Exhibit 4.1
XL CAPITAL LTD
to
THE
BANK OF NEW YORK MELLON,
as
Trustee
FIFTH SUPPLEMENTAL
INDENTURE
Dated as of August 5,
2008
SENIOR DEBT
SECURITIES
Supplement to Indenture dated
as of June 2, 2004
FIFTH SUPPLEMENTAL
INDENTURE, dated as of August 5, 2008 (the " Fifth
Supplemental
Indenture "), by and between XL CAPITAL
LTD, a Cayman Islands exempted limited company (the "
Company "), having its principal office at XL House, One
Bermudiana Road, Hamilton HM11, Bermuda, and THE BANK OF NEW YORK
MELLON, a New York banking corporation, having a Corporate Trust
Office at 101 Barclay Street, Floor 8W, New York, New York 10286,
as trustee (the " Trustee ") under the Indenture.
WHEREAS, the
Company and the Trustee, formerly known as The Bank of New York,
have as of June 2, 2004 entered into an Indenture (the " Base
Indenture ") providing for the issuance by the Company from
time to time of its senior debt securities;
WHEREAS, the
Company and the Trustee have executed that certain First
Supplemental Indenture, dated as of August 23, 2004, that certain
Second Supplemental Indenture, dated as of November 12, 2004,
pursuant to which the Company issued a series of its 5.25% Senior
Notes due 2014 ("2014 Securities") and a series of its 6.375%
Senior Notes due 2024 ("2024 Securities") under the Base Indenture
and provided for certain additional provisions of such 2014
Securities and 2024 Securities, that certain Third Supplemental
Indenture, dated December 9, 2005, pursuant to which the Company
issued a series of its 5.25% Senior Notes due 2011 under the Base
Indenture and that certain Fourth Supplemental Indenture, dated as
of May 7, 2007 pursuant to which the Company issued a series of its
6.25% Senior Notes due 2027 under the Base Indenture;
WHEREAS, pursuant
to Section 9.01(11) of the Base Indenture, the Company and the
Trustee may enter into supplemental indentures to establish the
form or terms of securities of any series as permitted by Sections
2.01 and 3.01 of the Base Indenture;
WHEREAS, the
Company desires to issue another series of senior debt securities
under the Base Indenture, and has duly authorized the creation and
issuance of such series of senior debt securities and the execution
and delivery of this Fifth Supplemental Indenture to modify the
Base Indenture and provide certain additional provisions as
hereinafter described (the Base Indenture, as amended and
supplemented by the Fifth Supplemental Indenture is hereinafter
referred to as the " Indenture ");
WHEREAS, the
Company and the Trustee deem it advisable to enter into this Fifth
Supplemental Indenture for the purposes of establishing the terms
of such senior debt securities and providing for the rights,
obligations and duties of the Trustee with respect to such senior
debt securities;
WHEREAS, the
execution and delivery of this Fifth Supplemental Indenture has
been authorized by a resolution of the Board of Directors of the
Company or a duly authorized committee thereof;
WHEREAS,
concurrent with the execution hereof, the Company has delivered an
Officers' Certificate and has caused its counsel to deliver to the
Trustee an Opinion of Counsel; and
WHEREAS, all
conditions and requirements of the Base Indenture necessary to make
this Fifth Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and
fulfilled by the parties hereto and the execution and delivery
thereof have been in all respects duly authorized by the parties
hereto.
NOW, THEREFORE,
THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in
consideration of the mutual premises and agreements herein
contained, the Company and the Trustee covenant and agree, for the
equal and proportionate benefit of all Holders of the Notes (as
defined below), as follows:
ARTICLE I
DEFINITIONS
Section
1.1 Definition of Terms
.
Unless
otherwise provided herein or unless the context otherwise
requires:
(a)
a term defined in
the Base Indenture has the same meaning when used in this Fifth
Supplemental Indenture;
(b)
a term defined
anywhere in this Fifth Supplemental Indenture has the same meaning
throughout;
(c)
the singular
includes the plural and vice versa;
(d)
headings are for
convenience of reference only and do not affect
interpretation;
(e)
the following
terms have the meanings given to them in the Purchase Contract
Agreement (as defined below), as in effect on the date hereof:
Clearing Agency, Clearing Agency Participant, Last Failed
Remarketing; Normal Unit; Purchase Price; Redemption Price;
Remarketing Agent; Remarketing Notice; Remarketing Fee; Remarketing
Period; Separate Notes; Stock Purchase Date; Subsequent Remarketing
Date; Trading Day; Underwriting Agreement; and Units;
and
(f)
the following
terms have the meanings given to them in this Section
1.1(f):
"
Base Rate" has the meaning set forth in Section 2.22(a)(iii)
.
