EXHIBIT 1.1
EXECUTION COPY
XL CAPITAL LTD
SENIOR DEBT SECURITIES
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UNDERWRITING AGREEMENT
November 8, 2004
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28288
Credit Suisse First Boston LLC
11 Madison Avenue
New York, NY 10010
as Representatives of the several
Underwriters named in the Pricing
Agreement hereinafter described
Ladies and Gentlemen:
From time to time XL Capital Ltd, a Cayman Islands exempted limited
company (the "Company"), proposes 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 of its senior debt securities (the "Debt
Securities"), specified in Schedule II-A and Schedule II-B to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated Debt
Securities").
The terms and rights of any particular issuance of Designated Debt
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture, as amended or supplemented by any supplemental
indenture relating to the Designated Debt Securities (the "Indenture"), between
the Company and the trustee (the "Trustee"), in each case as identified in the
Pricing Agreement.
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 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 Company to issue and sell any of the Debt Securities 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 or the manner of determining such
price, 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 aggregate principal
amount of such Designated Debt Securities to be purchased by each Underwriter
and the commission, if any, payable to the Underwriters with respect thereto and
shall set forth the date, time and manner of delivery of such Designated Debt
Securities, if any, and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the registration statement and
prospectus with respect thereto) the terms of such Designated Debt Securities,
including the interest rates, if any, and maturity of the Designated Debt
Securities, whether such Designated Debt Securities will be convertible at the
option of the holder thereof, any redemption provisions and any sinking fund
requirements. 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 Company represents and warrants to, and agrees with, each of
the Underwriters, as of the date hereof, as of the date of the Pricing Agreement
with respect to any Designated Debt Securities and as of the Time of Delivery
(as defined in Section 4 hereof), that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"); and a
registration statement on Form S-3 (File No 333-116245) (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 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 the Company's
Annual Report on Form 10-K for the year ended December 31, 2003 (as
amended by the Company's Annual Report on Form 10-K/A filed on August 9,
2004), the Company's Quarterly Report on Form
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10-Q for the quarter ended March 31, 2004, the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 2004, the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 2004 and the
Company's Current Reports on Form 8-K dated March 16, 2004, March 18,
2004, March 24, 2004, May 19, 2004, August 9, 2004, August 18, 2004,
August 23, 2004, September 22, 2004, September 30, 2004, October 14,
2004, October 28, 2004 and November 8, 2004 incorporated by reference
into the Initial Registration Statement and the 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) or Rule 424(b) under the Act, including the related preliminary
prospectus supplement with respect to the Designated 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 and the Rule 462(b) Registration Statement, if
any, at the time such part of the Initial Registration Statement or such
part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective but excluding each Form T-1, 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 effective and, as amended, at the time each incorporated document
was filed with the Commission are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Designated Debt
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, including any prospectus supplements thereto, 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 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);
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(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 Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission
thereunder and do not and 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 Designated
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) Neither the Company nor any of its 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 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
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,
there has not been any change in the capital stock (other than changes
resulting
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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
Company or any of its 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 Company and its Significant Subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) 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 full 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 Company and its subsidiaries taken as a whole or the
transactions contemplated by this Agreement (a "Material Adverse
Effect"); and each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation;
(f) The Company had, on September 30, 2004, 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;
(g) This Agreement has been duly authorized, executed and
delivered by the Company, and each Pricing Agreement has been duly
authorized by and, on the date thereof, will be duly executed and
delivered by the Company;
(h) Prior to the execution and delivery of the Pricing
Agreement relating to the Designated Debt Securities, the Designated Debt
Securities shall have been duly and validly authorized, and, when the
Designated Debt Securities are issued and delivered pursuant to the 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 and
validly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject, as to enforcement,
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and remedies and to general equity
principles, and will be entitled to the benefits provided by the
Indenture; the Indenture has been duly authorized by the Company, and at
the Time of Delivery for such Designated Debt Securities, will be duly
executed and
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delivered by the Company and will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and remedies and
to general equity principles; the Indenture has been duly qualified under
the Trust Indenture Act; and the Designated Debt Securities and the
Indenture will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to the Designated Debt
Securities; the Indenture is substantially in the form filed as an
exhibit to the Registration Statement;
(i) If the Pricing Agreement with respect to the Designated
Debt Securities specifies that such Designated Debt Securities shall be
listed on an exchange, the Designated Debt Securities will be duly
