EXHIBIT 4.5
XL CAPITAL LTD
FORM OF REMARKETING AGREEMENT
[NOTE: FORM TO BE REVISED, AS
APPROPRIATE, TO REFLECT SECURITIES ACT REFORM]
REMARKETING AGREEMENT, dated as of [_________ __], 2009 (the
"Agreement")
by and between XL Capital Ltd, a Cayman
Islands exempted limited company (the
"Company"), and [________] (the
"Remarketing Agent"), and confirmed and accepted
by The Bank of New York, not individually
but solely as Purchase Contract Agent
(the "Purchase Contract Agent") and as
attorney-in-fact of the Holders of
Purchase Contracts (as defined in the
Purchase Contract Agreement (as defined
herein)).
WHEREAS, the Company issued an aggregate of 29,800,000 of its
Normal
Units (the "Normal Units") under the
Purchase Contract Agreement, dated as of
December 9, 2005, by and between the
Purchase Contract Agent and the Company
(the "Purchase Contract Agreement");
and
WHEREAS, the 5.25% Senior Notes due 2011 forming a part of the
Units (the
"Notes") have been pledged pursuant to the
Pledge Agreement (the "Pledge
Agreement"), dated as of December 9, 2005,
by and among the Company, The Bank of
New York, as collateral agent (the
"Collateral Agent"), custodial agent and
securities intermediary and The Bank of New
York, as Purchase Contract Agent, to
secure the obligations of Holders of Normal
Units under the related Purchase
Contracts on the Stock Purchase Date;
and
WHEREAS, the Remarketing Agent will attempt on February 3, 2009
(the
"Remarketing Date") to remarket all of (i)
the Notes of Holders of Normal Units
and (ii) the Separate Notes of Holders who
elect to participate in the
remarketing, pursuant respectively to the
procedures set forth in Section 5.4(b)
of the Purchase Contract Agreement, Section
4.5(d) of the Pledge Agreement and
Sections 2.19 and 2.20 of the Third
Supplemental Indenture, dated as of December
9, 2005, between the Company and The Bank
of New York, as trustee (the
"Supplemental Indenture"), to the
Indenture, dated as of June 2, 2004 (the "Base
Indenture"), between the Company and The
Bank of New York, as trustee (each of
which Sections is incorporated herein by
reference); and
WHEREAS, in the event
the remarketing on the Remarketing Date is
unsuccessful, the Remarketing Agent will
remarket the Notes to be included in
the remarketing on February 4, 2009, and,
if necessary, will attempt to remarket
such Notes on February 5, 2009 and, if
necessary, will attempt to remarket such
Notes on February 6, 2009 and, if
necessary, will attempt to remarket such Notes
on February 9, 2009 and, if
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necessary, will attempt to remarket such
Notes on February 10, 2009 and, if
necessary, will attempt to remarket such
Notes on February 11, 2009 (any such
date after the Remarketing Date on which a
subsequent remarketing is attempted,
a "Subsequent Remarketing Date"); and
WHEREAS, in the event of a successful remarketing on the
Remarketing Date
or any Subsequent Remarketing Date, as the
case may be, the applicable interest
rate on the Remarketed Notes (as defined
below) included in such successful
remarketing will be reset on the settlement
date of such Remarketing Date or
Subsequent Remarketing Date to the rate
determined by the Remarketing Agent in
good faith that will result in the
aggregate market value of the Remarketed
Notes to equal 100.25% of the aggregate
principal amount of such Remarketed
Notes, as of such Remarketing Date or
Subsequent Remarketing Date (the "Reset
Rate"), provided that the Reset Rate shall
be limited to the maximum rate
permitted by applicable law; and
WHEREAS, the Company has requested [________] to act as the
Remarketing
Agent, and as such to perform the services
described herein; and
WHEREAS, [________] is willing to act as the Remarketing Agent and
as
such to perform such duties on the terms
and conditions expressly set forth
herein;
NOW,
THEREFORE, for and in consideration of the covenants herein
made,
and subject to the conditions herein set
forth, the parties hereto agree as
follows:
Section 1. DEFINITIONS.
