EXHIBIT 4.4
DEPOSIT AND CUSTODY AGREEMENT
Deposit and Custody Agreement, dated as of May 18, 1998, among The
Chase Manhattan Bank, as depositary (the "Depositary"), Chase Manhattan Bank
Luxembourg S.A., as custodian (the "Custodian"), The Chase Manhattan Bank, as
trustee (the "Trustee"), Terra Nova Insurance (UK) Holdings plc (the "Issuer")
and Terra Nova (Bermuda) Holdings Ltd. ("Bermuda Holdings").
ARTICLE I
Definitions
SECTION 1.01. Definitions. For all purposes of this Agreement,
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except as otherwise provided herein, the following terms have the following
meanings:
"Beneficial Owner" shall mean any person holding any Book-Entry
Interest other than the Holder; it being understood that the term "Beneficial
Owner" shall not include any agent or financial intermediary holding an interest
in a Global Note solely to the extent such interest is held for or on behalf of
any Beneficial Owner.
"Book-Entry Interest" shall mean any beneficial interest in a Global
Note.
"Corporate Trust Office" shall mean the principal office of the
Depositary at which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Deposit and
Custody Agreement is located at 450 West 33rd Street, 15th Floor, New York, New
York 10001.
"Definitive Senior Notes" shall mean any Senior Notes issued under the
Indenture, substantially in the form of Exhibit C to the Indenture.
"Deposit and Custody Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
"DTC" shall mean The Depository Trust Company.
"Exchange Act" shall mean the United States Securities and Exchange
Act of 1934, as from time to time amended.
"Exchange Note Global Receipt" means the global receipt representing
beneficial ownership of 100% of the principal amount of the Exchange Notes
substantially in the form of Exhibit C to the Agreement.
"Global Notes" shall mean, collectively, the Regulation S Global Note
and the Restricted Global Note (as defined in the Indenture), each in bearer
form, substantially in the form of Exhibits A and B to the Indenture and the
global note in bearer form representing the Exchange Notes (as defined in the
Indenture).
"Global Receipts" shall mean, collectively, the Restricted Global
Receipt, the Regulation S Global Receipt (each as defined in the Indenture), and
the Exchange Note Global Receipt.
"Holder" shall mean the person in whose name a Global Receipt is
registered on the Register and shall initially be Cede & Co. as the nominee of
DTC or such other nominee as DTC shall designate.
"Indenture" shall mean the Indenture, dated as of May 18, 1998, among
the Issuer, Bermuda Holdings, as Guarantor of the Senior Notes, and the Trustee,
as trustee.
"Letter of Representations" shall mean the Letter of Representations
to DTC dated May 15, 1998 from the Issuer and the Depositary.
"Register" shall mean the Register maintained by the Depositary
hereunder in which any permitted transfer of a Global Receipt shall be
registered.
"Securities Act" shall mean the United States Securities Act of 1933,
as from time to time amended.
"Senior Notes" shall mean the 7% Senior Notes due 2008 of the Issuer,
issued under the Indenture.
SECTION 1.02. Other Terms. Terms which are not otherwise defined
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herein have the meanings given to them in the Indenture.
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ARTICLE II
Form of Receipt, Deposit of Global Notes,
Execution and Delivery, Transfer and
Exchange for Definitive Notes
SECTION 2.01. Deposit of Global Notes. The Custodian hereby agrees
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to accept custody of the Global Notes from the Trustee as instructed by the
Issuer and to act as custodian thereof on behalf of the Depositary in accordance
with the terms of this Deposit and Custody Agreement. The Custodian agrees to
hold the Global Notes at such place or places as the Depositary shall determine
with the consent of the Issuer.
SECTION 2.02. Execution and Delivery of Global Receipt. (a) Upon
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deposit of each Global Note with the Custodian, the Depositary shall execute and
deliver to DTC a Global Receipt registered in the name of DTC's nominee, Cede &
Co. Such Global Receipt shall represent beneficial ownership of 100% of the
principal amount from time to time of the underlying Global Note. No person
shall be required to account to the Depositary or the Custodian for the proceeds
of the sale of interests in a Global Receipt representing a Global Note.
(b) Upon deposit of the global note representing the Exchange Notes
(as defined in the Indenture), the Depository shall execute and deliver to DTC
the Exchange Note Global Receipt upon surrender by DTC to the Depository of the
Restricted Global Receipt and the Regulation S Global Receipt for cancellation
(if the underlying Global Notes have all been exchanged for Exchange Notes) or
appropriate adjustment to reflect the remaining principal amount of the
underlying Global Notes (if less than all of the underlying Global Notes have
been so exchanged).
(c) Each Global Receipt shall bear the following legend:
UNLESS THIS GLOBAL RECEIPT IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION, TO THE DEPOSITARY UNDER THE DEPOSIT AND CUSTODY
AGREEMENT DATED AS OF MAY 18, 1998 AMONG THE CHASE MANHATTAN
BANK, AS DEPOSITARY, CHASE MANHATTAN BANK LUXEMBOURG S.A.,
AS CUS-
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TODIAN, THE CHASE MANHATTAN BANK, AS TRUSTEE, TERRA NOVA
INSURANCE (UK) HOLDINGS PLC, AND TERRA NOVA (BERMUDA)
HOLDINGS LTD FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY GLOBAL RECEIPT ISSUED IS REGISTERED IN THE
NAME CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY,
AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
(d) The Restricted Global Receipt shall bear the following legend:
THIS GLOBAL RECEIPT HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING ITS INTEREST IN THIS GLOBAL RECEIPT
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL
OR OTHERWISE TRANSFER ITS INTEREST IN THIS GLOBAL RECEIPT
EXCEPT, (A) TO BERMUDA HOLDINGS OR ANY SUBSIDIARY THEREOF,
(B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN
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COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, OR (D)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM ITS INTEREST IN THIS GLOBAL RECEIPT IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF ITS INTEREST IN
THIS GLOBAL RECEIPT WITHIN THE TIME PERIOD REFERRED TO
ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
IN THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THE CERTIFICATE ON THE REVERSE THEREOF
TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF AN INTEREST IN
THIS GLOBAL RECEIPT IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
(e) Each Global Receipt may be endorsed with or have incorporated in
the text thereof such other legends or recitals or changes not inconsistent with
the provisions of this Deposit and Custody Agreement and the Indenture as may be
required by the Depositary or DTC or required to comply with any applicable law
or regulations or with the rules and regulations of any securities exchange upon
which the Senior Notes or interests in such Global Receipt may be listed or to
conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which such Global Receipt is subject by reason of
the date or manner of issuance of the underlying Global Note or otherwise.