" Business
Day " means, with respect to any Notes, any day other than a
Saturday, Sunday or other day in the City of New York, in Bermuda
or in any Place of Payment on which banking institutions are
authorized by law or regulations to close.
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" DTC " has
the meaning set forth in Section 2.7 of the Fifth Supplemental
Indenture.
“
Global Note " means a Global Security representing the
Notes.
"
Issue Date " means August 5, 2008.
"
Issue Price " means 100% of the aggregate principal
amount.
" Pledge
Agreement " means the Pledge Agreement, dated as of August 5,
2008, between the Company, The Bank of New York Mellon, as Purchase
Contract Agent, and as attorney-in-fact for Holders of the Units,
and The Bank of New York Mellon, as Collateral Agent, Custodial
Agent and Securities Intermediary.
" Purchase
Contract Agent " means The Bank of New York Mellon, a New York
banking corporation, as purchase contract agent under the Purchase
Contract Agreement (as defined below), until a successor Purchase
Contract Agent shall have become such pursuant to the applicable
provisions of the Purchase Contract Agreement, and thereafter
"Purchase Contract Agent" shall mean such successor.
" Purchase
Contract Agreement " means the Purchase Contract Agreement,
dated as of August 5, 2008, between the Company and The Bank of New
York Mellon, as Purchase Contract Agent.
" Relevant
Date " means, in respect of any payment, the date on which such
payment first becomes due and payable, but if the full amount of
the moneys payable has not been received by the Trustee on or prior
to such due date, it means the first date on which, the full amount
of such moneys having been so received and being available for
payment to Holders, notice to that effect shall have been duly
given to the Holders of the Notes.
"
Remarketing " means any remarketing conducted pursuant to
and in accordance with the Remarketing Agreement.
" Remarketing
Agreement " means the Remarketing Agreement to be entered into
by and among the Company, a remarketing agent and the Purchase
Contract Agent.
" Remarketing
Date " means the ninth Business Day before the Stock Purchase
Date, which shall be August 2, 2011.
" Remarketing
Value " means, with respect to any Note, the principal amount
of such Note.
" Reset
Date " means the date following the Remarketing Date or a
Subsequent Remarketing Date, as applicable, on which the trades in
a successful remarketing of the Notes pursuant to the Purchase
Contract Agreement and the Remarketing Agreement settle.
Notwithstanding whether a successful remarketing occurs on the
Remarketing Date or on a Subsequent Remarketing Date, the
settlement date for such remarketing, if successful, shall be on
the Stock Purchase Date; provided that the Company with the consent
of the Remarketing
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Agent and the Purchase
Contract Agent shall have the option to provide for a settlement
date of a successful remarketing that is earlier than the Stock
Purchase Date so long as the Company shall pay on the Stock
Purchase Date to the Holders of the Normal Units and the Separate
Notes an interest payment on the Notes for the period from and
including the Payment Date immediately preceding the Stock Purchase
Date to but excluding the Stock Purchase Date at the Initial
Interest Rate.
" Reset
Rate " has the meaning set forth in Section 2.19 of this Fifth
Supplemental Indenture.
" Reset
Spread " has the meaning set forth in Section 2.19 of this
Fifth Supplemental Indenture.
ARTICLE II
CREATION OF THE
NOTES
Section
2.1 Designation of
Series .
Pursuant to the
terms hereof and Sections 2.01 and 3.01 of the Base Indenture, the
Company hereby creates a series of its senior debt securities
designated as the 8.25% Senior Notes due 2021 (the " Notes
"), which Notes shall be deemed "Securities" for all purposes under
the Indenture.
Section
2.2 Form
of Notes .
The definitive
form of the Notes shall be substantially in the form set forth in
Exhibit A attached hereto, which is incorporated herein and
made part hereof.
The Final Maturity
of the Notes shall be August 15, 2021, subject to modification in
the event of a successful Remarketing in accordance with Section
2.22(a)(i) hereof.
