EXHIBIT 10.1
EXECUTION COPY
================================================================================
PUT OPTION AGREEMENT
dated as of December 10, 2004
between
XL FINANCIAL ASSURANCE LTD.
and
TWIN REEFS ASSET TRUST
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; INTERPRETATION
Section 1.01 Definitions........................................1
Section 1.02 Interpretations....................................6
ARTICLE II PUT OPTION; TERM
Section 2.01 Grant of Put Option................................7
Section 2.02 Termination of Put Option..........................7
ARTICLE III EXERCISE OF PUT OPTION; REDEMPTION
Section 3.01 Exercise...........................................8
Section 3.02 Set-Off Against Series B Preferred Shares
Purchase Price...................................9
ARTICLE IV PUT OPTION PREMIUM
Section 4.01 Put Option Premium.................................9
Section 4.02 Put Option Premium Certificate....................10
ARTICLE V OBLIGATIONS ABSOLUTE
Section 5.01 Obligation Absolute...............................10
Section 5.02 No Waiver, etc....................................11
ARTICLE VI COVENANTS
Section 6.01 Covenants of XLFA.................................11
Section 6.02 Covenants of The Asset Trust......................12
ARTICLE VII THIS AGREEMENT TO GOVERN
ARTICLE VIII REPRESENTATIONS AND WARRANTIES
Section 8.01 Representations of the Asset Trust................12
Section 8.02 Representations of XLFA...........................13
ARTICLE IX MISCELLANEOUS
Section 9.01 Severability......................................14
Section 9.02 Notices...........................................14
Section 9.03 Counterparts......................................15
Section 9.04 Benefit of Agreement and Disclaimer...............15
Section 9.05 Amendment and Assignment..........................15
Section 9.06 Governing Law.....................................16
-i-
Section 9.07 Jurisdiction......................................16
Section 9.08 Limitation of Liability...........................16
Section 9.09 Tax Confidentiality Waiver........................16
ANNEX A...................................................Form of Overdue Notice
ANNEX B.......................................................Form of Put Notice
ANNEX C......................................Put Option Premium Certificate XLFA
-ii-
PUT OPTION AGREEMENT, dated as of December 10, 2004 (this "Agreement"),
between XL Financial Assurance Ltd., a Bermuda exempted company ("XLFA"), and
Twin Reefs Asset Trust, a Delaware statutory trust (the "Asset Trust").
RECITALS
WHEREAS, XLFA is authorized to issue shares of non-cumulative, redeemable,
perpetual Series B Preferred Shares, par value $120.00 per share (the "Series B
Preferred Shares"), with a liquidation preference of $100,000 per share and with
the voting powers, preferences and restrictions and other terms set forth in
Exhibit A to the Amended and Restated Bye-Laws (as defined below), and which
shares have not been and will not be registered with the Securities and Exchange
Commission under the Securities Act of 1933, as amended; and
WHEREAS, XLFA and the Asset Trust desire to enter into a binding agreement
pursuant to which XLFA will have the irrevocable right to sell, at its option,
shares of the Series B Preferred Shares with an aggregate liquidation preference
of up to $200,000,000 to the Asset Trust, and the Asset Trust will have an
obligation to purchase up to such number of shares of the Series B Preferred
Shares upon XLFA's exercise of its option and upon the other terms and
conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Section 1.01 Definitions. In this Agreement:
"Actual/360 Basis" means that the annualized distribution rate, interest
rate or dividend rate, as the case may be, accrues or is calculated from and
including the prior payment date (or December 10, 2004, in the case of the first
payment date) to but excluding the current payment date, and is computed on the
basis of actual days elapsed and a 360-day year.
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Amended and Restated Bye-Laws" means the second amended and restated
bye-laws of XLFA dated as of November 12, 2004.
"Asset Trust" has the meaning set forth in the preamble to this Agreement.
"Asset Trust Declaration" means the Amended and Restated Declaration of
Trust of the Asset Trust, dated as of December 10, 2004, among UBS Securities
LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as depositors, The
Bank of New York (Delaware), a Delaware banking corporation, as Asset Trustee
and Delaware Trustee, GSS Holdings II, Inc., as Tax Matters Partner and XL
Financial Assurance Ltd.
"Asset Trust Expense Reimbursement Agreement" has the meaning set forth in
the Asset Trust Declaration.
"Asset Trust Securities" has the meaning set forth in the Asset Trust
Declaration.
"Asset Trust Termination Date" means a Trust Termination Date under (and as
defined in) the Asset Trust Declaration.
"Asset Trustee" means The Bank of New York (Delaware), in its capacity as
trustee of the Asset Trust, pursuant to the Asset Trust Declaration.
"Bankruptcy Event" means a voluntary or involuntary case or other
proceeding commenced with respect to XLFA seeking liquidation, winding-up,
rehabilitation, conservation or other relief with respect to XLFA or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a receiver, liquidator, rehabilitator, conservator
or other similar official of XLFA or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 60 days.
"Business Day" has the meaning set forth in the Asset Trust Declaration.
"Calculation Agent" means the Asset Trustee.
"Change In Law" means (a) a change in any, or adoption of any new, laws,
regulations or rulings, (b) a change in, or adoption of any new, official
application or interpretation of the laws, regulations or rulings or (c) an
adverse court decision or a settlement of a tax audit, in each case occurring
after the date of this Agreement.
"Collection Date" has the meaning set forth in the General Terms of the
Asset Trust Securities attached to the Asset Trust Declaration as Appendix A.
"Default" has the meaning set forth in the Asset Trust Declaration.
"Delaware Trustee" has the meaning set forth in the Asset Trust
Declaration.
"Designated Amount" has the meaning set forth in Section 3.01(a).
"Distribution Date" has the meaning set forth in the General Terms of the
Asset Trust Securities attached to the Asset Trust Declaration as Appendix A.