(a)
Capitalized terms used and not defined in this Agreement, in
the
recitals hereto or in the paragraph
preceding such recitals shall have the
meanings assigned to them in the Purchase
Contract Agreement or, if not therein
defined, the Pledge Agreement.
(b)
As used in
this Agreement, the following terms have the following
meanings:
"Preliminary Prospectus" means any preliminary prospectus
relating
to
the Remarketed Notes included in the Registration Statement
(including
any
preliminary prospectus supplement), including the documents
incorporated by reference therein as of the date of such
Preliminary
Prospectus; and any reference to any amendment or supplement to
such
Preliminary Prospectus shall be deemed to refer to and include
any
documents filed after the date of such Preliminary Prospectus,
under the
Exchange Act, and incorporated by reference in such Preliminary
Prospectus.
"Prospectus" means the prospectus relating to the Remarketed
Notes
(including any prospectus supplement), in the form in which first
filed,
or
transmitted for filing, with the Commission after the effective
date
of
the Registration Statement pursuant to Rule 424(b), including
the
documents incorporated by reference therein as of the date of
such
Prospectus; and any
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reference to any amendment or supplement to such Prospectus shall
be
deemed to refer to and include any documents filed after the date
of such
Prospectus, under the Exchange Act, and incorporated by reference
in such
Prospectus.
"Registration Statement" means a registration statement under
the
Securities Act of 1933, as amended (the "Securities Act") filed
and
prepared by the Company covering, inter alia, the Remarketing of
the
Remarketed Notes pursuant to Section 5(a) hereunder, including
all
exhibits thereto and the documents incorporated by reference in
the
prospectus contained in such registration statement, and any
post-effective amendments thereto.
"Remarketed Notes" means the Pledged Notes and the Separate
Notes,
if
any, subject to Remarketing as identified to the Remarketing Agent
by
the
Purchase Contract Agent and the Custodial Agent, respectively,
prior
to
10:00 a.m., New York City time, on the Business Day immediately
preceding the Remarketing Date, and shall include: (a) the Notes of
the
Holders of Normal Units who have not notified the Purchase Contract
Agent
prior to
5:00 p.m. on the thirteenth Business Day prior to the Stock
Purchase Date of their intention to effect a Cash Settlement of
the
related Purchase Contracts pursuant to the terms of the Purchase
Contract
Agreement or who have so notified the Purchase Contract Agent but
failed
to
make the required cash payment on the thirteenth Business Day prior
to
the
Stock Purchase Date pursuant to the terms of the Purchase
Contract
Agreement, and (b) the Separate Notes of the holders of Separate
Notes,
if
any, who have elected to have their Separate Notes be remarketed
in
such
Remarketing pursuant to the terms of the Purchase Contract
Agreement
and
the Supplemental Indenture.
"Remarketing" means the remarketing of the Remarketed Notes
pursuant to this Remarketing Agreement
"Remarketing Agent" means [________] appointed as the
Remarketing
Agent by the Company pursuant to Section 2(a) hereof.
"Remarketing Materials" means the Preliminary Prospectus and
the
Prospectus furnished by the Company to the Remarketing Agent
for
distribution to investors in connection with the Remarketing.
"Transaction Documents" means this Agreement, the Purchase
Contract Agreement, the Pledge Agreement, the Indenture and the
Supplemental Indenture, in each case as amended or supplemented
from time
to
time.
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Section 2. APPOINTMENT AND OBLIGATIONS OF
REMARKETING AGENT.
(a)
The
Company hereby appoints [________] and [________] hereby
accepts such appointment, (i) as the
Remarketing Agent to determine, in
consultation with the Company, in the
manner provided for herein, in the
Purchase Contract Agreement and in the
Notes, the Reset Rate that, in the
opinion of the Remarketing Agent, will,
when applied to the Remarketed Notes,
enable the aggregate market value of the
Remarketed Notes equal 100.25% of the
aggregate principal amount of such
Remarketed Notes as of the Remarketing Date
or as of any Subsequent Remarketing Date,
as the case may be, and (ii) as the
exclusive Remarketing Agent (subject to the
right of such Remarketing Agent to
appoint additional remarketing agents
hereunder as described below) to remarket
the Remarketed Notes to be included in the
remarketing on the Remarketing Date,
and, if necessary, on February 4, 2009 and,
if necessary, on February 5, 2009
and, if necessary, on February 6, 2009 and,
if necessary, on February 9, 2009
and, on February 10, 2009 and, if
necessary, on February 11, 2009, as the case
may be. The Remarketing Agent shall have
the right, on 15 Business Days' notice
to the Company, to appoint one or more
additional remarketing agents so long as
any such additional remarketing agents
shall be reasonably acceptable to the
Company; provided that any such appointment
shall not increase the Remarketing
Fee (as defined in Section 4 hereof). Upon
any such appointment, the parties
shall enter into an appropriate amendment
to this Agreement to reflect the
addition of any such additional remarketing
agent.