(f) Neither the Holder nor any Beneficial Owner shall be entitled to
any benefits under this Deposit and Custody Agreement nor shall any Global
Receipt be valid or obligatory for any purpose, unless such Global Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory of the Depositary. If the Global Receipt bears the
facsimile signature of a
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duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary, it shall bind the Depositary, notwithstanding that
such signatory has ceased to hold such office prior to the execution and
delivery of such Global Receipt by the Depositary.
(g) It shall be a condition of Global Receipts, and every successive
Holder or Beneficial Owner by holding or beneficially owning a Global Receipt
shall be deemed to have consented and agreed, that title to such Global Receipt,
when properly endorsed or accompanied by proper instruments of transfer, is
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary, notwithstanding any notice
to the contrary, may treat the Holder as the absolute owner thereof for the
purpose of determining the person entitled to payments on such Global Receipt
under the Deposit and Custody Agreement or to any notices provided for in the
Deposit and Custody Agreement and for all other purposes.
SECTION 2.03. Book-entry System. (a) DTC has accepted the Global
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Receipts for entry into its book-entry settlement system. Each Beneficial Owner
must rely upon the procedures of DTC and institutions having accounts with DTC
to exercise or be entitled to any rights of a Holder. So long as the Global
Receipts are traded through DTC's book-entry system, ownership of Book-Entry
Interests shall be shown in, and the transfer of such ownership shall be
effected only through, records maintained by (i) DTC or its nominees or (ii)
institutions that have accounts with DTC.
(b) The Global Receipts shall be issuable to DTC or its nominee. No
Beneficial Owner shall be entitled to receive a Global Receipt, and such
Beneficial Owner's interest in such Global Note shall be shown only in
accordance with the procedures of DTC as set forth above.
SECTION 2.04. Transfer of Global Receipts. The Depositary shall
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maintain the Register in which any permitted transfer of a Global Receipt shall
be registered. The person in whose name a Global Receipt is registered on the
Register shall be the "Holder" of such Global Receipt for the purposes of this
Deposit and Custody Agreement. So long as a Global Receipt is registered in the
name of DTC or its nominee, the Depositary shall treat DTC as the absolute owner
thereof for all purposes whatsoever and shall not be bound or affected by any
notice to the contrary, other than an order of a court having jurisdiction over
the Depositary. The Depositary shall not recognize any transfer, exchange or
payment in respect of a Global Receipt except in accordance with this Section
2.04 and the legend set forth in Section 2.01 hereof. The Depositary shall not
recognize any transfers of a Global Receipt except to
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a successor of DTC which is (i) a clearing agency registered under the Exchange
Act and (ii) approved by the Issuer, or to another nominee of DTC.
Transfers of a Global Receipt may be registered on the books of the
Depositary by the Holder in person or its duly authorized attorney upon
surrender of such Global Receipt to the Depositary at its Corporate Trust Office
accompanied by proper instruments of transfer and duly stamped as may be
required by applicable law, provided that such Global Receipt may only be
transferred in accordance with the terms hereof.
Transfers of interest between the Restricted Global Receipt and the
Regulation S Global Receipt may only take place under circumstances where the
Trustee would be entitled to register transfers between the Restricted Global
Note and the Regulation S Global Note as set forth in Section 2.12 of the
Indenture.
SECTION 2.05. Issuance of Definitive Notes In Respect of the Senior
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Notes. (a) If an Event of Default (as defined in the Indenture) has occurred
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and is continuing, upon receipt by the Depositary at its Corporate Trust Office
of written instructions from the Holder requesting the issuance of Definitive
Senior Notes in respect of a portion of a Global Note, the Depositary shall, on
behalf of the Custodian, request in accordance with Section 2.6 of the Indenture
that the Issuer issue, and the Trustee authenticate, Definitive Senior Notes in
the amounts and registered in the names specified in the request.
(b) The Depositary and the Custodian acknowledge that if at any time
(i) DTC notifies the Issuer and the Depositary that it is unwilling or unable to
continue as Holder or if at any time it ceases to be a clearing agency
registered under the Exchange Act, and in either case a successor Holder
registered as a clearing agency under the Exchange Act is not appointed by the
Issuer within 90 days of such notification, or (ii) the Custodian or the
Depositary, as the case may be, notifies the Trustee and the Issuer in
accordance with Section 4.06 hereof that it is unwilling or unable to continue
as Custodian or Depositary, as the case may be, and no successor Custodian or
Depositary, as the case may be, is appointed by the Issuer within 90 days of
such notification or (iii) the Issuer determines Definitive Senior Notes shall
be issued, then the Issuer shall issue, and the Trustee shall authenticate,
Definitive Senior Notes registered in the name or names of such person or
persons as the Depositary shall instruct the Trustee on behalf of the Custodian.
The Depositary agrees to promptly provide such information to the Trustee as is
provided to the Depositary by the Holder.