"Distribution Period" has the meaning set forth in the General Terms of the
Asset Trust Securities attached to the Asset Trust Declaration as Appendix A.
"Eligible Assets" has the meaning set forth in the Asset Trust Declaration.
"Eligible Bank" means a commercial bank organized under the laws of the
United States or a state thereof, the deposits of which are insured by the
Federal Deposit Insurance Corporation, which commercial bank has total assets of
not less than $10 billion and which has a long-term debt rating of not less than
"Aa2" as assigned by Moody's, "AA-" as assigned by Standard & Poor's and "AA" as
assigned by Fitch.
"Expected Income Distribution" means, at any time, with respect to any
Distribution Date occurring after such time and on or prior to December 10,
2009, an amount equal to a per annum rate of One-Month LIBOR in effect on the
date that is three Business Days prior to the date that the Termination Payment
is due, plus 1.00% applied to the outstanding Face Amount of each Pass-Through
Trust Security at such time on an Actual/360 Basis.
-2-
"Face Amount" has the meaning set forth in the Asset Trust Declaration.
"Fitch" means Fitch, Inc. and its successors and assigns.
"Income Collections" has the meaning set forth in the Asset Trust
Declaration.
"Invested Amount" means, for a given determination date, the aggregate
purchase price of all Eligible Assets held by the Asset Trust, plus any
Principal Proceeds from the sale or maturity of Eligible Assets.
"Investment Manager" has the meaning set forth in the Asset Trust
Declaration.
"London Banking Day" means any day, other than a Saturday or Sunday, on
which commercial banks are open for business (including dealings in deposits in
U.S. Dollars) in London.
"Losses" has the meaning set forth in the Asset Trust Declaration.
"Majority in Face Amount" has the meaning set forth in the Asset Trust
Declaration.
"Moody's" means Moody's Investors Service, Inc. and its successors and
assigns.
"One-Month LIBOR" means, with respect to any Distribution Period, the rate
(expressed as a percentage per annum) for deposits in U.S. dollars for a
one-month period commencing on the first day of that Distribution Period that
appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the second
London Banking Day proceeding the first day of that Distribution Period. If such
rate does not appear on Telerate Page 3750, One-Month LIBOR will be determined
on the basis of the rates at which deposits in U.S. dollars for a one-month
period commencing on the first day of that Distribution Period and in a
principal amount of not less than US$1,000,000 are offered to prime banks in the
London interbank market by four major banks in the London interbank market
selected by the Calculation Agent, at approximately 11:00 a.m., London time, on
the second London Banking Day prior to the first day of such Distribution
Period. The Calculation Agent will request the principal London office of each
of such banks to provide a quotation of its rate. If two or more such quotations
are provided, One-Month LIBOR with respect to that Distribution Period will be
the arithmetic mean of the quotations provided. If fewer than two quotations are
provided, One-Month LIBOR with respect to that Distribution Period will be the
arithmetic mean of the rates quoted by three major banks in New York City
selected by the Calculation Agent, at approximately 11:00 a.m., New York City
time, on the first day of that Distribution Period for loans in U.S. dollars to
leading European banks for a one-month period commencing on the first day of
that Distribution Period and in a principal amount of not less than
US$1,000,000. However, if the banks selected by the Calculation Agent to provide
quotations are not quoting as described above, One-Month LIBOR for that
Distribution Period will be the same as One-Month LIBOR as determined for the
previous Distribution Period. The establishment of One-Month LIBOR for each
Distribution Period by the Calculation Agent shall (in the absence of manifest
error) be final and binding.
"Overdue Notice" means a written notice of a failure of XLFA to pay the Put
Option Premium or any amount due under the Asset Trust Expense Reimbursement
Agreement, substantially in the form attached as Annex A.
-3-
"Pass-Through Trust" means Twin Reefs Pass-Through Trust, a statutory trust
duly declared and established pursuant to the Delaware Statutory Trust Act.
"Pass-Through Trust Declaration" has the meaning set forth in the Asset
Trust Declaration.
"Pass-Through Trust Expense Reimbursement Agreement" has the meaning set
forth in the Asset Trust Declaration.
"Pass-Through Trustee" means The Bank of New York (Delaware), in its
capacity as trustee of the Pass-Through Trust, pursuant to the Pass-Through
Trust Declaration.
"Pass-Through Trust Securities" has the meaning set forth in the Asset
Trust Declaration.
"Permitted Investments" means (i) demand and time deposits in, certificates
of deposit of, or federal funds sold by, an Eligible Bank and (ii) investments
in The Bank of New York Cash Reserve Fund; provided that The Bank of New York is
an Eligible Bank at the time of the relevant investment.
"Principal Proceeds" has the meaning set forth in the Asset Trust
Declaration.
"Proceedings" has the meaning set forth in Section 9.07.
"Put Notice" means a written notice substantially in the form attached as
Annex B.
"Put Option" has the meaning set forth in Section 2.01.
"Put Option Premium" has the meaning set forth in Section 4.01.
"Put Option Premium Certificate" has the meaning set forth in Section 4.02.
"Put Option Premium Rate" means:
o for each Distribution Period ending on or prior to December 10, 2009,
One-Month LIBOR plus 1.00% per annum, calculated on an Actual/360
Basis, and
o for each subsequent Distribution Period commencing after, but not
including, December 10, 2009, One-Month LIBOR plus 2.00% per annum,
calculated on an Actual/360 Basis.
"Put Option Termination Date" has the meaning set forth in Section 2.02.
"Relevant Jurisdiction" means the jurisdictions, political subdivisions and
taxing authorities of (a) Bermuda or any political subdivision or governmental
authority of or in Bermuda with the power to tax, (b) any jurisdiction from or
through which XLFA or its paying agent is making payments on the Series B
Preferred Shares or any political subdivision or governmental authority of or in
that jurisdiction with the power to tax or (c) any other jurisdiction in which
XLFA or a successor corporation is organized or generally subject to taxation as
a resident or any political subdivision or governmental authority of or in that
jurisdiction with the power to tax.
