Form 8-K XL GROUP PLC For: Mar 30

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): March 30, 2015

XL GROUP
Public Limited Company
(Exact name of registrant as specified in its charter)

 

Ireland	1-10804	98-0665416
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

 

XL House, 8 St. Stephen’s Green, Dublin, Ireland	2
(Address of principal executive offices)	(Zip Code)

 

Registrant’s telephone number, including area code: +353 (1) 400-5500

 

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

□  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

□  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

□  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

□  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

On March 30, 2015, XLIT Ltd. (“XL-Cayman”), a wholly-owned subsidiary of XL Group plc (“XL”), completed the sale of $500 million aggregate principal amount of its 4.450% subordinated notes due 2025 (the “2025 Subordinated Notes”) and $500 million aggregate principal amount of its 5.500% subordinated notes due 2045 (the “2045 Subordinated Notes” and, together with the 2025 Subordinated Notes, the “Subordinated Notes”) at the issue price of 99.633% and 99.115% of the principal amount thereof, respectively. The Subordinated Notes are fully and unconditionally guaranteed by XL. XL-Cayman received net proceeds of approximately $980.6 million from the offering.

The Subordinated Notes were issued pursuant to an indenture, which XL-Cayman, as issuer, and XL, as guarantor, entered into with Wells Fargo Bank, National Association, as trustee (the “Trustee”), on March 30, 2015 (the “Base Indenture”), as supplemented by a supplemental indenture, which XL-Cayman and XL entered into with Wells Fargo Bank, National Association, as trustee, on March 30, 2015 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).

The 2025 Subordinated Notes bear interest at a rate of 4.450% per annum, payable semiannually on March 30 and September 30, beginning on September 30, 2015. The 2045 Subordinated Notes bear interest at a rate of 5.500% per annum, payable semiannually on March 30 and September 30, beginning on September 30, 2015. If, as of any interest payment date, one or more of the mandatory deferral events prescribed in the Indenture (each, a “Mandatory Deferral Event”) has occurred and is continuing or would occur if payment of interest accrued on a series of Subordinated Notes were made on such interest payment date, XL-Cayman or XL, as applicable, will be required to defer payment of all (and not less than all) of the interest accrued and unpaid on such series of Subordinated Notes as of such interest payment date. Such Mandatory Deferral Events include an Insolvency Event (as defined in the Indenture) of XL or XL-Cayman, a failure by XL or XL-Cayman or the regulated group to meet applicable solvency capital requirements, or an order of a Competent Supervisory Authority (as defined in the Indenture) prohibiting the applicable payment. Any interest which is deferred will bear no interest.

The 2025 Subordinated Notes are scheduled to mature on March 31, 2025 (the “2025 Scheduled Maturity Date”) and the 2045 Subordinated Notes are scheduled to mature on March 31, 2045 (together with the 2025 Scheduled Maturity Date, the “Scheduled Maturity Date”). Unless previously redeemed in full prior to such time, each series of Subordinated Notes will become due and payable on the applicable Scheduled Maturity Date, and XL-Cayman will repay such series of Subordinated Notes at their principal amount, together with accrued and unpaid interest (including arrears of interest) on such series of Subordinated Notes to, but excluding, such Scheduled Maturity Date, and any additional amounts thereon; provided, that, on such date, the applicable conditions to redemption prescribed in the Indenture (the "Conditions to Redemption") are satisfied. If the applicable Conditions to Redemption are not satisfied on the applicable Scheduled Maturity Date, the Subordinated Notes of such series will not become due and payable on such date, interest will continue to accrue, and the Subordinated Notes of such series will become due and payable, and will be finally redeemed, on the earlier of (a) the date falling 10 business days after the applicable Conditions to Redemption are satisfied and would continue to be satisfied if the final redemption payment were made (so long as such conditions continue to be so satisfied on such 10th business day) and (b) a winding-up of XL or XL-Cayman.

If XL does not complete the acquisition (the “Acquisition”) of Catlin Group Limited, or the implementation agreement setting forth the terms of the Acquisition (the “Implementation Agreement”) is terminated, in each case on or prior to December 15, 2015, XL-Cayman will be required to redeem all of the Subordinated Notes of each series then outstanding at a redemption price of 101% of the aggregate principal amount thereof, plus accrued and unpaid interest (including arrears of interest) to, but excluding, the earlier to occur of (i) December 31, 2015, if the Acquisition has not been consummated on or prior to December 15, 2015 or (ii) the 15th day following the termination of the Implementation Agreement, and any additional amounts thereon. In addition to such special mandatory redemption provision, beginning on March 31, 2020, and subject to the satisfaction of the applicable Conditions to Redemption, XL-Cayman will be entitled to redeem each series of Subordinated Notes in whole at any time, or in part from time to time, at the make-whole redemption prices prescribed in the Indenture. XL-Cayman will also be entitled to redeem each series of Subordinated Notes in the event of certain changes in applicable tax laws or applicable regulatory requirements, subject to the satisfaction of all applicable Conditions to Redemption.

Each series of Subordinated Notes will be unsecured and subordinated and will rank in right of payment junior to all of XL-Cayman’s existing and future unsubordinated debt, and pari passu with all of XL-Cayman’s future debt that by its terms ranks equally in right of payment with the Subordinated Notes upon a winding-up of XL. The guarantees will be unsecured and subordinated and will rank in right of payment junior to all of XL’s existing and future unsubordinated obligations, and pari passu with all of XL’s future obligations that by their terms rank equally in right of payment with the guarantees upon a winding-up of XL.

The Subordinated Notes were offered and sold under XL’s automatic shelf registration statement, as defined in Rule 405 of the Securities Act of 1933, as amended, on Form S-3 ASR (File Number 333-199842), originally filed with the U.S. Securities and Exchange Commission on November 4, 2014, as supplemented by the preliminary and final prospectus supplements dated March 19, 2015 and March 24, 2015, respectively (the “Registration Statement”).

The foregoing descriptions of the Subordinated Notes and the Indenture do not purport to be complete and are qualified in their entirety by reference to the full text of the Subordinated Notes and the Indenture, each of which is filed as an exhibit hereto and is incorporated by reference herein.

Item 8.01. Other Events.

Subordinated Notes Offering

 

The Subordinated Notes were sold pursuant to an underwriting agreement (the “Underwriting Agreement”) dated March 24, 2015 among XL, XL-Cayman and Morgan Stanley & Co. LLC and Goldman, Sachs & Co., as representatives of the several underwriters named therein. The Underwriting Agreement contains customary representations, warranties and agreements of XL-Cayman and XL, conditions to the closing, indemnification rights and obligations of the parties and termination provisions.

 

The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Underwriting Agreement which is filed as an exhibit hereto and is incorporated by reference herein.

 

In connection with the offering of the Subordinated Notes, XL is filing as Exhibits 5.1, 5.2 and 5.3 hereto opinions of counsel addressing the validity of the Subordinated Notes and the guarantees thereof and certain related matters. Such opinion letters are incorporated by reference into the Registration Statement.

 

Change to Covered Debt under the Replacement Capital Covenant

 

XL-Cayman originally entered into a replacement capital covenant (the “Old Replacement Capital Covenant”), dated March 15, 2007 in connection with the issuance of its Fixed/Floating Series E Perpetual Non-Cumulative Preference Ordinary Shares, liquidation preference U.S. $1,000 per share (the “Series E Preference Shares”).  The Old Replacement Capital Covenant runs in favor of and is for the benefit of the holders (or beneficial owners holding through a participant in a clearing agency) of the “covered debt.”

 

Pursuant to the terms of XL-Cayman’s Old Replacement Capital Covenant and subject to compliance therewith, the 2045 Subordinated Notes, as of their issuance on March 30, 2015, became “covered debt” under the Old Replacement Capital Covenant and the “initial covered debt,” which consisted of XL-Cayman’s 6.375% Senior Notes due 2024, is no longer “covered debt” under the Old Replacement Capital Covenant.

 

The foregoing description of the Old Replacement Capital Covenant does not purport to be complete and is qualified in its entirety by reference to the full text of the Old Replacement Capital Covenant, which is filed as an exhibit hereto and is incorporated by reference herein. The Old Replacement Capital Covenant has now been terminated as described below.

 

Termination of the Old Replacement Capital Covenant

 

The holders of the 2045 Subordinated Notes, as the holders of the “covered debt” under the Old Replacement Capital Covenant, have irrevocably consented to the termination of the Old Replacement Capital Covenant through the Termination of Replacement Capital Covenant, dated March 30, 2015 (the “Termination of Replacement Capital Covenant”).

 

The foregoing description of the Termination of Replacement Capital Covenant does not purport to be complete and is qualified in its entirety by reference to the full text of the Termination of Replacement Capital Covenant, which is filed as an exhibit hereto and is incorporated by reference herein.

  

New Replacement Capital Covenant

 

XL-Cayman has entered into a new replacement capital covenant (the “New Replacement Capital Covenant”), dated March 30, 2015, for the initial benefit of the holders of the 2045 Subordinated Notes in connection with the Series E Preference Shares.

 

XL-Cayman covenants in the New Replacement Capital Covenant that it will not repay, redeem or purchase, nor shall any of its subsidiaries purchase, the Series E Preference Shares prior to the scheduled termination date of that New Replacement Capital Covenant, which is the same as the scheduled termination date of the Old Replacement Capital Covenant that it replaced (or such earlier date on which that New Replacement Capital Covenant terminates by its terms), unless, subject to certain limitations, since the date 360 days prior to the date of that repayment, redemption or purchase XL-Cayman has received a specified amount of net cash proceeds from the sale of ordinary shares or certain other qualifying securities that have certain characteristics that are at least as equity-like as the applicable characteristics of the Series E Preference Shares, or XL-Cayman or its subsidiaries have issued a specified amount of ordinary shares in connection with the conversion or exchange of certain convertible or exchangeable securities.

 

XL-Cayman may amend or supplement the New Replacement Capital Covenant from time to time after obtaining the consent of the holders of a majority of the then-outstanding principal amount of the then-effective series of “covered debt”, and, under certain conditions, without such consent.

 

XL-Cayman’s covenants in the New Replacement Capital Covenant initially run to the benefit of the holders of the 2045 Subordinated Notes, but the 2045 Subordinated Notes will cease to be “covered debt”, and those holders will not be entitled to the benefit of the New Replacement Capital Covenant, beginning two years prior to the stated maturity of the 2045 Subordinated Notes or such earlier date as the outstanding principal amount of the 2045 Subordinated Notes is less than $100,000,000 as a result of any redemption or repurchase of 2045 Subordinated Notes by the XL-Cayman or its subsidiaries. The New Replacement Capital Covenant is also not a term of the 2045 Subordinated Notes or the Indenture.  The New Replacement Capital Covenant is the separate contractual arrangement of XL-Cayman.

 

The foregoing description of the New Replacement Capital Covenant does not purport to be complete and is qualified in its entirety by reference to the full text of the New Replacement Capital Covenant, which is filed as an exhibit hereto and is incorporated by reference herein.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits. The following exhibits are filed herewith:

 

Exhibit No.	Description
1.1	Underwriting Agreement, dated March 24, 2015, among XL, XL-Cayman and Morgan Stanley & Co. LLC and Goldman, Sachs & Co., as representatives of the underwriters named therein.
4.1	Base Indenture, dated March 30, 2015, among XL, XL-Cayman and Wells Fargo Bank, National Association, as trustee.
4.2	First Supplemental Indenture, dated March 30, 2015, to the Base Indenture, among XL, XL-Cayman and Wells Fargo Bank, National Association, as trustee.
4.3	Form of 4.450% Subordinated Note due 2025, incorporated by reference to exhibit 4.2 hereto.
4.4	Form of 5.500% Subordinated Note due 2045, incorporated by reference to exhibit 4.2 hereto.
4.5	Replacement Capital Covenant, dated March 15, 2007 (attached as Exhibit 10.1 to XL-Cayman’s Current Report on Form 8-K filed March 15, 2007, and incorporated herein by reference).
4.6	Termination of Replacement Capital Covenant, dated March 30, 2015.
4.7	Replacement Capital Covenant, dated March 30, 2015.
5.1	Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
5.2	Opinion of Maples and Calder.
5.3	Opinion of A&L Goodbody.
23.1	Consent of Skadden, Arps, Slate, Meagher & Flom LLP, incorporated by reference to Exhibit 5.1 hereto.
23.2	Consent of Maples and Calder, incorporated by reference to Exhibit 5.2 hereto.
23.3	Consent of A&L Goodbody, incorporated by reference to Exhibit 5.3 hereto.

 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: March 30, 2015

XL Group plc
           (Registrant)

By:	/s/ Kirstin Gould
Name:	Kirstin Gould
Title:	General Counsel and Secretary

 

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Exhibit 1.1

 

March 24, 2015

 

Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036

 

Goldman, Sachs & Co.
200 West Street
New York, New York 10282-2198

 

as Representatives of the several
Underwriters named in Schedule I hereto (the “Representatives”)

 

Ladies and Gentlemen:

 

XLIT Ltd., an exempted company incorporated in the Cayman Islands with limited liability (the “Company”), proposes, subject to the terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of $500.0 million principal amount of 4.450% Subordinated Notes due 2025 (the “2025 Notes”) and an aggregate of $500.0 million principal amount of 5.500% Subordinated Notes due 2045 (the “2045 Notes” and, together with the 2025 Notes, the “Notes”). Payment of principal, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed (the “Guarantees” and, together with the Notes, the “Securities”) on an unsecured and subordinated basis by the Company’s parent company, XL Group plc, an Irish public limited company (the “Guarantor”).

 

The Securities are being issued under a subordinated debt securities indenture to be dated as of March 30, 2015 (the “Base Subordinated Indenture”), among the Company, the Guarantor and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture thereto, to be dated as of March 30, 2015 (the “First Supplemental Indenture” and, together with the Base Subordinated Indenture, the “Indenture”), among the Company, the Guarantor and the Trustee. This Agreement, the Indenture and the Securities are referred to herein collectively as the “Transaction Documents.”

 

Pursuant to the terms of that certain implementation agreement, dated as of January 9, 2015 (the “Implementation Agreement”), by and among the Guarantor, Catlin Group Limited (“Catlin”) and Green Holdings Limited, a wholly owned subsidiary of the Guarantor (“XL Sub”), and that certain merger agreement, dated as of January 9, 2015, by and among the Guarantor, XL Sub and Catlin (together with the Implementation Agreement, the “Acquisition Agreements”) and subject to the conditions therein, the Guarantor has agreed to acquire the entire issued and to be issued share capital of Catlin (the “Acquisition”) for cash and newly issued ordinary shares of the Guarantor, par value $0.01 per share.

 

1. The Company and the Guarantor represent and warrant to, and agree with, each of the Underwriters that (it being understood that representations and warranties of the Company and the Guarantor with respect to Catlin and its subsidiaries, in this Section 1 are made solely to the knowledge of the Company): 

(a) An “automatic shelf registration statement” as defined under Rule 405 under the U.S. Securities Act of 1933, as amended (the “Act”), on Form S-3 (File No. 333-199842) in respect of the Securities was filed with the U.S. Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company or the Guarantor (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement, is hereinafter called the “Basic Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto but excluding any Form T-1 and including any prospectus supplement relating to the Securities that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such part of the registration statement became effective, are hereinafter collectively called the “Registration Statement”; the Basic Prospectus, as amended and supplemented immediately prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter called the “Pricing Prospectus”; the form of the final prospectus relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”; any reference herein to the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of the respective prospectus; any reference to any amendment or supplement to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Securities filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference therein, in each case after the date of the Basic Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Guarantor filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Securities is hereinafter called an “Issuer Free Writing Prospectus”);

 

(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any 

statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through the Representatives expressly for use therein;

 

(c) For the purposes of this Agreement, the “Applicable Time” is 5:47 p.m. (Eastern time) on the date of this Agreement; the Pricing Prospectus as supplemented by the final term sheet in the form attached as Schedule III hereto and to be prepared and filed pursuant to Section 5(a) hereof, taken together (collectively, the “Pricing Disclosure Package”) as of the Applicable Time, did not 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, not misleading; and each Issuer Free Writing Prospectus listed on Schedule II hereto does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together with the Pricing Disclosure Package as of the Applicable Time, did not 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, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in an Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through the Representatives expressly for use therein;

 

(d) The documents incorporated by reference in the Pricing Prospectus and the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and no such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the execution of this Agreement, except as set forth on Schedule II hereto;

 

(e) The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement and as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements in the Registration Statement not misleading and the statements in the Prospectus in the light of the circumstances under which they were made not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in 

reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through the Representatives expressly for use therein;

 

(f) Neither the Guarantor nor any of its Significant Subsidiaries (as defined below) has sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, which loss or interference would have a Material Adverse Effect (as defined below), or would reasonably be expected to have a prospective Material Adverse Effect; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any change in the capital stock (other than changes resulting from the exercise of stock options or the conversions of warrants or capital stock which were outstanding as of such date, or from the exercise of options granted after such date in the ordinary course of business or from repurchases of capital stock) or long-term debt of the Guarantor or any of its Significant Subsidiaries or any material adverse change, or any development that would reasonably be expected to involve a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ or stockholders’ equity or results of operations of the Guarantor and its Significant Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus;

 

(g) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been any material adverse change, or any development that would reasonably be expected to involve a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ or stockholders’ equity or results of operations of Catlin and its Subsidiaries, taken as a whole;

 

(h) The Guarantor has been duly incorporated and is validly existing as a public limited company under the laws of Ireland and no steps have been taken or are being taken to appoint a receiver, examiner or liquidator over it or to wind it up. The Company has been duly incorporated and is validly existing as an exempted company with limited liability, in good standing under the laws of the Cayman Islands. Each of the Company and the Guarantor has full corporate power and authority to own its properties and conduct its business as described in the Pricing Prospectus and to enter into and perform its obligations under each Transaction Document to which it is a party and to consummate the transactions contemplated by the Transaction Documents and each has been duly qualified as a foreign company for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except where such failure to be so qualified in any such jurisdiction or to have any such power or authority would not have a material adverse effect on the current or future condition (financial or other), business, properties or results of operations of the Guarantor and its Subsidiaries taken as a whole or on the transactions contemplated by this Agreement (a “Material Adverse Effect” (which, solely in the case of representations and warranties that expressly include Catlin and any of its subsidiaries, means the combined company after giving effect to the Acquisition)); and each of Catlin and each other Significant Subsidiary of the Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; 

(i) The Guarantor had, on December 31, 2014, an authorized capitalization as set forth in the Pricing Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and conform to the description thereof contained in the Pricing Disclosure Package and the Prospectus;

 

(j) The Notes have been duly and validly authorized and when executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the provision of this Agreement, the Notes will have been duly and validly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and remedies and to general equity principles, and will be entitled to the benefits provided by the Indenture; the Guarantees have been duly and validly authorized and when the Notes have been duly and validly executed and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters, the Guarantees will constitute valid and legally binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and remedies and to general equity principles, and will be entitled to the benefits provided by the Indenture; the Indenture has been duly authorized by each of the Company and the Guarantor, and at the Time of Delivery, will be duly executed and delivered by each of the Company and the Guarantor and will constitute a valid and legally binding agreement of the Company and the Guarantor, enforceable against each of the Company and the Guarantor in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and remedies and to general equity principles; the Indenture has been duly qualified under the Trust Indenture Act; the Securities and the Indenture will conform to the description thereof contained in the Pricing Disclosure Package and the Prospectus with respect to the Securities and Indenture;

 

(k) This Agreement has been duly authorized, executed and delivered by each of the Company and the Guarantor;

 

(l) Each of the Acquisition Agreements has been duly authorized, executed and delivered by the Guarantor and XL Sub, and constitutes a valid and legally binding agreement of the Guarantor and XL Sub, enforceable against the Guarantor and XL Sub in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and remedies and to general equity principles; and the Acquisition Agreements conform in all material respects to the descriptions thereof contained in the Pricing Disclosure Package and the Prospectus;

 

(m) The issue and sale of the Securities, the execution and delivery of each Transaction Document to which it is a party and the compliance by the Company and the Guarantor with all of the provisions of each Transaction Document to which it is a party and the 

consummation by each of the Company and the Guarantor of the transactions contemplated therein will not conflict with or result in a breach or violation of any of the terms or provisions of or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Guarantor or any of its Significant Subsidiaries is a party or by which the Guarantor or any of its Significant Subsidiaries is bound or to which any of the property or assets of the Guarantor or any of its Significant Subsidiaries is subject, nor will such action result in any violation of the provisions of the Articles of Association or the Memorandum of Association (or similar organizational documents) of the Guarantor or any of its Significant Subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body (a “Governmental Agency”) having jurisdiction over the Guarantor or any of its Significant Subsidiaries or any of its respective properties, or any rule or regulation of any self-regulatory organization or other non-governmental regulatory authority (including, without limitation, the rules and regulations of the New York Stock Exchange) (a “Non-Governmental Authority”), except in each case (other than with respect to such Articles of Association or Memorandum of Association (or similar organizational documents) of the Guarantor) for such conflicts, violations, breaches or defaults which would not result in a Material Adverse Effect;