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(c) The Depositary agrees to promptly notify the Custodian and the
Trustee of any request by the Holder for the issuance of Definitive Senior
Notes. The Custodian agrees that in connection with any request for the
issuance of Definitive Senior Notes as contemplated by this Section 2.05, upon
notice by the Depositary, it will promptly surrender the Global Note underlying
such Holder's Global Receipt to the Trustee who shall cause an adjustment to be
made to such Global Note such that the aggregate principal amount of such Global
Note shall be reduced by the principal amount of the Definitive Senior Notes
issued pursuant to such request and shall thereafter return such Global Note (as
so adjusted) to the Custodian. Upon the issuance of Definitive Senior Notes as
set forth above, such Global Receipt shall automatically represent beneficial
ownership of 100% of the underlying Global Note, as adjusted to reflect the
reduction in aggregate principal amount; provided, however, that DTC, in its
discretion (a) may request that the Depository issue a new Global Receipt or (b)
may make an appropriate notation on such Global Receipt indicating the date and
amount of such reduction in principal. The Depositary and the Custodian
acknowledge and agree that in the event that Definitive Senior Notes are issued
in respect of 100% of the outstanding principal amount of the Senior Notes,
underlying Global Note and Global Receipt shall be automatically cancelled and
the Custodian agrees to surrender such Global Note to the Trustee.
(d) Exchanges of Book-Entry Interests for Definitive Senior Notes
pursuant to this Section 2.05 shall be made free of any fees of the Depositary
to the Holder.
SECTION 2.06. Transfer of Global Note. The Custodian agrees to hold
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the Global Notes in custody for the benefit of the Depositary, the Holder and
the Beneficial Owners. The Custodian agrees that it will not transfer or lend a
Global Note or any interest therein except that the Custodian may transfer a
Global Note to a successor custodian which is a branch of a United States bank
located outside of the United States and outside of the United Kingdom which has
been approved by the Issuer and the Depositary. The Custodian shall surrender a
Global Note to the Trustee (i) if it notifies the Trustee and the Issuer under
Section 4.06 hereof that it desires to resign as Custodian and no successor
custodian has been appointed by the Issuer (which appointment is subject to the
approval of the Depositary, which shall not unreasonably withhold such approval)
within 90 days of such notification or (ii) if the Depositary notifies the
Trustee and the Issuer under Section 4.06 hereof that it desires to resign as
Depositary and no successor depositary has been appointed by the Issuer (which
appointment is subject to the approval of the Trustee, which shall not
unreasonably withhold such approval) within 90 days of such notification. In
the case of clauses (i) and (ii) of the preceding sentence, the Depositary
agrees that after either of such 90 day
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periods it will, on behalf of the Custodian, promptly notify the Trustee and
request the Issuer to issue, and the Trustee to authenticate, Definitive Senior
Notes in the names and denominations as the Holder shall specify in accordance
with Section 2.6 of the Indenture, and the Custodian agrees that in such event
it will promptly surrender the Global Notes to the Trustee in connection with
such exchange and that such Global Notes will be cancelled upon issuance of such
Definitive Senior Notes.
SECTION 2.07. Replacement of Global Receipts; Mutilated, Destroyed,
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Lost or Stolen Global Receipt. In case a Global Receipt shall be mutilated,
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destroyed, lost or stolen, the Depositary shall execute and deliver a new Global
Receipt of like tenor, in exchange and substitution for such mutilated Global
Receipt upon cancellation thereof, or in lieu of and in substitution for the
destroyed or lost or stolen Global Receipt, upon the Holder thereof filing with
the Depositary (a) a request for such execution and delivery before the
Depositary has notice that such Global Receipt has been acquired by a bona fide
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purchaser and (b) a sufficient indemnity bond, and satisfying any other
reasonable requirements imposed by the Depositary.
All expenses and charges associated with procuring such indemnity and
with the preparation, execution and delivery of a new Global Receipt shall be
borne by the Holder.
ARTICLE III
The Global Notes
SECTION 3.01. Payments in Respect of the Global Note. (a) For so
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long as the Custodian shall hold the Global Notes, the Custodian will direct the
Issuer to make all payments in respect of the Global Notes to the Trustee, on
behalf of the Custodian. The Custodian and the Depositary hereby direct that,
for so long as the Custodian shall hold the Global Notes, whenever the Trustee
(or paying agent under the Indenture) shall receive any payment of principal,
premium or interest in respect of such Global Notes (including any Additional
Amounts, as defined in the Indenture), whether in connection with any
redemption, repurchase, declaration of acceleration or otherwise, the Trustee or
paying agent shall, on behalf of the Custodian and the Depositary, promptly make
such payments directly to the Holder on or before the payment date for such
Global Receipt. The payment date for the Global Receipt for the payment of
principal of and any premium and interest shall be the same date as the payment
date for the underlying Global Note. So long as DTC or its nominee is the
Holder, such payments shall be made in accordance with the Letter of
Representations.
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(b) If at any time the Custodian or the Depositary shall receive any
payment of principal, premium or interest in respect of a Global Note (including
any Additional Amounts), the Custodian or the Depositary shall promptly make
such payments to the Holder of the Global Receipt representing such Global Note.
(c) The Depositary or the Custodian will forward to the Issuer or its
agent such information from its records as the Issuer may reasonably request to
enable the Issuer or its agent to file necessary reports with governmental
agencies, and either the Depositary or the Custodian or its agent may (but shall
not be required to) file any such reports necessary to obtain benefits under any
applicable tax treaties for the Holder or the Beneficial Owners.
SECTION 3.02. Redemption or Repurchase. In the event that the Issuer
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exercises any right of redemption with respect to, or the Issuer or Bermuda
Holdings exercises any right to repurchase, a Global Note in whole or in part,
as the case may be, the Custodian, upon notice by the Depositary, will promptly
surrender such Global Note to the Trustee who shall cause an adjustment to be
made to such Global Note such that the aggregate principal amount of such Global
Note shall be reduced by the amount of such redemption or repurchase, as the
case may be, and shall thereafter return such Global Note (as so adjusted) to
the Custodian and thenceforth the Global Receipt representing such Global Note
shall automatically represent beneficial ownership of 100% of the Global Note,
as adjusted to reflect the reduction in aggregate principal amount; provided,
however, that DTC, in its discretion, (a) may request that the Depository issue
a new Global Receipt or (b) may make an appropriate notation on such Global
Receipt indicating the date and amount of such reduction in principal.