-4-
"Remaining Expected Distributions" means at any time (i) the Invested
Amount at that time; plus (ii) the amount of all Expected Income Distributions
on the Pass-Through Trust Securities that would be expected to be made on all of
the Pass-Through Trust Securities at any time on or after such time (including
accrued and unpaid distributions in respect of the Distribution Period during
which the Put Option Termination Date occurs) and on or prior to December 10,
2009, but for the termination of the Put Option, multiplied in the case of each
Expected Income Distribution by a fraction, the numerator of which is the
Invested Amount and the denominator of which is the aggregate Face Amount of all
of the Asset Trust Securities at such time. For the purposes of this definition,
it will be assumed that the Invested Amount would have been distributed to the
holders of the Asset Trust Securities on December 10, 2009.
"Series A Preferred Shares" mean the Series A preferred shares of XLFA.
"Series B Preferred Shares" has the meaning set forth in the recitals to
this Agreement.
"Series B Preferred Shares Purchase Price" has the meaning set forth in
Section 2.01.
"Settlement Date" has the meaning set forth in Section 3.01(a).
"Standard & Poor's" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc. and its successors and assigns.
"Stated Yield" means, with respect to any Eligible Assets (including
defaulted Eligible Assets, if any) held by the Asset Trust and any Distribution
Period, all amounts of interest (including accreted interest) and other payments
due and payable (upon maturity or otherwise) by the issuer of such Eligible
Assets on the principal amounts of such Eligible Assets (excluding any repayment
of principal) held by the Asset Trust as calculated on or prior to 11:00 A.M.,
New York City time, on the Collection Date on which such Distribution Period
ends, regardless of whether such amounts are ultimately paid.
"Tax Event" means (a) a change in any, or adoption of any new, laws,
regulations or rulings of any Relevant Jurisdiction, (b) a change in, or
adoption of any new, official application or interpretation of the laws,
regulations or rulings of any Relevant Jurisdiction, (c) any execution of or
change to any treaty affecting taxation to which any Relevant Jurisdiction is a
party or (d) an adverse court decision or resolution of a tax audit, in each
case occurring after the date of this Agreement and, in each case, that would
require XLFA or any successor corporation to pay any additional amounts with
respect to the Series B Preferred Shares, and the payment of such additional
amounts cannot be avoided by the use of any commercially reasonable measures
available to XLFA or any successor corporation.
"Tax Matters Partner" has the meaning set forth in the Asset Trust
Declaration.
"Tax Matters Partner Agreement" has the meaning set forth in the Asset
Trust Declaration.
"Tax Matters Partner Fee" has the meaning set forth in the Tax Matters
Partner Agreement.
"Telerate Page 3750" means the display page so designated on the
Moneyline/Telerate Service (or such other page as may
-5-
replace that page on that service, or such other service as may be nominated as
the information vendor, for the purpose of displaying rates or prices comparable
to London interbank offered rates for U.S. dollar deposits).
"Termination Payment" means the greater of:
(i) zero; and
(ii) an amount equal to:
(a) the sum of the present values of all of the Remaining Expected
Distributions discounted to the Put Option Termination Date on a monthly
basis (assuming a 360-day year consisting of twelve thirty-day months) at
the Termination Payment Rate; minus
(b) the Invested Amount on the Put Option Termination Date.
"Termination Payment Rate" means One-Month LIBOR in effect on the date that
is three Business Days prior to the date that the Termination Payment is due,
plus 0.15%.
"Trustee's Ordinary Fees and Expenses" has the meaning set forth in the
Asset Trust Declaration.
"Unexercised Portion" means, at any time, the maximum aggregate liquidation
preference of the Series B Preferred Shares that XLFA may require the Asset
Trust to purchase at that time pursuant to this Agreement, which maximum
liquidation preference shall equal $200,000,000 as of the date of this
Agreement, and thereafter shall equal (i) the then aggregate Face Amount of all
Asset Trust Securities less (ii) the aggregate liquidation preference of the
Series B Preferred Shares outstanding at such time and held by the Asset Trust.
"XLFA" has the meaning set forth in the preamble to this Agreement.
Section 1.02 Interpretations. In this Agreement, except where the context
otherwise requires:
(a) any reference to this Agreement or any other agreement or document
shall be construed as a reference to this Agreement or such other agreement or
document, as applicable, as the same may have been, or may from time to time be,
amended, varied, novated or supplemented in accordance with its terms;
(b) any reference to a statute or regulation shall be construed as a
reference to such statute or regulation as the same may have been, or may from
time to time be, amended, varied, novated or supplemented in accordance with its
terms;
(c) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular section,
clause or other subdivision, and references to "Articles", "Sections" and
"Annexes" refer to Articles or Sections and Annexes to this Agreement except as
otherwise expressly provided;
(d) the word "including" shall be deemed to be followed by the words
"without limitation";
(e) any reference to a "company" shall be construed so as to include any
corporation, trust, partnership, limited liability company or other legal
entity, wheresoever incorporated or established;
-6-
(f) any definition shall be equally applicable to both the singular and
plural forms of the defined terms;
(g) headings contained in this Agreement are inserted for convenience of
reference only and do not affect the interpretation of this Agreement or any
provision hereof;
(h) whenever in this Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Agreement by XLFA and the
Asset Trust shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed; and
(i) all percentages resulting from any calculations relating to the amount
of the Put Option Premium payable on any Collection Date will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
..09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts used
in or resulting from such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward).