(b)
Subject to
the terms and conditions set forth herein and in the
Purchase Contract Agreement, the
Remarketing Agent shall use its reasonable best
efforts to (i) remarket on the Remarketing
Date the Remarketed Notes at the
Reset Rate, (ii) in the event the
Remarketing Agent cannot establish such a
Reset Rate on the Remarketing Date, attempt
to remarket such Notes on February
4, 2005, and, if necessary, on February 5,
2009 and, if necessary, on February
6, 2009 and, if necessary, on February 9,
2009 and, if necessary, on February
10, 2009 and, if necessary, on February 11,
2009, in each case at the Reset Rate
and (iii) in the event of a Last Failed
Remarketing, promptly return the Pledged
Notes, if any, included in such Last Failed
Remarketing to the Collateral Agent
to be held by the Collateral Agent in
accordance with Section 4.5(b) of the
Pledge Agreement (which Section is
incorporated herein by reference) and return
any Separate Notes included in the
remarketing to the Custodial Agent in
accordance with Section 4.5(d) of the
Pledge Agreement, Section 5.4(b)(ii) of
the Purchase Contract Agreement and Section
2.19 of the Supplemental Indenture
(which Sections are incorporated herein by
reference). After deducting the fee
specified in Section 4 below, the proceeds
of any such successful remarketing
shall be delivered to the Purchase Contract
Agent or the Custodial Agent, as
applicable, in accordance with Sections
4.5(a) and 4.5(d) of the Pledge
Agreement (which Section is incorporated
herein by reference) and Section 5.4(b)
of the Purchase Contract Agreement (which
Section is incorporated herein by
reference). The right of each Holder of
Normal Units or Separate Notes to have
Notes included in any remarketing shall be
subject to the conditions that (i)
the Remarketing Agent conducts a
remarketing on such date pursuant to the terms
of this Agreement, (ii) the Notes included
in a remarketing have not been called
for redemption upon the occurrence
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of a Special Event, (iii) the Remarketing
Agent is able to find a purchaser or
purchasers for the Remarketed Notes at the
Reset Rate and (iv) such purchaser or
purchasers deliver the purchase price
therefor to the Remarketing Agent as and
when required.
(c)
It is
understood and agreed that the Remarketing Agent shall not
have any obligation whatsoever to purchase
any Notes, whether in a remarketing
held on the Remarketing Date or on any
Subsequent Remarketing Date or otherwise,
and shall in no way be obligated to provide
funds to make payment upon tender of
Notes for remarketing or to otherwise
expend or risk its own funds or incur or
be exposed to financial liability in the
performance of its duties under this
Agreement, and, without limitation of the
foregoing, the Remarketing Agent shall
not be deemed an underwriter of the
Remarketed Notes. The Company shall not be
obligated in any case to provide funds to
make payment upon delivery of Notes
for remarketing.
(d)
The
Remarketing Agent shall also, if required by the Securities
Act or the rules and regulations
promulgated thereunder, deliver to each
purchaser a Prospectus in connection with
the Remarketing.
(e)
If, by
4:30 p.m., New York City time, on the Remarketing Date, the
Remarketing Agent is unable to remarket all
Remarketed Notes included in the
Remarketing, a failed Remarketing (the
"Failed Remarketing") shall be deemed to
have occurred, and the Remarketing Agent
shall so advise by telephone the
Depositary and the Company.
(f)
The
Remarketing Agent shall advise, by telephone, the Company of
the Reset Rate determined in a Successful
Remarketing (as defined in Section 4
hereof) as soon as practicable after such
determination.