SECTION 3.03. Record Date. Whenever any payment is to be made in
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respect of a Global Note, or the Custodian shall receive notice of any action to
be taken by the holder of a Global Note or whenever the Depositary otherwise
deems it appropriate in respect of any other matter, the Depositary shall fix a
record date for the determination of the Holder who shall be entitled to receive
such payment or to take such action or to act in respect of any such matter;
provided, however, that the Custodian agrees to forward promptly to the
Depositary any such payments or notices, as the case may be, received by it.
Subject to the provisions of this Deposit and Custody Agreement, only the Holder
who is registered on the Register at the close of business on such record date
shall be entitled to receive any such payment, to give instructions as to such
action or to act in respect of any such matter. The Depositary, to the extent
practicable, shall, not less than 15 days prior to such record date, provide the
Holder with written notice of such record date.
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SECTION 3.04. Action in Respect of Global Note. As soon as
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practicable after receipt by the Custodian of notice of any solicitation of
consents or request for a waiver or other action by the holder of a Global Note
pursuant to the Indenture, the Custodian shall direct the Depositary to mail to
the Holder a notice containing (a) such information as is contained in such
notice, (b) a statement that the Holder at the close of business on a specified
record date (established in accordance with Section 3.03 hereof) will be
entitled to instruct the Depositary as to the consent, waiver or other action,
if any, pertaining to such Global Note and (c) a statement as to the manner in
which such instructions may be given. Upon the written request of the Holder,
received on or before the date established by the Depositary for such purpose,
the Depositary shall cause the Custodian to endeavor insofar as practicable and
permitted under the provisions of or governing such Global Note to take such
action regarding the requested consent, waiver or other action in respect of
such Global Note in accordance with any instructions set forth in such request.
Neither the Depositary nor the Custodian shall itself exercise any discretion in
the granting of consents, waivers or taking other such action in respect of a
Global Note.
SECTION 3.05. Changes Affecting Global Note. Upon any
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recapitalization, reorganization, merger or consolidation or sale of assets
affecting Bermuda Holdings or the Issuer or to which Bermuda Holdings or the
Issuer is a party, any securities which shall be received by the Custodian in
exchange for or in conversion of or in respect of a Global Note shall be treated
as a new Global Note under this Deposit and Custody Agreement and the Global
Receipt representing such Global Note shall thenceforth represent beneficial
ownership of 100% of the principal amount of such new Global Note so received;
provided, however, that DTC, in its discretion, (a) may request the Depositary
to issue and authenticate a new Global Receipt or (b) may make an appropriate
notation on such Global Receipt indicating the date and amount of such reduction
in principal.
SECTION 3.06. Surrender of Global Receipt. In the event of the
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redemption or repurchase in full of all the Senior Notes represented by a Global
Note, or the exchange of all the Senior Notes so represented for Definitive
Senior Notes, in each case as referred to in this Deposit and Custody Agreement,
then the Global Receipt representing such Global Note shall become void and the
Holder shall surrender such Global Receipt to the Depositary for cancellation.
SECTION 3.07. Reports. The Depositary shall make available for
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inspection by the Holder at the Depositary's Corporate Trust Office any notices,
reports and other communications received from the Issuer which are received by
the Custodian as holder of the Global Notes. The Depositary shall send promptly
to the
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Holder copies of such notices, reports and other communications furnished by the
Issuer and received by the Custodian, as holder of the Global Notes.
ARTICLE IV
The Custodian and the Depositary
SECTION 4.01. Prevention or Delay in Performance by the Custodian and
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the Depositary. Neither the Custodian nor the Depositary shall incur any
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liability to any Holder, any Beneficial Owner or any other person hereunder or
in connection herewith if (i) by reason of any provision of any present or
future law or regulation, of any governmental or regulatory authority or
securities exchange, or by any reason of any act of God or war or other
circumstance beyond the control of the Custodian or the Depositary, the
Custodian or the Depositary shall be prevented or forbidden from doing or
performing any act or thing which the terms of this Deposit and Custody
Agreement provide shall be done or performed, (ii) by reason of any non-
performance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit and Custody Agreement provide shall or may
be done or performed, and (iii) by reason of any exercise of or failure to
exercise, in good faith any discretion provided for in this Deposit and Custody
Agreement. Should the Custodian or the Depositary receive any payment in
respect of a Global Note and be unable pursuant to the foregoing to distribute
such payment to the Holder due to any reason described in this Section 4.01, the
Depositary or the Custodian, as the case may be, shall, if practicable, promptly
return such payment to the Issuer, and provide written notice of the reason for
the inability to distribute such payment.
SECTION 4.02. Compliance with Letter of Representations. The
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Depositary agrees to use its best efforts to comply with all of the provisions
pertaining to it set forth in the Letter of Representations so long as DTC or
its nominee is the Holder.
SECTION 4.03. Event of Default or Default. Upon the occurrence of an
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Event of Default or a Default (as defined in the Indenture) in respect of a
Global Note, or in connection with any other right of the Holder under the
Indenture or this Agreement, if requested in writing by the Holder, the
Custodian and the Depositary shall take such action as shall be requested in
such notice in respect of such Global Note, provided the Custodian and the
Depositary shall not be required to take any such action unless the Holder shall
have offered to the Custodian and the Depositary reasonable security or
indemnity against the costs, expenses and liabilities which might
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be incurred by it in compliance with such request. Neither the Depositary nor
the Custodian shall itself exercise any discretion in the taking of action in
respect of a Global Note.