ARTICLE II
PUT OPTION; TERM
Section 2.01 Grant of Put Option. (a) In consideration of the payment of
the Put Option Premium and subject to the terms of this Agreement (including the
next succeeding sentence), the Asset Trust hereby grants to XLFA the irrevocable
right at any time and from time to time to require the Asset Trust to purchase
shares of the Series B Preferred Shares bearing an aggregate liquidation
preference of up to $200,000,000 on the terms set forth in this Agreement (the
"Put Option"). The Asset Trust agrees that it shall, upon exercise of the Put
Option, in whole or in part, as provided in Section 3.01, purchase Series B
Preferred Shares from XLFA having an aggregate liquidation preference equal to
the lesser of (x) the Designated Amount and (y) the aggregate Principal Proceeds
received upon the maturity of the Eligible Assets of the Asset Trust (and, if
applicable, liquidation of any Eligible Assets in Default, in whole or in part)
on the designated Settlement Date, after taking into account all Losses suffered
in respect of the Eligible Assets on or prior to that date and the satisfaction
of all obligations of the Asset Trust due and payable on that date. The purchase
price payable by the Asset Trust in respect of each share of such Series B
Preferred Shares (the "Series B Preferred Shares Purchase Price"), will be equal
to the liquidation preference of such share.
(b) The Put Option created hereby is irrevocable and shall remain in effect
and be exercisable, in whole or in part, in accordance with the terms of this
Agreement, at any time and from time to time prior to termination of this
Agreement pursuant to Section 2.02.
Section 2.02 Termination of Put Option. (a) The Put Option shall terminate
on the date (the "Put Option Termination Date") that is the earliest to occur
of:
(i) any Collection Date that occurs at any time on or after December
9, 2009 and is specified in any notice delivered by XLFA to the Asset
Trust, which notice shall be irrevocable, stating that XLFA is electing to
terminate the Put Option, provided that such Collection Date is at least
five Business Days after the date of delivery of such notice;
(ii) XLFA fails to pay the Put Option Premium or any amount due under
the Asset Trust Expense Reimbursement Agreement when due and payable and,
upon delivery of an
-7-
Overdue Notice by the Asset Trustee no later than three Business Days after
the applicable Collection Date, does not cure such failure by (A) paying
the accrued and unpaid amount within seven Business Days after receipt of
an Overdue Notice from the Asset Trustee or (B) notifying the Asset Trust
within seven Business Days after receipt of an Overdue Notice from the
Asset Trustee that it intends to exercise the Put Option, in whole or in
part (and, if in part, such part must be for at least $1,000,000), on the
Distribution Date which next occurs after the expiration of such seven
Business Day period, in which event any amounts due but unpaid under this
Agreement or the Asset Trust Expense Reimbursement Agreement will be set
off against the price paid by the Asset Trust for the Series B Preferred
Shares (provided that the failure to exercise the Put Option and issue the
Series B Preferred Shares on the next Distribution Date pursuant to clause
(B) above shall result in the termination of this Agreement);
(iii) the date on which a Bankruptcy Event occurs; provided that if
the Put Option is terminated pursuant to this Section 2.02(a)(iii), none of
the Asset Trustee, the Pass-Through Trustee or any holder of Pass-Through
Trust Securities shall have any claim against XLFA for any unpaid amounts
due under this Agreement or the Asset Trust Expense Reimbursement
Agreement;
(iv) the first Distribution Date occurring at least seven days after
any date on which either the Asset Trustee or the Pass-Through Trustee
receives an opinion from a nationally recognized tax counsel selected by
XLFA and reasonably satisfactory to the Asset Trustee or the Pass-Through
Trustee, as the case may be, advising XLFA and the Asset Trustee or the
Pass-Through Trustee, as applicable, that, as a result of a Change In Law
occurring after the date hereof, either the Asset Trust or the Pass-Through
Trust is, or there is a reasonable likelihood that either the Asset Trust
or the Pass-Through Trust, as the case may be, will be, classified as an
association or a publicly traded partnership taxable as a corporation for
United States federal income tax purposes; and
(v) the first date on which aggregate Face Amount of the Asset Trust
Securities issued is less than $20,000,000.
(b) Additionally, XLFA may at its option terminate the Put Option (i) on or
after December 9, 2009 or (ii) if at any time a Tax Event occurs; provided,
however, that if XLFA redeems all of the Series B Preferred Shares pursuant to
the terms thereof (A) in connection with the occurrence of a Tax Event or (B) in
connection with XLFA's redemption right that arises if XLFA submits to the
holders of its common shares a proposal for an amalgamation, consolidation,
merger, arrangement, reconstruction, reincorporation, deregistration or any
other similar transaction involving XLFA, XLFA will be deemed to have terminated
the Put Option as provided above.
(c) If the Put Option is terminated prior to December 10, 2009 pursuant to
Section 2.02(a)(ii), XLFA shall pay to the Asset Trust, in addition to any due
and unpaid Put Option Premium, the Termination Payment.
ARTICLE III
EXERCISE OF PUT OPTION; REDEMPTION
Section 3.01 Exercise.
(a) XLFA may exercise the Put Option, in whole or in part, at any time and
from time to time, by delivering a Put Notice to the Asset Trustee, specifying
(i) a settlement date (each, a "Settlement
-8-
Date"), which shall be any succeeding Distribution Date that falls no earlier
than five days after the date on which the Put Notice is delivered to the Asset
Trustee and (ii) the aggregate liquidation preference of the Series B Preferred
Shares that it wishes to require the Asset Trust to purchase on such Settlement
Date (the "Designated Amount"). The Designated Amount must not exceed the
Unexercised Portion at the time of such delivery.
(b) XLFA may, in its sole discretion, partially exercise the Put Option in
any Designated Amount that is equal to an integral multiple of $1,000,000.