(g)
By
approximately 4:30 p.m., New York City time, on the Trading Day
following the Remarketing Date, PROVIDED
that there has not been a Failed
Remarketing, the Remarketing Agent shall
advise, by telephone, (i) the
Depositary of the Reset Rate determined in
the Remarketing and the number of
Remarketed Notes sold in the Remarketing,
(ii) each purchaser (or the Depositary
Participant thereof) of the Reset Rate and
the number of Remarketed Notes such
purchaser is to purchase and (iii) each
purchaser to give instructions to its
Depositary Participant to pay the purchase
price on the Settlement Date in same
day funds against delivery of the
Remarketed Notes purchased through the
facilities of the Depositary.
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Section 3. REPRESENTATIONS AND
WARRANTIES OF THE COMPANY.
The
Company represents and warrants to the Remarketing Agent (i) on
and
as of the date any Remarketing Materials
are first distributed in connection
with the Remarketing (the "Commencement
Date"), (ii) on and as of the
Remarketing Date or any Subsequent
Remarketing Date and (iii) on and as of the
settlement date relating to such
Remarketing Date or Subsequent Remarketing Date
(the "Settlement Date"), that:
(a)
Each of
the representations and warranties of the Company as set
forth in Sections 2(a) through 2(gg) of the
Underwriting Agreement dated
December 6, 2005 (the "Underwriting
Agreement") among the Company and the
Underwriters identified in Schedule I
thereto, was true and correct when made on
December 6, 2005; [Note: representations
and warranties similar to those
contained in the Underwriting Agreement to
be included and agreed upon; provided
that for purposes of such representations
and warranties, any reference in such
sections of the Underwriting Agreement to
(i) the "Registration Statement", the
"Prospectus" or the "Preliminary
Prospectus" shall be deemed to refer to such
terms as defined herein and (ii) the
"Closing Date" shall be deemed to refer to
the applicable Remarketing Date or
Subsequent Remarketing Date.]
(b)
The
Registration Statement, if any, in the form heretofore
delivered or to be delivered to the
Remarketing Agent, has been declared
effective by the Commission in such form;
and no stop order suspending the
effectiveness of the Registration Statement
has been issued and no proceeding
for that purpose has been initiated or
threatened by the Commission.
(c)
The
documents incorporated by reference in the Prospectus, when
they were filed with the Commission,
conformed in all material respects to the
requirements of the Exchange Act and the
rules and regulations of the Commission
thereunder, and none of such documents
contained an untrue statement of a
material fact or omitted to state a
material fact required to be stated therein
or necessary to make the statements
therein, in light of the circumstances under
which they were made, not misleading; and
any further documents so filed and
incorporated by reference in the Prospectus
or any further amendment or
supplement thereto, when such documents are
filed with the Commission, will
conform in all material respects to the
requirements of the Exchange Act and the
rules and regulations of the Commission
thereunder, and will not contain an
untrue statement of a material fact or omit
to state a material fact required to
be stated therein or necessary to make the
statements therein, in light of the
circumstances under which they were made,
not misleading.
(d)
The
Registration Statement, if any, conforms (and the Prospectus,
if any, and any further amendments or
supplements to the Registration Statement
or the Prospectus, when they become
effective or are filed with the Commission,
as the case may be, will conform) in all
material respects to the requirements
of the Securities Act, the Trust Indenture
Act of 1939, as amended, and the
rules and regulations promulgated
thereunder, and the Registration Statement and
the Remarketing Materials (and any
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amendment or supplement thereto) as of
their respective effective or filing
dates and as of the Commencement Date,
applicable Remarketing Date or Subsequent
Remarketing Date and Settlement Date do not
and will not contain any untrue
statement of a material fact or omit to
state a material fact required to be
stated therein or necessary to make the
statements therein not misleading;
provided that no representation and
warranty is made as to any statement of
eligibility on Form T-1 filed or
incorporated by reference as part of the
Registration Statement or the Remarketing
Materials, or as to information
relating to the Remarketing Agent or the
Holders of the Remarketed Notes
contained in or omitted from the
Registration Statement or the Remarketing
Materials in reliance upon and in
conformity with written information furnished
to the Company by the Remarketing Agent
expressly for use therein.
