities, the Guarantee, the Indenture, this
Agreement and any Pricing Agreement and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Issuer or the
Company or any of the Significant Subsidiaries is a party or by which the
Issuer or the Company or any of the Significant Subsidiaries is bound or to
which any of the property or assets of the Issuer or the Company or any of
the Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter, the Articles of Association,
Memorandum of Association or Bye-laws (or similar organizational documents)
of the Issuer or the Company or any of the Significant Subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body ("Governmental Agency") having jurisdiction over the Issuer
or the Company or any of the Significant Subsidiaries or any of their
properties, except in each case (other than with respect to such charter,
Articles of Association, Memorandum of Association or Bye-laws (or similar
organizational documents)) for such conflicts, violations, breaches or
defaults which would not result in a Material Adverse Effect;
(l) No consent, approval, authorization, order, registration or
qualification of or with any such Governmental Agency (a "Governmental
Authorization") is required for the issue and sale of the Debt Securities
or the issuance of the Guarantee or the consummation by the Issuer and the
Company of the transactions contemplated by this Agreement, any Pricing
Agreement, the Guarantee or the Indenture, except (i) such as have been, or
will have been prior to the Time of Delivery (as defined in Section 4
hereof), obtained under the Act and the Trust Indenture Act, (2) such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Debt Securities by the Underwriters and
(3) as may be required by the listing of the Designated Debt Securities on
the Luxembourg Stock Exchange;
(m) Except as disclosed in the Prospectus, all of the issued share
capital of the Issuer has been duly and validly authorized and issued and
is fully paid and non-assessable; and all of the issued share capital of
each Significant Subsidiary which is a corporation has been duly and
validly authorized and issued, is fully paid and non-assessable and (except
for directors' qualifying shares) is owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims (for
purposes of this agreement, "Subsidiary" means, as applied to any person,
any corporation, limited or general partnership, trust, association or
other business entity of which an aggregate of greater than 50% of the
outstanding Voting Shares of such person is, at any time, directly or
indirectly, owned by such person and/or one or more subsidiaries of such
person, and "Significant Subsidiary" shall
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mean a "significant subsidiary" of the Company as set forth in Regulation
S-X under the Act; for purposes of the definition of " Subsidiary," "Voting
Shares" means, with respect to any corporation, the capital stock having
the general voting power under ordinary circumstances to elect at least a
majority of the board of directors (irrespective of whether or not at the
time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency));
(n) None of the transactions contemplated to be performed by the
Issuer or the Company by this Agreement (including, without limitation, the
use of the proceeds from the sale of the Designated Debt Securities) will
violate or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations T, U, and X of the Board of Governors of the Federal Reserve
System;
(o) Prior to the date hereof, neither the Issuer nor the Company nor,
to the Issuer's or the Company's knowledge, any of its affiliates has taken
any action which is designed to or which has constituted or which might
have been expected to cause or result in stabilization or manipulation of
the price of any security of the Issuer or the Company in connection with
the offering of the Designated Debt Securities in violation of the Exchange
Act;
(p) Other than as set forth or incorporated by reference in the
Prospectus, or as encountered in the ordinary course of business in the
Company's claim activities, there are no legal or governmental proceedings
pending to which the Issuer, the Company or any of the Significant
Subsidiaries is a party or of which any property of the Issuer, the Company
or any of the Significant Subsidiaries is the subject, which would
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect on the operations of the Issuer, the Company or the
Significant Subsidiaries; and, to the best of the Issuer's and the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(q) The financial statements of the Company and its consolidated
subsidiaries incorporated by reference in the Prospectus present fairly the
financial position of the Company and its consolidated Subsidiaries as of
the dates shown and their results of operations and cash flows for the
periods shown, and except as otherwise disclosed in the Prospectus, such
financial statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a consistent
basis;
(r) Each of the Issuer, the Company and the Significant Subsidiaries
possess adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by it and has not received any written notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(s) The Company is subject to Section 13 or 15(d) of the Exchange Act;
(t) Neither the Issuer nor the Company nor any of the Significant
Subsidiaries is in violation of its Articles of Association or Memorandum
of Association or Bye-laws (or similar
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organizational documents) or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except for such defaults which would not result in
a Material Adverse Effect;
(u) The statements set forth in the Prospectus under the caption
"Description of XL Capital Finance (Europe) plc Senior Debt Securities" and
the statements set forth in the Prospectus Supplement with respect to the
Designated Debt Securities under the captions "Description of the Senior
Notes" and "Book-Entry, Delivery and Form," insofar as they purport to
constitute a summary of the terms of the Indenture, the Debt Securities or
the Guarantee, and the statements set forth under the caption "Certain Tax
Consequences" in the Prospectus Supplement relating to the Designated Debt