 

(n) No consent, approval, authorization, order, filing, registration or qualification of or with any Governmental Agency or Non-Governmental Authority is required for the issue and sale by the Company and Guarantor of the Securities or the consummation by each of the Company and the Guarantor of the transactions contemplated by the Transaction Documents, except such as have been, or will have been prior to the Time of Delivery, obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters;

 

(o) All of the issued share capital of each Significant Subsidiary of the Guarantor that is a corporation has been duly and validly authorized and issued, is fully paid and non-assessable and all of the Voting Shares (except for directors’ qualifying shares) of each Significant Subsidiary of the Guarantor that is a corporation is owned directly or indirectly by the Guarantor, free and clear of all liens, encumbrances, equities or claims (for purposes of this Agreement, (A) “Subsidiary” means, as applied to any person, any corporation, limited or general partnership, trust, association or other business entity of which an aggregate of greater than 50% of the outstanding Voting Shares of such person is, at any time, directly or indirectly, owned by such person and/or one or more subsidiaries of such person, (B) “Significant Subsidiary” shall have the meaning of “significant subsidiary” as set forth in Regulation S-X under the Act; (C) for purposes of the definition of “Subsidiary,” “Voting Shares” means, with respect to any corporation, the capital stock having the general voting power under ordinary circumstances to elect at least a majority of the board of directors (irrespective of whether or not at the time capital stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency));

 

(p) Prior to the date hereof, none of the Company, the Guarantor or, to the Company’s or the Guarantor’s knowledge, respectively, any of their respective affiliates has taken any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the

Company or the Guarantor in connection with the offering of the Securities in violation of the Exchange Act;

 

(q) Other than as set forth or incorporated by reference in the Pricing Prospectus prior to the date hereof, or as encountered in the ordinary course of business in the Guarantor’s or any of its Significant Subsidiaries’ claims activities, there are no legal or governmental actions, suits or proceedings pending to which the Guarantor, Catlin or any of their respective Significant Subsidiaries is a party or of which any property of the Guarantor, Catlin or any of their respective Significant Subsidiaries is the subject, which would individually or in the aggregate reasonably be expected to have a Material Adverse Effect; and, to the best of the Guarantor’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;

 

(r) (i) The financial statements of the Guarantor and its consolidated Subsidiaries and the related notes thereto incorporated by reference in the Pricing Prospectus and the Prospectus present fairly the financial position of the Guarantor and its consolidated Subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and except as otherwise disclosed in the Pricing Prospectus, such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis; (ii) the financial statements of Catlin and its consolidated Subsidiaries and the related notes thereto included or incorporated by reference in the Pricing Prospectus and the Prospectus present fairly the financial position of Catlin and its consolidated Subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and except as otherwise disclosed in the Pricing Prospectus, such financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis; (iii) the pro forma financial information and the related notes thereto included or incorporated by reference in the Pricing Prospectus and the Prospectus have been prepared in accordance with the applicable requirements of the Act and the Exchange Act, as applicable, and the assumptions underlying such pro forma financial information are reasonable and are set forth in each of the Pricing Prospectus and the Prospectus; and (iv) the interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus has been prepared in all material respects in accordance with the Commission’s rules and guidelines applicable thereto;

 

(s) Each of the Guarantor, Catlin and their respective Significant Subsidiaries possess adequate certificates, authorities, licenses or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any written notice of proceedings relating to the revocation or modification of any such certificate, authority, license or permit that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;

 

(t) None of the Guarantor, Catlin or any of their respective Significant Subsidiaries is in violation of its Articles of Association or Memorandum of Association (or similar organizational documents) or is in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or 

any of its properties may be bound, except for such defaults which would not result in a Material Adverse Effect;

 

(u) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Debt Securities and Guarantees” and “Description of the Subordinated Notes and Guarantees,” insofar as they purport to constitute a summary of the terms of the Securities and the Indenture, and the statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Tax Considerations,” insofar as they purport to describe the provisions of the laws referred to therein, are accurate, complete and fair in all material respects;

 

(v) Neither the Company nor the Guarantor is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will be an “investment company,” as such term is defined in the U.S. Investment Company Act of 1940, as amended (the “Investment Company Act”);

 

(w) PricewaterhouseCoopers LLP, which has audited the consolidated financial statements of the Guarantor and its subsidiaries and has audited the Guarantor’s internal control over financial reporting, is an independent registered public accounting firm with respect to the Guarantor and its subsidiaries as required by the Act and the rules and regulations of the Commission thereunder and the Public Company Accounting Oversight Board (United States); PricewaterhouseCoopers Ltd., which has audited the consolidated financial statements of Catlin and its subsidiaries, are independent certified public accountants with respect to Catlin and its subsidiaries under Rule 101 of the Code of Professional Conduct of the American Institute of Certified Public Accountants, and its rulings and interpretations;

 

(x) No stamp or other issuance or transfer taxes or duties and no capital gains, income, withholding or other taxes are payable by or on behalf of the Underwriters to the Cayman Islands or to Ireland or any political subdivision or taxing authority thereof or therein in connection with (A) the issuance, sale and delivery by the Company and the Guarantor to or for the respective accounts of the Underwriters of the Securities, or (B) the sale or delivery outside the Cayman Islands and Ireland by the Underwriters of the Securities to the initial purchasers thereof, other than as described in the opinions of Maples and Calder as to the Cayman Islands and A&L Goodbody as to Ireland, delivered pursuant to Sections 8(d) and 8(e) of this Agreement;

 

(y) (A) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 under the Act, each of the Company and the Guarantor was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (B) at the earliest time after the filing of the Registration Statement that the Company, the Guarantor or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Securities, neither the Company nor the Guarantor was an “ineligible issuer” as defined in Rule 405 under the Act;

(z) The Guarantor and its Subsidiaries maintain a system of “internal control over financial reporting” (as such term is defined in Rule 13a-15(f) under the Exchange Act). The Guarantor’s and its Subsidiaries’ internal control over financial reporting is effective and the Guarantor and its Subsidiaries are not aware of any material weaknesses in the Guarantor’s internal control over financial reporting;

 

(aa) The Guarantor maintains “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act); such disclosure controls and procedures are effective;

 

(bb) None of the Guarantor, any of its Subsidiaries or, to the knowledge of the Guarantor, any director, officer, agent, employee, affiliate or other person acting on behalf of the Guarantor or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, except for any violations that would not have a Material Adverse Effect or a material adverse effect on the offering and sale of the Securities, and the Guarantor and, to the knowledge of the Guarantor, its affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith;

 

(cc) The operations of the Guarantor and its Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”), except for any violations that would not have a Material Adverse Effect or a material adverse effect on the offering and sale of the Securities, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Guarantor or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Guarantor, threatened; and

 

(dd) None of the Guarantor, any of its Subsidiaries or, to the knowledge of the Guarantor, any director, officer, agent, employee, affiliate or person acting on behalf of the Guarantor or any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority (“Sanctions”); and the Guarantor and its Subsidiaries will not directly or indirectly use the proceeds of the offering contemplated hereby, or (i) lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any Sanctions or (ii) in any other manner that will 

result in a violation by any person (including any person participating in the transaction, whether as an underwriter, advisor, investor or otherwise) of Sanctions.

 

2. Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of (i) 98.758% of the principal amount thereof, the aggregate principal amount of the 2025 Notes set forth opposite the name of such Underwriter in Schedule I hereto and (ii) 97.99% of the principal amount thereof, the aggregate principal amount of the 2045 Notes set forth opposite the name of such Underwriter in Schedule I hereto.

 

3. Upon the authorization by the Representatives of the release of the Securities, the several Underwriters propose to offer the Securities for sale upon the terms and conditions set forth in the Prospectus.

 

4. The Securities to be purchased by each Underwriter hereunder will be represented by one or more definitive global Securities in book-entry form which will be deposited by or on behalf of the Company with The Depository Trust Company (“DTC”) or its designated custodian. The Company will deliver the Securities to the Representatives, for the account of each Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to the Representatives at least twenty-four hours in advance, by causing DTC to credit the Securities to the account of the Representatives at DTC. The Company will, upon request by the Representatives, cause the certificates representing the Securities to be made available to the Representatives for checking at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall be, with respect to the Securities, 9:00 a.m., New York City time, on March 30, 2015 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date for delivery of the Securities is herein called the “Time of Delivery.”

 

The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross-receipt for the Securities and any additional documents requested by the Underwriters pursuant to Section 8(n) hereof, will be delivered at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153 (the “Closing Location”), and the Securities will be delivered at the Designated Office, all at the Time of Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New York City time, on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto.

 

5. The Company and the Guarantor jointly and severally agree with each of the Underwriters:

 

(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to 

make no further amendment or any supplement to the Registration Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery which shall be disapproved by the Representatives promptly after reasonable notice thereof; to advise you, promptly after they receive notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish the Representatives with copies thereof; to prepare a final term sheet containing a description of the Securities, in the form attached hereto as Schedule III and approved by the Representatives, and to file such term sheet pursuant to Rule 433(d) under the Act within the time required by such Rule; to file promptly all other material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company or the Guarantor with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of the Securities; to advise the Representatives, promptly after they receive notice thereof, of the issuance by the Commission prior to the completion of the distribution of the Securities contemplated by this Agreement (the date of which shall be confirmed to the Company by the Representatives) of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Securities, of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission prior to the completion of the distribution of the Securities contemplated by this Agreement for the amending or supplementing of the Registration Statement or 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 Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order; and in the event of the issuance of any such notice of objection, promptly to amend the Registration Statement in such manner as may be required to permit offers and sales of the Securities;

 

(b) If required by Rule 430B(h) under the Act in connection with the offering of the Securities contemplated by this Agreement, to prepare a form of prospectus in a form approved by the Representatives and to file such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act; and to make no further amendment or supplement to such form of prospectus which shall be disapproved by the Representatives promptly after reasonable notice thereof;

 

(c) Promptly from time to time, to take such action as the Representatives may reasonably request to qualify the Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Securities, provided that in connection therewith neither the Company nor the Guarantor shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; 

(d) If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriters, the Company and the Guarantor will file, if they have not already done so and are eligible to do so, a new automatic shelf registration statement relating to the Securities, in a form satisfactory to the Representatives. If at the Renewal Deadline the Company and the Guarantor are no longer eligible to file an automatic shelf registration statement and the distribution of the Securities contemplated by this Agreement has not yet been completed, the Company and the Guarantor will, if they have not already done so, file a new shelf registration statement relating to the Securities, in a form satisfactory to the Representatives and will use their best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company and the Guarantor will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired registration statement relating to the Securities. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be;

 

(e) Prior to 3:00 p.m., New York City time, on the New York business day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and upon the Representatives’ request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Securities at any time nine months or more after the time of issue of the Prospectus, upon the Representatives’ request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as the Representatives may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; the Representatives will inform the Company and the Guarantor when the Underwriters’ obligation to deliver a prospectus has expired;

 

(f) To make generally available to its security holders as soon as practicable, but in any event not later than 18 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Guarantor and its Subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules 

and regulations of the Commission thereunder (including, at the option of the Guarantor, Rule 158);

 

(g) During the period from the date hereof through and including the Time of Delivery, the Company and the Guarantor will not offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any debt securities of the Company or the Guarantor, as the case may be, that mature more than one year after such Time of Delivery and are substantially similar to the Securities, without the prior written consent of the Representatives, other than the Securities to be sold hereunder;

 

(h) To pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act;

 

(i) To take all reasonable actions necessary, including engaging advisers to act on behalf of the Company, to enable Moody’s Investors Service and Standard & Poor’s Ratings Service to provide at the Time of Delivery their respective credit ratings of the Securities;

 

(j) The Company will use the net proceeds received by it from the sale of the Securities pursuant to this Agreement in the manner specified in the Pricing Prospectus and Prospectus under the caption “Use of Proceeds”;

 

(k) The Company will use its commercially reasonable efforts to list each series of Notes on the New York Stock Exchange; and

 

(l) Upon request of any Underwriter, the Guarantor will furnish, or cause to be furnished, to such Underwriter an electronic version of its corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Securities (the “License”); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred.

 

6. (a) (i) The Company and the Guarantor jointly and severally represent and agree that, other than the final term sheet in the form attached as Schedule III hereto and filed pursuant to Section 5(a) hereof, without the prior consent of the Representatives, they have not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Act; (ii) each Underwriter represents and agrees that, other than one or more term sheets relating to the Securities containing customary information and conveyed to the purchasers of the Securities, without the prior consent of the Company, the Guarantor and the Representatives (as to both form and content), they have not made and will not make any offer relating to the Securities that would constitute a free writing prospectus; and (iii) the Company and the Guarantor jointly and severally represent and agree that, any such free writing prospectus, the use and content of which have been consented to by the Company, the Guarantor and the Representatives (including the final term sheet in the form attached as Schedule III hereto and filed pursuant to Section 5(a) hereof) is listed on Schedule II hereto; 

(b) The Company and the Guarantor have complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and

 

(c) The Company and the Guarantor jointly and severally agree that, if at any time following issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances then prevailing, not misleading, they will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or omission; provided, however, that this covenant shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with information furnished in writing to the Company or the Guarantor by an Underwriter through the Representatives expressly for use therein.

 

7. Subject to the last sentence of this Section 7, the Company and the Guarantor jointly and severally covenant and agree with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s and Guarantor’s counsel and accountants in connection with the registration of the Securities under the Act, and the issuance and sale of the Securities and all other expenses in connection with the preparation, printing and filing of the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and any amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Indenture, any Blue Sky Memoranda and any closing documents (including any compilations thereof in connection with the offering, purchase, sale and delivery of the Securities); (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(c) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with any Blue Sky Memoranda; (iv) any filing fees incident to, and the fees and disbursements of counsel for the Underwriters in connection with, any required reviews by the U.S. Financial Industry Regulatory Authority, of the terms of the sale of the Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for any such persons in connection with the Indenture or the Securities; (vii) all expenses and taxes arising as a result of the issuance, sale and delivery of the Securities and of the sale and delivery outside of the Cayman Islands or Ireland of the Securities by the Underwriters to the initial purchasers thereof in the manner contemplated under this Agreement, including, in any such case, any Cayman Islands or Ireland income, capital gains, withholding, transfer or other tax, asserted against an Underwriter by reason of the purchase and sale of the Securities pursuant to this Agreement; (viii) any fees charged by securities rating services for rating the Securities; and (ix) all other costs and expenses incident to the performance of the Company’s or the Guarantor’s obligations hereunder which are not otherwise specifically provided for in this Section 7. It is understood, however, that, except as provided in this Section 7, and Sections 9, 12 and 25 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, 

transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make.

 

8. The obligations of the Underwriters hereunder, as to the Securities to be delivered at the Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company and the Guarantor herein are, at and as of the Time of Delivery, true and correct, the condition that the Company and the Guarantor shall have performed all of their obligations hereunder theretofore to be performed, and the following additional conditions:

 

(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; the final term sheet in the form attached as Schedule III hereto and filed as contemplated by Section 5(a) hereof, and any other material required to be filed by the Company or the Guarantor pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ reasonable satisfaction;

 

(b) Weil, Gotshal & Manges LLP, counsel for the Underwriters, shall have furnished to the Representatives their written opinion or opinions and letter, dated the Time of Delivery, in form and substance reasonably satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;

 

(c) Skadden, Arps, Slate, Meagher & Flom LLP, United States counsel for the Company and the Guarantor, shall have furnished to the Representatives their written opinion or opinions and letter, dated the Time of Delivery, in form and substance reasonably satisfactory to the Representatives;

 

(d) Maples and Calder, Cayman Islands counsel for the Company and the Guarantor, shall have furnished to the Representatives their written opinion or opinions, dated the Time of Delivery, in form and substance reasonably satisfactory to the Representatives;

 

(e) A&L Goodbody, Ireland counsel for the Company and the Guarantor, shall have furnished to the Representatives their written opinion or opinions, dated the Time of Delivery, in form and substance reasonably satisfactory to the Representatives;

(f) Kirstin Romann Gould, Executive Vice President and General Counsel to the Guarantor, shall have furnished to the Representatives her written opinion or opinions, dated the Time of Delivery, in form and substance reasonably satisfactory to the Representatives;

 

(g) (i) On the date of this Agreement, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement but prior to the Time of Delivery and at the Time of Delivery, PricewaterhouseCoopers LLP, the independent registered public accounting firm with respect to the Company and the Guarantor, which has audited the consolidated financial statements of the Guarantor and its Subsidiaries and has audited the Guarantor’s internal control over financial reporting, shall have furnished to the Representatives a “comfort” letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives; and (ii) on the date of this Agreement, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement but prior to the Time of Delivery and at the Time of Delivery, PricewaterhouseCoopers Ltd., the certified public accountants with respect to Catlin, which has audited the consolidated financial statements of Catlin and its Subsidiaries, shall have furnished to the Representatives a “comfort” letter or letters, dated the respective dates of delivery thereof, in form and substance reasonably satisfactory to the Representatives;

 

(h) Neither the Guarantor nor any of its Significant Subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus, there shall not have been any change in the capital stock (other than changes resulting from the exercise of stock options or the conversion of warrants or capital stock which were outstanding as of such date, or from the exercise of options granted after such date in the ordinary course of business or from repurchases of capital stock) or long-term debt of the Guarantor or any of its Significant Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, shareholders’ or stockholders’ equity or results of operations of the Guarantor and its Significant Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Representatives’ judgment so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in this Agreement and the Prospectus;

 

(i) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Securities or any of the Company’s debt securities or the Guarantor’s or any Significant Subsidiary’s financial strength or claims paying ability by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Securities or any of the Company’s debt securities or the Guarantor’s or its Significant Subsidiaries’ financial strength or claims paying ability; 

(j) On or after the date of the Applicable Time, there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Guarantor’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities in New York, the Cayman Islands, Ireland or Bermuda declared by the relevant authority or a material disruption in commercial banking or securities settlement or clearance services in the United States or any other relevant jurisdiction; (iv) the outbreak or escalation of hostilities involving the United States, the Cayman Islands, Ireland or Bermuda or the declaration by the United States, the Cayman Islands, Ireland or Bermuda of a national emergency or war, if the effect of any such event specified in this clause (iv) in the Representatives’ judgment is so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Time of Delivery on the terms and in the manner contemplated in the Prospectus; (v) a change or development involving a prospective change in the Cayman Islands, Ireland or Bermuda taxation affecting the Company, the Guarantor or the Securities, as the case may be, or the transfer thereof or the imposition of exchange controls by the United States, the Cayman Islands, Ireland or Bermuda; or (vi) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or currency exchange rates or controls in the United States, the Cayman Islands, Ireland, Bermuda or elsewhere, if the effect of any such event specified in this clause (vi) in the Representatives’ judgment is so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at the Time of Delivery on the terms and in the manner contemplated in the Prospectus;

 

(k) The Company and the Guarantor shall have complied with the provisions of Section 5(e) hereof with respect to the furnishing of prospectuses within the time period set forth therein;

 

(l) The Company and the Guarantor shall have furnished or caused to be furnished to the Representatives at the Time of Delivery certificates of their respective officers satisfactory to the Representatives as to the accuracy of the respective representations and warranties of the Company and the Guarantor herein, at and as of the Time of Delivery, as to the performance by the Company and the Guarantor of all of their respective obligations hereunder to be performed at or prior to the Time of Delivery, as to the matters set forth in subsections (a), (h) and (i) of this Section 8 and as to such other matters as the Representatives may reasonably request; and

 

(m) Prior to the Time of Delivery, the Company and the Guarantor shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.

 

9. (a) The Company and the Guarantor jointly and severally will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus or any 

“issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal expenses of one counsel (in addition to any local counsel) reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company and the Guarantor shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Basic Prospectus, the Pricing Prospectus, any Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company and the Guarantor by any Underwriter through the Representatives expressly for use therein.

 

(b) Each Underwriter will indemnify and hold harmless the Company and the Guarantor against any losses, claims, damages or liabilities to which the Company or the Guarantor may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any such amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information furnished to the Company or the Guarantor by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company and the Guarantor for any legal or other expenses reasonably incurred by the Company or the Guarantor in connection with investigating or defending any such action or claim as such expenses are incurred, including the reasonable fees and expenses of one counsel (in addition to any local counsel).

 

(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified 

party, in connection with the defense thereof other than reasonable costs of investigation (except as set forth below). Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (1) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (2) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

 

(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other from the offering of the Securities. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantor on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantor on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this 

subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.

 

(e) The obligations of the Company and the Guarantor under this Section 9 shall be in addition to any liability which the Company and the Guarantor may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company and the Guarantor and to each person, if any, who controls the Company or the Guarantor, as the case may be, within the meaning of the Act.