(c) On each Settlement Date, XLFA shall issue and deliver to the Asset
Trust against payment of the Series B Preferred Shares Purchase Price, Series B
Preferred Shares with an aggregate liquidation preference equal to the lesser of
(x) the Designated Amount, and (y) the Principal Proceeds received upon the
maturity of the Eligible Assets of the Asset Trust (and, if applicable,
liquidation of any Eligible Assets in Default) on such Settlement Date, after
taking into account all Losses suffered in respect to the Eligible Assets on or
prior to that date and the satisfaction of all expenses and other obligations of
the Asset Trust due and payable on that date. The Series B Preferred Shares
shall be delivered free and clear of any defect in title, together with all
transfer and registration documents (or all notices, instructions or other
communications) as are necessary to convey title to the Series B Preferred
Shares to the Asset Trust (or its nominee).
(d) Payment of the Series B Preferred Shares Purchase Price by the Asset
Trust shall be made to the account of XLFA specified in the Put Notice.
(e) For the avoidance of doubt, only cash received by the Asset Trust as
Principal Proceeds of the Eligible Assets of the Asset Trust (net of fees and
expenses of the Asset Trust that exceed Income Collections) and the proceeds of
any redemption of Series B Preferred Shares shall be used to purchase Series B
Preferred Shares.
(f) There is no limitation on the number of times XLFA may exercise the Put
Option pursuant to and in accordance with the terms of this Agreement, other
than the limit resulting from the minimum Designated Amount specified in Section
3.01(b).
Section 3.02 Set-Off Against Series B Preferred Shares Purchase Price.
Payment of the Series B Preferred Shares Purchase Price by the Asset Trust shall
be made as provided in Section 3.01 without setoff, claim, recoupment, deduction
or counterclaim; provided, however, that if XLFA exercises the Put Option at any
time that it has failed to pay all or a portion of the Put Option Premium as
provided in Section 2.02(a)(ii) or any amount due by it but unpaid under the
Asset Trust Expense Reimbursement Agreement, and such failure has not been cured
on or before the Settlement Date, the Asset Trust shall be entitled to set-off
such unpaid portion of the Put Option Premium and any amount due by XLFA but
unpaid under the Asset Trust Expense Reimbursement Agreement against the Series
B Preferred Shares Purchase Price.
ARTICLE IV
PUT OPTION PREMIUM
Section 4.01 Put Option Premium. In consideration of the Asset Trust's
agreement to purchase the Series B Preferred Shares upon the exercise of the Put
Option in accordance with the terms of this Agreement, XLFA will pay to the
Asset Trust, in U.S. dollars payable in arrears on each Collection Date relating
to any Distribution Period during which the Put Option remains in effect, a
premium (the "Put Option Premium,") in an amount equal to the sum of:
-9-
(i) (A) the sum of (x) the Trustee's Ordinary Fees and Expenses and
the Tax Matters Partner's Fee for that Distribution Period and (y) the
expenses payable by the Asset Trust under the Pass-Through Trust Expense
Reimbursement Agreement attributable to fees of the Pass-Through Trustee
multiplied by (B) a fraction, the numerator of which is the Unexercised
Portion of the Put Option on the Collection Date for that Distribution
Period and the denominator of which is the aggregate Face Amount of the
Asset Trust Securities on such Collection Date;
(ii) the fees of the Investment Manager for that Distribution Period;
and
(iii) the excess, if any, of:
(A) an amount equal to the Put Option Premium Rate, multiplied by
the actual number of days elapsed in the Distribution Period in which
the relevant Collection Date falls, divided by 360, and multiplied by
the Invested Amount, over
(B) the aggregate Stated Yield on all the Eligible Assets
(including defaulted Eligible Assets, if any) held by the Asset Trust
during such Distribution Period, whether or not such Stated Yield is
actually realized during that Distribution Period, together with any
interest income received by the Asset Trust during that Distribution
Period from holding its assets in overnight interest-bearing deposit
accounts held at Eligible Banks or Permitted Investments, as
applicable.
Section 4.02 Put Option Premium Certificate. The Put Option Premium,
payable on any Collection Date, shall be calculated by the Calculation Agent and
delivered in writing (the "Put Option Premium Certificate") to XLFA and the
Asset Trustee prior to 11:00 a.m., New York City time, one Business Day prior to
the Collection Date on which such payment is due. The Put Option Premium
Certificate shall also set forth the Eligible Assets held by the Asset Trust,
the Stated Yield on each Eligible Asset, the One-Month Libor Rate and the
computation of the Put Option Premium for that Distribution Period, and shall be
in the form attached as Annex C.
ARTICLE V
OBLIGATIONS ABSOLUTE
Section 5.01 Obligation Absolute. Subject to the provisions of Section
2.02(a)(iii), each of XLFA and the Asset Trust acknowledge that, provided the
other party has complied with the terms of this Agreement, the obligations of
XLFA and the Asset Trust, as the case may be, undertaken under this Agreement
are absolute, irrevocable and unconditional irrespective of any circumstances
whatsoever, including any defense otherwise available to XLFA or the Asset
Trust, respectively, in equity or at law, including the defense of fraud, any
defense based on the failure of XLFA or the Asset Trust, respectively, to
disclose any matter, whether or not material, to XLFA or the Asset Trust,
respectively, or any other person, and any defense of breach of warranty or
misrepresentation, and irrespective of any other circumstance which might
otherwise constitute a legal or equitable discharge or defense under any and all
circumstances. The enforceability and effectiveness of this Agreement and the
liability of XLFA or the Asset Trust, and the rights, remedies, powers and
privileges of XLFA or the Asset Trust under this Agreement shall not be
affected, limited, reduced, discharged or terminated, and the Asset Trust hereby
expressly waives, to the fullest extent permitted by applicable law, any defense
now or in the future arising by reason of:
(a) the illegality, invalidity or unenforceability of all or any part of
the Asset Trust Declaration;
-10-
(b) any action taken by XLFA or the Asset Trust expressly provided for
herein;
(c) any change in the direct or indirect ownership or control of XLFA or
the Asset Trust or of any shares or ownership interests thereof not in
contravention of Section 6.01 hereof; and
(d) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of or for XLFA or the Asset
Trust;
provided, however, that, notwithstanding the provisions of this Section 5.01,
neither XLFA nor the Asset Trust shall have no further obligations under this
Agreement after the termination of the Put Option (other than as expressly
provided for herein). In addition, the breach of any covenant made in this
Agreement by the Asset Trust shall not terminate the Put Option or limit the
rights of XLFA hereunder.