(e)
This
Agreement has been duly authorized, executed and delivered by
the Company.
(f)
The
Remarketed Notes will conform to the descriptions thereof
contained in the Prospectus and in any
other Remarketing Materials.
(g)
No Event
of Default (as defined in the Indenture, as supplemented
by the Supplemental Indenture) has occurred
and is continuing.
Section 4. FEES.
In
the event of a successful remarketing in which the Remarketed
Notes
are sold for an aggregate amount that is
equal to 100.25% of the aggregate
principal amount of the Remarketed Notes (a
"Successful Remarketing"), the
Remarketing Agent shall retain as a
remarketing fee (the "Remarketing Fee") an
amount not exceeding 25 basis points
(0.25%) of the Remarketing Value of the
Remarketed Notes in accordance with Section
5.4(b) of the Purchase Contract
Agreement and Section 2.19 of the
Supplemental Indenture.
Section 5. COVENANTS OF THE
COMPANY.
(a)
The
Company covenants and agrees as follows:
1.
If and to the extent the Remarketed Notes are required (in
the view of counsel, which need not be in the form of a written
opinion, for either the Remarketing Agent or the Company) to be
registered under the Securities Act as in effect at the time of
the Remarketing,
i.
to prepare the Registration Statement and the
Prospectus, to file any such Prospectus pursuant to
the Securities Act within the period required by the
Securities Act and the rules and regulations
thereunder and to use commercially reasonable
efforts to cause the Registration Statement to be
declared effective by the Commission
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prior to the second Business Day immediately
preceding the Remarketing Date;
ii. to
file promptly with the Commission any amendment
to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the
reasonable judgment of the Company, be required by
the Securities Act or requested by the Commission;
iii. to advise
the Remarketing Agent, promptly after it
receives notice thereof, of the time when any
amendment to the Registration Statement has been
filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed
and to furnish the Remarketing Agent with copies
thereof;
iv. to
advise the Remarketing Agent, promptly after it
receives notice thereof, of the issuance by the
Commission of any stop order or of any order
preventing or suspending the use of the Prospectus,
of the suspension of the qualification of any of the
Remarketed Notes for offering or sale in any
jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any
request by the Commission for the amending or
supplementing of the Registration Statement or the
Prospectus or for additional information, and, in
the event of the issuance of any stop order or of
any order preventing or suspending the use of any
Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its
withdrawal;
v.
to furnish promptly to the Remarketing Agent such
copies of the following documents as the Remarketing
Agent shall reasonably request: (A) conformed copies
of the Registration Statement as originally filed
with the Commission and each amendment thereto (in
each case excluding exhibits); (B) the Preliminary
Prospectus and any amended or supplemented
Preliminary Prospectus, (C) the Prospectus and any
amended or supplemented Prospectus; and (D) any
document incorporated by reference in the Prospectus
(excluding exhibits thereto); and, if at any time
when delivery of a Prospectus is required in
connection with the Remarketing, any event shall
have occurred as a result of which the Prospectus as
then amended or supplemented would include any
untrue statement of a material fact or omit to state
any material fact necessary in order to make the
statements therein, in the light of the
circumstances under which they were made when such
Prospectus is delivered, not misleading, or if for
any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or
to file under the Exchange Act any document
incorporated by reference in the Prospectus in order
to comply
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with the Securities Act or the Exchange Act, to
notify the Remarketing Agent and, upon its request,
to file such document and to prepare and furnish
without charge to the Remarketing Agent and to any
dealer in securities as many copies as the
Remarketing Agent may from time to time reasonably
request of an amended or supplemented Prospectus
that will correct such statement or omission or
effect such compliance;
vi. prior
to filing with the Commission (A) any
amendment to the Registration Statement or
supplement to the Prospectus or (B) any Prospectus
pursuant to Rule 424 under the Securities Act, to
furnish a copy thereof to the Remarketing Agent and
counsel to
the Remarketing Agent;
vii. as soon as
practicable, but in any event not later
than eighteen months, after the effective date of
the Registration Statement, to make "generally
available to its security holders" an "earnings
statement" of the Company and its subsidiaries
complying with (which need not be audited) Section
11(a) of the Securities Act and the rules and
regulations there