 

10. (a) If any Underwriter shall default in its obligation to purchase the Securities which it has agreed to purchase hereunder at the Time of Delivery, the Representatives may in their discretion arrange for the Representatives or another party or other parties satisfactory to the Company and the Guarantor to purchase such Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Securities, then the Company and the Guarantor shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company and the Guarantor that the Representatives have so arranged for the purchase of such Securities, or the Company and the Guarantor notify the Representatives that they have so arranged for the purchase of such Securities, the Representatives, or the Company and the Guarantor shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company and the Guarantor agree to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the Representatives’ opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 10 with like effect as if such person had originally been a party to this Agreement with respect to such Securities. 

(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives, the Company and the Guarantor as provided in subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities to be purchased at the Time of Delivery, then the Company and the Guarantor shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.

 

(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives, the Company and the Guarantor as provided in subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities to be purchased at the Time of Delivery, or if the Company and the Guarantor shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter, the Company or the Guarantor, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.

 

11. The respective indemnities, agreements, representations, warranties and other statements of the Company, the Guarantor and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, the Company or the Guarantor, or any officer or director or controlling person of the Company or the Guarantor, and shall survive delivery of and payment for the Securities.

 

12. If this Agreement shall be terminated pursuant to Section 10(c) hereof, the Company and the Guarantor shall not then be under any liability to any Underwriter except as provided in Sections 7, 9 and 25 hereof; but, if for any other reason, any Securities are not delivered by or on behalf of the Company and the Guarantor as provided herein, the Company and the Guarantor will reimburse the Underwriters through the Representatives for all out-of-pocket expenses approved in writing by you, including reasonable fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Securities not so delivered, but the Company and the Guarantor shall then be under no further liability to any Underwriter except as provided in Sections 7, 9 and 25 hereof.

 

13. In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by the Representatives. 

14. All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the Representatives in care of Morgan Stanley & Co. LLC, 1585 Broadway, 29th Floor, New York, New York 10036, attention of: Investment Banking Division, with a copy to the Legal Department, and in care of Goldman, Sachs & Co., 200 West Street, New York, New York 10282 (fax: (212) 902-9316), attention of: Registration Department; if to the Company or to the Guarantor shall be delivered or sent by mail, telex or facsimile transmission to the respective addresses of the Company and the Guarantor set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company and the Guarantor by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.

 

15. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and the Guarantor and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and the Guarantor and each person who controls the Company, the Guarantor or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.

 

16. The Company and the Guarantor irrevocably (i) agree that any legal suit, action or proceeding against the Company or the Guarantor, as the case may be, brought by any Underwriter or by any person who controls any Underwriter arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal district court for the Southern District of New York and the New York County Court, (ii) waive, to the fullest extent they may effectively do so, any objection which they may now or hereafter have to the laying of venue of any such proceeding and (iii) submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The Company and the Guarantor have appointed Puglisi & Associates as their authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement or the transactions contemplated hereby which may be instituted in the federal district court for the Southern District of New York and the New York County Court by any Underwriter or by any person who controls any Underwriter, expressly consent to the jurisdiction of any such court in respect of any such action, and waive any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable. The Company and the Guarantor represent and warrant that the Authorized Agent has agreed to act as such agent for service of process and agree to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company and the Guarantor shall be deemed, in every respect, effective service of process upon the Company or the Guarantor, as the case may be.

 

17. Time shall be of the essence in this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open 

for business. “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.

 

18. The Company and the Guarantor jointly and severally acknowledge and agree that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company and the Guarantor, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not as the agent or fiduciary of the Company or the Guarantor, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or the Guarantor with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Guarantor on other matters) or any other obligation to the Company or the Guarantor with respect to such offering or the process leading thereto except the obligations expressly set forth in this Agreement and (iv) the Company and the Guarantor have consulted their own legal and financial advisors to the extent it deemed appropriate. The Company and the Guarantor agree that they will not claim that the Underwriters, or any of them, have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to the Company or the Guarantor in connection with such offering or the process leading thereto.

 

19. For the avoidance of doubt and anything in this Agreement to the contrary notwithstanding, all references in this Agreement to the Pricing Disclosure Package as of the Applicable Time shall be deemed to include the final term sheet relating to the Securities substantially in the form attached as Schedule III hereto and to be filed with the Commission on March 24, 2015.

 

20. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company, the Guarantor and the Underwriters, or any of them, with respect to the subject matter hereof.

 

21. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

22. The Company, the Guarantor and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

23. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.

 

24. Notwithstanding anything herein to the contrary, the Company and the Guarantor are authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company and the Guarantor relating to that treatment and 

structure, without the Underwriters imposing any limitation of any kind. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.

 

25. In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Company and the Guarantor will indemnify each Underwriter against any loss incurred by such Underwriter as a result of any variation between (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which an Underwriter is able to purchase United States dollars with the amount of judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and the Guarantor and shall continue in full force and effect notwithstanding any such judgment or order aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars.

 

[Remainder of Page Intentionally Left Blank; Signature Page Follows] 

If the foregoing is in accordance with your understanding, please sign and return to us 6 counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters and the Company and the Guarantor. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company and the Guarantor for examination upon request, but without warranty on your part as to the authority of the signers thereof.

 

	Very truly yours,
	XLIT LTD.
	By:	/s/ Peter Porrino
		Name: Peter Porrino
		Title: Director
	XL GROUP PLC
	By:	/s/ Peter Porrino
		Name: Peter Porrino
		Title: EVP & CFO

 

[Signature page to Underwriting Agreement]

Accepted as of the date hereof:

 

as Representatives of the Underwriters

 

MORGAN STANLEY & CO. LLC

 

By	/s/ Yurij Slyz
	Name: Yurij Slyz
	Title: Executive Director
GOLDMAN, SACHS & CO.
By	/s/ Ryan Gilliam
	Name: Ryan Gilliam
	Title: Vice President
	For themselves and as Representatives of the other Underwriters named in Schedule I hereto

 

[Signature page to Underwriting Agreement]

SCHEDULE I

 

Underwriter		Principal Amount of 2025 Notes to Be Purchased				Principal Amount of 2045 Notes to Be Purchased
Morgan Stanley & Co. LLC		$	195,000,000			$	195,000,000
Goldman, Sachs & Co.			105,000,000				105,000,000
Citigroup Global Markets Inc.			37,500,000				37,500,000
Deutsche Bank Securities Inc.			37,500,000				37,500,000
HSBC Securities (USA) Inc.			37,500,000				37,500,000
BNP Paribas Securities Corp.			12,500,000				12,500,000
Credit Agricole Securities (USA) Inc.			12,500,000				12,500,000
Credit Suisse Securities (USA) LLC			12,500,000				12,500,000
ING Financial Markets LLC			12,500,000				12,500,000
Lloyds Securities Inc.			12,500,000				12,500,000
Mitsubishi UFJ Securities (USA) Inc.			12,500,000				12,500,000
RBS Securities Inc.			12,500,000				12,500,000
TOTAL		$	500,000,000			$	500,000,000

SCHEDULE II

 

(a)	(i)	Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
		Net roadshow
	(ii)	Issuer Free Writing Prospectuses included in the Pricing Disclosure Package:
		Final Pricing Term Sheet attached as Schedule III
(b)		Additional Documents Incorporated by Reference:
		None

SCHEDULE III

 

 

 

XLIT Ltd.

 

Guaranteed by

 

XL Group plc

 

$500,000,000 4.450% Subordinated Notes due 2025
$500,000,000 5.500% Subordinated Notes due 2045

 

Summary of Terms

 

Issuer:		XLIT Ltd.
Guarantor:		XL Group plc
Expected Ratings (Moody’s / S&P / Fitch)*:
Security Type:		Subordinated unsecured fixed rate notes
Trade Date:		March 24, 2015
Settlement Date:		March 30, 2015

 

		4.450% Subordinated Notes due 2025		5.500% Subordinated Notes due 2045
Principal Amount:		$500,000,000		$500,000,000
Scheduled Maturity Date:		March 31, 2025		March 31, 2045
Interest Payment Dates:		Semi-annually on March 30 and September 30, commencing on September 30, 2015. At maturity, the Issuer will pay accrued and unpaid interest from the most recent date to which interest has been paid or provided for.		Semi-annually on March 30 and September 30, commencing on September 30, 2015. At maturity, the Issuer will pay accrued and unpaid interest from the most recent date to which interest has been paid or provided for.
Coupon:		4.450%		5.500%
Public Offering Price:		99.633%		99.115%
Benchmark Treasury:		2.00% due February 15, 2025		3.00% due November 15, 2044
Benchmark Price / Yield:		101-05 / 1.871%		111-09 / 2.461%
Spread to Benchmark Treasury:		+ 262.5 bps		+ 310 bps
Yield to Maturity:		4.496%		5.561%
Net Proceeds (Before Expenses) to Issuer:		$493,790,000		$489,950,000
Optional Redemption:		Beginning on March 31, 2020, the Issuer may redeem the 2025		Beginning on March 31, 2020, the Issuer may redeem the 2045

		Subordinated Notes, in whole at any time or in part from time to time, at the Issuer’s option at a redemption price equal to the greater of 100% of the principal amount of the 2025 Subordinated Notes and a make-whole amount based on a discount rate equal to the Treasury Rate plus 40 bps, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, provided that the applicable Conditions to Redemption have been satisfied and will continue to be satisfied if the redemption payment were made and, if not so satisfied, such redemption will be deferred until such time as the Conditions to Redemption are satisfied.		Subordinated Notes, in whole at any time or in part from time to time, at the Issuer’s option at a redemption price equal to the greater of 100% of the principal amount of the 2045 Subordinated Notes and a make-whole amount based on a discount rate equal to the Treasury Rate plus 50 bps, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, provided that the applicable Conditions to Redemption have been satisfied and will continue to be satisfied if the redemption payment were made and, if not so satisfied, such redemption will be deferred until such time as the Conditions to Redemption are satisfied.
Specified Event Redemption:		The Issuer may redeem the 2025 Subordinated Notes, in whole but not in part, within 90 days following the occurrence of certain additional amounts, tax and regulatory events, provided that the applicable Conditions to Redemption have been satisfied and will continue to be satisfied if the redemption payment were made and, if not so satisfied, such redemption will be deferred until such time as the Conditions to Redemption are satisfied, as described in “Description of the Subordinated Notes and Guarantees–Redemption; Conditions to Redemption–Specified Event Redemption” in the prospectus supplement.		The Issuer may redeem the 2045 Subordinated Notes, in whole but not in part, within 90 days following the occurrence of certain additional amounts, tax and regulatory events, provided that the applicable Conditions to Redemption have been satisfied and will continue to be satisfied if the redemption payment were made and, if not so satisfied, such redemption will be deferred until such time as the Conditions to Redemption are satisfied, as described in “Description of the Subordinated Notes and Guarantees–Redemption; Conditions to Redemption–Specified Event Redemption” in the prospectus supplement.
Special Mandatory Redemption:		If the Acquisition is not consummated, or the Implementation Agreement is terminated, in each case, on or prior to December 15, 2015, the Issuer will be required to redeem all of the 2025 Subordinated Notes at a redemption price equal to 101% of the aggregate principal amount plus accrued and unpaid interest (including arrears of interest) to, but excluding, the Special Mandatory Redemption Date, and any Additional Amounts thereon.		If the Acquisition is not consummated, or the Implementation Agreement is terminated, in each case, on or prior to December 15, 2015, the Issuer will be required to redeem all of the 2045 Subordinated Notes at a redemption price equal to 101% of the aggregate principal amount plus accrued and unpaid interest (including arrears of interest) to, but excluding, the Special Mandatory Redemption Date, and any Additional Amounts thereon.
Minimum Denominations:		$2,000 x $1,000		$2,000 x $1,000
Listing:		Application has been made to list the 2025 Subordinated Notes on the New York Stock Exchange under the symbol “XL25”		Application has been made to list the 2045 Subordinated Notes on the New York Stock Exchange under the symbol “XL45”
CUSIP / ISIN:		98420EAC9 / US98420EAC93		98420EAD7 / US98420EAD76

Joint Book-Running Managers:		Morgan Stanley & Co. LLC
		Goldman, Sachs & Co.
		Citigroup Global Markets Inc.
		Deutsche Bank Securities Inc.
		HSBC Securities (USA) Inc.
Co-Managers:		BNP Paribas Securities Corp.
		Credit Agricole Securities (USA) Inc.
		Credit Suisse Securities (USA) LLC
		ING Financial Markets LLC
		Lloyds Securities Inc.
		Mitsubishi UFJ Securities (USA), Inc.
		RBS Securities Inc.

 

Investing in the Subordinated Notes involves a number of risks. See “Risk Factors” beginning on page S-13 of the prospectus supplement.

 

* Note: A securities rating is not a recommendation to buy, sell, or hold securities and may be subject to revision or withdrawal at any time.

 

XLIT Ltd. and XL Group plc have filed a registration statement (including a prospectus) and a prospectus supplement with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the prospectus supplement and other documents XLIT Ltd. and XL Group plc have filed with the SEC for more complete information about the issuer, the guarantor and this offering. You should rely on the prospectus, prospectus supplement and any relevant free writing prospectus or pricing supplement for complete details. You may get these documents for free by visiting the SEC website at www.sec.gov. Alternatively, copies of the prospectus and the prospectus supplement may be obtained by contacting Morgan Stanley & Co. LLC toll free at 866-718-1649 or Goldman, Sachs & Co. toll free at 866-471-2526.

Exhibit 4.1

 

 

XLIT LTD.

 

as Issuer

 

XL GROUP PLC

 

as Guarantor

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

as Trustee

 

INDENTURE

 

Dated as of March 30, 2015

 

Subordinated Debt Securities

 

Reconciliation and tie between Trust Indenture Act of 1939 and Indenture.

 

TRUST INDENTURE ACT SECTION		INDENTURE SECTION
ss.310(a)		6.09
(b)		6.08, 6.10
(c)		Not Applicable
ss.311(a)		6.13
(b)		6.13
(c)		Not Applicable
ss.312(a)		7.01, 7.02(a)
(b)		7.02(b)
(c)		7.02(c)
ss.313(a)		7.03(a)
(b)		7.03(b)
(c)		7.03(b)
(d)		7.03(c)
ss.314(a)		7.04
(b)		Not Applicable
(c)		1.02
(d)		Not Applicable
(e)		1.02
(f)		Not Applicable
ss.315(a)		6.01
(b)		6.02, 7.03(b)
(c)		6.01(b)
(d)		6.01(c)
(e)		5.14
ss.316(a)(1)		5.12, 5.13
(b)		5.08
(c)		1.04(d)
ss.317(a)(1)		5.03
(b)		5.04
(c)		10.03
ss.318(a)		1.07

 

NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

TABLE OF CONTENTS

 

ARTICLE I

DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION

 

Section 1.01		Definitions	1
Section 1.02		Compliance Certificates and Opinions	6
Section 1.03		Form of Documents Delivered to Trustee	6
Section 1.04		Acts of Holders	7
Section 1.05		Notices, Etc., to Trustee, the Company and the Guarantor	8
Section 1.06		Notice to Holders; Waiver	8
Section 1.07		Conflict with Trust Indenture Act	8
Section 1.08		Effect of Headings and Table of Contents	8
Section 1.09		Successors and Assigns	8
Section 1.10		Separability Clause	8
Section 1.11		Benefits of Indenture	8
Section 1.12		Governing Law; Waiver of Jury Trial	9
Section 1.13		Legal Holidays	9
Section 1.14		References to Currency	9
Section 1.15		Force Majeure	9
Section 1.16		USA PATRIOT Act	9
ARTICLE II
SECURITY FORMS
Section 2.01		Forms Generally	9
Section 2.02		Form of Trustee’s Certificate of Authentication	10
Section 2.03		Securities Issuable in the Form of a Global Security	10
ARTICLE III
THE SECURITIES
Section 3.01		Amount Unlimited; Issuable in Series	11
Section 3.02		Denominations	13
Section 3.03		Execution, Authentication, Delivery and Dating	13
Section 3.04		Temporary Securities	14
Section 3.05		Registration, Registration of Transfer and Exchange	14
Section 3.06		Mutilated, Destroyed, Lost and Stolen Securities	15
Section 3.07		Payment of Interest; Interest Rights Preserved	16
Section 3.08		Persons Deemed Owners	16
Section 3.09		Cancellation	17
Section 3.10		Computation of Interest	17
Section 3.11		CUSIP Numbers	17
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01		Satisfaction and Discharge of Indenture	17
Section 4.02		Application of Trust Funds; Indemnification	18

Section 4.03		Defeasance and Discharge of Indenture	18
Section 4.04		Defeasance of Certain Obligations	20
ARTICLE V
REMEDIES
Section 5.01		Events of Default	20
Section 5.02		Acceleration of Maturity; Rescission and Annulment	22
Section 5.03		Collection of Indebtedness and Suits For Enforcement By Trustee	22
Section 5.04		Trustee May File Proofs of Claim	23
Section 5.05		Trustee May Enforce Claims Without Possession of Securities	23
Section 5.06		Application of Money Collected	24
Section 5.07		Limitation on Suits	24
Section 5.08		Unconditional Right of Holders to Receive Principal, Premium and Interest	24
Section 5.09		Restoration of Rights and Remedies	24
Section 5.10		Rights and Remedies Cumulative	25
Section 5.11		Delay or Omission Not Waiver	25
Section 5.12		Control by Holders	25
Section 5.13		Waiver of Past Defaults	25
Section 5.14		Undertaking for Costs	25
Section 5.15		Waiver of Stay or Extension Laws	26
ARTICLE VI
THE TRUSTEE
Section 6.01		Certain Duties and Responsibilities	26
Section 6.02		Notice of Defaults	27
Section 6.03		Certain Rights of Trustee	27
Section 6.04		Not Responsible for Recitals or Issuance of Securities	28
Section 6.05		May Hold Securities	28
Section 6.06		Money Held in Trust	28
Section 6.07		Compensation, Reimbursement and Indemnification	28
Section 6.08		Disqualification; Conflicting Interests	29
Section 6.09		Corporate Trustee Required; Eligibility	29
Section 6.10		Resignation and Removal; Appointment of Successor	29
Section 6.11		Acceptance of Appointment by Successor	31
Section 6.12		Merger, Conversion, Consolidation or Succession to Business	31
Section 6.13		Preferential Collection of Claims Against Company or Guarantor	31
ARTICLE VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.02		Preservation of Information; Communications to Holders	32
Section 7.03		Reports by Trustee	33
Section 7.04		Reports	33
ARTICLE VIII
SUCCESSOR CORPORATION
Section 8.01		When Company or Guarantor May Merge or Transfer Assets	34

ARTICLE IX
AMENDMENTS & SUPPLEMENTAL INDENTURES
Section 9.01		Amendments or Supplemental Indentures Without Consent of Holders	35
Section 9.02		Amendments or Supplemental Indentures with Consent of Holders	36
Section 9.03		Execution of Supplemental Indentures	37
Section 9.04		Effect of Supplemental Indentures	37
Section 9.05		Conformity with Trust Indenture Act	37
Section 9.06		Reference in Securities to Supplemental Indentures	37
ARTICLE X
COVENANTS
Section 10.01		Payment of Principal, Premium and Interest	38
Section 10.02		Maintenance of Office or Agency	38
Section 10.03		Money for Securities; Payments to Be Held in Trust	38
Section 10.04		Corporate Existence	39
Section 10.05		Maintenance of Properties	39
Section 10.06		Statement by Officers as to Default	39
Section 10.07		Waiver of Certain Covenants	39
Section 10.08		Calculation of Original Issue Discount	40
ARTICLE XI
THE GUARANTEE
Section 11.01		Unconditional Guarantee	40
Section 11.02		Guarantee for the Benefit of the Holders	41
Section 11.03		Waiver of Subrogation	41
Section 11.04		No Suspension of Remedies	41
Section 11.05		Termination	41
ARTICLE XII
REDEMPTION OF SECURITIES
Section 12.01		Applicability of Article	42
Section 12.02		Election to Redeem; Notice to Trustee	42
Section 12.03		Selection by Trustee of Securities to Be Redeemed	42
Section 12.04		Notice of Redemption	42
Section 12.05		Deposit of Redemption Price	43
Section 12.06		Securities Payable on Redemption Date	43
Section 12.07		Securities Redeemed in Part	43
ARTICLE XIII
SINKING FUNDS
Section 13.01		Applicability of Article	44
Section 13.02		Satisfaction of Sinking Fund Payments with Securities	44
Section 13.03		Redemption of Securities for Sinking Fund	44

ARTICLE XIV
SUBORDINATION
Section 14.01		Agreement to Subordinate	45
Section 14.02		Default on Senior Indebtedness	45
Section 14.03		Liquidation; Dissolution; Bankruptcy	46
Section 14.04		Subrogation	47
Section 14.05		Trustee to Effectuate Subordination	47
Section 14.06		Notice by the Company	47
Section 14.07		Rights of The Trustee; Holders of Senior Indebtedness	48
Section 14.08		Subordination May Not be Impaired	48
Section 14.09		Article Applicable to Paying Agents	49
Section 14.10		Defeasance of This Article	49
Section 14.11		Subordination Language to be Included in Securities	49
Section 14.12		Trustee Not Fiduciary for Holders of Senior Indebtedness	49

INDENTURE, dated as of March 30, 2015, among XLIT Ltd., a Cayman Islands exempted company (herein called the “Company” or the “Issuer”), having its principal office at XL House, 8 St. Stephen’s Green, Dublin 2, Ireland, XL Group plc, an Irish public limited company (herein called the “Guarantor”), having its principal office at XL House, 8 St. Stephen’s Green, Dublin 2, Ireland and Wells Fargo Bank, National Association, a national banking association, as trustee hereunder (herein called the “Trustee”).