Section
2.3 Interest and Interest Rate
Reset .
(a)
Each Note will
bear interest (i) from and including the Issue Date or from the
most recent Interest Payment Date to which interest has been paid
or duly provided for, as the case may be, to but excluding the
earlier of their maturity date and the Reset Date, at the rate of
8.25% per annum (the " Initial Interest Rate "), and (ii)
from and including the Reset Date, at the Reset Rate or the Base
Rate plus the Reset Spread, as applicable, payable in immediately
available funds, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
payment of public and private debts; provided that any principal
and installment of interest which is overdue shall bear interest
(to the extent that payment of such interest is enforceable under
applicable law) at the Initial Interest Rate up to but excluding
the Reset Date, if any, and thereafter at the Reset Rate or the
Base Rate plus the Reset Spread, as applicable, from the dates such
amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand. Interest on the Notes
initially shall be payable quarterly in arrears on February 15, May
15, August 15 and November 15 of each year, commencing November 15,
2008 and, after a successful
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Remarketing, semi-annually in
arrears on February 15 and August 15 of each year, accruing from
the Reset Date, unless the Company elects that the notes will bear
interest at a floating rate pursuant to Section 2.22(a)(iii), in
which case interest will continue to be payable quarterly in
arrears on February 15, May 15, August 15 and November 15 of each
year (each such date on which interest is to be paid, an "
Interest Payment Date "). The Regular Record Date shall be
the 15th calendar day (whether or not a Business Day) prior to the
relevant Interest Payment Date.
(b)
Subject to
modification in the event of a successful Remarketing in accordance
Section 2.22(a)(iii) hereof, the amount of interest payable for any
period on any Interest Payment Date will be computed (1) for any
full quarterly or semi-annual period, as applicable, on the basis
of a 360-day year consisting of twelve 30-day months and (2) for
any period shorter than a full quarterly or semi-annual period, as
applicable, on the basis of a 30-day month and, for periods of less
than a month, on the basis of the actual number of days elapsed per
30-day month. In the event that any date on which interest is
payable on the Notes is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such
date.
Section
2.4 Limit on Amount of
Notes .
The Notes will be
limited in aggregate principal amount to $575,000,000 and may, upon
execution of this Fifth Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes in
accordance with a Company Order.
Section
2.5 Nature of Notes/Minimum
Denomination .
(a)
The Notes shall
constitute senior, unsecured and unsubordinated obligations of the
Company and shall rank pari passu with all other unsecured and
unsubordinated indebtedness of the Company from time to time
outstanding.
(b)
The Notes shall
be issuable only in registered form and without coupons in
denominations of $2,000 and any $1,000 integral multiple thereof
except that an interest in a Note held as part of a Normal Unit
represents an ownership interest of 1/40th, or 2.5%, of a Note in
aggregate principal amount of $1,000 and will therefore correspond
to the stated amount of $25 per Normal Unit.
Section
2.6 No
Sinking Fund .
The Notes do not
have the benefit of any sinking fund obligation and, subject to
Section 2.21 hereof are not redeemable at the option of the
Holders.
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Section
2.7 Issuance of Notes and Payment .
(a)
The Notes, on
original issuance, shall be issued in the form of (i) one or more
definitive, fully registered Notes registered initially in the name
of The Bank of New York Mellon, as Purchase Contract Agent and (ii)
with respect to any Notes that are no longer a component of Normal
Units and released from the lien of the Pledge Agreement, one fully
registered Global Note registered in the name of The Depository
Trust Company (" DTC "), as Depositary, or its nominee, and
deposited with the Trustee, as custodian for DTC, for credit by DTC
to the respective accounts of beneficial owners of the Separate
Notes represented thereby (or such other accounts as they may
direct).
(b)
The principal of
and the interest on the Notes will be payable at the Corporate
Trust Office or, at the option of the Company, by check mailed to
the address of the Person entitled thereto at such Person's address
as it appears on the Register or by wire transfer to the account
maintained in the United States designated by written notice given
ten Business Days prior to the applicable payment date by such
Person.
Section
2.8 Notes Not Convertible or
Exchangeable .
The
Notes will not be convertible or exchangeable for other securities
or property.
Section
2.9 Global Note
.