registered under the Exchange Act and will be authorized for listing on
such exchange subject to official notice of issuance, in each case, prior
to the Time of Delivery;
(j) The issue and sale of the Debt Securities, the execution
and delivery of this Agreement, any Pricing Agreement and the Indenture
and the compliance by the Company with all of the provisions this
Agreement, any Pricing Agreement, the Indenture and the Debt Securities,
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 Company or any of its Significant Subsidiaries is a party or
by which the Company or any of its Significant Subsidiaries is bound or
to which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Articles of Association or the
Memorandum of Association (or similar organizational documents) of the
Company or any of its 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 Company or any of
its Significant Subsidiaries or any of its respective properties except
in each case (other than with respect to such Articles of Association or
Memorandum of Association (or similar organizational documents)) for such
conflicts, violations, breaches or defaults which would not result in a
Material Adverse Effect;
(k) No consent, approval, authorization, order, filing,
registration or qualification of or with any such Governmental Agency (a
"Governmental Authorization") is required for the issue and sale by the
Company of the Debt Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or
the Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act and
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;
(l) All of the issued share capital of each Significant
Subsidiary of the Company which is a corporation has been duly and
validly authorized and issued, is fully paid and non-
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assessable and (except for (i) a 15% ownership interest in XL Financial
Assurance Ltd. owned by a third party and (ii) 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 have the meaning of "significant
subsidiary" 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));
(m) None of the transactions contemplated to be performed by
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;
(n) Prior to the date hereof, neither the Company nor, to 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 Company in connection with the offering of the Designated
Debt Securities in violation of the Exchange Act;
(o) 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 claims activities, there are no legal or governmental actions,
suits or proceedings pending to which the Company or any of its
Significant Subsidiaries is a party or of which any property of the
Company or any of its 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 Company and its
Significant Subsidiaries; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(p) 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;
(q) The Company and its Significant Subsidiaries possess
adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any written notice of
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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;
(r) The Company is subject to Section 13 or 15(d) of the
Exchange Act;
(s) Neither the Company nor any of its Significant Subsidiaries
is in violation of its Articles of Association or Memorandum of
Association (or similar 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;
(t) The statements set forth in the Prospectus as amended or
supplemented relating to the Designated Debt Securities under the
captions "Description of the Senior Notes," "Prospectus Supplement
Summary," and "Description of XL Capital Debt Securities", insofar as
they purport to constitute a summary of the terms of the Debt Securities,
the Indenture and the other transaction documents described therein and
the statements set forth under the caption "Certain Tax Consequences" in
the Prospectus as amended or supplemented 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;
(u) The Company is not and, after giving effect to the offering
and sale of the Debt Securities, will not be an "investment company", as
such term is defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(v) PricewaterhouseCoopers LLP, the Company's auditors, are an
independent registered public accounting firm as required by the Act and
the rules and regulations of the Commission thereunder; and
(w) 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 Cayman Islands or any political
subdivision or taxing authority thereof or therein in connection with (A)
the issuance, sale and delivery by the Company to or for the respective
accounts of the Underwriters of the Designated Debt Securities or (B) the
sale or delivery outside the Cayman Islands by the Underwriters of the
Designated Debt Securities to the initial purchasers thereof, other than
as described in the opinion of Appleby Spurling Hunter delivered pursuant
to Section 7(d) 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.
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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 Company, shall be delivered by or on behalf of the Company
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 Company 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 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 Company agrees with each of the Underwriters of any Designated
Debt Securities:
(a) To prepare the Prospectus as amended or 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 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 Company 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);
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(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 that in connection
therewith 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 3:00 P.M., New York City time, on the 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 Designated 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) During the period beginning from the date of the Pricing
Agreement for such Designated Debt Securities and continuing to and
including the earlier of (i) the termination of trading restrictions for
such Designated Debt Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated Debt
Securities, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company that mature more than one year after
such Time of Delivery and that are substantially similar to such
Designated Debt Securities, without the prior written consent of the
Representatives;
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(f) To use its best efforts to cause the Designated Debt
Securities to be listed, and to maintain the listing of the Designated
Debt Securities, on the exchange, if any, set forth in Pricing Agreement
with respect to the Designated Debt Securities;
(g) 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 under the caption "Use of Proceeds"; and
(h) If the Company elects to rely upon Rule 462(b), 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 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.