SECTION 4.04. Charges of Custodian and Depositary. The Issuer and
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Bermuda Holdings agree to promptly pay to the Custodian and the Depositary such
compensation as shall be agreed upon from time to time by the Issuer and Bermuda
Holdings, on the one hand, and the Custodian and Depositary, respectively, on
the other hand, for all services rendered by the Custodian and the Depositary,
respectively, and to reimburse the Custodian and the Depositary for reasonable
out of pocket expenses incurred in connection with the preparation and delivery
of this Deposit and Custody Agreement and the performance of their respective
duties hereunder (including the reasonable fees and expenses of their respective
counsel). The obligations of the Issuer and Bermuda Holdings under this Section
4.04 shall survive the termination of this Deposit and Custody Agreement.
Neither the Depositary nor the Custodian shall be responsible for: (1) taxes and
other government charges and (2) such registration fees as may from time to time
be in effect, in each case for the registration of transfers of interest in a
Global Receipt.
SECTION 4.05. Duties and Liabilities of Custodian and Depositary.
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Neither the Custodian nor the Depositary shall be liable under this Deposit and
Custody Agreement, other than by reason of bad faith or negligence in the
performance of such duties as are set forth in or arise pursuant to this Deposit
and Custody Agreement. Neither the Custodian nor the Depositary shall be liable
for any damages resulting from the transfer or delivery of a Global Note in
accordance with the terms of this Deposit and Custody Agreement. Neither the
Custodian nor the Depositary shall be liable for any action or inaction by it
done in good faith in reliance upon the advice of its accountants or legal
counsel. The Custodian and the Depositary may request and rely and shall be
protected in acting in reliance upon any written notice, request, direction or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
SECTION 4.06. Resignation or Removal of Depositary or Custodian. (a)
-------------------------------------------------
The Depositary may at any time resign as Depositary hereunder by written notice
of its election so to do delivered to the Trustee and the Issuer, such
resignation to take effect upon the appointment by the Issuer of a successor
depositary (which appointment is subject to the approval of the Trustee, which
shall not unreasonably withhold such approval) and its acceptance of such
appointment as hereinafter provided. If at the end of 90 days after delivery of
such notice, no successor depositary has been appointed or accepted such
appointment, the Depositary may terminate this Deposit and Custody
13
Agreement provided that such termination shall not be effective unless and until
Definitive Senior Notes shall have been issued in accordance with Section 2.05.
(b) The Custodian may at any time resign as Custodian hereunder by
written notice of its election so to do delivered to the Depositary, the Trustee
and the Issuer, such resignation to take effect upon the appointment by the
issuer of a successor custodian (which appointment is subject to approval by the
Depositary) and its acceptance of such appointment as hereinafter provided and
the transfer of each Global Note as set forth in Section 2.06. If at the end of
90 days after delivery of such notice, no successor custodian has been appointed
or accepted such appointment, the Custodian may request in accordance with
Section 2.05 that Definitive Senior Notes be issued and upon the issuance of
such Definitive Senior Notes, may terminate this Deposit and Custody Agreement.
(c) In the event that the Issuer determines that it would become
obligated to pay any amount in respect of any deduction or withholding for any
taxes or other governmental charges under Section 4.08, the Depositary or the
Custodian may be removed by the Issuer by written notice of such removal
effective upon the appointment of a successor depositary or successor custodian,
as the case may be, and its acceptance of such appointment as herein provided.
(d) Every successor depositary or successor custodian shall execute
and deliver to its predecessor, the Issuer and, in the case of a successor
custodian, the Depositary, and in the case of a successor depositary, the
Custodian, an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary or successor custodian, without any further
act or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor.
(e) Any corporation into or with which the Depositary or the
Custodian, as the case may be, may be merged or consolidated shall be the
successor of the Depositary or the Custodian, as the case may be, without the
execution or filing of any document or of any further act.
SECTION 4.07. Obligations of the Depositary and the Custodian.
-----------------------------------------------
Neither the Depositary nor the Custodian makes any representation or warranty
and neither shall at any time have any responsibility for, or liability or
obligation in respect of, the legality, validity, binding effect, adequacy or
enforceability of the Global Notes, the performance and observance by the Issuer
or Bermuda Holdings of its obligations under the Global Notes or the
recoverability of any sum of interest, arrears
14
of interest, premium or principal due or to become due from the Issuer or
Bermuda Holdings in respect of the Global Notes.
Neither the Depositary nor the Custodian shall at any time have any
responsibility for, or obligation or liability in respect of, the financial
condition, credit worthiness, affairs, status or nature of the Issuer or
Bermuda Holdings.
Neither the Depositary nor the Custodian shall at any time be liable
for any act, default or omission of the Issuer or Bermuda Holdings under or in
respect of the Global Notes.
Payments in respect of the Global Receipts will only be made to the
extent of any amounts actually received by or on behalf of the Depositary in
respect of the underlying Global Note.
Neither the Depositary nor the Custodian shall be required to give
notice to the Issuer or Bermuda Holdings or the Holder that a Global Note is
repayable or that any Default or Event of Default in relation to the Global
Notes has occurred pursuant to Article 4 of the Indenture or take any
proceedings to enforce payment under the Indenture, except as expressly provided
otherwise in this Deposit and Custody Agreement.
Neither the Depositary nor the Custodian shall be under any obligation
to exercise in favor of the Holder any rights of set-off or of bankers' lien or
of counterclaims that may arise out of any other transaction between the Issuer,
Bermuda Holdings, the Depositary or the Custodian.
Neither the Depositary nor the Custodian shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of either a Global Note or in respect of a Global Receipt, or take any
other action or omit to take any action under this Deposit and Custody
Agreement, which in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
Neither the Depositary nor the Custodian shall be liable for any acts
or omissions made by a successor depositary or a successor custodian, as the
case may be, whether in connection with a previous act or omission of the
Depositary or the Custodian, as the case may be, or in connection with a matter
arising wholly after the removal or resignation of the Depositary or the
Custodian, as the case may be,
15
provided that the Depositary or the Custodian, as the case may be, exercised its
good faith and reasonable care while it acted as Depositary or Custodian.