(a)
DTC shall serve as
the initial Depositary for the Global Note.
(b)
Unless and until
it is exchanged for definitive Notes in accordance
with the terms of
the Base Indenture, a Global Note may be transferred, in whole but
not in part, only to another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a
nominee of such successor Depositary.
Section
2.10 Defeasance
.
The defeasance
provisions of Sections 4.03 and 4.04 of the Base Indenture shall
not apply to the Notes.
Section
2.11 Redemption
.
Pursuant to
3.01(6) and Section 11.01 of the Base Indenture, so long as any of
the Notes are Outstanding, the following provisions shall be
applicable to the Notes:
(a)
If certain events
specified in Exhibit A attached hereto shall occur and be
continuing, the Company may, at its option, redeem the Notes then
Outstanding in whole (but not in part) at any time at the
Redemption Price and in accordance with the terms and conditions
set forth in Exhibit A .
(b)
The Notes will be
redeemable at the option of the Company, in whole or in part, not
earlier than August 15, 2013 at the Redemption Price and in
accordance
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with the terms and conditions
set forth in Exhibit A , subject to modification in the
event of a successful Remarketing in accordance with Section
2.22(a)(ii) hereof.
(c)
Notwithstanding
Section 11.04 of the Base Indenture, notice of redemption shall (i)
be sufficient if instead of setting forth a specific price with
respect to the Redemption Price, it sets forth the manner of
calculation thereof and (ii) shall be mailed to the Holders not
less than 30 nor more than 60 days prior to the redemption
date.
Section
2.12 Listing
.
In the event that
the Notes become separately traded from the Normal Units to the
extent that applicable exchange listing requirements are met, the
Company covenants and agrees to use commercially reasonable efforts
to cause such Notes to be listed on the securities exchange on
which the Normal Units are then listed.
Section
2.13 Remarketing
.
The Notes may be
remarketed at a specified price on certain dates, all as specified
in Exhibit A and Section 2.19 of this Fifth Supplemental
Indenture, in Section 5.4(b) of the Purchase Contract Agreement and
in Section 4.5(d) of the Pledge Agreement and the remarketing
procedures set forth in such sections shall apply to the
Notes.
Section
2.14 Guarantees
.
The
Notes will not be guaranteed by any third party.
Section
2.15 Place of Payment
.
The Paying Agent
for the Notes shall initially be the Trustee, and the Place of
Payment for the Notes shall initially be the Corporate Trust
Office, which as of the date hereof for such purpose is located at
101 Barclay Street, Floor 8W, New York, New York 10286. The Company
may from time to time designate one or more additional offices or
agencies where Notes may be presented or surrendered for
payment.
Section
2.16 Events of Default
.
The following
shall constitute additional Events of Default pursuant to Section
5.01 of the Base Indenture with respect to the Notes with the same
effect as if expressly set forth in such Section 5.01:
(a)
default by the
Company under any instrument or instruments under which there is or
may be secured or evidenced any of the Company's indebtedness
(other than the Notes) having an outstanding principal amount of
$50,000,000 (or its equivalent in any other currency or currencies)
or more, individually or in the aggregate, that has caused the
holders thereof to declare such indebtedness to be due and payable
prior to its stated maturity, unless such declaration has been
rescinded within 30 days;
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(b)
default by the
Company in the payment when due of the principal or premium, if
any, of any bond, debenture, note or other evidence of the
Company's indebtedness, in each case for money borrowed, or in the
payment of principal or premium, if any, under any mortgage,
indenture, agreement or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness of
the Company for money borrowed, which default for payment of
principal or premium, if any, is in an aggregate principal amount
exceeding $50,000,000 (or its equivalent in any other currency or
currencies), if such default shall continue unremedied or unwaived
for more than 30 days after the expiration of any grace period or
extension of the time for payment applicable thereto;
(c)
default in the
payment of any Additional Amounts payable with respect to interest
on any Notes, when such Additional Amounts become due and payable,
and continuance of such default for a period of 30 days;
(d)
default in the
payment of any Additional Amounts payable with respect to any
principal of or premium, if any, on any Notes, when such Additional
Amounts become due and payable either at maturity, upon any
redemption, by declaration of acceleration or otherwise;
and
(e)
default in the
payment of the Put Price on the Notes following the exercise of the
Put Right by any Holder of Notes on the date that such payment is
due and payable.