 

RECITALS OF THE COMPANY

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.

 

The Guarantor has duly authorized the execution and delivery of this Indenture to provide for its Guarantee of the Securities as in this Indenture provided.

 

All things necessary to make this Indenture a valid agreement of the Company and the Guarantor, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

 

article i

 

DEFINITIONS AND OTHER PROVISIONS OF

GENERAL APPLICATION

 

Section 1.01 Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(1) the terms defined in this article have the meanings assigned to them in this article and include the plural as well as the singular;

 

(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 

(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation;

 

(4) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular article, section or other subdivision; and

 

(5) all references used herein to the male gender shall include the female gender.

 

“Act” when used with respect to any Holder, has the meaning specified in Section 1.04.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of

such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Board of Directors” when used with reference to the Company or the Guarantor means either the board of directors of the Company or the Guarantor, as the case may be, or any duly authorized committee of such board duly authorized to act hereunder.

 

“Board Resolution” means a copy of a resolution, certified by the secretary or an assistant secretary of the Company or the Guarantor, as the case may be, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, delivered to the Trustee.

 

“Business Day” means, with respect to any Securities, a day that in the City of New York or in any Place of Payment is not a day on which banking institutions are authorized by law or regulation to close.

 

“Capital Stock” for any entity means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) shares issued by that entity.

 

“Certificated Securities” means Securities that are in registered definitive form.

 

“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor entity shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor entity.

 

“Company Request” or “Company Order” means a written request or order signed in the name of the Company by its chairman of the board, a vice chairman, its president or a vice president, and by its treasurer, an assistant treasurer, its secretary or an assistant secretary, and delivered to the Trustee.

 

“Corporate Trust Office” means the principal office of the Trustee at which at any particular time the trust created by this Indenture shall be administered, which office, at the time of the execution of this Indenture, is located at 45 Broadway, 14^th Floor, New York, New York 10006, or any office of Trustee or any successor Trustee as may be designated in writing.

 

“Covenant Defeasance” has the meaning specified in Section 4.04.

 

“Defaulted Interest” has the meaning specified in Section 3.07.

 

“Depositary” means, unless otherwise specified by the Company pursuant to either Section 2.03 or 3.01, with respect to Securities of any series issuable or issued as a Global Security, The Depository Trust Company, New York, New York, or any successor thereto registered under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation.

 

“Guarantee” means the guarantee of the Company’s obligations under a given series of Securities by the Guarantor as provided in Article XI of this Indenture.

 

“Guarantor” means the Person named as the “Guarantor” in the first paragraph of this instrument until a successor entity shall have become such pursuant to the applicable provisions hereof, and thereafter “Guarantor” shall mean such successor entity.

 

“Event of Default” has the meaning specified in Section 5.01.

“Global Security” means a Security issued to evidence all or a part of any series of Securities which is executed by the Company and authenticated and delivered by the Trustee to the Depositary or its custodian or pursuant to the Depositary’s instruction, all in accordance with this Indenture and pursuant to a Company Order, which shall be registered in the name of the Depositary or its nominee.

 

“Holder” means a Person in whose name a Security is registered in the Security Register.

 

“Holder Action” has the meaning specified in Section 7.02(d).

 

“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more amendments or indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 3.01.

 

“Interest,” when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

 

“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“Issuer” means the Person named as the “Issuer” in the first paragraph of this instrument until a successor entity shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor entity.

 

“Mandatory Sinking Fund Payment” has the meaning specified in Section 13.01.

 

“Maturity,” when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

“Officers’ Certificate” means a certificate signed by the chairman of the board, the president or a vice president, and by the treasurer, an assistant treasurer, the secretary or an assistant secretary of the Company, and delivered to the Trustee.

 

“Opinion of Counsel” means a written opinion of counsel in a form reasonably acceptable to the Trustee, who may be counsel for the Company or the Guarantor and who shall be acceptable to the Trustee.

 

“Optional Sinking Fund Payment” has the meaning specified in Section 13.01.

 

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.

 

“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(ii) Securities for whose payment or redemption money or evidences of indebtedness in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and

(iii) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

 

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. In case of a dispute as to such right, any decision by the Trustee shall be full protection to the Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all Securities, if any, known by the Company to be owned or held by or for the account of any of the above-described persons; and, subject to Section 6.01, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purposes of any such determination.

 

“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company.

 

“Payment Blockage Notice” has the meaning specified in Section 14.02(b).

 

“Payment Blockage Period” has the meaning specified in Section 14.02(b).

 

“Person” means any individual, corporation, exempted limited company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“Place of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the Securities of that series are payable as specified as contemplated by Section 3.01.

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

 

“Redemption Price,” when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

 

“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.

 

“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter

is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.

 

“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.

 

“Senior Indebtedness,” unless otherwise specified in one or more indentures supplemental hereto or approved pursuant to a Board Resolution in accordance with Section 3.01, means, with respect to the Company, (i) the principal (including redemption payments), premium, if any, interest and other payment obligations in respect of (A) indebtedness of the Company for money borrowed and (B) indebtedness evidenced by securities, debentures, bonds, notes or other similar instruments issued by the Company, including any such securities issued under any deed, indenture or other instrument to which the Company is a party (including, for the avoidance of doubt, indentures pursuant to which subordinated debentures have been or may be issued); (ii) all capital lease obligations of the Company; (iii) all obligations of the Company issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Company, all hedging agreements and agreements of a similar nature thereto and all agreements relating to any such agreements, and all obligations of the Company under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business); (iv) all obligations of the Company for reimbursement on any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; (v) all obligations of the type referred to in clauses (i) through (iv) above of other Persons for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise; (vi) all obligations of the type referred to in clauses (i) through (v) above of other Persons secured by any lien on any property or asset of the Company (whether or not such obligation is assumed by the Company) and (vii) any deferrals, amendments, renewals, extensions, modifications and refundings of all obligations of the type referred to in clauses (i) through (vi) above, in each case whether or not contingent and whether outstanding at the date hereof or thereafter incurred, except, in each case, for the Securities and any such other indebtedness or deferral, amendment, renewal, extension, modification or refunding that contains express terms, or is issued under a deed, indenture or other instrument, which contains express terms, providing that it is subordinate to or ranks pari passu with the Securities. Such Senior Indebtedness shall continue to be Senior Indebtedness and be entitled to the benefits of the subordination provisions of this Indenture irrespective of any amendment, modification or waiver of any term of such Senior Indebtedness and notwithstanding that no express written subordination agreement may have been entered into between the holders of such Senior Indebtedness and the Trustee or any of the Holders.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.

 

“Stated Maturity,” when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Subsidiary” means, with respect to any Person:

 

(1) any corporation or company a majority of whose Capital Stock with voting power, under ordinary circumstances, to elect directors is, at the date of determination, directly or indirectly, owned by such Person (a “subsidiary”), by one or more subsidiaries of such Person or by such Person and one or more subsidiaries of such Person;

 

(2) a partnership in which such Person or a subsidiary of such Person is, at the date of determination, a general partner of such partnership; or

 

(3) any partnership, limited liability company or other Person in which such Person, a subsidiary of such Person or such Person and one or more subsidiaries of such Person, directly or indirectly, at the date of determination, has (x) at least a majority ownership interest or (y) the power to

elect or appoint or direct the election or appointment of the managing partner or member of such Person or, if applicable, a majority of the directors or other governing body of such Person.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and in force at the date as of which this instrument was executed, except as provided in Section 9.05.

 

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

 

“U.S. Government Obligations” means securities which are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as to the timely payment of principal and interest as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company which is a member of the Federal Reserve System and having a combined capital and surplus of at least $50,000,000 as custodian with respect to any such obligation evidenced by such depository receipt or a specific payment of interest on or principal of any such obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the obligation set forth in (i) or (ii) above or the specific payment of interest on or principal of such obligation evidenced by such depository receipt.

 

Section 1.02 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and, where appropriate as to matters of law, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

(1) a statement that the Person signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(3) a statement that, in the opinion of each such Person, such Person has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and

 

(4) a statement as to whether, in the opinion of each such Person, such condition or covenant has been complied with.

 

Section 1.03 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other

such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters is erroneous. Any certificate of counsel or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 1.04 Acts of Holders.

 

(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are received by the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee, the Company and the Guarantor, if made in the manner provided in this Section 1.04.

 

(b) The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in any reasonable manner which the Trustee deems sufficient.

 

(c) The ownership of Securities shall be proved by the Security Register.

 

(d) If the Company shall solicit from the Holders any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. Notwithstanding Trust Indenture Act Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities shall be computed as of such record date; provided, however, that no such authorization, agreement or consent by such Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.

 

(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.

Section 1.05 Notices, Etc., to Trustee, the Company and the Guarantor. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1) the Trustee by any Holder, the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (including a facsimile transmission) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Services – Administrator – XL Group PLC,

 

(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing (including a facsimile transmission) and mailed, first-class postage prepaid, to the Company, addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, to the attention of the secretary of the Company, or

 

(3) the Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing (including a facsimile transmission) and mailed, first-class postage prepaid, to the Guarantor, addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Guarantor, to the attention of the general counsel of the Guarantor.

 

Section 1.06 Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice hereunder. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

In case by reason of the suspension of regular mail service or by reason of any other case it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

Section 1.07 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision which is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required or deemed provision shall control.

 

Section 1.08 Effect of Headings and Table of Contents. The article and section headings herein and the table of contents are for convenience only and shall not affect the construction hereof.

 

Section 1.09 Successors and Assigns. All covenants and agreements in this Indenture by the Company and the Guarantor shall bind their successors and assigns, whether so expressed or not.

 

Section 1.10 Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 1.11 Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

Section 1.12 Governing Law; Waiver of Jury Trial. This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York, and for all purposes will be construed in accordance with the laws of said State without giving effect to principles of conflicts of laws of such State.

 

EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Section 1.13 Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.

 

Section 1.14 References to Currency. All references in this Indenture to “dollars” or “$” are to the currency of the United States of America.

 

Section 1.15 Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

Section 1.16 USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

 

ARTICLE ii

 

SECURITY FORMS

 

Section 2.01 Forms Generally. The Securities of each series shall be in substantially the forms established in one or more indentures supplemental hereto or approved from time to time by or pursuant to a Board Resolution of the Company in accordance with Section 3.01, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and any indenture supplemental hereto, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or securities regulatory authority or as may, consistently herewith, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.

 

The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.

Section 2.02 Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of authentication required by this article shall be in substantially the form set forth below:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
	By:
		Authorized Signatory

 

Section 2.03 Securities Issuable in the Form of a Global Security.

 

(a) If the Issuer shall establish pursuant to Sections 2.01 and 3.01 that the Securities of a particular series are to be issued in whole or in part in the form of one or more Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with Section 3.03 and the Company Order delivered to the Trustee thereunder, authenticate and deliver, such Global Security or Securities, which (i) shall represent, and shall be denominated in an amount equal to the aggregate principal amount of, the Outstanding Securities of such series to be represented by such Global Security or Securities, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or its nominee, (iii) shall be delivered by the Trustee to the Depositary or its custodian or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR (II) BY A NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”

 

(b) Notwithstanding any other provision of this Section 2.03 or of Section 3.05, unless the terms of a Global Security expressly permit such Global Security to be exchanged in whole or in part for individual Securities, a Global Security may be transferred, in whole but not in part and in the manner provided in Section 3.05, only to another nominee of the Depositary for such Global Security, or to a successor Depositary for such Global Security selected or approved by the Issuer or to a nominee of such successor Depositary.

 

(c) (i) If at any time the Depositary for a Global Security notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global Security or if at any time the Depositary for the Securities for such series shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the Issuer shall appoint a successor Depositary with respect to such Global Security. If a successor Depositary for such Global Security is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer will execute a Company Order for the authentication and delivery of individual Securities of such series in exchange for such Global Security, and the Trustee, upon receipt of such Company Order, will authenticate and deliver individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security.

 

(ii) If an Event of Default shall have occurred and be continuing or an event shall have occurred which with the giving of notice or lapse of time or both would constitute an Event of Default

with respect to the Securities represented by such Global Security, the Trustee, upon receipt of a Company Order for the authentication and delivery of individual Securities of such series in exchange for such Global Security, will authenticate and deliver individual Securities of such series of like tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of the Global Security in exchange for such Global Security.

 

(iii) If specified by the Issuer pursuant to Section 3.01 with respect to Securities issued or issuable in the form of a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for individual Securities of such series of like tenor and terms in definitive form on such terms as are acceptable to the Issuer and such Depositary. Thereupon the Issuer shall execute, and the Trustee shall authenticate and deliver, without service charge, (1) to each Person specified by such Depositary a new Security or Securities of the same series of like tenor and terms in definitive form and of any authorized denomination of $2,000 and any integral multiple of $1,000 in excess thereof as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and (2) to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of individual Securities delivered to Holders thereof.

 

(iv) In any exchange provided for in any of the preceding three paragraphs, the Issuer will execute and the Trustee will authenticate and deliver individual Securities in definitive registered form in authorized denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Upon the exchange of a Global Security for individual Securities, such Global Security shall be cancelled by the Trustee. Securities issued in exchange for a Global Security pursuant to this Section 2.03 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered.

 

ARTICLE III

 

THE SECURITIES

 

Section 3.01 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Company and set forth in an Officers’ Certificate of the Company, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,

 

(1) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.03, 3.04, 3.05, 3.06, 9.06 or 12.07);

 

(2) the issue price, expressed as a percentage of the aggregate principal amount;

 

(3) the date or dates on which the principal of the Securities of the series is payable;

 

(4) the rate or rates at which the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on the Interest Payment Date;

 

(5) the obligation, if any, of the Company to redeem, repay or repurchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and

the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed, repaid or repurchased, in whole or in part, pursuant to such obligation;

 

(6) the period of periods within which, the price or prices or ratios at which and the terms and conditions upon which Securities of the series may be redeemed, converted or exchanged, in whole or in part;

 

(7) if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities of the series shall be issuable;

 

(8) if other than the full principal amount, the portion of the principal amount of Securities of the series which will be payable upon declaration of acceleration or provable in bankruptcy;

 

(9) any events of default not set forth in this Indenture;

 

(10) the currency or currencies, including composite currencies, in which payment of the principal of (and premium, if any) and interest, if any, on such Securities shall be payable (if other than the currency of the United States of America), which unless otherwise specified shall be the currency of the United States of America as at the time of payment is legal tender for payment of public or private debts;

 

(11) if the principal of (and premium, if any), or interest, if any, on such Securities are to be payable, at the election of the Company or any Holder thereof, in a coin or currency other than that in which such Securities are stated to be payable, then the period or periods within which, and the terms and conditions upon which, such election may be made;

 

(12) whether interest will be payable in cash or additional Securities at the Company’s or the Holders’ option and the terms and conditions upon which the election may be made;

 

(13) if such Securities are to be denominated in a currency or currencies, including composite currencies, other than the currency of the United States of America, the equivalent price in the currency of the United States of America for purposes of determining the voting rights of Holders of such Securities as Outstanding Securities under this Indenture;

 

(14) if the amount of payments of principal of (and premium, if any), or portions thereof, or interest, if any, on such Securities may be determined with reference to an index, formula or other method based on a coin or currency other than that in which such Securities are stated to be payable, the manner in which such amounts shall be determined;

 

(15) any restrictive covenants or other material terms relating to the offered debt securities, which covenants and terms shall not be inconsistent with the provisions of this Indenture;

 

(16) whether the Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities; the terms and conditions, if any, upon which such Global Security or Securities may be exchanged in whole or in part for other individual Securities; and the Depositary for such Global Security or Securities;

 

(17) if other than as set forth in this Indenture, any terms with respect to subordination of such Securities, including, without limitation, the definition of “Senior Indebtedness”;

 

(18) any listing of such Securities on any securities exchange;

 

(19) additional or alternative provisions, if any, related to defeasance and discharge of the offered debt securities;

(20) the applicability of any additional guarantees;

 

(21) if convertible or exchangeable for other securities, the terms on which such Securities are convertible or exchangeable, including the initial conversion or exchange price, the conversion or exchange period, any events requiring an adjustment of the applicable conversion or exchange price and any requirements relating to the reservation of securities for purposes of conversion in the case of convertible securities;

 

(22) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

 

(23) each initial Place of Payment; and

 

(24) any other terms of the series, which terms shall not be inconsistent with the provisions of this Indenture.

 

All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers’ Certificate or in any such indenture supplemental hereto.

 

If any of the terms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the secretary or an assistant secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the Securities of any series.

 

Section 3.02 Denominations. The Securities of each series shall be issuable in registered form without coupons in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.

 

Section 3.03 Execution, Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by any two of the following individuals: any member of its Board of Directors, its president, treasurer, any of its corporate secretaries, assistant secretary or any of its vice presidents. The signature of any of these individuals on the Securities may be manual, facsimile or electronic (including “.pdf” format).

 

Securities bearing the manual, facsimile or electronic (including “.pdf” format) signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee, in accordance with the Company Order, shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, or by one or more indentures supplemental hereto as provided by Section 9.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,

 

(a) that such form has been established in conformity with the provisions of this Indenture;

 

(b) that such terms have been established in conformity with the provisions of this Indenture;

 

(c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and 

legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles;

 

(d) that all laws and requirements in respect of the execution and delivery by the Company of the Securities have been complied with; and

 

(e) the items set forth in Section 1.02 hereof and such other matters as the Trustee may reasonably request.

 

If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

Each Security shall be dated the date of its authentication unless otherwise provided by the terms established and contemplated by Section 3.01.

 

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.

 

Section 3.04 Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities.

 

If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

 

Section 3.05 Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at one of its offices or agencies maintained pursuant to Section 10.02 or at the office of the Security Registrar a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to Section 2.03 and to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee initially is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided. The Company may act as Security Registrar and may change or appoint a Security Registrar without prior notice to Holders or to the Trustee.

 

Subject to Section 2.03, upon surrender for registration of transfer of any Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor. 

Subject to Section 2.03, at the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

Subject to Section 2.03, all Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.

 

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 2.03, 3.04, 9.06 or 12.07 not involving any transfer.

 

The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of that series selected for redemption (under Section 12.03) and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

 

Each Holder of a Security agrees to indemnify the Company, the Guarantor and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder’s Security in violation of any provision of this Indenture and/or applicable United States federal or state securities law.

 

The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among depositary participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

 

Neither the Trustee nor any agent shall have any responsibility for any actions taken or not taken by the Depositary.

 

Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities. If there shall be delivered to the Company and the Trustee (i)(A) any mutilated Security or (B) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to hold each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for such mutilated Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

 

Upon the issuance of any new Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other 

expenses (including the fees and expenses of the Trustee, which shall include any attorney’s fees and expenses) connected therewith.

 

Every new Security of any series issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security or in exchange for such mutilated Security, shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

 

The provisions of this Section 3.06 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

Section 3.07 Payment of Interest; Interest Rights Preserved. Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.

 

Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:

 

(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

 

(2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section 3.07, each Security lawfully delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 3.08 Persons Deemed Owners. Subject to Section 2.03, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and 

premium, if any) and (subject to Section 3.07) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary.

 

Section 3.09 Cancellation. All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 3.09, except as expressly permitted by this Indenture. The Trustee shall dispose of cancelled Securities in accordance with its customary procedures and deliver evidence of such destruction, at the request of, and at the expense of, the Company.

 

Section 3.10 Computation of Interest. Except as otherwise specified as contemplated by Section 3.01 for the Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 3.11 CUSIP Numbers. The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

ARTICLE IV

SATISFACTION AND DISCHARGE

 

Section 4.01 Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to any series of Securities (except as to (i) any surviving rights of registration of transfer or exchange of Securities herein expressly provided for, (ii) rights hereunder of Holders to receive payments of principal of, and premium, if any, and interest on, Securities, and other rights, duties and obligations of the Holders as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee, (iii) remaining obligations of the Company to make Mandatory Sinking Fund Payments and (iv) the rights, obligations and immunities of the Trustee hereunder), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to any series of Securities, when:

 

(1) either

 

	(a)	all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
	(b)	all such Securities not theretofore delivered to the Trustee for cancellation
	(i) have become due and payable,

	(ii) will become due and payable at their Stated Maturity within one year, or
	(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust (i) money in dollars in an amount (or if the Securities are denominated in any currency other than dollars, an amount of the applicable currency), (ii) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment referred to in this subparagraph, money in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized investment banking firm or firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(2) if all series of Securities are being discharged, the Company has paid or caused to be paid all other sums payable hereunder by the Company; and

 

(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07, and, if money shall have been deposited with the Trustee pursuant to Subclause (1)(b) of this Section 4.01, the obligations of the Trustee under Section 4.02 and the next to last paragraph of Section 10.03, shall survive.