Neither the Depositary nor the Custodian shall have any liability for
the calculation, timing or appropriateness of any interest, arrears of interest,
principal, premium, if any, or other payment or distribution to be made in
connection with the Global Notes, and the Issuer shall have sole liability
therefor, provided that the Depositary and the Custodian shall each be liable
for its own negligence or bad faith in connection with the foregoing.
Neither the Depositary nor the Custodian shall be under any liability
for interest on, or any obligation to invest or segregate, any monies at any
time received by each of them pursuant to the terms and conditions of this
Deposit and Custody Agreement.
Each of the Depositary and the Custodian may own and deal in any class
of securities of the Issuer and its affiliates and in interests in the Global
Receipts.
Each of the Depositary and the Custodian may enter into other dealings
with the Issuer and its affiliates of any nature whatsoever.
Subject to the approval of the Issuer, the Custodian may appoint a
sub-custodian to hold any or all of the Global Notes on its behalf.
SECTION 4.08. Taxes. If any tax or other governmental charge shall
-----
be required to be deducted or withheld from the distribution in respect of a
Global Receipt by the Custodian to the Depositary or the Depositary to the
Holder of any payments of principal of and any premium and interest on the
underlying Global Note, each of the Issuer and Bermuda Holdings agrees that it
shall pay or cause to be paid such additional amounts as may be necessary in
order that the net amounts distributed to the Holder, after such deduction or
withholding, shall equal the amounts which were paid on such Global Note. The
Issuer shall promptly notify in writing the Depositary and the Custodian should
any deduction or withholding be required on behalf of the Issuer from the
distribution in respect of the Global Receipt representing such Global Note.
Neither the Depositary nor the Custodian shall be deemed to have any notice of
any required deduction or withholding prior to the receipt of such notice.
SECTION 4.09. Indemnification. (a) The Issuer and Bermuda Holdings
---------------
shall indemnify the Custodian and the Depositary, and any of their respective
agents, officers, directors or employees for, and hold them harmless against any
16
Liability (as defined below) incurred (including the reasonable fees, expenses
and disbursements of its counsel), other than liability or expense resulting
from its or their own negligence or bad faith, arising out of or in connection
with the acceptance, administration and performance of their respective powers
and duties hereunder. Without limiting the generality of the foregoing, except
as provided herein, neither the Custodian nor the Depositary shall have any duty
or responsibility for and shall not be deemed to have been negligent with
respect to, and the Issuer shall indemnify and hold harmless the Custodian and
the Depositary against, any claim (i) that a Global Note is not genuine or (ii)
that disclosure with respect to applicable laws was not made in connection with
the offering of the Senior Notes. Notwithstanding any provisions of this
Deposit and Custody Agreement to the contrary, the obligations of the Issuer to
indemnify the Custodian and the Depositary under this Section 4.09 shall survive
the termination of this Deposit and Custody Agreement.
(b) In case any claim shall be made or action brought against the
Custodian or the Depositary for any reason for which indemnity may be sought
against the Issuer or Bermuda Holdings as provided above, the Custodian or the
Depositary shall promptly notify the Issuer and Bermuda Holdings in writing
setting forth the particulars of such claim or action and the Issuer or Bermuda
Holdings may assume the defense thereof. In the event that the Issuer or
Bermuda Holdings assumes the defense, the Custodian and the Depositary shall
have the right to retain separate counsel in any such action but shall bear the
fees and expenses of such counsel unless (i) the Issuer or Bermuda Holdings
shall have specifically authorized the retaining of such counsel at its expense
or (ii) the parties to such suit include the Custodian or the Depositary and the
Issuer or Bermuda Holdings, and the Custodian or the Depositary, as the case may
be, has been advised in writing by such counsel that one or more legal defenses
may be available to it which may not be available to the Issuer or Bermuda
Holdings. Each of the Custodian and the Depositary agrees to give all
assistance reasonably required in connection with the conduct of any such claim
or action, including permitting proceedings to be brought in its name. The
Custodian and the Depositary shall not compromise or settle any claim or action
hereunder or in connection with the Global Notes or the Global Receipts without
the prior written consent of the Issuer.
(c) As used in this Section 4.09, the term "Liability" shall include
any losses, claims, damages, expenses (including without limitation the
Custodian's or the Depositary's respective reasonable costs and expenses in
defending itself against any losses, claims or investigations of any nature
whatsoever) or other liabilities, joint or several, arising for any reason under
this Deposit and Custody Agreement.
17
(d) The obligations of the Issuer and Bermuda Holdings under this
Section 4.09 shall be in addition to any liability which either may otherwise
have and shall extend, upon the same terms and conditions, to each officer,
director, employee and agent of the Custodian or the Depositary and to each
person, if any, who controls the Custodian or the Depositary.
(e) The obligations set forth in Section 4.04 and this Section 4.09
shall survive the termination of this Deposit and Custody Agreement.
ARTICLE V
Amendment and Termination
SECTION 5.01. Amendment. (a) Subject to the provisions of this
---------
Section 5.01, this Deposit and Custody Agreement and the form of Global Receipt
may be amended with the written approval of the parties hereto in writing.
(b) The consent of the Holder shall not be required in connection with
any amendment (i) to cure any formal defect, omission, inconsistency or
ambiguity in this Deposit and Custody Agreement, (ii) to add to the covenants
and agreements of the Custodian, the Depositary, the Issuer or Bermuda Holdings,
(iii) to effectuate the assignment of the Custodian's or the Depositary's rights
and duties hereunder to a qualified successor as provided herein, (iv) to comply
with the Securities Act, the Exchange Act or the U.S. Investment Company Act of
1940, as from time to time amended, or (v) to modify, alter, amend or supplement
this Deposit and Custody Agreement in any other respect not inconsistent
herewith which, in the opinion of counsel acceptable to the Issuer and the
Depositary, is not adverse to the Holder. Except for the amendments made
pursuant to clauses (i) through (v) above, no amendment which adversely affects
the Holder may be made to this Deposit and Custody Agreement or the form of
Global Receipt without the consent of the Holder.