In addition, with
respect to the Notes, the reference to "60 days" in Section 5.01(1)
of the Base Indenture shall be amended to be "30 days" with respect
to the Notes.
The Company shall
deliver to the Trustee, within 30 days after the occurrence
thereof, written notice of any Event of Default or any event which,
after notice or lapse of time or both, would constitute an Event of
Default.
Section
2.17 Covenants
. The Notes shall
be entitled to the benefit of each of the covenants in Article Ten
of the Base Indenture and the following additional covenants (which
shall be deemed to be a provision of the Indenture and, when
referred to as a provision of the Indenture, shall be identified by
reference to the Section number that is set forth immediately
preceding the covenant):
SECTION 10.09.
Limitation on Liens on Stock of Designated Subsidiaries .
The Company covenants that, so long as any Notes are outstanding,
the Company will not, nor will the company permit any Designated
Subsidiary to, create, assume, incur, guarantee or otherwise permit
to exist any indebtedness evidenced by notes, debentures, bonds or
similar instruments, which is secured by any mortgage, pledge,
lien, security interest or other encumbrance upon any shares of
Capital Stock of the Company or any Designated Subsidiary (whether
such shares of stock are now owned or hereafter acquired) without
effectively providing concurrently that the Notes will be secured
equally and ratably with such indebtedness for at least the time
period such other indebtedness is so secured.
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" Designated Subsidiary
" means any present or future consolidated subsidiary of the
Company that is a regulated insurance company, the assets of which
constitute at least 20% of the Company's consolidated
assets.
SECTION 10.10.
Additional Amounts .
All amounts
payable (whether in respect of principal, interest or otherwise) in
respect of the Notes will be made free and clear of and without
withholding or deduction for or on account of any present or future
taxes, duties, levies, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the Cayman
Islands or Bermuda or any political subdivision thereof or any
authority or agency therein or thereof having power to tax, unless
the withholding or deduction of such taxes, duties, levies,
assessments or governmental charges is required by law. In that
event, the Company will pay, or cause to be paid, such additional
amounts as may be necessary in order that the net amounts
receivable by a Holder after such withholding or deduction
(including any withholding or deduction on such payment of
additional amounts) shall equal the respective amounts that would
have been receivable by such Holder had no such withholding or
deduction been required (" Additional Amounts
"), except that no
such Additional Amounts shall be payable in relation to any payment
in respect of any of the Notes:
(a) to, or to a
third party on behalf of, a Person who would be able to avoid such
withholding or deduction by complying with such Person's statutory
requirements or by making a declaration of non-residence or similar
claim for exemption but, in either case, fails to do so, or is
liable for such taxes, duties, levies, assessments or governmental
charges in respect of such Note by reason of his having some
connection with (including, without limitation, being a citizen of,
being incorporated or engaged in a trade or business in, or having
a residence or principal place of business or other presence in)
the Cayman Islands or Bermuda, as the case may be, other than (i)
the mere holding of such Note or (ii) the receipt of principal,
interest, or other amount in respect of such Note;
(b) presented for
payment more than 30 days after the Relevant Date, except to the
extent that the relevant Holder would have been entitled to such
Additional Amounts on presenting the same for payment on or before
the expiry of such period of 30 days;
(c) on account of
any inheritance, gift, estate, personal property, sales or transfer
or similar taxes, duties, levies, assessments or similar
governmental charges; or
(d) on account of
any taxes, duties, levies, assessments or governmental charges that
are payable otherwise than by withholding from payments in respect
of such Note.
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If the Company
becomes subject generally at any time to any taxing jurisdiction
other than or in addition to the Cayman Islands and Bermuda,
references in this section to the Cayman Islands and Bermuda shall
be read and construed as references to such other jurisdiction(s)
and/or to the Cayman Islands and Bermuda.
Any reference in
the Indenture to principal, premium or interest in respect of the
Notes, any redemption amount and any other amounts in the nature of
principal, shall be deemed also to refer to any Additional Amounts
that may be payable under the Indenture, and the express mention of
the payment of Additional Amounts (if applicable) in any provision
hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not
made.