Section 5.02 No Waiver, etc. For the avoidance of doubt, so long as the Put
Option has not terminated, no failure or delay by XLFA in exercising its rights
hereunder shall operate as a waiver of its rights hereunder except as
specifically provided in this Agreement, including in respect of the notice
periods and payment dates set forth in Section 3.01.
ARTICLE VI
COVENANTS
Section 6.01 Covenants of XLFA.
(a) XLFA hereby covenants and agrees that, prior to the termination of this
Agreement, it shall not amend, restate, revise or otherwise alter the rights,
terms and preferences of the Series B Preferred Shares, whether by operation of
merger, reorganization or otherwise, without the prior consent of the Asset
Trust, and it will not register the Series B Preferred Shares with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
prior to the termination of the Put Option. Notwithstanding the foregoing, XLFA
may enter into a plan of merger, sale of assets or voluntary liquidation only if
(A) following the transaction, (i) the surviving corporation has no outstanding
equity securities (or obligation to issue such equity securities) that rank
senior to the Series B Preferred Shares as to dividends or in a liquidation or
dissolution of the surviving corporation, (ii) the Series B Preferred Shares are
exchanged for Series B Preferred Shares or securities of the surviving
corporation having the same rights and preferences as the Series B Preferred
Shares and (iii) either by law or express agreement the surviving corporation
assumes all of the obligations of XLFA under this Agreement and under the Asset
Trust Expense Reimbursement Agreement or (B) XLFA has redeemed or called for
redemption all of the Series B Preferred Shares.
(b) XLFA hereby covenants and agrees that any Series B Preferred Shares
delivered to the Asset Trust shall rank, at the time of delivery, (a) senior to
the common stock of XLFA and (b) senior to (i) the Series A Preferred Shares and
(ii) the most senior preferred shares of XLFA then authorized by its Memorandum
of Association and its Amended and Restated Bye-Laws or then issued and
outstanding (other than the Series B Preferred Shares and any shares ranking on
a parity with the Series B Preferred Shares as to dividends, distributions or in
a liquidation or dissolution of XLFA); provided that this covenant may be
amended with the consent of XLFA and the Asset Trust (provided that such consent
of the Asset Trust shall only be granted following a vote or consent in which at
least a Majority in Face Amount of the Asset Trust Securities provide such
consent).
-11-
(c) XLFA hereby covenants that it shall take all reasonable action
necessary to enable Standard & Poor's, Moody's and Fitch to provide their
respective ratings with respect to the Series B Preferred Shares.
Section 6.02 Covenants of The Asset Trust. The Asset Trust hereby covenants
and agrees that, at all times prior to the termination of the Put Option it
shall not amend, restate, revise or otherwise alter the rights, terms and
preferences of the Asset Trust Securities, whether by operation of merger,
reorganization or otherwise, and it will not register the Asset Trust Securities
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, without the consent of XLFA.
ARTICLE VII
THIS AGREEMENT TO GOVERN
If there is any inconsistency between any provision of this Agreement and
any other agreement, the provisions of this Agreement shall prevail to the
extent of such inconsistency but not otherwise.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Section 8.01 Representations of the Asset Trust. The Asset Trust represents
and warrants to XLFA that, as of the date hereof:
(a) the Asset Trust is duly organized and validly existing under the
Delaware Statutory Trust Act and has the power and authority to own
its assets and to conduct its activities;
(b) its entry into, exercise of its rights and/or performance of or
compliance with its obligations under this Agreement do not and will
not violate (i) any law to which it is subject on such date, (ii) any
of its constituent documents in effect on such date or (iii) any
agreement to which it is a party or which is binding on it or its
assets on such date;
(c) it has the power to enter into, exercise its rights and perform and
comply with its obligations under, this Agreement and has taken all
necessary action to authorize the execution, delivery and performance
of this Agreement;
(d) it will obtain and maintain in effect and comply with the terms of all
necessary consents, registrations and the like of or with any
government or other regulatory body or authority applicable to this
Agreement;
(e) its obligations under this Agreement are valid, binding and
enforceable at law;
(f) it is not in default under any agreement to which it is a party or by
which it or its assets is or are bound and no litigation, arbitration
or administrative proceedings are current or pending, which default,
litigation, arbitration or administrative proceedings are material in
the context of this Agreement;
(g) it is not necessary or advisable in order to ensure the validity,
effectiveness, performance or enforceability of this Agreement that
any document be filed, registered or recorded in any public office or
elsewhere;
-12-
(h) no consent, approval, authorization or order of any court or
governmental authority, agency, commission or commissioner or other
regulatory authority is required for the consummation by the Asset
Trust of the transactions contemplated by this Agreement; and
(i) assuming compliance with the transfer restrictions with respect to the
Asset Trust Securities set forth in the Declaration, the Asset Trust
is not required to register with the Securities and Exchange
Commission as an investment company under the Investment Company Act
of 1940, as amended.