SECTION 5.02. Termination. The Depositary shall at any time at the
-----------
direction of the Issuer or Bermuda Holdings terminate this Deposit and Custody
Agreement by mailing a notice of such termination to the Holder and requesting,
on behalf of the Custodian in accordance with Section 2.6 of the Indenture, that
the Issuer issue, and the Trustee authenticate, Definitive Senior Notes to the
persons and in the amounts as specified by the Holder. Upon the issuance of
such Definitive Senior Notes, in an aggregate principal amount equal to the
aggregate principal amount of Senior Notes outstanding, this Deposit and Custody
Agreement shall terminate.
18
ARTICLE VI
Miscellaneous
SECTION 6.01. Governing Laws. This Deposit and Custody Agreement and
--------------
the Global Receipts shall be governed by the laws of the State of New York,
without regard to the conflict of laws provisions therein.
SECTION 6.02. Assignment. The rights and obligations of the parties
----------
to this Deposit and Custody Agreement may not be assigned except that the
Depositary or the Custodian shall assign its rights and procure assumption of
its obligations hereunder to and by a successor depositary or successor
custodian, as the case may be, appointed in accordance with the terms hereof.
SECTION 6.03. Counterparts. This Deposit and Custody Agreement may
------------
be executed in any number of counterparts by the parties hereto on separate
counterparts, each of which, when so executed and delivered, shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
SECTION 6.04. Severability. In case any one or more of the
------------
provisions contained in this Deposit and Custody Agreement or in a Global
Receipt should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 6.05. Notices. Notices hereunder shall be mailed or
-------
delivered as follows:
To the Depositary:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Corporate Trust Administration
Telephone No.: 212-946-3352
Telecopy No.: 212-946-8177
19
To the Custodian:
Chase Manhattan Bank Luxembourg S.A.
5 rue Plaetis
L-2338, Luxembourg
Attention: Corporate Trust Department
Telephone No.: 011-352-46-268-5223
Telecopy No.: 011-352-46-268-5380
To the Issuer:
Terra Nova Insurance (UK) Holdings plc
Terra Nova House
41-43 Mincing Lane
London EC3R 7SP Great Britain
Attention: Secretary
Telephone No.: 011-44-171-283-3000
Telecopy No.: 011-44-171-283-1749
To Bermuda Holdings:
Terra Nova (Bermuda) Holdings Ltd.
Richmond House, 2nd Floor
12 Par-La-Ville Road
Hamilton HM 08, Bermuda
Attention: Secretary
Telephone No.: 809-292-7731
Telecopy No.: 809-292-7572
20
To the Trustee:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Corporate Trust Administration
Telephone No.: 212-946-3352
Telecopy No.: 212-946-8177
or as to each party at such other address as shall be designated by such party
in a written notice to the other parties. Any communication so addressed and
mailed or delivered to the Depositary, the Custodian, the Trustee, Bermuda
Holdings or the Issuer shall be deemed to be given when received.
SECTION 6.06. Section Headings. The section headings in this Deposit
----------------
and Custody Agreement are for convenience of reference only and shall not be
deemed to alter or affect any provision hereof.
SECTION 6.07. Third Party Beneficiaries. This Deposit and Custody
-------------------------
Agreement is for the exclusive benefit of the parties hereto and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person; provided, however, that the Holder and any Beneficial Owner shall
be intended third party beneficiaries of this Deposit and Custody Agreement.
21
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
THE CHASE MANHATTAN BANK,
as Depositary
By: /s/ David G. Safer
------------------------------
Name: David G. Safer
Title: Senior Trust Officer
CHASE MANHATTAN BANK LUXEMBOURG S.A.,
as Custodian
By: /s/ David G. Safer
------------------------------
Name: David G. Safer
Title: Senior Trust Officer
TERRA NOVA INSURANCE (UK) HOLDINGS PLC
By: /s/ Jean M. Waggett
------------------------------
Name: Jean M. Waggett
Title: Secretary
TERRA NOVA (BERMUDA) HOLDINGS LTD.
By: /s/ Jean M. Waggett
------------------------------
Name: Jean M. Waggett
Title: Secretary
22
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ David G. Safer
------------------------------
Name: David G. Safer
Title: Senior Trust Officer
23
Exhibit A
---------
[FORM OF RESTRICTED GLOBAL RECEIPT]
UNLESS THIS GLOBAL RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE DEPOSITARY UNDER THE
DEPOSIT AND CUSTODY AGREEMENT DATED AS OF MAY 18, 1998 AMONG THE CHASE MANHATTAN
BANK AS DEPOSITARY, CHASE MANHATTAN BANK LUXEMBOURG S.A., AS CUSTODIAN, THE
CHASE MANHATTAN BANK AS TRUSTEE, TERRA NOVA INSURANCE (UK) HOLDINGS PLC, AND
TERRA NOVA (BERMUDA) HOLDINGS LTD FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY GLOBAL RECEIPT ISSUED IS REGISTERED IN THE NAME CEDE & CO., OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS GLOBAL RECEIPT HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING ITS INTEREST IN THIS GLOBAL RECEIPT IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER ITS INTEREST IN THIS GLOBAL
RECEIPT EXCEPT, (A) TO BERMUDA HOLDINGS OR ANY SUBSIDIARY THEREOF, (B) INSIDE
THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, OR (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM ITS
INTEREST IN THIS GLOBAL RECEIPT IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF AN INTEREST IN THIS GLOBAL RECEIPT IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
THE CHASE MANHATTAN BANK, AS DEPOSITARY
GLOBAL RECEIPT
representing
___% SENIOR NOTES DUE 2008
CUSIP NO.
of
TERRA NOVA INSURANCE (UK) HOLDINGS PLC
(Incorporated under the laws of England)
Guaranteed by
TERRA NOVA (BERMUDA) HOLDINGS LTD.