Except as
otherwise provided in or pursuant to the Indenture, if the Notes
require the payment of Additional Amounts, at least 30 days prior
to each date on which any payments under or with respect to the
Notes are due and payable (unless such obligation to pay Additional
Amounts arises shortly before or after the 30 th day
prior to such date, in which case it shall be promptly thereafter)
the Company, or its designee shall furnish to the Trustee, the
Registrar and the Paying Agent an Officers' Certificate stating the
fact that Additional Amounts will be payable, the amounts so
payable, and any other information to enable the Trustee or such
Paying Agent to pay such Additional Amounts to Holders on the
payment date.
The Company will
pay any present or future stamp, court or documentary taxes, or any
other excise or property taxes, charges or similar levies which
arise in any jurisdiction from the execution, delivery or
registration of any Notes or any other document or instrument
referred to therein (other than a transfer of the Notes), or the
receipt of any payments with respect to the Notes, excluding any
such taxes, charges or similar levies imposed by any jurisdiction
outside the Cayman Islands or Bermuda in which a Paying Agent is
located, other than those resulting from, or required to be paid in
connection with, the enforcement of the Notes, the Indenture or any
other such document or instrument following the occurrence of any
Event of Default with respect to the Notes.
Section
2.18 Non-Applicability of Certain
Sections .
Sections 11.08,
11.09 and 11.10 of the Base Indenture shall not apply to the
Notes.
Section
2.19 Remarketing
.
(a)
Unless a Special
Event Redemption has occurred, the Company shall engage, a
nationally recognized investment bank (the " Remarketing
Agent ") pursuant to a Remarketing Agreement to be entered into
between the Company and the Remarketing Agent, but providing for
remarketing procedures substantially as set forth below, to sell
the Notes of Holders of Normal Units, other than Holders that have
elected not to participate in the
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remarketing pursuant to the
procedures set forth in paragraph (b) below, and Holders of
Separate Notes that have elected to participate in the remarketing
pursuant to the procedures set forth in Section 2.20 below and in
Section 4.5(d) of the Pledge Agreement.
(b)
The Pledged Notes
comprising part of Normal Units and the Separate Notes of Holders
of Separate Notes that have elected to participate in the
Remarketing shall be remarketed by the Remarketing Agent on the
Remarketing Date, and, if necessary, on each Subsequent Remarketing
Date. A Holder of Normal Units may elect not to participate in a
Remarketing and retain the Notes underlying such Normal Units by
notifying the Purchase Contract Agent of such election and
delivering the Purchase Price to the Collateral Agent prior to 5:00
p.m., New York City time, on the thirteenth Business Day
immediately preceding the Stock Purchase Date, which such amount
will be paid to the Company on the Stock Purchase Date in
settlement of such Holder's obligations under the Purchase
Contracts. A Holder of Normal Units that has not settled the
related Purchase Contract through a Cash Settlement or an Early
Settlement pursuant to Sections 5.4(a) and 5.9 of the Purchase
Contract Agreement or by electing not to participate in the
Remarketing pursuant to this paragraph (b) and Section 5.4(b)(iv)
of the Purchase Contract Agreement shall be deemed to have elected
to participate in the Remarketing.
(c)
No later than
10:00 a.m. (New York City time) on the seventh Business Day
preceding the Remarketing Date, the Company, or the Purchase
Contract Agent, at the Company's request, shall deliver the
Remarketing Notice to Holders of Normal Units and Holders of
Separate Notes, of the Remarketing to take place on the Remarketing
Date, and, if necessary, on each Subsequent Remarketing Date. The
Remarketing Notice will include the amount of cash that must be
delivered by Holders of Normal Units that elect not to participate
in the remarketing and the deadline for such delivery, as well as
information with respect to the exercise of the Put Right. If such
Normal Units or Separate Notes are held in global form, the
Company, or the Purchase Contract Agent, at the Company's request,
will cause the Clearing Agency to notify the Clearing Agency
Participants of the Remarketing by no later than the seventh
Business Day preceding the Remarketing Date.