Section 8.02 Representations of XLFA. XLFA represents and warrants to the
Asset Trust that, as of the date hereof:
(a) it is duly incorporated and validly existing as an exempted company in
good standing under the laws of Bermuda and has the power and authority to own
its assets and to conduct its activities;
(b) its entry into, exercise of its rights and/or performance of or
compliance with its obligations under this Agreement do not and will not violate
(i) any law to which it is subject on such date, (ii) any of its constituent
documents in effect on such date or (iii) any material agreement to which it is
a party or which is binding on it or its assets on such date;
(c) it has the power to enter into, exercise its rights and perform and
comply with its obligations under this Agreement and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement;
(d) it will obtain and maintain in effect and comply with the terms of all
necessary consents and registrations of or with any government or other
regulatory body or authority necessary for the due performance of its
obligations under this Agreement;
(e) its obligations under this Agreement are valid, binding and enforceable
at law;
(f) it is not in default under any material agreement to which it is a
party or by which it or its assets is or are bound and no litigation,
arbitration or administrative proceedings are current or pending, which default,
litigation, arbitration or administrative proceedings are material in the
context of this Agreement;
(g) it is not necessary or advisable in order to ensure the validity,
effectiveness, performance or enforceability of this Agreement that any document
be filed, registered or recorded in any public office or elsewhere other than
those that have been duly filed, registered or recorded and are in full force
and effect;
(h) no consent, approval, authorization or order of any court or
governmental authority, agency, commission or commissioner or other regulatory
authority is required for the consummation by XLFA of the transactions
contemplated by this Agreement, other than as have been received on or before
such date, and the sale of the Series B Preferred Shares to the Asset Trust,
pursuant to the terms hereof, need not be registered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended; and
(i) the Series B Preferred Shares are and at all times will be duly
authorized for issuance and sale to the Asset Trust, pursuant to this Agreement,
and, when issued and delivered by XLFA, pursuant to this Agreement, against
payment of the Series B Preferred Shares Purchase Price, will be validly issued,
fully paid and nonassessable; and the Series B Preferred Shares will conform in
all respects to the terms
-13-
of the Series B Preferred Shares set forth in the Amended and Restated Bye-Laws;
and the Series B Preferred Shares will not be subject to preemptive or other
similar rights.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Severability. Any provision of this Agreement which is or
becomes illegal, invalid or unenforceable in any jurisdiction may be severed
from the other provisions of this Agreement without invalidating the remaining
provisions hereof, and any such illegality, invalidity or unenforceability shall
not invalidate or render illegal or unenforceable such provision in any other
jurisdiction.
Section 9.02 Notices. Each communication to be made hereunder shall be
deemed to have been given (i) five days after deposit of such communication with
a reputable national courier service addressed to such party at its address
specified below (or at such other address as such party shall specify to the
other party hereto in writing) or (ii) when transmitted by facsimile to such
party at its facsimile number specified below (or at such other facsimile number
as such party shall specify to the other party hereto in writing):
If to XLFA at:
XL Financial Assurance Ltd.
XL House
One Bermudiana Road
Hamilton HM11
Bermuda
Attention: Kirstin Romann Gould
Facsimile: 441-295-2840
Email: Kirstin.Gould@xlgroup.com
If to the Asset Trust at:
Twin Reefs Asset Trust
c/o The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporate Trust Administration
Facsimile: (302) 283-8279
Email: Kgullo@bankofny.com
copies to:
The Bank of New York
Corporate Trust Division
101 Barclay Street - 8 East
New York, New York 10286
Attention: Dealing and Trading Group
Facsimile: (212) 815-2830
Email: Gmckeever@bankofny.com
-14-
If to Standard & Poor's at:
Standard & Poor's, a division of
The McGraw-Hill Companies, Inc.
55 Water Street, 38th Floor
New York, NY 10041-0003
Attention: David S. Veno,
Director - Global Bond Insurer Ratings
Facsimile: (212) 438-2108
Email: david_veno@standardandpoors.com
If to Moody's at:
Moody's Investors Service, Inc.
99 Church Street, 6th Floor
New York, NY 10007
Attention: Kendra Tan-Wu
Senior Associate - Financial Institutions Group
Facsimile: (212) 553-4805
Email: Kendra.tan-wu@moodys.com
copies to:
Moody's Investors Service, Inc.
99 Church Street, 6th Floor
New York, NY 10007
Attention: Matthew Noll
Lead Analyst for XL Financial Assurance Ltd.
Facsimile: (212) 553-4805
Email: Matthew.noll@moodys.com
If to Fitch at:
Fitch Ratings
ABCP Surveillance
One State Street Plaza
New York, NY 10004
Attention: Michael FitzSimons
Facsimile: (212) 514-9879
Email: surveillance-abs-abcp@fitchratings.com
Section 9.03 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which when executed and delivered shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument.
Section 9.04 Benefit of Agreement and Disclaimer. This Agreement shall
inure to the benefit of each party hereto and its successors and permitted
assigns and transferees.
Section 9.05 Amendment and Assignment. (a) This Agreement may not be
amended or modified in any respect, nor may any provision be waived, without the
written agreement of both parties. No waiver by one party of any obligation of
the other hereunder shall be considered a waiver of any other obligation of such
party.
-15-
(b) Neither the Asset Trust nor XLFA may assign its rights or obligations
under this Agreement to any other person, except that XLFA may assign its rights
and obligations under this Agreement to another person as a result of a merger
of XLFA with another person or as a result of a sale of all or substantially all
of the assets of XLFA to another person satisfying the requirements set forth in
Section 6.01(a).
(c) Notice of (i) any amendment or modification of this Agreement pursuant
to clause (a) of this Section 9.05 or (ii) any assignment of this Agreement
pursuant to clause (b) of this Section 9.05 shall be promptly provided in
writing to Standard & Poor's, Moody's and Fitch pursuant to the notice
provisions contained herein.