(Incorporated under the laws of Bermuda)
THE CHASE MANHATTAN BANK, a New York banking corporation, as
depositary (the "Depositary"), hereby certifies that Cede & Co., as the nominee
of The Depository Trust Company, is the registered owner of this Global Receipt
representing a 100% interest in a global note in bearer form representing
$100,000,000 (less the principal amount, if any, of any outstanding Regulation S
Global Note (as defined in the Indenture) and any Definitive Senior Notes
evidencing such Notes, as reflected in the records of the Trustee) aggregate
principal amount of ___% Senior Notes due 2008 (the "Senior Notes") of Terra
Nova Insurance (UK) Holdings plc (the "Company"), which Senior Notes are fully
and unconditionally guaranteed by Terra Nova (Bermuda) Holdings Ltd. (the
"Guarantor"). The Senior Notes were issued
2
pursuant to an Indenture (the "Indenture"), dated as of May 18, 1998, among the
Company, the Guarantor and The Chase Manhattan Bank, as Trustee.
THE CHASE MANHATTAN BANK,
as Depositary
By:_______________________________
Authorized Signatory
The address of the Depositary's office is 450 West 33rd Street, 15th
Floor, New York, New York 10001.
Exhibit B
---------
[FORM OF REGULATION S GLOBAL RECEIPT]
UNLESS THIS GLOBAL RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE DEPOSITARY UNDER THE
DEPOSIT AND CUSTODY AGREEMENT DATED AS OF MAY 18, 1998 AMONG THE CHASE MANHATTAN
BANK, AS DEPOSITARY, CHASE MANHATTAN BANK LUXEMBOURG S.A., AS CUSTODIAN, THE
CHASE MANHATTAN BANK, AS TRUSTEE, TERRA NOVA INSURANCE (UK) HOLDINGS PLC, AND
TERRA NOVA (BERMUDA) HOLDINGS LTD FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY GLOBAL RECEIPT ISSUED IS REGISTERED IN THE NAME CEDE & CO., OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE CHASE MANHATTAN BANK, AS DEPOSITARY
GLOBAL RECEIPT
representing
___% SENIOR NOTES DUE 2008
CUSIP NO.
of
TERRA NOVA INSURANCE (UK) HOLDINGS PLC
(Incorporated under the laws of England)
Guaranteed by
TERRA NOVA (BERMUDA) HOLDINGS LTD.
(Incorporated under the laws of Bermuda)
THE CHASE MANHATTAN BANK, a New York banking corporation, as
depositary (the "Depositary"), hereby certifies that Cede & Co., as the nominee
of The Depository Trust Company, is the registered owner of this Global Receipt
representing a 100% interest in a global note in bearer form representing
$100,000,000 (less the principal amount, if any, of any outstanding Restricted
Global Note (as defined in the Indenture) and any Definitive Senior Notes
evidencing such Notes, as reflected in the records of the Trustee) aggregate
principal amount of ___% Senior Notes due 2008 (the "Senior Notes") of Terra
Nova Insurance (UK) Holdings plc (the "Company"), which Senior Notes are fully
and unconditionally guaranteed by Terra Nova (Bermuda) Holdings Ltd. (the
"Guarantor"). The Senior Notes were issued pursuant to an Indenture (the
"Indenture"), dated as of May 18, 1998, among the Company, the Guarantor and The
Chase Manhattan Bank, as Trustee.
THE CHASE MANHATTAN BANK,
as Depositary
By:_____________________________
Authorized Signatory
The address of the Depositary's office is 450 West 33rd Street, 15th
Floor, New York, New York 10001.
2
Exhibit C
---------
[FORM OF EXCHANGE NOTE GLOBAL RECEIPT]
UNLESS THIS GLOBAL RECEIPT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE DEPOSITARY UNDER THE
DEPOSIT AND CUSTODY AGREEMENT DATED AS OF MAY 18, 1998 AMONG THE CHASE MANHATTAN
BANK, AS DEPOSITARY, CHASE MANHATTAN BANK LUXEMBOURG S.A., AS CUSTODIAN, THE
CHASE MANHATTAN BANK, AS TRUSTEE, TERRA NOVA INSURANCE (UK) HOLDINGS PLC, AND
TERRA NOVA (BERMUDA) HOLDINGS LTD FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY GLOBAL RECEIPT ISSUED IS REGISTERED IN THE NAME CEDE & CO., OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE CHASE MANHATTAN BANK, AS DEPOSITARY
GLOBAL RECEIPT
representing
___% SENIOR NOTES DUE 2008
of
TERRA NOVA INSURANCE (UK) HOLDINGS PLC
(Incorporated under the laws of England)
Guaranteed by
TERRA NOVA (BERMUDA) HOLDINGS LTD.
(Incorporated under the laws of Bermuda)
THE CHASE MANHATTAN BANK, a New York banking corporation, as
depositary (the "Depositary"), hereby certifies that Cede & Co., as the nominee
of The Depository Trust Company, is the registered owner of this Global Receipt
representing a 100% interest in a global note in bearer form representing
$[_______]* aggregate principal amount of ___% Senior Notes due 2008 (the
"Senior Notes") of Terra Nova Insurance (UK) Holdings plc (the "Company"), which
Senior Notes are fully and unconditionally guaranteed by Terra Nova (Bermuda)
Holdings Ltd. (the "Guarantor"). The Senior Notes were issued pursuant to an
Indenture (the "Indenture"), dated as of May 18, 1998, among the Company, the
Guarantor and The Chase Manhattan Bank, as Trustee.
THE CHASE MANHATTAN BANK,
as Depositary
By:_____________________________
Authorized Signatory
The address of the Depositary's office is 450 West 33rd Street, 15th
Floor, New York, New York 10001.
______________________________
* Include aggregate principal amount of Exchange Notes.
2