6. The Company covenants and agrees with the several Underwriters,
subject to any agreements between the Company and the Representatives relating
to expenses, that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Debt Securities under the Act and the
issuance and sale of the Debt Securities 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 Indenture, any Blue Sky
Memorandum, and any closing documents (including compilations thereof); (iii)
all expenses in connection with the qualification of the Debt Securities 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 fees charged by securities
rating services for rating the Debt Securities; (v) 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; (vi) the cost of preparing
the Debt Securities; (vii) the fees and expenses of any Trustee and any agent of
any Trustee and the fees and disbursements of counsel for any such persons in
connection with any Indenture or the Debt Securities; (viii) all expenses and
taxes arising as a result of the issuance, sale and delivery of the Designated
Debt Securities, of the sale and delivery outside of the Cayman Islands of the
Designated Debt Securities 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 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 pursuant to the
Underwriting Agreement and the Pricing Agreement; (ix) any cost incurred in
connection with the listing of the Designated Debt Securities on the exchange,
if any, set forth in the Pricing Agreement with respect to the Designated Debt
Securities; and (x) all other costs and expenses incident to the performance of
its obligations 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,
11
11 and 19 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of 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
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 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 Company has 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) Simpson Thacher & Bartlett LLP, counsel for the
Underwriters, shall have furnished to the Representatives their written
opinion or opinions and letter, dated such Time of Delivery, in form and
substance reasonably satisfactory to the Representatives, in the form
attached hereto in Annex II-1 and Annex II-2, respectively, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Cahill Gordon & Reindel LLP, United States counsel for the
Company, shall have furnished to the Representatives their written
opinion or opinions and letter, dated such Time of Delivery, in form and
substance reasonably satisfactory to the Representatives, in the form
attached hereto in Annex III-1 and Annex III-2, respectively;
(d) Appleby Spurling Hunter, Cayman Islands counsel for 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;
(e) Charles F. Barr, Executive Vice President and General
Counsel to the Company, shall have furnished to the Representatives his
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 V;
12
(f) 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 registered public
accounting firm 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;
(g) (i) Neither the Company nor any of its 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 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 Company or
any of its 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 Company and its 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;
(h) 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 Company's debt securities 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 Company's debt securities or the Company's financial
strength or claims paying ability;
(i) 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 limitation in trading in
securities generally on the New York Stock Exchange (the
13
"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, the Cayman Islands 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 Cayman Islands
or Bermuda or the declaration by the United States, 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 the Cayman
Islands or Bermuda taxation affecting the Company, the Designated Debt
Securities or the transfer thereof or the imposition of exchange controls
by the United States, Bermuda or the Cayman Islands or (vi) the
occurrence of any other calamity or crisis or any change in financial,
political or economic conditions in the United States or currency
exchange rates or controls in the United States, the Cayman Islands,
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;
(j) The Designated Debt Securities at the Time of Delivery
shall have been duly listed, subject to notice of issuance, on the
exchange, if any, set forth in the Pricing Agreement with respect to such
Designated Debt Securities;
(k) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the
New York Business Day next succeeding the date of the Pricing Agreement
relating to such Designated Debt Securities;
(l) 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 Company satisfactory to the
Representatives as to the accuracy of the representations and warranties
of the Company herein at and as of such Time of Delivery, as to the
performance by 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, the matters set forth in
subsections (g) and (h) of this Section and as to such other matters as
the Representatives may reasonably request; and
(m) Prior to the Time of Delivery, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under
14
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 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 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.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which 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 Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by 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).
(c) 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 participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party
15
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.
(d) 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 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 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
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
16
Company 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 material fact
or the omission or alleged omission to state a material fact relates to
information supplied by 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 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.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which 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 Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) 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 Designated Debt Securities, the Representatives may
in their discretion arrange for themselves or another party or other parties
satisfactory to the Company to purchase such Designated 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 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 Designated Debt
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Company that they have so arranged for
the purchase of such Designated Debt Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such Designated Debt
Securities, the Representatives or the Company shall have the right to postpone
the Time of Delivery for such Designated Debt Securities for a period of not
more than seven days, in order to effect whatever
17
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 Company agrees 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
with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Debt Securities.
(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 Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Debt Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Debt Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount 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 principal amount 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.
(c) 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 Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated Debt
Securities to be purchased at the Time of Delivery, as referred to in subsection
(b) above, or if 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 Company, except for the expenses to be borne by 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 Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of 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 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, 8
and 19 hereof; but, if for any other reason, Designated Debt Securities are not
delivered
18
by or on behalf of the Company as provided herein, the Company will 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 Company shall then be under no further liability to any
Underwriter with respect to such Designated Debt Securities except as provided
in Sections 6, 8 and 19 hereof.
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 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 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 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. The Company irrevocably (i) agrees that any legal suit, action or
proceeding against 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. 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
19
personal jurisdiction with respect thereto. Such appointment shall be
irrevocable. The Company represents and warrants that the Authorized Agent has
agreed to act as such agent for service of process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company.