Securities, insofar as they purport to describe the provisions of the laws
referred to therein, are accurate, complete and fair in all material
respects;
(v) The Issuer and the Company are not and, after giving effect to the
offering and sale of the Debt Securities and the Guarantee, neither of them
will be an "investment company", as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(w) PricewaterhouseCoopers LLP, the Company's auditors, who have
certified certain financial statements of the Company and its consolidated
subsidiaries, are independent public accountants as required by the Act and
the rules and regulations of the Commission thereunder; and KMPG Audit plc,
Winterthur International's auditors, who have certified certain financial
statements of Winterthur International, are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder; and
(x) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the United Kingdom or the Cayman Islands or
any political subdivision or taxing authority thereof or therein in
connection with (A) the issuance, sale and delivery by the Issuer to or for
the respective accounts of the Underwriters of the Designated Debt
Securities or (B) the sale or delivery outside the United Kingdom or the
Cayman Islands by the Underwriters of the Designated Debt Securities to the
initial purchasers thereof, other than as described in the opinions of
Hunter & Hunter and Xxxxxxxxx and May, respectively, delivered pursuant to
Sections 7(d) and 7(e) of this Agreement.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Debt Securities and authorization by the Representatives of the release of the
Designated Debt Securities, the several Underwriters propose to offer the
Designated Debt Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
4. Designated Debt Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Issuer and the Company, shall be delivered by or on behalf of the
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Issuer to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account specified by the Issuer
to the Representatives at least twenty-four hours in advance as specified in
such Pricing Agreement, all in the manner and at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives, the Issuer and the Company may agree upon in writing, such
time and date being herein called the "Time of Delivery" for such Debt
Securities.
5. The Issuer and the Company jointly and severally agree with each of the
Underwriters of any Designated Debt Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Debt Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Debt Securities or, if applicable,
such earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Debt Securities and prior to any Time of Delivery for such Debt
Securities which shall be disapproved by the Representatives for such Debt
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Debt Securities and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Issuer or the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Debt Securities, and during
such same period to advise the Representatives, 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 with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Debt Securities, of
the suspension of the qualification of such Debt Securities 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 Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use of
any prospectus relating to the Debt Securities or suspending any such
qualification, promptly to use its best efforts to obtain the withdrawal of
such order; the Representatives shall advise the Issuer when the delivery
of a prospectus is no longer required in connection with the offer or sale
of Designated Debt Securities pursuant to this Section 5(a);
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Debt Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may reasonably request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Debt Securities, provided
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that in connection therewith the Issuer and the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction;
(c) Prior to 7:00 A.M., New York City time, on the second New York
Business Day next succeeding the date of the Pricing Agreement with respect
to the Designated Debt Securities and from time to time, to furnish the
Underwriters with written and electronic copies of the Prospectus as
amended or supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Debt Securities and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary 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 with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many written and electronic
copies as the Representatives may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) To use its reasonable best efforts to cause the Designated Debt
Securities to be listed, and to use its reasonable best efforts to maintain
the listing of the Designated Debt Securities, on the Luxembourg Stock
Exchange;
(f) To use the net proceeds received by it from the sale of the
Designated Debt Securities pursuant to this Agreement and the Pricing
Agreement in the manner set forth in the Prospectus as amended or
supplemented with respect to such Designated Debt Securities under the
caption "Use of Proceeds;"
(g) If the Issuer and the Company elect to rely upon Rule 462(b), the
Issuer and the Company shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of the Pricing Agreement with respect to the
Designated Debt Securities, and the Issuer and the Company shall at the
time of filing either pay the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act;
10
(h) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
corporate logo for use on the website, if any, operated by such Underwriter
for the purpose of facilitating the on-line offering of the Debt Securities
in connection with the distribution contemplated by this Underwriting
Agreement (the "License"); provided, however, that the License shall be
used solely for the purpose described above, is granted without any fee and
may not be assigned or transferred; and
(i) Neither the Issuer nor the Company will take, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of
the Issuer or Company to facilitate the sale or resale of the Debt
Securities.