 

Section 4.02 Application of Trust Funds; Indemnification. (a) Subject to the provisions of the next to last paragraph of Section 10.03, all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 4.01, 4.03 or 4.04 and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 4.01, 4.03 or 4.04 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with or received by the Trustee or to make Mandatory Sinking Fund Payments or analogous payments as contemplated by Section 4.03 or 4.04, but such money need not be segregated from other funds except to the extent required by law.

 

(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Section 4.01, 4.03 or 4.04, or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.

 

(c) The Trustee shall deliver or pay to the Company from time to time upon Company Request, any U.S. Government Obligations or money held by it as provided in Section 4.01, 4.03 or 4.04 which, in the opinion of a nationally recognized investment banking firm or firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such obligations or money were deposited or received.

 

Section 4.03 Defeasance and Discharge of Indenture. The Company shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities on the 91st day after the date of the deposit 

referred to in subparagraph (d) of this Section 4.03, and the provisions of this Indenture, as it relates to such Outstanding Securities, shall no longer be in effect (and the Trustee, at the expense of the Company, shall at Company Request, execute proper instruments acknowledging the same), except as to:

 

(a) the rights of Holders of Securities to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of (and premium, if any) and each installment of principal of (and premium, if any) or interest on the Outstanding Securities on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any Mandatory Sinking Fund Payments applicable to the Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities;

 

(b) the Company’s obligations with respect to such Securities under Sections 3.05, 3.06, 10.02 and 10.03; and

 

(c) the obligations of the Company to the Trustee under Section 6.07;

 

provided that the following conditions shall have been satisfied:

 

(d) the Company has or caused to be irrevocably deposited (except as provided in Section 4.02) with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities, (i) money in dollars in an amount (or if the Securities are denominated in any currency other than dollars, an amount of the applicable currency), (ii) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment referred to in clause (A) or (B) of this subparagraph, money in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized investment banking firm or firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge (A) the principal of (and premium, if any) and each installment of principal of (and premium, if any) and interest on the Outstanding Securities on the Stated Maturity of such principal or installment of principal or interest or on the applicable Redemption Date and (B) any Mandatory Sinking Fund Payments applicable to the Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of the Securities;

 

(e) such deposit shall not cause the Trustee with respect to the Securities to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities;

 

(f) such deposit will not result in a breach or violation of, or constitute a default under, any applicable laws, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;

 

(g) no Event of Default or event which with notice or lapse of time would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;

 

(h) the Company has delivered to the Trustee an Officers’ Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company; and

 

(i) if the deposit referred to in subparagraph (d) of this Section 4.03 is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company has delivered to the Trustee an Opinion of Counsel with no material qualifications, or a favorable ruling of the Internal Revenue Service, in either case to the effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred. 

Section 4.04 Defeasance of Certain Obligations. If this Section 4.04 is specified to be applicable to Securities of any series, the Company and the Guarantor may omit to comply with any term, provision or condition set forth in the sections of this Indenture or such Security with respect to the Securities of that series (“Covenant Defeasance”) if:

 

(1) with reference to this Section 4.04, the Company has deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of that series, (i) money in dollars in an amount (or if the Securities are denominated in any currency other than dollars, an amount of the applicable currency), or (ii) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than one day before the due date of any payment referred to in clause (A) or (B) of this subparagraph money in an amount, or (iii) a combination thereof, sufficient, in the opinion of a nationally recognized investment banking firm or firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge (A) the principal of (and premium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (B) any Mandatory Sinking Fund Payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities;

 

(2) such deposit shall not cause the Trustee with respect to the Securities of that series to have a conflicting interest for purposes of the Trust Indenture Act with respect to the Securities of any series;

 

(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;

 

(4) the Company has delivered to the Trustee an Officers’ Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company;

 

(5) if the deposit referred to in subparagraph (1) of this Section 4.04 is to be made on or prior to one year from the Stated Maturity for payment of principal of the Outstanding Securities, the Company has delivered to the Trustee an Opinion of Counsel with no material qualifications, or a favorable ruling of the Internal Revenue Service, in either case to the effect that Holders of the Securities will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit and defeasance had not occurred; and

 

(6) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the defeasance contemplated by this Section 4.04 have been complied with.

 

In the event the Company effects Covenant Defeasance with respect to any Securities and such Securities are declared due and payable because of the occurrence of any Event of Default, other than an Event of Default with respect to any covenant as to which there has been Covenant Defeasance, the U.S. Government Obligations on deposit with the Trustee will be sufficient to pay amounts due on such Securities at the time of the Stated Maturity but may not be sufficient to pay amounts due on such Securities at the time of the acceleration resulting from such Event of Default.

 

ARTICLE V

REMEDIES

 

Section 5.01 Events of Default. 

“Event of Default” (except as otherwise specified or contemplated by Section 3.01 for Securities of any series) wherever used herein with respect to Securities of any series, means any one of the following events:

 

(1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 60 days;

 

(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity;

 

(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series;

 

(4) default in the performance, or breach, of any material covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 5.01 specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series) and continuance of such for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;

 

(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or the Guarantor as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or the Guarantor under any applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;

 

(6) the commencement by the Company or the Guarantor of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or the Guarantor, as the case may be, in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or the Guarantor of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to have a case commenced against it or to seek an order for relief under any applicable bankruptcy, insolvency or other similar law or the taking of corporate action by the Company or the Guarantor in furtherance of any such action;

 

(7) the Guarantee being declared null and void in a judicial proceeding or ceasing to be in full force and effect, or the Guarantor denying or disaffirming its obligations under this Indenture or the Guarantee other than by reason of the termination of this Indenture of the release of such Guarantee in accordance with this Indenture; or

 

(8) any other Event of Default expressly provided with respect to Securities of that series. 

Section 5.02 Acceleration of Maturity; Rescission and Annulment. If an Event of Default (other than an Event of Default resulting from bankruptcy, insolvency or reorganization) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.

 

In the case of an Event of Default resulting from bankruptcy, insolvency or reorganization, which occurs and is continuing with respect to Securities of any series at the time Outstanding, then all unpaid principal of and accrued interest on all such Outstanding Securities of that series shall become immediately due and payable without any notice or other action on the part of the Trustee or the Holders of any Securities of such series.

 

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

 

(1) the Company or the Guarantor has paid or deposited with the Trustee a sum sufficient to pay

 

(a)

all overdue interest (including Defaulted Interest) on all Securities of that series,

 

(b)

the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities,

 

(c)

to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and

 

(d)

all sums paid or advanced by the Trustee and any predecessor Trustee hereunder and all sums due the Trustee and any predecessor Trustee under Section 6.07; and

 

(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.

 

No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

Section 5.03 Collection of Indebtedness and Suits For Enforcement By Trustee. The Company covenants that if

 

(1) default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or

 

(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,

 

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest and, to the extent 

that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including all amounts due the Trustee and any predecessor Trustee under Section 6.07.

 

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, at the expense of Company, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or the Guarantor or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or the Guarantor or any other obligor upon such Securities, wherever situated.

 

If any Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by appropriate judicial proceedings necessary to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

Section 5.04 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered by intervention in such proceeding or otherwise:

 

(1) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

 

(2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee hereunder.

 

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 5.05 Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. 

Section 5.06 Application of Money Collected. Any money collected by the Trustee pursuant to this article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

FIRST: To the payment of all amounts due the Trustee (including its agents and counsel) and each predecessor Trustee hereunder;

 

SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities in respect of which or for the benefit of which such money has been collected ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and

 

THIRD: To the Company or the Guarantor, as applicable.

 

Section 5.07 Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:

 

(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

 

(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders (it being further understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders), or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.

 

Section 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 3.07) interest on such Security on the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

Section 5.09 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. 

Section 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 5.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

Section 5.12 Control by Holders. The Holders of a majority in principal amount of the Outstanding Securities of any series (or if more than one series is affected thereby, of all series so affected, voting as a single class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that:

 

(1) such direction shall not be in conflict with any rule of law or with this Indenture, expose the Trustee to personal liability or be unduly prejudicial to Holders not joining therein, and

 

(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

Nothing in this Indenture shall impair the right of the Trustee to take any other action which is not inconsistent with such direction.

 

Section 5.13 Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default

 

(1) in the payment of the principal of (or premium, if any) or interest on any Security of such series, or

 

(2) in respect of a covenant or provision hereof which under this Indenture cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

 

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

Section 5.14 Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.14 shall not apply to any suit instituted by the Company or the Guarantor, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Securities on or after the Stated Maturity or Maturities expressed in such 

Security (or, in the case of redemption, on or after the Redemption Date). This Section 5.14 shall be in lieu of Section 315(e) of the Trust Indenture Act and such Section 315(e) is hereby expressly excluded from this Indenture, as permitted by the Trust Indenture Act.

 

Section 5.15 Waiver of Stay or Extension Laws. The Company and the Guarantor each covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE VI

 

THE TRUSTEE

 

Section 6.01 Certain Duties and Responsibilities.

 

(a) Except during the continuance of an Event of Default with respect to the Securities of any series,

 

(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to such series, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture.

 

(b) In case an Event of Default has occurred with respect to Securities of any series and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture with respect to such series of Securities, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

 

(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

 

(1) this subsection shall not be construed to limit the effect of Subsection (a) of this Section 6.01;

 

(2) the Trustee shall not be liable for any error or judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

 

(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, determined as provided in Section 5.12 relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and

(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 6.01.

 

Section 6.02 Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such default hereunder actually known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 5.01(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 6.02, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

 

Section 6.03 Certain Rights of Trustee. Subject to the provisions of Section 6.01:

 

(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any Board Resolution, resolution, Officers’ Certificate, certificate, statement, instrument, Opinion of Counsel, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

 

(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers’ Certificate;

 

(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against any costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;

(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

(h) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

(i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

 

(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;

 

(k) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;

 

(l) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;

 

(m) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; and

 

(n) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

Section 6.04 Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

Section 6.05 May Hold Securities. The Trustee, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.12, may otherwise deal with, and collect obligations owed to it by, the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.

 

Section 6.06 Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

 

Section 6.07 Compensation, Reimbursement and Indemnification. The Company agrees:

 

(1) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2) except as otherwise expressly provided herein, to reimburse each of the Trustee and any predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by it in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own negligence or bad faith; and

 

(3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless against, any loss, liability or expense, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, the Guarantor, a Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense is due to its own negligence or bad faith.

 

To ensure the performance of the obligations of the Company hereunder, the Trustee shall have a senior claim to which the Securities are hereby made subordinate upon all property and funds held or collected by the Trustee as such, except property and funds held in trust for the payment of principal of, premium, if any, or interest on particular Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.

 

The provisions of this Section 6.07 shall survive the termination of this Indenture.

 

Section 6.08 Disqualification; Conflicting Interests. The Trustee shall comply with the terms of Section 3.10(b) of the Trust Indenture Act.

 

Section 6.09 Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers having (or, in the case of the subsidiary of a bank holding company that guarantees the obligations of the Trustee under this Indenture, such holding company’s parent shall have) a combined capital and surplus of at least $50,000,000 subject to supervision or examination by federal or state authority. If such corporation or holding company parent publishes reports of condition at least annually, pursuant to law or the requirements of said supervising or examining authority, then for the purposes of this Section 6.09, the combined capital and surplus of such corporation or holding company parent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09, it shall resign immediately in the manner and with the effect hereinafter specified in this article.

 

Section 6.10 Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.

 

(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the first sentence of this subsection may be combined with the instrument called for by Section 6.11.

(c) The Trustee, upon 30 days’ notice, may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Trustee and to the Company.

 

(d) If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may, at the expense of the Company, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(e) If at any time:

 

(1) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months,

 

(2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, upon 30 days’ notice, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

(f) The Company also may remove the Trustee with or without cause if the Company so notifies the Trustee 30 days in advance and if no Default occurs or is continuing during the 30-day period.

 

(g) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

(h) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. The Trustee shall have no liability or responsibility for the actions or inaction of any successor Trustee.

Section 6.11 Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall, at the expense of the Company, duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

 

(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 6.11, as the case may be.

 

(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this article.

 

Section 6.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee (including the administration of this Indenture), shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 6.13 Preferential Collection of Claims Against Company or Guarantor. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities) or the Guarantor, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor) or the Guarantor. A trustee who has resigned or been removed shall be subject to the Trust Indenture Act Section 311(a) to the extent provided therein.

ARTICLE VII

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

Section 7.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee and Security Registrar (if not the Trustee) with respect to the Securities of each series

 

(a) semi-annually, not more than 15 days after each Regular Record Date, or, in the case of any series of Securities on which semi-annual interest is not payable, not more than fifteen days after such semi-annual dates as may be specified by the Trustee, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date or such semi-annual date, as the case may be, and

 

(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished;

 

provided, however, that so long as the Trustee is the Security Registrar, no such list need be furnished.

 

Section 7.02 Preservation of Information; Communications to Holders.

 

(a) The Security Registrar shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished by the Company as provided in Section 7.01. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.

 

(b) If three or more Holders (herein referred to as “applicants”) apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants’ desire to communicate with other Holders with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, at its election, either

 

(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.02(a), or

 

(ii) inform such applicants as to the approximate number of Holders whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.

 

If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 7.02(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment by such requesting Holders, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness

after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee that none of the Company, the Guarantor, the Trustee or any agent thereof shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 7.02(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 7.02(b).

 

(d) Subject to Sections 7.02(a), 7.02(b), 7.02(c) and 6.01, if the Company or any other person (other than the Trustee) shall desire to communicate with Holders of Securities to solicit or obtain from them any proxy, consent, authorization, waiver, approval of a plan of reorganization, arrangement or readjustment or other action (“Holder Action”), the Trustee shall have no duty to participate in such communication or solicitation or the processing of responses in any manner except (i) to furnish the rules and regulations and to perform the functions referred to in Section 1.04 and (ii) to receive (A) the instruments evidencing the Holder Action together with (B) the Officers’ Certificate and Opinion of Counsel referred to below. The Company hereby covenants that any and all communications and solicitations distributed by it in connection with any Holder Action will comply in all material respects with applicable law, including, without limitation, applicable law concerning adequacy of disclosure. The Trustee shall have no responsibility for the accuracy or completeness of any materials circulated to solicit any Holder Action or for any related communications or for the compliance thereof with applicable law. No Holder Action shall become effective until the Trustee shall have received from the Company or other person who solicited the Holder Action the instruments evidencing such Holder Action (x) (in the case of Holder Action solicited by the Company or the representative of the Company’s estate if the Company is the debtor in any bankruptcy or other insolvency proceeding) an Officers’ Certificate and (y) (in all cases) an Opinion of Counsel, each specifying the Holder Action taken and stating that such Holder Action has been duly and validly taken in compliance with this Indenture in all material respects. Such Officers’ Certificate, if any, shall also certify that (after giving effect to such Holder Action) no Event of Default or event or condition which, with notice or lapse of time or both, would become an Event of Default has occurred and is continuing or has not been waived.

 

(e) The Depositary may grant proxies and otherwise authorize its participants which own the Global Securities to give or take any Act which a Holder is entitled to take under this Indenture; provided, however, that the Depositary has delivered a list of such participants to the Trustee.

 

Section 7.03 Reports by Trustee.

 

(a) Within 60 days after September 30 of each year commencing with the first September 30 following the date of this Indenture, the Trustee shall transmit by mail to all Holders, as their names and addresses appear in the Security Register, a brief report dated as of such September 30, to the extent required by Section 3.13(a) of the Trust Indenture Act.

 

(b) The Trustee shall comply with Sections 3.13(b) and 3.13(c) of the Trust Indenture Act.

 

(c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with the Commission and with the Company. The Company will promptly notify the Trustee in writing when any Securities are listed on any stock exchange, or of any delisting thereof.

 

Section 7.04 Reports.

 

The Company shall:

 

(1) file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant

to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (provided that availability of such reports on a website maintained by the Commission shall be deemed to fulfill this requirement); or, if the Company is not required to file information, documents or reports pursuant to either of said sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations; and

 

(2) file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company and the Guarantor with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations.

 

For so long as the Guarantor remains a guarantor under this Indenture, or if at any time any other direct or indirect parent company of the Company is a guarantor of the Securities, the reports, information and other documents required to be filed and furnished pursuant to this Section 7.04 may, at the option of the Company, be filed by and be those of the Guarantor or such other parent, as applicable, rather than the Company.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or the Guarantor’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

ARTICLE VIII

 

SUCCESSOR CORPORATION

 

Section 8.01 When Company or Guarantor May Merge or Transfer Assets. (a) The Company shall not (1) consolidate with or merge with or into any other Person (other than the Guarantor) or convey, transfer, sell or lease its properties and assets substantially as an entirety to any Person (other than the Guarantor), (2) permit any Person (other than the Guarantor) to consolidate with or merge into the Company, or (3) permit any Person (other than the Guarantor) to convey, transfer, sell or lease that Person’s properties and assets substantially as an entirety to the Company, unless:

 

(i) in the case of (1) and (2) above, either (x) the Company shall be the surviving person or (y) the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease the properties and assets of the Company substantially as an entirety is an entity organized and existing under the laws of the United States of America (including any State thereof or the District of Columbia), the United Kingdom, Ireland, the Cayman Islands, Bermuda or any country which is a member of the Organisation for Economic Co-operation and Development or the European Union and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee in form reasonably satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;

 

(ii) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and

 

(iii) the Company shall have delivered to the Trustee an Officers’ Certificate stating that such consolidation, merger, conveyance, transfer, sale or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Section 8.01 and that all conditions precedent herein provided for relating to such transaction have been satisfied.

(b) The Guarantor shall not (1) consolidate with or merge with or into any other Person (other than the Company) or convey, transfer, sell or lease its properties and assets substantially as an entirety to any Person (other than the Company), (2) permit any Person (other than the Company) to consolidate with or merge into the Guarantor, or (3) permit any Person to convey, transfer, sell or lease that Person’s properties and assets substantially as an entirety to the Guarantor, unless:

 

(i) in the case of (1) and (2) above, either (x) the Guarantor shall be the surviving person or (y) the Person (if other than the Guarantor) formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance, transfer or lease the properties and assets of the Guarantor substantially as an entirety is an entity organized and existing under the laws of the United States of America (including any State thereof or the District of Columbia), the United Kingdom, Ireland, the Cayman Islands, Bermuda or any country which is a member of the Organisation for Economic Co-operation and Development or the European Union and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee in form reasonably satisfactory to the Trustee, all of the obligations of the Guarantor under the Securities and this Indenture;

 

(ii) immediately after giving effect to such transaction, no Event of Default, and no event that, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and

 

(iii) the Guarantor shall have delivered to the Trustee an Officers’ Certificate stating that such consolidation, merger, conveyance, transfer, sale or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Section 8.01 and that all conditions precedent herein provided for relating to such transaction have been satisfied.

 

(c) The successor Person formed by such consolidation or into which the Company or the Guarantor is merged or the successor Person to which such conveyance, transfer, sale or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor, as the case may be, under this Indenture with the same effect as if such successor had been named as the Company or Guarantor, respectively, herein; and thereafter, the Company or the Guarantor, as the case may be, shall be discharged from all obligations and covenants under this Indenture and the Securities. Subject to Section 9.03, the Company, the Guarantor, the Trustee and the successor Person shall enter into a supplemental indenture to evidence the succession and substitution of such successor Person and such discharge and release of the Company or the Guarantor. 

 

ARTICLE IX

 

AMENDMENTS & SUPPLEMENTAL INDENTURES

 

Section 9.01 Amendments or Supplemental Indentures Without Consent of Holders. The Company and the Guarantor, when authorized by Board Resolutions, and the Trustee, at any time and from time to time, may amend or supplement this Indenture or the Securities or waive any provision of this Indenture or the Securities without the consent of any Holder, so long as such changes or waivers, other than those in clause (2), do not materially and adversely affect the interests of the Holder:

 

(1) to cure any ambiguity, omission, defect or inconsistency;

 

(2) to make any modifications or amendments that do not, in the good faith opinion of the Company’s or the Guarantor’s Board of Directors and the Trustee, adversely affect the interests of the Holders in any material respect, provided that any amendment or supplement conforming this Indenture, as applied to a series of Securities, to the terms described in the prospectus (including any prospectus supplement) pursuant to which the Securities were initially sold shall be deemed not to adversely affect the interest of Holders; 

(3) to provide for the assumption of the Company’s or the Guarantor’s obligations under this Indenture by a successor upon any merger, consolidation or asset transfer as permitted by and in compliance with Article VIII of this Indenture;

 

(4) to provide any security for or additional guarantees of the Securities;

 

(5) to add Events of Default with respect to the Securities;

 

(6) to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company or the Guarantor by this Indenture;

 

(7) to make any change necessary to comply with the Trust Indenture Act, or any amendment thereto, or to comply with any requirement of the Commission in connection with the qualification of this Indenture under the Trust Indenture Act;

 

(8) to provide for uncertificated Securities in addition to or in place of certificated Securities or to provide for bearer Securities;

 

(9) to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons;

 

(10) to change or eliminate any of the provisions of this Indenture, provided, however, that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision;

 

(11) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01; or

 

(12) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b).