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 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 Company
will indemnify each Underwriter against any loss incurred by such Underwriter as
a result of any variation between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which 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 the Company and shall continue in full
force and effect notwithstanding any such judgment or order aforesaid. The term
"rate of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
[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 Company and one for each of the
Representatives counterparts hereof.
Very truly yours,
XL Capital Ltd
By: /s/ Fiona Luck
----------------------
Name: Fiona Luck
Title: Executive Vice President and
Chief of Group Operations
Accepted as of the date hereof:
Wachovia Capital Markets, LLC
Credit Suisse First Boston LLC
By: Wachovia Capital Markets, LLC
By: /s/ Jeff Gass
------------------------------
Name: Jeff Gass
Title: Director
By: Credit Suisse First Boston LLC
By: /s/ Sharon Harrison
------------------------------
Name: Sharon Harrison
Title: Director
For themselves and as Representatives
of the several Underwriters named
in the Pricing Agreement.
ANNEX I
PRICING AGREEMENT
Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28288
Credit Suisse First Boston LLC
11 Madison Avenue
New York, NY 10010
As Representatives of the several
Underwriters named in Schedule I hereto
November 8, 2004
Ladies and Gentlemen:
XL Capital Ltd, a Cayman Islands exempted limited company (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated November 8, 2004 (the "Underwriting
Agreement"), between the Company on the one hand and Wachovia Capital Markets,
LLC and Credit Suisse First Boston LLC, 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-A (such Debt Securities, the "2014 Debt
Securities") and Schedule II-B (such Debt Securities, the "2024 Debt Securities"
and, together with the 2014 Debt Securities, the "Designated Debt Securities")
hereto. 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-A and Schedule II-B 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 Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II-A and
Schedule II-B hereto, the aggregate principal amount 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 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 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 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 Ltd
By:
--------------------------------
Name:
Title:
Accepted as of the date hereof:
Wachovia Capital Markets, LLC
Credit Suisse First Boston LLC
By: Wachovia Capital Markets, LLC
By:
--------------------------------
Name:
Title:
By: Credit Suisse First Boston LLC
By:
--------------------------------
Name:
Title:
For themselves and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
SCHEDULE I
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF 2014 DEBT OF 2024 DEBT
SECURITIES SECURITIES
UNDERWRITER TO BE PURCHASED TO BE PURCHASED
----------- --------------- ---------------
Wachovia Capital Markets, LLC................. $66,000,000 $77,000,000
Credit Suisse First Boston LLC................ 66,000,000 77,000,000
HSBC Securities (USA) Inc. ................... 54,000,000 63,000,000
KeyBanc Capital Markets,
a Division of McDonald Investments Inc. ... 54,000,000 63,000,000
ABN AMRO Incorporated......................... 7,500,000 8,750,000
Banc of America Securities LLC................ 7,500,000 8,750,000
BNP Paribas Securities Corp. ................. 7,500,000 8,750,000
Calyon Securities (USA) Inc. ................. 7,500,000 8,750,000
Greenwich Capital Markets, Inc. .............. 7,500,000 8,750,000
ING Financial Markets LLC..................... 7,500,000 8,750,000
Lazard Freres & Co. LLC....................... 7,500,000 8,750,000
Scotia Capital (USA) Inc. .................... 7,500,000 8,750,000
Total................................. $300,000,000 $350,000,000
============ ============
SCHEDULE II-A
TITLE OF DEBT SECURITIES:
5.25% Senior Notes due 2014.
AGGREGATE PRINCIPAL AMOUNT OF DEBT SECURITIES:
$300,000,000 (Reopening; after giving effect to the offering,
$600,000,000 5.25% Senior Notes due 2014 will be outstanding, voting together as
the same series).
INITIAL OFFERING PRICE TO PUBLIC:
98.419% of the principal amount of the Debt Securities, plus accrued
interest from August 23, 2004 (such accrued interest equal to $3,456,250).
PURCHASE PRICE BY UNDERWRITERS:
97.969% of the principal amount of the Debt Securities, plus accrued
interest from August 23, 2004 (such accrued interest equal to $3,456,250).
UNDERWRITERS' COMMISSION:
0.450%
FORM OF DEBT SECURITIES:
Book-entry only form represented by one or more global certificates
deposited with The Depository Trust Company ("DTC") of its designated custodian,
to be made available for checking by the Representatives at least 24 hours prior
to the Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (Same-Day) funds.
INDENTURE:
Indenture, dated June 2, 2004, between the Company and The Bank of New
York, as Trustee, as supplemented by the First Supplemental Indenture, dated as
of August 23, 2004 and the Second Supplemental Indenture, to be dated as of
November 12, 2004.