6. The Issuer and the Company, jointly and severally, covenant and agree
with the several Underwriters that, subject to any agreements between the
Issuer, the Company and the Representatives relating to expenses, the Issuer and
the Company will jointly and severally pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Issuer's and the Company's
counsel and accountants in connection with the registration of the Debt
Securities and the Guarantees under the Act and the issue and sale of the Debt
Securities and the Guarantee, and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Blue Sky Memorandum, and closing documents
(including compilations thereof); (iii) all expenses in connection with the
qualification of the Debt Securities and the Guarantee for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and legal investment
surveys; (iv) any filing fees incident to, and the fees and disbursements of
counsel for the Underwriters in connection with, any required reviews by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Debt Securities; (v) the cost of preparing the Debt Securities and the
Guarantee; (vi) any fees charged by any securities rating service for rating the
Debt Securities; (vii) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection
with the Indenture, the Guarantee and the Securities; (viii) any cost incurred
in connection with the listing of the Debt Securities on the Luxembourg Stock
Exchange, including, without limitation, the fees and expenses of the Luxembourg
Listing, Transfer and Paying Agent, (ix) all expenses and taxes arising as a
result of the issuance, sale and delivery of the Designated Debt Securities and
the Guarantee, of the sale and delivery outside of the United Kingdom and the
Cayman Islands of the Designated Debt Securities and the Guarantee by the
Underwriters to the initial purchasers thereof in the manner contemplated under
this Agreement and the Pricing Agreement, including, in any such case, any
United Kingdom or Cayman Islands income, capital gains, withholding, transfer or
other tax asserted against a Underwriter by reason of the purchase and sale of
the Designated Debt Securities and the Guarantee pursuant to the Underwriting
Agreement and the Pricing Agreement; and (viii) all other costs and expenses
incident to the performance of the respective obligations of the Issuer and the
Company hereunder and under any Pricing Agreement which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
11
their counsel, transfer taxes on resale of any of the Debt Securities by them,
and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Debt Securities
under the Pricing Agreement relating to such Designated Debt Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Issuer and the
Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Debt Securities are, at and as of the Time of Delivery for such
Designated Debt Securities, true and correct, the condition that the Issuer and
the Company shall have performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such
Designated Debt Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Issuer and the Company have elected to
rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of the
Pricing Agreement with respect to such Designated Debt Securities; no stop
order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Underwriters, shall
have furnished to the Representatives their written opinion or opinions,
dated such Time of Delivery, in form and substance reasonably satisfactory
to the Representatives, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(c) Xxxxxx Xxxxxx & Xxxxxxx, United States counsel for the Issuer and
the Company, shall have furnished to the Representatives their written
opinion or opinions, dated such Time of Delivery, in form and substance
reasonably satisfactory the Representatives, in the form attached hereto in
Annex II;
(d) Hunter & Hunter, Cayman Islands counsel for the Issuer and the
Company, shall have furnished to the Representatives their written opinion
or opinions, dated such Time of Delivery, in form and substance reasonably
satisfactory to the Representatives, in the form attached hereto in Annex
III;
(e) Xxxxxxxxx and May, United Kingdom counsel for the Issuer and the
Company, shall have furnished to the Representatives their written opinion
or opinions, dated such Time of Delivery, in form and substance reasonably
satisfactory to the Representatives, in the form attached hereto in Annex
IV;
(f) Xxxx X. Xxxxxxxx, Executive Vice President and General Counsel to
the Company, shall have furnished to the Representatives his written
opinion or opinions, dated such Time of
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Delivery, in form and substance reasonably satisfactory to the
Representatives, in the form attached hereto in Annex V;
(g) On the date of the Pricing Agreement for such Designated Debt
Securities and at the Time of Delivery for such Designated Debt Securities,
PricewaterhouseCoopers LLP, the independent accountants of the Company who
have certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter or letters, dated the
respective dates of delivery thereof, in form and substance reasonably
satisfactory to the Representatives;
(h) (i) None of the Issuer, the Company nor any of the Significant
Subsidiaries shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended prior to the date of the Pricing Agreement relating
to the Designated Debt Securities any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Debt Securities, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended or supplemented prior to the date of the Pricing Agreement relating
to the Designated Debt Securities there shall not have been any change in