Section 9.06 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 9.07 Jurisdiction. Each of the parties hereto irrevocably submits
to the non-exclusive jurisdiction of the courts of the State of New York in
respect of any action or proceeding arising out of or in connection with this
Agreement ("Proceedings"). Each of the parties hereto irrevocably waives, to the
fullest extent permitted by applicable law, any objection that it may now or
hereafter have to the laying of the venue of any such Proceedings in the courts
of the State of New York and any claim that any Proceeding brought in any such
court has been brought in an inconvenient forum. Each of the Asset Trust and
XLFA agrees that it shall at all times have an authorized agent in the State of
New York upon whom process may be served in connection with any Proceedings, and
each of the Asset Trust and XLFA hereby authorizes and appoints CT Corporation
System to accept service of all legal process arising out of or connected with
this Agreement in the State of New York and service on such person shall be
deemed to be service on the Asset Trust or XLFA, as the case may be. If for any
reason such person shall cease to act as agent for the service of process, each
of the Asset Trust and XLFA shall promptly appoint another such agent, and shall
forthwith notify the other of such appointment. The submission to jurisdiction
reflected in this paragraph shall not (and shall not be construed so as to)
limit the right of any person to take Proceedings in any court of competent
jurisdiction, nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by law.
Section 9.08 Limitation of Liability. It is expressly understood that (a)
this Agreement is executed and delivered by The Bank of New York (Delaware), not
individually or personally but solely as trustee, in the exercise of the powers
and authority conferred and vested in it under the Asset Trust Declaration, (b)
each of the representations, undertakings and agreements herein made on the part
of the Asset Trust is made and intended not as personal representations,
undertakings and agreements by The Bank of New York (Delaware), but is made and
intended for the purpose of binding only the Asset Trust, and (c) under no
circumstances shall The Bank of New York (Delaware) be personally liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Asset Trust under this Agreement or any other related
document.
Section 9.09 Tax Confidentiality Waiver. Notwithstanding anything to the
contrary contained in this Agreement, all persons may disclose to any and all
persons, without limitation of any kind, the federal income tax treatment of the
Pass-Through Trust Securities or the Series B Preferred Shares, any fact
relevant to understanding the federal income tax treatment of the Pass-Trust
Trust Securities or the Series B Preferred Shares, and all materials of any kind
(including opinions or other tax analyses) relating to such federal income tax
treatment.
[Rest of page intentionally left blank.]
-16-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
TWIN REEFS ASSET TRUST
By: The Bank of New York (Delaware),
not in its individual capacity
but solely as Asset Trustee
By: /s/ Kristine K. Gullo
-----------------------------------
Name: Kristine K. Gullo
Title: Asst. Vice President
XL FINANCIAL ASSURANCE LTD.
By: /s/ Michael E. Rego
-----------------------------------
Name: Michael E. Rego
Title: Deputy Chairman &
Chief Operating Officer
ANNEX A
Form of OVERDUE NOTICE
To: XL Financial Assurance Ltd.
XL House
One Bermudiana Road
Hamilton HM11
Bermuda
Attention: Kirstin Romann Gould
Facsimile: 441-295-2840
Email: Kirstin.Gould@xlgroup.com
Ladies and Gentlemen:
We refer to the Put Option Agreement, dated as of December 10, 2004, (the
"Put Option Agreement"), entered into between the Asset Trust and you. Terms
defined therein shall have the same respective meanings herein.
This notice is an Overdue Notice for the purposes of Section 2.02(a)(ii) of
the Put Option Agreement.
[The Put Option Premium was not paid on the Collection Date of
_______________][The amount of $_____________ due under the Asset Trust Expense
Reimbursement Agreement was not paid on the Collection Date of
________________]:
Yours faithfully,
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity but solely as Asset Trustee
By:
----------------------------------------
Name:
Title:
A-1
ANNEX B
Form of Put Notice
To: Twin Reefs Asset Trust
c/o The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporate Trust Administration
Facsimile: (302) 283-8279
Email: Kgullo@bankofny.com
With copies to:
The Bank of New York
Corporate Trust Division
101 Barclay Street - 8 East
New York, New York 10286
Attention: Dealing and Trading Group
Facsimile: (212) 815-2830
Email: Gmckeever@bankofny.com
Ladies and Gentlemen:
We refer to the Put Option Agreement, dated as of December 10, 2004, (the
"Put Option Agreement"), entered into between us and you. Terms defined therein
shall have the same respective meanings herein.
This notice is a Put Notice for the purposes of Section 3.01(a) of the Put
Option Agreement.
The Designated Amount with respect to this exercise shall be $____________
(which must be a multiple of $1,000,000). The Settlement Date with respect to
this exercise shall be ________________ (which must be a Distribution Date
occurring no earlier than five days after the effective date of this Put
Notice). We hereby require you to pay the Series B Preferred Shares Purchase
Price as provided in Section 3.01, to the following account:
Yours faithfully,
XL FINANCIAL ASSURANCE LTD.
By:
------------------------------
Name:
Title:
B-1
ANNEX C
Put Option Premium Certificate
XL FINANCIAL ASSURANCE LTD.
1. Distribution Period: [first day of
Period]-[last day of Period]:
[number of days in period -
generally 30 or 31]
2. Unexercised Portion as of the
Collection Date:
3. Applicable Put Option Premium
Rate: __%
4. Trustee's Ordinary Fees and
Expenses:
5. Investment Manager Fees:
6. Tax Matters Partner Fees:
7. Allocable Portion of Trustee's
Ordinary Fees and Expenses and Tax
Matters Partner Fee:
8. Fees Reimbursable Under Pass-
Through Trust Expense
Reimbursement Agreement:
9. Put Option Premium Rate Applied to
Unexercised Portion for Distribution
Period:
10.Aggregate Stated Yield on Eligible
Assets and stated interest on
overnight deposits, if any:
11.Put Option Premium Due on [insert
Distribution Date] as of 11:00 a.m.
New York City Time on Collection Date:
Attachment: List of Eligible Assets held by Asset Trust and Stated Yield
applicable to each.
C-1