MATURITY:
September 15, 2014.
INTEREST RATE:
5.25% per annum.
INTEREST PAYMENT DATES:
March 15 and September 15, commencing on March 15, 2005.
RECORD DATES:
The relevant record dates will be the March 1 and September 1 preceding
the relevant payment dates.
REDEMPTION PROVISIONS:
The Debt Securities are redeemable at the option of the Company (i) in
whole at any time or in part from time to time at a make-whole redemption price
described in the Prospectus under the caption "Description of the Senior
Notes--Optional Redemption" and (ii) if a "tax event" occurs, as described in
the Prospectus under the caption "Description of the Senior Notes--Tax Event
Redemption"), in each case in accordance with and subject to the terms to be set
forth in the Indenture.
SINKING FUND PROVISIONS:
No sinking fund provisions.
ADDITIONAL CLOSING CONDITIONS:
None.
TIME OF DELIVERY:
9:30 A.M., New York City time, on November 12, 2004.
TIME OF DELIVERY LOCATION:
Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York
10017.
DELAYED DELIVERY:
None.
LISTING:
None.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Wachovia Capital Markets, LLC
Credit Suisse First Boston LLC
Address for Notices, etc.: Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28288
Attn: Jeremy Schwartz
Credit Suisse First Boston LLC
11 Madison Avenue
New York, NY 10010
Attn: Transactions Advisory Group
OTHER TERMS:
None.
SCHEDULE II-B
TITLE OF DEBT SECURITIES:
6.375% Senior Notes due 2024.
AGGREGATE PRINCIPAL AMOUNT OF DEBT SECURITIES:
$350,000,000.
INITIAL OFFERING PRICE TO PUBLIC:
100.000% of the principal amount of the Debt Securities, plus accrued
interest, if any, from November 12, 2004.
PURCHASE PRICE BY UNDERWRITERS:
99.375% of the principal amount of the Debt Securities, plus accrued
interest, if any, from November 12, 2004.
UNDERWRITERS' COMMISSION:
0.625%
FORM OF DEBT SECURITIES:
Book-entry only form represented by one or more global certificates
deposited with The Depository Trust Company ("DTC") of its designated custodian,
to be made available for checking by the Representatives at least 24 hours prior
to the Time of Delivery.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (Same-Day) funds.
INDENTURE:
Indenture, dated June 2, 2004, between the Company and The Bank of New
York, as Trustee, as supplemented by the Second Supplemental Indenture, to be
dated as of November 12, 2004.
MATURITY:
November 15, 2024.
INTEREST RATE:
6.375% per annum.
INTEREST PAYMENT DATES:
May 15 and November 15, commencing on May 15, 2005.
RECORD DATES:
The relevant record dates will be the May 1 and November 1 preceding the
relevant payment dates.
REDEMPTION PROVISIONS:
The Debt Securities are redeemable at the option of the Company (i) in
whole at any time or in part from time to time at a make-whole redemption price
described in the Prospectus under the caption "Description of the Senior
Notes--Optional Redemption" and (ii) if a "tax event" occurs, as described in
the Prospectus under the caption "Description of the Senior Notes--Tax Event
Redemption"), in each case in accordance with and subject to the terms to be set
forth in the Indenture.
SINKING FUND PROVISIONS:
No sinking fund provisions.
ADDITIONAL CLOSING CONDITIONS:
None.
TIME OF DELIVERY:
9:30 A.M., New York City time, on November 12, 2004.
TIME OF DELIVERY LOCATION:
Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York
10017.
DELAYED DELIVERY:
None.
LISTING:
None.
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Wachovia Capital Markets, LLC
Credit Suisse First Boston LLC
Address for Notices, etc.: Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, NC 28288
Attn: Jeremy Schwartz
Credit Suisse First Boston LLC
11 Madison Avenue
New York, NY 10010
Attn: Transactions Advisory Group
OTHER TERMS:
None.
ANNEX II-1
SIMPSON THACHER & BARTLETT LLP FORM OF OPINION
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ANNEX II-2
SIMPSON THACHER & BARTLETT LLP FORM OF NEGATIVE ASSURANCE LETTER
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ANNEX III-1
CAHILL GORDON & REINDEL LLP FORM OF OPINION
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ANNEX III-2
CAHILL GORDON & REINDEL LLP FORM OF NEGATIVE ASSURANCE LETTER
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ANNEX IV
APPLEBY SPURLING HUNTER FORM OF OPINION
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ANNEX V
XL CAPITAL LTD FORM OF OPINION
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