the capital stock (other than changes resulting from the exercise of stock
options or the conversion of warrants or capital stock which were
outstanding as of such date, or from the exercise of options granted after
such date in the ordinary course of business or from repurchases of capital
stock) or long-term debt of the Issuer or the Company or any of the
Significant Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Issuer or the Company and the Significant Subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Debt Securities, the effect of which, in any such case described
in clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impractical or inadvisable to proceed
with the public offering or the delivery of the Designated Debt Securities
on the terms and in the manner contemplated in the Prospectus as amended or
supplemented relating to the Designated Debt Securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Debt Securities (i) no downgrading shall have occurred in the
rating accorded the Issuer's or the Company's debt securities or the
Issuer's or the Company's financial strength or claims paying ability by
any "nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) other than any announcements made prior to the date of the Pricing
Agreement, no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Issuer's or the Company's debt securities or the
Issuer's or the Company's financial strength or claims paying ability;
(j) On or after the date of the Pricing Agreement relating to the
Designated Debt Securities there shall not have occurred any of the
following: (i) a suspension or material
13
limitation in trading in securities generally on the New York Stock
Exchange (the "Exchange"); (ii) a suspension or material limitation in
trading in the Company's securities on the Exchange; (iii) a general
moratorium on commercial banking activities in New York or Bermuda declared
by the relevant authority or a material disruption in commercial banking or
securities settlement or clearance services in the United States or any
other relevant jurisdiction; (iv) the outbreak or escalation of hostilities
involving the United States, the United Kingdom, the Cayman Islands or
Bermuda or the declaration by the United States, the United Kingdom, the
Cayman Islands or Bermuda of a national emergency or war, if the effect of
any such event specified in this clause (iv) in the judgment of the
Representatives is so material and adverse as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Designated Debt Securities on the terms and in the manner contemplated in
the Prospectus as amended or supplemented relating to the Designated Debt
Securities; (v) a change or development involving a prospective change in
taxation in the United Kingdom affecting the Issuer, the Debt Securities or
the transfer thereof or a change or development involving a prospective
change in the Cayman Islands taxation affecting the Company or the
Guarantee or (vi) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions or currency exchange
rates or controls in the United States, the Cayman Islands, the United
Kingdom, Bermuda or elsewhere, if the effect of any such event specified in
this clause (vi) in the judgment of the Representatives is so material and
adverse as to make it impractical or inadvisable to proceed with the public
offering or the delivery of the Designated Debt Securities on the terms and
in the manner contemplated in the Prospectus as amended or supplemented
relating to the Designated Debt Securities;
(k) The Issuer and the Company shall have complied with the provisions
of Section 5(c) hereof with respect to the furnishing of prospectuses on
the second New York Business Day next succeeding the date of the Pricing
Agreement relating to such Designated Debt Securities;
(l) The Issuer and the Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the Designated
Debt Securities certificates of officers of the Issuer and the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Issuer and the Company herein at and
as of such Time of Delivery, as to the performance by the Issuer and the
Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a)
relating to the effectiveness of the Registration Statement and no stop
orders, as to the matters set forth in subsections (h) and (i) of this
Section and as to such other matters as the Representatives may reasonably
request;
(m) The Indenture shall have been duly executed and delivered by the
Issuer and the Company; and the Designated Debt Securities and the form of
Guarantee endorsed on the Designated Debt Securities shall have been duly
executed and delivered by the Issuer or the Company, as the case may be,
and the Designated Debt Securities shall have been duly authenticated by
the Trustee in accordance with the Indenture; and
(n) Prior to the Closing Date, the Issuer and the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
14
8. The Issuer and the Company will jointly and severally indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the 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 any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Debt
Securities, or any amendment or supplement thereto, 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 each Underwriter for any legal expenses of one counsel (in
addition to any local counsel) engaged reasonably incurred by such Underwriter
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Issuer and 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 made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Debt Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Issuer and the Company by
any Underwriter of Designated Debt Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to such
Debt Securities.