(d)
The Purchase
Contract Agent shall notify, by 10:00 a.m., New York City time, on
the eleventh Business Day immediately preceding the Stock Purchase
Date, the Remarketing Agent and the Collateral Agent of the
aggregate principal amount of Notes of Normal Units Holders to be
remarketed. On the eleventh Business Day immediately preceding the
Stock Purchase Date, no later than by 10:00 a.m. New York City
time, pursuant to the terms of the Pledge Agreement, the Custodial
Agent will notify the Remarketing Agent of the aggregate principal
amount of Separate Notes to be remarketed. No later than 10:00
a.m., New York City time, on the tenth Business Day immediately
preceding the Stock Purchase Date, the Collateral Agent and the
Custodial Agent, pursuant to the terms of the Pledge Agreement,
will deliver for Remarketing to the Remarketing Agent all Notes to
be remarketed.
(e)
The right of each
Holder of Notes to have its Notes tendered for purchase will be
limited to the extent that (i) the Remarketing Agent conducts a
Remarketing pursuant to the terms of the Remarketing Agreement,
(ii) the Notes included in the Remarketing have not been called for
redemption upon the occurrence of a Special Event; (iii) the
Remarketing Agent is able to find a purchaser or purchasers for the
remarketed Notes
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at a Reset Rate such that the
aggregate value of such remarketed Notes is equal to 100% of the
Remarketing Value and (iv) such purchaser or purchasers deliver the
purchase price therefor to the Remarketing Agent.
(f)
Upon receipt of
the notice provided above in paragraph (d) from the Purchase
Contract Agent and the Custodial Agent and such Notes from the
Collateral Agent and the Custodial Agent, the Remarketing Agent
will, on the Remarketing Date, and, if necessary, on each
Subsequent Remarketing Date, use its reasonable best efforts to (i)
establish a rate of interest (the " Reset Rate ") or a
spread over a floating rate of interest (the “Reset
Spread”) that, in the opinion of the Remarketing Agent, will,
when applied to the outstanding Notes, enable the then current
aggregate market value of the Notes to have a value equal to 100%
of the Remarketing Value as of the Remarketing Date or as of any
Subsequent Remarketing Date, as the case may be and (ii) sell such
Notes on such date at a price equal to 100% of the Remarketing
Value.
(g)
If, in spite of
using its reasonable best efforts, the Remarketing Agent cannot
establish the Reset Rate or Reset Spread and remarket the Notes
included in the remarketing at a price equal to 100% of the
Remarketing Value on the Remarketing Date, the Remarketing Agent
will attempt to establish the Reset Rate or Reset Spread and
remarket the Notes included in the remarketing at a price equal to
100% of the Remarketing Value on each Subsequent Remarketing Date,
if necessary. If, in spite of using its reasonable best efforts,
the Remarketing Agent fails to remarket the Notes included in the
remarketing at a price equal to 100% of the Remarketing Value on or
before 4:00 p.m., New York City time, on the third Business Day
immediately preceding the Stock Purchase Date, the remarketing will
be deemed to have failed (the " Last Failed Remarketing
").
(h)
On the
Remarketing Date and any Subsequent Remarketing Date, the
Remarketing Agent shall advise the Company, by telephone, of any
successful or unsuccessful Remarketing as soon as practicable after
such determination.
(i)
If a successful
Remarketing shall have occurred, the Remarketing Agent will, on or
prior to the third Business Day following the date on which the
Notes were successfully remarketed, in accordance with the Purchase
Contract Agreement and the Remarketing Agreement:
(i)
pay the proceeds
from such successful Remarketing related to the Notes of Holders of
Normal Units that were remarketed to the Collateral Agent, which,
for the benefit of the Company, will thereupon apply such proceeds,
in accordance with the Pledge Agreement in direct settlement of the
Holders' obligations under the Purchase Contracts;
(ii)
if any Separate
Notes were remarketed, remit to the Custodial Agent for payment to
the Holders of such Separate Notes sold in the Remarketing the
remaining proceeds from such successful Remarketing attributable to
the Separate Notes; and
12
(iii)
if there remain
any proceeds from such successful Remarketing, after the
application of such proceeds as set forth in clauses (i) through
(ii) of this sentence, then remit such remaining proceeds to the
Purchase Contract Agent for the benefit of the Holders of the
Normal Units that were remarketed, all determined on a pro rata
basis.
(j)
If a successful
Remarketing occurs, the Remarketing Agent shall, as soon as
practicable on the Remarketing Date or on the Subsequent
Remarketing Date, as the case may be, in the case of the Company,
and by approximately 4:30 p.m. (New York City time) on the Trading
Day following the Remarketing Date, or the S