 

Section 9.02 Amendments or Supplemental Indentures with Consent of Holders. With the written consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such amendment or supplement (taken together as one class), the Company and the Guarantor, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may amend or supplement this Indenture or the Securities. However, without the consent of each Holder affected, an amendment of or a supplement to this Indenture or the Securities may not:

 

(1) change the Stated Maturity of the principal of, or premium, if any, or any installment of interest with respect to the Securities;

 

(2) reduce the principal amount of, or the rate of interest on, or any premium payable upon the redemption of, the Securities;

 

(3) change the currency of payment of principal of or interest on the Securities;

 

(4) change the redemption provisions, if any, of any Securities in any manner adverse to the Holders of such Securities;

 

(5) impair the right to institute suit for the enforcement of any payment on or with respect to the Securities; 

(6) reduce the above-stated percentage of Holders of the Securities of any series necessary to modify or amend this Indenture;

 

(7) if the Securities are convertible or exchangeable, adversely affect the right to convert or exchange the Securities in accordance with the provisions of this Indenture;

 

(8) release the Guarantor from any of its obligations under the Guarantee, except in accordance with the terms of this Indenture;

 

(9) modify or change the subordination provisions hereof in any manner which adversely affects the Holders; or

 

(10) modify the foregoing requirements or reduce the percentage of Outstanding Securities necessary to waive any covenant or past default.

 

It shall not be necessary for any Act of the Holders under this Section 9.02 to approve the particular form of any proposed amendment or supplemental indenture, but it shall be sufficient if such Act approves the substance thereof.

 

After an amendment or supplemental indenture under this Section 9.02 becomes effective, the Company shall mail to each Holder a notice briefly describing the amendment or supplemental indenture.

 

An amendment or supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

Section 9.03 Execution of Supplemental Indentures. The Trustee shall sign any supplemental indenture authorized pursuant to this article if the amendment contained therein does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign such supplemental indenture. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and that this Indenture as amended by such supplemental indenture is the valid, binding and enforceable obligation of the Company and Guarantor in accordance with its terms.

 

Section 9.04 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

Section 9.05 Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this article shall conform to the requirements of the Trust Indenture Act as then in effect.

 

Section 9.06 Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

ARTICLE X

COVENANTS

 

Section 10.01 Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture. At the option of the Company, payment of principal (and premium, if any) and interest may be made by wire transfer or (subject to collection) by check mailed to the address of the Person entitled thereto at such address as shall appear in the Security Register.

 

Section 10.02 Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company hereby initially appoints the Trustee its office or agency for each of said purposes. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

Section 10.03 Money for Securities; Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

 

Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.03, that such Paying Agent will:

 

(1) hold all sums held by it for the payment on the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest on the Securities of that series; and

 

(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look, only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be mailed or published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the City, County and State of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

The Company shall have no obligation to make payment of principal of (or premium, if any) or interest on any Security in immediately available funds, except that if the Company shall have received original payment for Securities in immediately available funds it shall make available immediately available funds for payment of the principal of such Securities.

 

Section 10.04 Corporate Existence. Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.

 

Section 10.05 Maintenance of Properties. The Company will use its reasonable efforts to cause all material properties used or useful in the conduct of its business to be maintained and kept in good condition, repair and working order (subject to wear and tear) and supplied with all necessary material equipment and will use its reasonable efforts to cause to be made all necessary material repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 10.05 shall prevent the Company from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business and not disadvantageous in any material respect to the Holders.

 

Section 10.06 Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, a certificate of the principal executive officer, principal financial officer or principal accounting officer of the Company stating whether or not to the best knowledge of the signers thereof the Company or the Guarantor are in default in the performance and observance of any of the terms, provisions and conditions of this Indenture, and if the Company or the Guarantor shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.

 

Section 10.07 Waiver of Certain Covenants. The Company and the Guarantor may omit in any particular instance to comply with any term, provision or condition set forth in this Article X if, before or after the time for such compliance, the Holders of at least a majority in principal amount of the Outstanding Securities (taken together as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition; except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the Guarantor and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. 

Section 10.08 Calculation of Original Issue Discount. The Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.

 

ARTICLE XI

THE GUARANTEE

 

Section 11.01 Unconditional Guarantee.

 

(a) The Guarantor does hereby fully and unconditionally guarantee to the Holders of the Securities of each series all payments of principal, premium, if any, and interest on such Securities when due, in accordance with the provisions of such series of Securities and this Indenture. This Guarantee shall be made on a subordinated basis, with the terms of such subordination in respect of each series of Securities issued hereunder to be set forth in a supplemental indenture hereto.

 

(b) The Guarantor hereby waives notice of acceptance of the Guarantee and of default of performance by the Company, and hereby agrees that payment under the Guarantee shall be subject to no condition other than the giving of a written request for payment stating the fact of default of performance, in the manner provided in Section 1.05 of this Indenture. The Guarantee is a guarantee of payment and not of collection.

 

(c) The obligations of the Guarantor under the Guarantee shall in no way be impaired by: (i) any extension, amendment, modification or renewal of the Securities of the relevant series; (ii) any waiver of any Event of Default, extension of time or failure to enforce any of the provisions of the Securities of the relevant series or the Indenture; or (iii) any extension, moratorium or other relief granted to the Company pursuant to any applicable law or statute.

 

(d) The Guarantor shall be obligated to make payment under the Guarantee, for the benefit of the Holders of each series of Securities, in the same manner in which the Company is obligated to make payments on such series of Securities.

 

(e) Subject to clause (f) below, the Guarantor hereby agrees that:

 

(i) each series of Securities will be paid strictly in accordance with the terms of such series of Securities and the Indenture, regardless of the value, genuineness, validity, regularity or enforceability of such series of Securities and the Indenture, and of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Trustee with respect thereto, to the fullest extent permitted by law; and

 

(ii) the liability of the Guarantor to the extent herein set forth shall be absolute and unconditional, not subject to any reduction, limitation, impairment, termination, defense, offset, counterclaim, or recoupment whatsoever (all of which are hereby expressly waived by the Guarantor), whether by reason of any claim of any character whatsoever, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, or by reason of any liability at any time to the Guarantor or otherwise, whether based upon any obligations or any other agreement or otherwise, and howsoever arising, whether out of action or inaction or otherwise and whether resulting from default, willful misconduct, negligence or otherwise, and without limiting the foregoing, irrespective of:

 

(1) any lack of validity or enforceability of any agreement or instrument relating to the Securities of the relevant series; 

(2) any change in the time, manner or place of payment under, or in any other term in respect of, all or any Securities of the relevant series, or any other amendment or waiver of or consent to any departure from any other agreement relating to such series of Securities;

 

(3) any increase in, addition to, exchange or release of, or nonperfection of any lien on or security interest in, any collateral, or any release or amendment or waiver of or consent to any departure from or failure to enforce any other guarantee, for all or any Securities of the relevant series;

 

(4) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company in respect the Securities of the relevant series;

 

(5) the absence of any action on the part of the Trustee to obtain payment under the Securities of the relevant series or the Indenture from the Company;

 

(6) any insolvency, bankruptcy, reorganization or dissolution, or any similar proceeding of or in respect of the Company, including, without limitation, rejection of the Securities of the relevant series in such bankruptcy; or

 

(7) the absence of notice or any delay in any action to enforce any provision of the Securities of the relevant series or the Indenture or to exercise any right or remedy against the Guarantor or the Company, whether under the Indenture, the Securities of the relevant series or any agreement or any indulgence, compromise or extension granted.

 

(f) Notwithstanding anything to the contrary in the Guarantee, the Guarantor does not waive any defense that would be available to the Company based on a breach, default or misrepresentation by the Trustee, or failure of any condition to the Company’s obligations under the Indenture or the illegality of any provision of the Indenture.

 

(g) The Guarantor further agrees that, to the extent that the Company or the Guarantor makes a payment or payments to the Trustee, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or repaid to the Company or the Guarantor or their respective estate, trustee, receiver or any other party under any bankruptcy laws, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the Guarantee and the advances or part thereof which have been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred.

 

Section 11.02 Guarantee for the Benefit of the Holders. The Guarantee contained in this Indenture is entered into by the Guarantor for the benefit of the Holders from time to time of the Securities. Such provisions shall not be deemed to create any right, or to be in whole or in part for the benefit, of any Person other than the Trustee, the Guarantor, the Holders from time to time of the Securities and their permitted successors and assigns.

 

Section 11.03 Waiver of Subrogation. The Guarantor shall be subrogated to all rights of the Holders of the Securities and the Trustee against the Company pursuant to the provisions of the Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of (and premium, if any) or interest on the Securities of the relevant series issued under the Indenture shall have been paid in full.

 

Section 11.04 No Suspension of Remedies. Nothing contained in this Article XI shall limit the right of the Trustee or the Holders of the Securities to take any action pursuant to Article V of this Indenture or to pursue any other rights or remedies under the Indenture or under applicable law.

 

Section 11.05 Termination. The Guarantee shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until the entire principal of and interest and any premium on the Securities shall have been paid in full or otherwise discharged in accordance with the provisions of this Indenture. 

ARTICLE XII

REDEMPTION OF SECURITIES

 

Section 12.01 Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) in accordance with this article.

 

Section 12.02 Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of Securities of such series to be redeemed, such notice to be accompanied by a written statement signed by an authorized officer of the Company stating that no defaults in the payment of interest or Events of Default with respect to the Securities of that series have occurred (which have not been waived or cured). In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee an Officers’ Certificate evidencing compliance with such restriction.

 

Section 12.03 Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate, subject to the customary procedures of the Depositary, and which may provide for the selection or redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.

 

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

 

Section 12.04 Notice of Redemption. The Company shall give a notice of redemption by first-class mail, postage prepaid, mailed not less than 45 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not such Holder receives the notice. Failure to give notice by mail, or any defect in the notice to any such Holder in respect of any Security, shall not affect the validity of the proceedings for the redemption of any other Security.

 

All notices of redemption shall state:

 

(1) the Redemption Date,

 

(2) the Redemption Price and any accrued interest,

 

(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,

 

(4) that on the Redemption Date the Redemption Price and any accrued interest will become due and payable upon each such Security to be redeemed together with accrued interest thereon and, if applicable, that interest thereon will cease to accrue on and after said date, 

(5) the place or places where such Securities are to be surrendered for payment of the Redemption Price and any accrued interest,

 

(6) that the redemption is for a sinking fund, if such is the case, and

 

(7) the CUSIP number and, if applicable, the ISIN number, of the Securities being redeemed.

 

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s written request, by the Trustee in the name and at the expense of the Company.

 

Section 12.05 Deposit of Redemption Price. On or prior to 10:00 a.m., New York City time, on any Redemption Date, the Company shall deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money, in funds immediately available on the due date, sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.

 

Section 12.06 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified together with accrued interest thereon, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

The Trustee shall not redeem any Securities of any series pursuant to this article (unless all Outstanding Securities of such series are to be redeemed) or mail or give any notice of redemption of Securities during the continuance of an Event of Default hereunder known to the Trustee with respect to such series, except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any moneys theretofore or thereafter received by the Trustee shall, during the continuance of such Event of Default, be deemed to have been collected under Article V and held for the payment of all such Securities of such series. In case such Event of Default shall have been waived as provided in Section 5.13 or the default cured on or before the sixtieth day preceding the Redemption Date, such moneys shall thereafter be applied in accordance with the provisions of this article.

 

Section 12.07 Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. 

ARTICLE XIII

 

SINKING FUNDS

 

Section 13.01 Applicability of Article. The provisions of this article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities of such series.

 

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “Mandatory Sinking Fund Payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “Optional Sinking Fund Payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 13.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

 

Section 13.02 Satisfaction of Sinking Fund Payments with Securities. The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted Optional Sinking Fund Payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

 

Section 13.03 Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company (1) will deliver to the Trustee an Officers’ Certificate (A) stating that no defaults in the payment of interest or Events of Default with respect to Securities of that series have occurred (which have not been waived or cured), (B) specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of Securities of that series, (C) stating whether or not the Company intends to exercise its right, if any, to make an Optional Sinking Fund Payment with respect to such series on the next ensuing sinking fund payment date and, if so, specifying the amount of such Optional Sinking Fund Payment and (D) specifying the portion of such sinking fund payment, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 13.02 and (2) will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date, the Trustee shall select the Securities of such series to be redeemed upon such sinking fund payment date in the manner specified in Section 12.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 12.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 12.05, 12.06 and 12.07. Failure of the Company, on or before any such 60th day, to deliver such Officers’ Certificate and Securities specified in this Section 13.03, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Company (a) that the Mandatory Sinking Fund Payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (b) that the Company will make no Optional Sinking Fund Payment with respect to Securities of such series as provided in this article.

 

The Trustee shall not redeem or cause to be redeemed any Security of a series with sinking fund moneys or mail any notice of redemption of Securities of such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default with respect to such series except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Company a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article V and held for the payment of all such Securities of such series. In case such Event of Default shall have been waived as provided in Section 5.13 or the default cured on or before the 60th day preceding the sinking fund payment date, such moneys

shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section 13.03 to the redemption of such Securities.

 

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

ARTICLE XIV

 

SUBORDINATION

 

Section 14.01 Agreement to Subordinate.

 

(a) The Company covenants and agrees, and each Holder of Securities issued hereunder by such Holder’s acceptance thereof likewise covenants and agrees, that (except as otherwise specified as contemplated by Section 3.01 for Securities of any series) all Securities shall be issued subject to the provisions of this article; and each Holder of a Security, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.

 

(b) The payment by the Company of the principal of, and interest on, the Securities issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and junior in right of payment to the prior payment in full of all Senior Indebtedness of the Company, whether outstanding at the date of this Indenture or thereafter incurred.

 

(c) No provision of this article shall prevent the occurrence of any default or Event of Default hereunder.

 

Section 14.02 Default on Senior Indebtedness.

 

(a) No direct or indirect payment by or on behalf of the Company of principal of, premium, if any, or interest on the Securities, whether pursuant to the terms of the Securities or upon acceleration, by way of repurchase, redemption, defeasance or otherwise, will be made if, at the time of such payment, there exists a default in the payment when due of all or any portion of the obligations under or in respect of any Senior Indebtedness, whether at maturity, on account of mandatory redemption or prepayment, acceleration or otherwise, and such default shall not have been cured or waived or the benefits of this sentence waived by or on of the holders of Senior Indebtedness.

 

(b) In addition, during the continuance of any non-payment default or non-payment event of default with respect to any Senior Indebtedness pursuant to which the maturity thereof may be accelerated, and upon receipt by the Trustee of written notice (a “Payment Blockage Notice”) from a holder or holders of such Senior Indebtedness or the trustee or agent acting on behalf of such Senior Indebtedness, then, unless and until such default or event of default has been cured or waived or has ceased to exist or such Senior Indebtedness has been discharged or repaid in full in cash, or the requisite holders of such Senior Indebtedness have otherwise agreed in writing, no payment of any kind or character with respect to any principal of or interest on or distribution will be made by or on behalf of the Company on account of or with respect to the Securities, during a period (a “Payment Blockage Period”) commencing on the date of receipt of such Payment Blockage Notice by the Trustee and ending 179 days thereafter.

 

(c) Notwithstanding anything herein to the contrary, (x) in no event will a Payment Blockage Period extend beyond 179 days from the date the Payment Blockage Notice in respect thereof was given and (y) there must be 180 days in any 360-day period during which no Payment Blockage Period is in effect. Not more than one Payment Blockage Period may be commenced with respect to the Securities during any period of 360 consecutive days. No default or event of default that existed or was continuing on the date of commencement of any Payment Blockage Period with respect to the Senior Indebtedness initiating such Payment Blockage Period may be, or be made, the basis for the commencement of any other Payment Blockage Period by the holder or holders of such Senior Indebtedness or the trustee or agent acting on behalf of such Senior Indebtedness, whether or not within a

period of 360 consecutive days, unless such default or event of default has been cured or waived for a period of not less than 90 consecutive days.

 

(d) In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee when such payment is prohibited by the preceding paragraph of this Section 13.02, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, to the extent necessary to pay such Senior Indebtedness in full, in cash, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders or to the Trustee.

 

Section 14.03 Liquidation; Dissolution; Bankruptcy.

 

(a) Upon any distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any total or partial dissolution, winding-up, liquidation or reorganization of the Company, whether voluntary or involuntary, assignment for the benefit of creditors or marshalling of the Company’s assets, or in bankruptcy, insolvency, receivership or other similar proceedings, whether voluntary or involuntary, all principal, premium, if any, and interest due or to become due to all Senior Indebtedness of the Company shall first be paid in full in cash, or such payment duly provided for to the satisfaction of the holders of the Senior Indebtedness, before the Holders are entitled to receive or retain any payment; and upon any such dissolution or winding-up or liquidation or reorganization, any payment by the Company, or distribution of assets of the Company of any kind or character whether in cash, property or securities, which the Holders or the Trustee would be entitled to receive from the Company, except for the provisions of this article, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness of the Company or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, to the extent necessary to pay such Senior Indebtedness in full in cash, or such payment duly provided for to the satisfaction of the holders of the Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders or to the Trustee.

 

(b) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee before all Senior Indebtedness of the Company is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, to the extent necessary to pay such Senior Indebtedness in full, in cash, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders or to the Trustee.

 

(c) For purposes of this article, the words “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this article with respect to the Securities to the payment of all Senior Indebtedness of the Company that may at the time be outstanding; provided, however, that (i) such Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The amalgamation or consolidation of the Company with, or the merger of the Company into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its properties or assets substantially as an entirety, to another corporation upon the terms and conditions provided for in Article Eight of this Indenture shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 14.03 if such other corporation shall, as part of such amalgamation, consolidation, merger, conveyance or

transfer, comply with the conditions stated in Article Eight of this Indenture. Nothing in Section 14.02 or in this Section 14.03 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07 of this Indenture.

 

(d) If the Trustee or any Holder of Securities does not file a proper claim or proof of debt in the form required in any proceeding referred to above prior to 30 days before the expiration of the time to file such claim in such proceeding, then the holder of any Senior Indebtedness is hereby authorized, and has the right, to file an appropriate claim or claims for or on behalf of such Holder of Securities.

 

Section 14.04 Subrogation.

 

(a) Subject to the payment in full of all Senior Indebtedness of the Company then outstanding, the rights of the Holders shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to such Senior Indebtedness until the principal of and interest on the Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Senior Indebtedness of any cash, property or securities to which the Holders or the Trustee would be entitled except for the provisions of this article, and no payment over pursuant to the provisions of this article to or for the benefit of the holders of such Senior Indebtedness by Holders or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness of the Company, and the Holders, be deemed to be a payment by the Company to or on account of such Senior Indebtedness. It is understood that the provisions of this article are and are intended solely for the purposes of defining the relative rights of the Holders, on the one hand, and the holders of such Senior Indebtedness, on the other hand.

 

(b) Nothing contained in this Article XIV or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness of the Company, and the Holders, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal of and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Company other than the holders of Senior Indebtedness of the Company nor shall anything herein or therein prevent the Trustee or any Holder of Securities from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this article of the holders of such Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy.

 

(c) Upon any payment or distribution of assets of the Company referred to in this article, the Trustee, subject to the provisions of Section 6.01 of this Indenture, and the Holders shall be entitled to rely conclusively upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, delivered to the Trustee or the Holders, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness and other indebtedness of the Company the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this article.

 

Section 14.05 Trustee to Effectuate Subordination. Each Holder of Securities by such Holder’s acceptance thereof authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this article and appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.

 

Section 14.06 Notice by the Company.

 

(a) The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company that would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this article. Notwithstanding the provisions of this article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this article, unless and until a Responsible Officer of the Trustee shall have received written notice

thereof from the Company or a Holder or holders of Senior Indebtedness or from any representative or trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.01 of this Indenture, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section 14.06 at least two Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which such money was received, and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date.

 

(b) The Trustee, subject to the provisions of Section 6.01 of this Indenture, shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness of the Company (or a trustee or representative on behalf of such holder), to establish that such notice has been given by a holder of such Senior Indebtedness or a trustee or representative on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Senior Indebtedness to participate in any payment or distribution pursuant to this article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this article and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.

 

Section 14.07 Rights of The Trustee; Holders of Senior Indebtedness.

 

(a) The Trustee in its individual capacity shall be entitled to all the rights set forth in this article in respect of any Senior Indebtedness at any time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

 

(b) With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this article and no implied covenants or obligations with respect to the holders of such Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and, subject to the provisions of Section 6.01 of this Indenture, the Trustee shall not be liable to any holder of such Senior Indebtedness if it shall pay over or deliver to Holders, the Company or any other Person money or assets to which any holder of such Senior Indebtedness shall be entitled by virtue of this article or otherwise.