(a) Each Underwriter will indemnify and hold harmless the Issuer and the
Company against any losses, claims, damages or liabilities to which the Issuer
and the Company may become subject, under the 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 any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Debt Securities, or any
amendment or supplement thereto, 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 any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Debt Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Issuer and the Company by
such Underwriter through the Representatives expressly for use therein; and will
reimburse the Issuer and the Company for any legal or other expenses reasonably
incurred by the Issuer and the Company in connection with investigating or
defending any such action or claim as such expenses are incurred, including the
reasonable fees and expenses of one counsel (in addition to any applicable local
counsel).
(b) Promptly after receipt by an indemnified party under subsection (a) or
(b) above 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 such subsection, 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 such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
15
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, 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 (except 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 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 other indemnified parties 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. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include any statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(c) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Issuer and the Company on the one hand and the Underwriters of the
Designated Debt Securities on the other from the offering of the Designated Debt
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Issuer and the Company on
the one hand and the Underwriters of the Designated Debt Securities on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Issuer and the Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Issuer bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a
16
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuer or the Company on the one hand or
such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Issuer, the Company and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). 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 (d) 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 (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Debt Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Debt Securities in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations with respect to such Debt
Securities and not joint.
(d) The obligations of the Issuer and the Company under this Section 8
shall be in addition to any liability which the Issuer or the Company may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Issuer and the Company and to each person, if any, who controls the Issuer or
the Company within the meaning of the Act.
9. If any Underwriter shall default in its obligation to purchase the
Designated Debt Securities which it has agreed to purchase under the Pricing
Agreement relating to such Debt Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties satisfactory
to the Issuer and the Company to purchase such Debt Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Debt Securities, then the Issuer and the Company shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Debt
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Issuer and the Company that they have so
arranged for the purchase of such Debt Securities, or the Issuer and the Company
notify the Representatives that they have so arranged for the purchase of such
Debt Securities, the Representatives or the Issuer and the Company shall have
the right to postpone a Time of Delivery for such Debt Securities for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Issuer and the
Company agree to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section
17
with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Debt Securities.
(a) If, after giving effect to any arrangements for the purchase of the
Designated Debt Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Issuer and the Company as provided in subsection (a)
above, the aggregate number of such Debt Securities which remains unpurchased
does not exceed one-eleventh of the aggregate number of the Designated Debt
Securities to be purchased at the respective Time of Delivery, then the Issuer
and the Company shall have the right to require each non-defaulting Underwriter
to purchase the number of Designated Debt Securities which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated Debt
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Designated Debt Securities
which such Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Debt Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Debt Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Issuer and the Company as provided in subsection (a)
above, the aggregate number of Designated Debt Securities which remains
unpurchased exceeds one-eleventh of the aggregate number of the Designated Debt
Securities to be purchased at the respective Time of Delivery, as referred to in
subsection (b) above, or if the Issuer and the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Designated Debt Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Debt
Securities shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Issuer or the Company, except for the expenses
to be borne by the Issuer, the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Issuer, the Company and the several Underwriters, as set
forth in this Agreement or any Pricing Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement or any Pricing 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 any Underwriter or
any controlling person of any Underwriter, or Issuer or the Company, or any
officer or director or controlling person of the Issuer or the Company, and
shall survive delivery of and payment for the Debt Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Issuer and the Company shall not then be under any liability to any
Underwriter with respect to the Designated Debt Securities with respect to which
such Pricing Agreement shall have been terminated except as provided in Sections
6 and 8 hereof; but, if for any other reason, Designated Debt Securities are not
delivered by or on behalf of the Issuer and the Company as provided herein, the
Issuer and the Company will jointly and severally reimburse the Underwriters
through the Representatives for all out-of-pocket expenses approved in writing
by the Representatives, including reasonable fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Debt Securities, but the Issuer and the
Company shall then be under no further liability to any Underwriter with respect
to such Designated Debt Securities except as provided in Sections 6 and 8
hereof.
18
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Debt Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Issuer and/or the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Secretary; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its principal address, which address will be supplied to the Issuer and the
Company by the Representatives upon written request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Issuer, the Company and,
to the extent provided in Sections 8 and 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Debt
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Each of the Issuer and the Company irrevocably (i) agrees that any
legal suit, action or proceeding against the Issuer or the Company brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement, any Pricing 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. Each of the Issuer and 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, any Pricing 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 any Underwriter
or by any person who controls any Underwriter, 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. Each of the Issuer and 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 Issuer or the Company, as the case may be, shall be deemed, in every
respect, effective service of process upon the Issuer or Company, as the case
may be.
15. Time shall be of the essence in each Pricing Agreement. As used herein,
the term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for
19
business. "New York Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close.
16. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
17. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
18. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Underwriters imposing any limitation of any kind.
19. In respect of any judgment or order given or made for any amount due
hereunder or under any Pricing Agreement that is expressed and paid in a
currency (the "judgment currency") other than United States dollars, the Issuer
and the Company will, jointly and severally, indemnify each Underwriter against
any loss incurred by such Underwriter as a result of any variation as 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 an Underwriter is able to purchase United States
dollars with the amount of judgment currency actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and independent
obligation of each of the Issuer and the Company and shall continue in full
force and effect notwithstanding any such judgment or order as 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.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
20
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Issuer and the Company and one for each of the
Representatives plus one for each counsel counterparts hereof.
Very truly yours,
XL Capital Finance (Europe) plc
By: /s/ Xxxxx de St. Paer
-------------------------------
Name: Xxxxx de St. Paer
Title: Director
XL Capital Ltd
By: /s/ Xxxxx de St. Paer
-------------------------------
Name: Xxxxx de St. Paer
Title: Executive Vice President &
Chief Financial Officer
Accepted as of the date hereof:
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
By: Xxxxxxx Xxxxx Barney Inc.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
21
ANNEX I
Pricing Agreement
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
January __, 2002
Ladies and Gentlemen:
XL Capital Finance (Europe) plc, a public company organized under the laws
of England and Wales (the "Issuer") proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated January 7,
2002 (the "Underwriting Agreement"), between the Issuer and XL Capital Ltd, a
Cayman Islands exempted limited company (the "Company" or the "Guarantor"), on
the one hand and Xxxxxxx Xxxxx Xxxxxx Inc. and X.X. Xxxxxx Securities Inc., on
the other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Debt Securities specified in Schedule II hereto (the
"Designated Debt Securities"). The Debt Securities will be fully and
unconditionally guaranteed by the Company on an unsubordinated and unsecured
basis (the "Guarantee") as provided in the Indenture. Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated Debt
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated Debt
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth in Schedule
II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Debt Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Issuer agrees to
issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Issuer, at the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the number of Designated Debt
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Issuer and the Company and one for each of the
Representatives plus one for each counsel counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters, the Issuer and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement among Underwriters,
the form of which shall be submitted to the Issuer and the Company for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
XL Capital Finance (Europe) plc
By: ________________________________
Name:
Title:
XL Capital Ltd
By: ________________________________
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx Xxxxx Xxxxxx Inc.
X.X. Xxxxxx Securities Inc.
By: Xxxxxxx Xxxxx Barney Inc.
By: _____________________________
Name:
Title:
For themselves and the other several Underwriters named in Schedule I to the
foregoing Agreement.
SCHEDULE 1
Underwriter Number of Designated Debt
Securities to be Purchased
Total................................. ==============
SCHEDULE II
Title of Designated Debt Securities:
Aggregate Principal Amount of Designated Debt Securities:
Initial Offering Price to Public:
Purchase Price by Underwriters:
Form of Designated Debt Securities:
Specified Funds for Payment of Purchase Price:
Time of Delivery:
Time of Delivery Location:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Sinking Fund Provisions:
Additional Closing Conditions:
Names and Addresses of Representatives:
Other Terms:
ANNEX II
XXXXXX XXXXXX & XXXXXXX FORM OF OPINION
ANNEX III
HUNTER & HUNTER FORM OF OPINION
ANNEX IV
XXXXXXXXX AND MAY FORM OF OPINION
ANNEX V
XL CAPITAL LTD/XL CAPITAL FINANCE (EUROPE) PLC FORM OF OPINION