 

Section 14.08 Subordination May Not be Impaired.

 

(a) No right of any present or future holder of any Senior Indebtedness of the Company to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with.

 

(b) Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness of the Company may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders, without incurring responsibility to the Holders and without impairing or releasing the subordination provided in this article or the obligations hereunder of the Holders to the holders of such Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, such Senior Indebtedness, or otherwise amend or supplement in any manner such Senior Indebtedness or any instrument evidencing the same or any agreement under which such Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing such Senior Indebtedness; (iii) release any Person liable in any manner for the collection of such Senior Indebtedness; and (iv) exercise or refrain from exercising or waive any rights against the Company and any other Person.

(c) Each present and future holder of Senior Indebtedness shall be entitled to the benefit of the provisions of this article notwithstanding that such holder is not a party to this Indenture.

 

Section 14.09 Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this article in addition to or in place of the Trustee; provided, however, that this Section 14.09 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.

 

Section 14.10 Defeasance of This Article. Notwithstanding anything contained herein to the contrary, payments from cash or the proceeds of United States Government Obligations held in trust under Article Four hereof by the Trustee (or other qualifying trustee) and which were deposited in accordance with the terms of Article Four hereof and not in violation of Section 14.02 hereof for the payment of principal of and interest on the Securities shall not be subordinated to the prior payment of any Senior Indebtedness or subject to the restrictions set forth in this article, and none of the Holders shall be obligated to pay over any such amount to the Company or any holder of Senior Indebtedness or any other creditor of the Company.

 

Section 14.11 Subordination Language to be Included in Securities. Each Security shall contain a subordination provision which will be substantially in the following form:

 

“The Securities are subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full of all Senior Indebtedness (as defined in the Indenture, or as set forth in one or more indentures supplemental hereto, a Board Resolution in accordance with Section 3.01 of the Indenture or in this Security). Each Holder by accepting a Security agrees to such subordination and authorizes the Trustee to give it affect.”

 

Section 14.12 Trustee Not Fiduciary for Holders of Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Company or to any other person cash, property or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this Article or otherwise. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into this Indenture against the Trustee.

 

[Remainder of page intentionally blank]

IN WITNESS WHEREOF, each party hereto has executed this Indenture as of the day and year first before written.

 

	XLIT LTD.
	By:	/s/ Peter Porrino
		Name: Peter Porrino
		Title:Director

		SIGNED AND DELIVERED AS A DEED FOR AND ON BEHALF OF
		XL GROUP PLC
		as Guarantor
		BY ITS LAWFULLY APPOINTED ATTORNEY
		/s/ Peter Porrino
		Name: Peter Porrino
		Title: Executive Vice President and Chief Financial Officer
		IN THE PRESENCE OF
		Witness
		/s/ Kirstin Gould
		Name: Kirstin Gould
		Address: XL House, 8 St. Stephen’s Green, Dublin 2, Ireland

	WELLS FARGO BANK, NATIONAL ASSOCIATION,
	as Trustee
	By:	/s/ Patrick Giordano
		Name: Patrick Giordano
		Title:   Vice President

Exhibit 4.2

 

XLIT LTD.
as Issuer

 

XL GROUP PUBLIC LIMITED COMPANY
as Guarantor

 

WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee

FIRST SUPPLEMENTAL INDENTURE

DATED AS OF MARCH 30, 2015 TO THE
SUBORDINATED NOTES INDENTURE DATED AS OF MARCH 30, 2015

4.450% SUBORDINATED NOTES DUE 2025

5.500% SUBORDINATED NOTES DUE 2045

 

FIRST SUPPLEMENTAL INDENTURE, dated as of March 30, 2015 (the “First Supplemental Indenture”), by and among XLIT Ltd., a Cayman Islands exempted company (the “Company”), having its principal office at XL House, 8 St. Stephen’s Green, Dublin 2, Ireland; XL Group plc, an Irish public limited company (the “Guarantor”), having its principal office at XL House, 8 St. Stephen’s Green, Dublin 2, Ireland; and Wells Fargo Bank, National Association, a national banking association, as trustee hereunder (the “Trustee”).

 

WHEREAS, the Company, the Guarantor and the Trustee are parties to an Indenture dated as of March 30, 2015 (the “Base Indenture”) providing for the issuance from time to time by the Company of Securities (as defined in Section 1.01 of the Base Indenture) and the Guarantee (as defined in Section 1.01 of the Base Indenture) by the Guarantor;

 

WHEREAS, pursuant to Section 9.01(11) of the Base Indenture, the Company, the Guarantor 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 two new series of Securities under the Base Indenture and has duly authorized the creation and issuance of each such series of Securities and the execution and delivery of this First Supplemental Indenture to modify the Base Indenture and provide certain additional provisions as hereinafter set forth (the Base Indenture, as amended and supplemented by the First Supplemental Indenture, is hereinafter referred to as the “Indenture”);

WHEREAS, the Company and the Guarantor deem it advisable to enter into this First Supplemental Indenture for the purposes of establishing the terms of each such series of Securities and providing for the rights, obligations and duties of the Trustee with respect to each such series of Securities;

 

WHEREAS, the execution and delivery of this First Supplemental Indenture has been authorized by a resolution of the Board of Directors of each of the Company and the Guarantor, or a duly authorized committee thereof;

 

WHEREAS, concurrently 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;

 

WHEREAS, the Company has issued the Fixed/Floating Series E Perpetual Non-Cumulative Preference Ordinary Shares (the “Series E Preferred”) and entered into the Replacement Capital Covenant, dated March 15, 2007, in connection with the Series E Preferred (the “Replacement Capital Covenant”);

 

WHEREAS, the Company desires to terminate the Replacement Capital Covenant pursuant to Section 4(a) thereof and establish a record date for such purposes pursuant to Section 4(c) thereof;

 

WHEREAS, pursuant to the Replacement Capital Covenant, effective the date hereof, the 2045 Subordinated Notes issued hereunder shall automatically become the Covered Debt (as defined in the Replacement Capital Covenant); and

 

WHEREAS, all conditions and requirements of the Base Indenture necessary to make this First 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 FIRST SUPPLEMENTAL INDENTURE WITNESSETH:

 

For and in consideration of the mutual premises and agreements herein contained, the Company, the Guarantor and the Trustee covenant and agree, for the equal and proportionate benefit of all Holders of the 4.450% Subordinated Notes due 2025 (the “2025 Subordinated Notes”) and the 5.500% Subordinated Notes due 2045 (the “2045 Subordinated Notes” and, together with the 2025 Subordinated Notes, the “Subordinated Notes”), 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 First Supplemental Indenture;

(b) a term defined anywhere in this First 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) if, at any time, the Regulated Group is subject to equivalent supervision as provided for at Title III Chapter IV of the Solvency II Directive (or, if the Solvency II Directive is amended in that respect, equivalent supervision or the nearest corresponding concept (if any) as provided for in the Solvency II Directive as amended), references to the Solvency II Directive shall be construed as references to the Equivalent Supervisory Regulations and references to particular provisions of, concepts contained in, or matters provided for in the Solvency II Directive shall be construed as references to the nearest (if any) corresponding provisions of, concepts contained in, or matters provided for in the Equivalent Supervisory Regulations other than such references in the definition of “Equivalent Supervisory Regulations” and in the proviso to clause (ii) of the definition of “Regulatory Event;”

 

(f) if any provision of the Solvency II Directive or other Applicable Supervisory Regulations referred to in this First Supplemental Indenture or in the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, in connection with any requirements applying to the Company, the Guarantor and/or the Regulated Group is amended or replaced so that there is no corresponding provision in the amended or replacement measures, (i) if the requirement concerned is entirely dependent on the existence of such a corresponding provision, the requirement shall cease to apply and (ii) if the requirement concerned is partially dependent on the existence of such a corresponding provision, the requirement shall be deemed modified so that all parts of that requirement solely dependent on that provision shall cease to apply; provided, in each case, that Holders of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, are not adversely affected thereby; and

 

(g) the following terms have the meanings given to them in this Section 1.1(g):

 

“2025 Scheduled Maturity Date” means March 31, 2025.

 

“2045 Scheduled Maturity Date” means March 31, 2045.

 

“Acquisition” means the acquisition by the Guarantor of the entire issued and to be issued share capital of Catlin Group Limited, a Bermuda exempted company, pursuant to the Acquisition Agreements.

 

“Acquisition Agreements” means the Implementation Agreement and the Merger Agreement.

 

“Additional Amounts” has the meaning set forth in Section 2.13(a).

 

“Additional Amounts Event” means, with respect to the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, if an opinion of a recognized independent tax counsel has

been delivered to the Trustee stating that the Company or the Guarantor has or will become obligated to pay Additional Amounts on the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, as a result of any change in or amendment to the laws (or any rules or regulations thereunder) of any Taxing Jurisdiction, or as a result of any change in or amendment to an official interpretation or application of any such laws, rules or regulations by any legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decisions or regulatory determination), which change or amendment becomes effective on or after the issue date of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, and that obligation cannot be avoided by the Company or the Guarantor, as applicable, taking such reasonable measures it (acting in good faith) deems appropriate.

 

“Applicable Supervisory Regulations” means, at any time, the provisions of insurance supervisory laws and any rules and regulations thereunder (including the Solvency II Directive from the time that the provisions of Title III, Chapter II, Section 1 thereof become effective with regard to the Regulated Group, the guidelines and recommendations of EIOPA, the requirements of the Competent Supervisory Authority and any applicable decisions of any court of competent jurisdiction) to the extent applicable, in relation to supervision of the group solvency of the Regulated Group or the single solvency of the Company or the Guarantor, as applicable, at such time.

 

“Arrears of Interest” has the meaning set forth in Section 2.5(a).

 

“Basic Own Funds” means basic own funds within the meaning of the Solvency II Directive or, if the Solvency II Directive is amended to no longer refer to basic own funds or the Solvency II Directive is not part of the Applicable Supervisory Regulations, the nearest corresponding items (if any) under the Solvency II Directive as amended or other Applicable Supervisory Regulations.

 

“Comparable Treasury Issue” means the United States Treasury security selected as having a maturity comparable to the remaining term of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, to be redeemed that would be used, at the time of selection and under customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such 2025 Subordinated Notes or such 2045 Subordinated Notes, as applicable, to be redeemed.

 

“Comparable Treasury Price” means, with respect to any Redemption Date for the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, the average of the Reference Treasury Dealer Quotations for such Redemption Date for the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, to be redeemed, after excluding the highest and lowest Reference Treasury Dealer Quotations, or if the Trustee obtains fewer than four Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations.

 

“Competent Supervisory Authority” means (i) at any time at which the Solvency II Directive is not part of the Applicable Supervisory Regulations, a regulator, if any, of competent jurisdiction regarding compliance of the Regulated Group (or, if applicable, the Company or the Guarantor) with any applicable solvency margin or capital adequacy levels (and, if there is more than one such regulator, one of such regulators designated by the Company), and (ii) at any time at which the

Solvency II Directive is part of the Applicable Supervisory Regulations, the Central Bank of Ireland or the authority that otherwise is the group supervisor (within the meaning of Article 247 of the Solvency II Directive, except where Article 261 of the Solvency II Directive applies, in which case it shall be the third country supervisor referred to in that Article, and, if there is more than one such supervisor, one of such supervisors designated by the Company). Should the Solvency II Directive be amended in either of those respects, the Competent Supervisory Authority shall be the competent supervisory authority (if any) exercising a corresponding role to the group supervisor with respect to the Regulated Group.

 

“Conditions to Redemption” has the meaning forth in Section 3.4(a).

 

“Depositary” has the meaning set forth in Section 2.9(a).

 

“Delegated Regulation” means Article 73.2 of Title II of European Commission Delegated Regulation (EU) 2015/35.

 

“EIOPA” means the European Insurance and Occupational Pensions Authority or any replacement or successor body.

 

“Eligible Own Funds” means (i) own funds (including “Basic Own Funds” and “ancillary own funds”) within the meaning of the Solvency II Directive which (A) are eligible to form part of the items required to meet the Solvency Capital Requirement and (B) meet the requirements of the Delegated Regulation in order to be available to meet the Solvency Capital Requirement or (ii) if the Solvency II Directive is amended to no longer refer to all or part of the foregoing or the Solvency II Directive is no longer part of the Applicable Supervisory Regulations, the nearest corresponding items (if any) to the foregoing under the Solvency II Directive as amended or other Applicable Supervisory Regulations; provided, that if the Delegated Regulation or other Applicable Supervisory Regulations (as applicable) are amended or replaced, then reference to provisions of the Delegated Regulation or other Applicable Supervisory Regulations (as applicable) shall be construed as references to the nearest corresponding provision (if any) of the Delegated Regulation or other Applicable Supervisory Regulations (as applicable) as amended or of the replacement measures.

 

“Equivalent Supervisory Regulations” means the provisions of insurance supervisory laws and any rules and regulations thereunder of a jurisdiction that exercises equivalent supervision as provided for at Title III Chapter IV of the Solvency II Directive (or, if the Solvency II Directive is amended in that respect, the equivalent supervision or the nearest corresponding concept (if any) as provided for in the Solvency II Directive as amended) in relation to supervision of the group solvency of the Regulated Group or the single solvency of the Company or the Guarantor, as applicable, at such time.

 

“Event of Default” has the meaning forth in Section 4.1(b).

 

“Final Maturity Date” means, (i) with respect to the 2025 Subordinated Notes:

 

(A) if, on the 2025 Scheduled Maturity Date, the applicable Conditions to Redemption are satisfied and would continue to be satisfied if such final redemption

payment were made or no such Conditions of Redemption apply, the 2025 Scheduled Maturity Date; or

 

(B) otherwise, following the 2025 Scheduled Maturity Date, on the earlier of (1) the date falling 10 Business Days after the applicable Conditions to Redemption are satisfied and would continue to be satisfied if the final redemption payment were made (so long as such conditions continue to be so satisfied on such 10th Business Day) and (2) a Winding-Up; and

 

(ii) with respect to the 2045 Subordinated Notes:

 

(A) if, on the 2045 Scheduled Maturity Date, the applicable Conditions to Redemption are satisfied and would continue to be satisfied if such final redemption payment were made or no such Conditions of Redemption apply, the 2045 Scheduled Maturity Date; or

 

(B) otherwise, following the 2045 Scheduled Maturity Date, on the earlier of (1) the date falling 10 Business Days after the applicable Conditions to Redemption are satisfied and would continue to be satisfied if the final redemption payment were made (so long as such conditions continue to be so satisfied on such 10th Business Day) and (2) a Winding-Up.

 

“Global Note” means a Global Security representing the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable.

 

“Group Solvency” means group solvency as provided for in Title III Chapter II of the Solvency II Directive.

 

“Guarantor Senior Indebtedness” means, with respect to the Guarantor, (i) the principal (including redemption payments), premium, if any, interest and other payment obligations in respect of (A) indebtedness of the Guarantor for money borrowed and (B) indebtedness evidenced by securities, debentures, bonds, notes or other similar instruments issued by the Guarantor, including any such securities issued under any deed, indenture or other instrument to which the Guarantor is a party (including, for the avoidance of doubt, indentures pursuant to which subordinated debentures have been or may be issued); (ii) all capital lease obligations of the Guarantor; (iii) all obligations of the Guarantor issued or assumed as the deferred purchase price of property, all conditional sale obligations of the Guarantor, all hedging agreements and agreements of a similar nature thereto and all agreements relating to any such agreements, and all obligations of the Guarantor under any title retention agreement (but excluding trade accounts payable arising in the ordinary course of business); (iv) all obligations of the Guarantor for reimbursement on any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction; (v) all obligations of the type referred to in clauses (i) through (iv) above of other Persons for the payment of which the Guarantor is responsible or liable as obligor, guarantor or otherwise; (vi) all obligations of the type referred to in clauses (i) through (v) above of other Persons secured by any lien on any property or asset of the Guarantor (whether or not such obligation is assumed by the Guarantor) and (vii) any deferrals, amendments, renewals, extensions, modifications and refundings of all obligations of the type referred to in clauses (i) through (vi) above, in each case whether or not contingent and whether

outstanding at the date of this First Supplemental Indenture or thereafter incurred, except, in each case, for the Guarantee and any such other indebtedness or deferral, amendment, renewal, extension, modification or refunding that contains express terms, or is issued under a deed, indenture or other instrument, which contains express terms, providing that it is subordinate to or ranks pari passu with the Guarantee. Such Guarantor Senior Indebtedness shall continue to be Senior Indebtedness and be entitled to the benefits of the subordination provisions of this First Supplemental Indenture irrespective of any amendment, modification or waiver of any term of such Guarantor Senior Indebtedness and notwithstanding that no express written subordination agreement may have been entered into between the holders of such Guarantor Senior Indebtedness and the Trustee or any of the Holders.

 

“Implementation Agreement” means the Implementation Agreement, dated January 9, 2015, among the Guarantor, Green Holdings Limited and Catlin Group Limited relating to the Acquisition.

 

“Insolvency Event” has the meaning forth in Section 2.4(e)(iii).

 

“Interest Payment Date” has the meaning set forth in Section 2.3(a)(i).

 

“Issue Date” means March 30, 2015.

 

“Mandatory Deferral Event” has the meaning set forth in Section 2.4(e)(i).

 

“Merger Agreement” means the Merger Agreement, dated January 9, 2015, among the Guarantor, Green Holdings Limited and Catlin Group Limited relating to the Acquisition.

 

“Minimum Capital Requirement” means the minimum capital requirement applicable to the Company, the Guarantor or with regard to the Regulated Group, as applicable, pursuant to the Applicable Supervisory Regulations.

 

“Record Date” has the meaning set forth in Section 2.3(a)(i).

 

“Reference Treasury Dealer” means (i) each of Morgan Stanley & Co. LLC and Goldman, Sachs & Co.; and (ii) two other primary U.S. government securities dealers in New York City (a “Primary Treasury Dealer”) the Company selects. If any of the foregoing ceases to be a Primary Treasury Dealer, the Company must substitute another Primary Treasury Dealer.

 

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date for the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, the average, as determined by the Company, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) for the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, to be redeemed, quoted in writing to the Company by the Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day before the Redemption Date.

 

“Regulated Group” means the Guarantor and all of its subsidiaries and holding companies, if any, from time to time required to be included in the calculation of “group solvency” as provided for at Title III Chapter II, Section 1 of the Solvency II Directive (or if the Solvency II Directive is

amended, the corresponding (if any) provisions thereto) or, if the Solvency II Directive is not part of the Applicable Supervisory Regulations, any other similar or corresponding calculation under the Applicable Supervisory Regulations.

 

“Regulatory Event” means, with respect to the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, if:

 

(i) at any time at which the Solvency II Directive is part of the Applicable Supervisory Regulations, it is permitted under the Solvency II Directive and the Applicable Supervisory Regulations related thereto to include Basic Own Funds qualifying as Tier 2 Capital in Eligible Own Funds to meet the Solvency Capital Requirement of the Company, the Guarantor or the Regulated Group, as applicable, and the Competent Supervisory Authority states in writing to the Company or the Guarantor that (A) under the Solvency II Directive and the Applicable Supervisory Regulations related thereto the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable (in whole or in part) are not or are no longer eligible to qualify for the inclusion in the determination of the Tier 2 Capital for single solvency purposes of the Company or the Guarantor or for group solvency purposes of the Regulated Group; or (B) under the Solvency II Directive and the Applicable Supervisory Regulations related thereto the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, (in whole or in part) no longer fulfill the requirements for such inclusion in the determination of the Tier 2 Capital for single solvency purposes of the Company or the Guarantor or for group solvency purposes of the Regulated Group; provided that upon implementation of the Solvency II Directive the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, did fulfill the requirement for inclusion in the determination of the Tier 2 Capital of the Company, the Guarantor or the Regulated Group, except where in each of (A) and (B) this is the result of exceeding any applicable limits on the inclusion of such securities in the Tier 2 Capital of the Company, the Guarantor or the Regulated Group pursuant to the Applicable Supervisory Regulations; or

 

(ii) at any time at which the Solvency II Directive is no longer part of the Applicable Supervisory Regulations, the Competent Supervisory Authority states in writing to the Company, the Guarantor or a member of the Regulated Group under its jurisdiction that, under Applicable Supervisory Regulations, the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, (in whole or in part) no longer fulfill the requirements for the inclusion in the determination of the Basic Own Funds for single solvency or group solvency purposes of the Company, the Guarantor or the Regulated Group, as applicable, except where this is the result of exceeding any applicable limits on the inclusion of such 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, in the Basic Own Funds pursuant to the Applicable Supervisory Regulations; provided that prior to such statement, the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, did fulfill such requirements.

 

“Relevant Date” means, in respect of any payment of any Additional Amounts, 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 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable.

 

“Replacement Capital Covenant” has the meaning set forth in the recitals.

 

“Scheduled Maturity Date” means the 2025 Scheduled Maturity Date or the 2045 Scheduled Maturity Date, as applicable.

 

“Series E Preferred” has the meaning set forth in the recitals.

 

“Solvency II Directive” means Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009, the further legislative acts of the European Union enacted in relation thereto, and the national legislation implementing the same which is binding on or enforceable by or against the Competent Supervisory Authority in each case as amended from time to time.

 

“Solvency Capital Event” has the meaning forth in Section 2.4(e)(ii).

 

“Solvency Capital Requirement” means the solvency capital requirement or other requirement to maintain assets applicable to the Company or the Guarantor or in respect of the Regulated Group, as applicable, pursuant to the Applicable Supervisory Regulations and, while the Solvency II Directive is part of the Applicable Supervisory Regulations, means the solvency capital requirement applicable to the Company or the Guarantor or in respect of the Regulated Group, as provided for at, and determined in accordance with, Title III Chapter II of the Solvency II Directive and approved, as applicable, by the Competent Supervisory Authority (or, if the Solvency II Directive is amended, the nearest corresponding provisions (if any)). References to Solvency Capital Requirement shall be read as references to the Minimum Capital Requirement where non-compliance with the Minimum Capital Requirement occurs before non-compliance with the Solvency Capital Requirement.

 

“Special Mandatory Redemption Date” means the earlier to occur of (i) December 31, 2015 if the Acquisition has not been consummated on or prior to 5:00 p.m., New York City time, on December 15, 2015; or (ii) the 15th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the Implementation Agreement for any reason.

 

“Special Mandatory Redemption Event” has the meaning set forth in Section 3.5(a).

 

“Special Mandatory Redemption Price” means, with respect to each series of Subordinated Notes, 101% of the aggregate principal amount of the Subordinated Notes of such series then Outstanding, plus accrued and unpaid interest (including Arrears of Interest) to, but excluding, the Special Mandatory Redemption Date, and any Additional Amounts thereon.

 

“Specified Event” means, with respect to a series of Subordinated Notes, the occurrence of any of an Additional Amounts Event, a Tax Event or a Regulatory Event relating to such Series of Subordinated Notes.

 

“Specified Event Redemption” has the meaning forth in Section 3.3(a).

“Tax Event” means, with respect to the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, if an opinion of a recognized independent tax counsel has been delivered to the Trustee stating that, as a result of any change in or amendment to the laws (or any rules or regulations thereunder) of any Taxing Jurisdiction, or as a result of any change in or amendment to an official interpretation or application of any such laws, rules or regulations by any legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decisions or regulatory determination), which change or amendment becomes effective on or after the issue date of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, interest payable by the Company or the Guarantor, as applicable, in respect of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, is no longer, or within 90 days of the date of the opinion will no longer be, fully deductible by the Company or the Guarantor, as applicable, for income tax purposes in the applicable jurisdiction, and that non-deductibility cannot be avoided by the Company or the Guarantor, as applicable, taking such reasonable measures it (acting in good faith) deems appropriate.

 

“Taxing Jurisdiction” means the Cayman Islands, Ireland or Bermuda, or any political subdivision thereof, or any authority or agency therein having the power to tax, or any other jurisdiction from or through which the Company or the Guarantor makes a payment on the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, or the applicable Guarantees or in which the Company or the Guarantor generally becomes subject to taxation.

 

“Tier 2 Capital” means, at any time at which the Solvency II Directive is part of the Applicable Supervisory Regulations, capital meeting the requirements for classification of Basic Own Funds in Tier 2 (or, if the Solvency II Directive is amended so as to no longer refer to Tier 2 in this respect, the nearest corresponding concept (if any) under the Solvency II Directive as amended).

 

“Treasury Rate” means, with respect to any Redemption Date for the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue for the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, to be redeemed, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date with respect to the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, to be redeemed. The Treasury Rate shall be calculated on the third Business Day preceding the applicable Redemption Date.

 

“Winding-Up” means the occurrence of either of the following events:

 

(i) at any time an order is made, or an effective resolution is passed, for the winding-up of the Company or the Guarantor (except, in any such case, a solvent winding-up solely for the purpose of a reconstruction or amalgamation or the substitution in place of the Company or the Guarantor, as applicable, of a successor in business of the Company or the Guarantor, as applicable, the terms of which reconstruction, amalgamation or substitution (A) have previously been approved in writing by the Trustee or by Holders of a majority in aggregate principal amount of the Outstanding Subordinated Notes of the

affected series and (B) do not provide that the Subordinated Notes of such series or any amount in respect thereof shall thereby become payable);

 

(ii) an administrator of the Company or the Guarantor is appointed and such administrator gives notice that it intends to declare and distribute a dividend.

 

ARTICLE II

CREATION OF THE 2025 SUBORDINATED NOTES AND THE
2045 SUBORDINATED 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 two new series of its Securities designated as the 2025 Subordinated Notes and the 2045 Subordinated Notes, as applicable, which Subordinated Notes shall be deemed “Securities” for all purposes under the Indenture.

 

Section 2.2. Form of 2025 Subordinated Notes and 2045 Subordinated Notes.

 

The 2025 Subordinated Notes shall be substantially in the form set forth in Exhibit A hereto, and the 2045 Subordinated Notes shall be substantially in the form set forth in Exhibit B hereto. Exhibits A and B are incorporated herein and made part hereof.

 

Section 2.3. Payment of Interest.

 

(a) (i) The 2025 Subordinated Notes will bear interest from the Issue Date or from the most recent date to which interest has been paid or duly provided for, as the case may be, to the applicable Final Maturity Date or earlier redemption of the 2025 Subordinated Notes as provided in this First Supplemental Indenture, as the case may be, at the rate of 4.450% per annum payable semi-annually in arrears on March 30 and September 30 of each year (each, an “Interest Payment Date”), commencing on September 30, 2015, to the Persons in whose names the 2025 Subordinated Notes were registered at the close of business on the preceding March 15 and September 15, respectively (each a “Record Date”); provided that no Mandatory Deferral Event has occurred and is continuing on the applicable Interest Payment Date. On the Final Maturity Date or earlier date of redemption, the Company will pay accrued and unpaid interest from the most recent date to which interest has been paid or provided for.

 

(ii) The 2045 Subordinated Notes will bear interest from the Issue Date or from the most recent date to which interest has been paid or duly provided for, as the case may be, to the applicable Final Maturity Date or earlier redemption of the 2045 Subordinated Notes as provided in this First Supplemental Indenture, as the case may be, at the rate of 5.500% per annum payable semi-annually in arrears on each Interest Payment Date, commencing on September 30, 2015, to the Persons in whose names the 2045 Subordinated Notes were registered at the close of business on the preceding Record Date; provided that no Mandatory Deferral Event has occurred and is continuing on the applicable Interest Payment Date. On the Final Maturity Date or

earlier date of redemption, the Company will pay accrued and unpaid interest from the most recent date to which interest has been paid or provided for.

 

(b) Interest on the Subordinated Notes will be calculated on the basis of a 360-day year comprised of twelve 30-day months.

 

Section 2.4. Mandatory Deferral of Interest Payments.

 

(a) If, as of any Interest Payment Date, a Mandatory Deferral Event has occurred and is continuing or would occur if payment of interest accrued on the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, were made on such Interest Payment Date, the Company or the Guarantor, as applicable, shall be required to defer payment of all (and not less than all) of the interest accrued on such series of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, as of such Interest Payment Date.

 

(b) The Company shall notify the Trustee and the Holders of the affected series of Subordinated Notes in writing not less than 5 Business Days prior to an Interest Payment Date (or as soon as reasonably practicable if a Mandatory Deferral Event occurs less than 5 Business Days prior to an Interest Payment Date) if a Mandatory Deferral Event has occurred and is continuing or would occur on the Interest Payment Date if such payment of interest were made, which written notice shall state the cause of the Mandatory Deferral Event.

 

(c) An Officers’ Certificate relating to the affected series of Subordinated Notes certifying that (i) a Mandatory Deferral Event has occurred and is continuing, (ii) a Mandatory Deferral Event would occur if payment of interest were made, or (iii) a Mandatory Deferral Event has ceased to occur and payment of interest would not result in the occurrence of a Mandatory Deferral Event, in each case shall, in the absence of manifest error, be treated and accepted by the Company, the Guarantor, the Trustee, the Holders of such series of Subordinated Notes, as applicable, and all other interested parties as correct and sufficient evidence thereof, shall be final and binding on such parties, and the Trustee shall be entitled to rely on such Officers’ Certificate with respect to such series of Subordinated Notes without liability to any Person.

 

(d) Notwithstanding any other provision of the 2025 Subordinated Notes, the 2045 Subordinated Notes or the Indenture, the deferral of any payment of interest on the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, on any Interest Payment Date in accordance with this Section 2.4 will not constitute an Event of Default under the Indenture with respect to the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, and will not give Holders of the Subordinated Notes of such series or the Trustee any right to accelerate repayment of the Subordinated Notes of such series. Any such accrued interest, the payment of which is so deferred, so long as such interest remains unpaid, will constitute Arrears of Interest on such series of Subordinated Notes and will be subject to Section 2.5.

 

(e) As used this in this First Supplemental Indenture:

 

(i) A “Mandatory Deferral Event” with respect to a series of Subordinated Notes shall be deemed to have occurred if, at any time at which the Solvency II Directive is part of the Applicable Supervisory Regulations, as of the relevant date, (A) a corresponding payment would result in, or accelerate the

occurrence of, an Insolvency Event; (B) the Company or the Guarantor, as applicable, has received prior written notice, in accordance with regulations applicable at such time, of an order, direction or other instruction of the Competent Supervisory Authority (1) prohibiting the Company from making payments under that series of Subordinated Notes, (2) prohibiting the Guarantor from making any payments under its Guarantee of that series of Subordinated Notes or (3) requiring the Guarantor or any other member of the Regulated Group under its jurisdiction to procure or otherwise ensure compliance with any of the foregoing and, in the case of each of (1), (2) and (3), such order, direction or other instruction remains in effect; or (C) a Solvency Capital Event either has occurred on or prior to such date and is continuing on such date or would be caused by the payment of interest and/or Arrears of Interest on the Subordinated Notes of such series on the relevant date, unless, in the case of this clause (C), on or prior to such date, (1) the Competent Supervisory Authority has given, and not withdrawn by such date, its prior consent to the payment of the relevant interest and/or Arrears of Interest and (2) the Minimum Capital Requirement is complied with after such payment is made.

 

(ii) A “Solvency Capital Event” will have occurred if (A) the Solvency II Directive is part of the Applicable Supervisory Regulations and (B) the Company, the Guarantor or the Regulated Group, as applicable, does not have sufficient Eligible Own Funds in order to meet the applicable Solvency Capital Requirement.

 

(iii) An “Insolvency Event” will have occurred if, as of the relevant date, the Company or the Guarantor, as applicable, is not, or after making an applicable payment on either the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, or the applicable Guarantee would not be, solvent. An Officers’ Certificate relating to the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, as to the solvency of the Company or the Guarantor, as applicable, shall, in the absence of manifest error, be treated and accepted by the Company, the Guarantor, the Trustee, the Holders of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, and all other interested parties as correct and sufficient evidence thereof, shall be final and binding on such parties, and the Trustee shall be entitled to rely on such Officers’ Certificate with respect to the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, without any liability to any Person.

 

Section 2.5. Arrears of Interest.

 

(a) Any interest in respect of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, not paid on an Interest Payment Date, together with any interest in respect of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, not paid on an earlier Interest Payment Date will, so long as the same remains unpaid, constitute “Arrears of Interest” in respect of such series of Subordinated Notes. Arrears of Interest on the Subordinated Notes of a series shall remain payable for so long as it remains unpaid, and, for the avoidance of doubt, any claims thereon shall rank in right of payment pari passu with the Subordinated Notes of such series. Any reference in the Indenture or a Subordinated Note to principal, premium or interest in respect of a series of Subordinated Notes, any redemption

amount and any other amounts in the nature of principal shall be deemed also to refer to any Arrears of Interest applicable to such series of Subordinated Notes that may be payable under the Indenture, and the express mention of the payment of Arrears of Interest applicable to such series of Subordinated Notes (if applicable) in any provision hereof shall not be construed as excluding Arrears of Interest applicable to such series of Subordinated Notes in those provisions hereof where such express mention is not made.

 

(b) Arrears of mandatorily deferred interest shall bear no interest.

 

(c) At the Company’s option, Arrears of Interest on the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, may be paid in whole or in part to the Persons in whose names the Subordinated Notes of such series are registered as of the close of business on the 15th calendar day (whether or not such date is a Business Day) immediately preceding the date on which payment of such Arrears of Interest is to be made, at any time upon the expiration of not more than 15 nor less than 5 Business Days’ written notice to the Trustee, the Paying Agent and the Holders of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, to such effect (which written notice shall specify the amount of such Arrears of Interest); provided that the Company shall not make any payment of Arrears of Interest if a Mandatory Deferral Event has occurred and is continuing to occur as of the time of such payment.

 

(d) If not previously paid, Arrears of Interest with respect to the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, shall become due and payable, and shall be paid in whole (and not in part), on the earliest of:

 

(i) the next Interest Payment Date for such series of Subordinated Notes on which no Mandatory Deferral Event is continuing or would occur as a result of such payment; or

 

(ii) the date on which a Winding-Up occurs; or

 

(iii) the Final Maturity Date for such series of Subordinated Notes;

 

provided, that in the event of there being Arrears of Interest on the Final Maturity Date, such Arrears of Interest shall be paid before any repayment of principal.

 

Section 2.6. Limit on Amount of Subordinated Notes.

 

(a) (i) The 2025 Subordinated Notes initially will be limited in aggregate principal amount to $500.0 million and may, upon execution of this First Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said 2025 Subordinated Notes in accordance with a Company Order.

 

(ii) The 2045 Subordinated Notes initially will be limited in aggregate principal amount to $500.0 million and may, upon execution of this First Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said 2045 Subordinated Notes in accordance with a Company Order.

(b) (i) The Company may issue from time to time, without giving notice to or seeking the consent of the Holders of the 2025 Subordinated Notes, additional notes having the same terms as the 2025 Subordinated Notes (except for the initial public offering price, first Interest Payment Date (if applicable) and the Issue Date). Any such additional notes, together with the 2025 Subordinated Notes, will constitute a single series of Securities under the Indenture; provided that if such additional notes are not fungible with the 2025 Subordinated Notes for U.S. federal income tax purposes, such additional notes will have a separate CUSIP number or other identifier.

 

(ii) The Company may issue from time to time, without giving notice to or seeking the consent of the Holders of the 2045 Subordinated Notes, additional notes having the same terms as the 2045 Subordinated Notes (except for the initial public offering price, first Interest Payment Date (if applicable) and the Issue Date). Any such additional notes, together with the 2045 Subordinated Notes, will constitute a single series of Securities under the Indenture; provided that if such additional notes are not fungible with the 2045 Subordinated Notes for U.S. federal income tax purposes, such additional notes will have a separate CUSIP number or other identifier.

 

Section 2.7. Nature of Subordinated Notes/Minimum Denomination.

 

(a) The subordination provisions of Article XIV of the Base Indenture apply to the 2025 Subordinated Notes and the 2045 Subordinated Notes.

 

(b) Each series of Subordinated Notes shall be issuable only in registered form and without coupons in denominations of $2,000 and any integral multiples of $1,000 in excess thereof.

 

Section 2.8. No Sinking Fund.

 

Except as described under Section 3.5, the Subordinated Notes do not have the benefit of any mandatory redemption or sinking fund obligation and are not redeemable at the option of the Holders.

 

Section 2.9. Issuance of Subordinated Notes and Payment.

 

(a) Each of the 2025 Subordinated Notes and the 2045 Subordinated Notes, on original issuance, shall be issued in the form of one or more fully registered Global Notes registered in the name of The Depository Trust Company, as Depositary (the “Depositary”), or its nominee, and deposited with the Trustee, as custodian for the Depositary, for credit by the Depositary to the respective accounts of beneficial owners of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, represented thereby (or such other accounts as they may direct).

 

(b) The payment of principal of and the interest on the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, will be payable at the Corporate Trust Office or, at the option of the Company, by check mailed to each Holder at its address set forth in the Security Register; provided, however, that if a Holder has given wire transfer instructions to the Company

and the Paying Agent and Security Registrar at least ten Business Days prior to the applicable payment date, payment of principal of and the interest on the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, will be payable by wire transfer of immediately available funds to the account specified in such instructions.

 

Section 2.10. Subordinated Notes Not Convertible or Exchangeable.

 

The Subordinated Notes will not be convertible or exchangeable for other securities or property.

 

Section 2.11. Guarantee.

 

The Subordinated Notes of each series are entitled to the benefit of the Guarantees set forth in Article XI of the Base Indenture.

 

Section 2.12. Place of Payment.

 

The Paying Agent for the Subordinated Notes of each series shall initially be the Trustee, and the Place of Payment for the Subordinated Notes of each series shall initially be the Corporate Trust Office, which as of the date hereof for such purpose is located at 150 East 42nd Street, 40th Floor, New York, New York 10017. The Company may from time to time designate one or more additional offices or agencies where Subordinated Notes of a series may be presented or surrendered for payment.

 

Section 2.13. Covenants Applicable to the Subordinated Notes.

 

Article X of the Base Indenture shall apply to the Subordinated Notes of each series. Each series of Subordinated Notes shall be entitled to the benefit of each of the covenants set forth in Article X of the Base Indenture and the following additional covenant:

 

(a) Additional Amounts Applicable to the Subordinated Notes. All amounts payable (whether in respect of principal, interest or otherwise) in respect of a series of Subordinated Notes (including, for the avoidance of doubt, payments under the related Guarantees) 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 any Taxing Jurisdiction, unless the withholding or deduction of such taxes, duties, levies, assessments or governmental charges is required by law. In that event, the Company or the Guarantor will pay, or cause to be paid, such additional amounts on such series of Subordinated Notes as may be necessary in order that the net amounts receivable by a Holder of such series of Subordinated Notes 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 of such series of Subordinated Notes had no such withholding or deduction been required (“Additional Amounts”), except that no such Additional Amounts shall be payable on the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable, in relation to any payment (including a payment made in connection with a redemption) in respect of any of the Subordinated Notes of such series:

(i) 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 (including a claim under an applicable double taxation treaty) but, in either case, fails to do so, or is liable for such taxes, duties, levies, assessments or governmental charges in respect of such Subordinated Note by reason of such Person (or such third party) 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 Taxing Jurisdiction, other than (A) the mere holding of such Subordinated Note; (B) the receipt of principal, interest or other amount in respect of such Subordinated Note; or (C) the mere enforcement of rights with respect to such Subordinated Note;

 

(ii) 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 expiration of such period of 30 days;

 

(iii) to a fiduciary, a partnership or person who is not the beneficial owner of such Subordinated Note, if and to the extent that, as a result of an applicable tax treaty, no Additional Amounts would have been payable had the beneficiary, partner or beneficial owner owned such Subordinated Note directly;

 

(iv) on account of any inheritance, gift, estate, personal property, stamp, sales or transfer or similar taxes, duties, levies, assessments or similar governmental charges;

 

(v) on account of any taxes, duties, levies, assessments or governmental charges that are payable otherwise than by withholding from payments in respect of such Subordinated Note;

 

(vi) any taxes imposed on, or withheld or deducted from, a payment to an individual that are required to be made pursuant to European Council Directive 2003/48/EC, European Council Directive 2014/48/EU or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26 and 27, 2000 on the taxation of savings income, or any law implementing or complying with or introduced in order to conform to such Directive or other directive;

 

(vii) any taxes that are withheld or deducted pursuant to sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended, any current or future regulations thereunder, official interpretations thereof, or agreements (including any intergovernmental agreement or any laws, rules or practices implementing such intergovernmental agreement) entered into in connection therewith; or

 

(viii) any combination of items (i) through (vii) above.

In the event that payments in respect of a series of Subordinated Notes are subject to withholding or deduction for or on account of any taxes, the Company or the Guarantor will (i) make any required withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Company and the Guarantor will use commercially reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any taxes so deducted or withheld from each relevant Taxing Jurisdiction imposing such taxes and will use commercially reasonable efforts to provide or make available such certified copies (or other documentary evidence establishing the payment of such taxes) to each Holder.

 

Any reference in the Indenture or a Subordinated Note to principal, premium or interest in respect of a series of Subordinated Notes, any redemption amount and any other amounts in the nature of principal shall be deemed also to refer to any Additional Amounts applicable to such series of Subordinated Notes that may be payable under the Indenture, and the express mention of the payment of Additional Amounts applicable to such series of Subordinated Notes (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts applicable to such series of Subordinated Notes in those provisions hereof where such express mention is not made.

 

Except as otherwise provided in or pursuant to the Indenture, if a series of Subordinated Notes requires the payment of Additional Amounts, at least 30 days prior to each date on which any payments under or with respect to such series of Subordinated Notes are due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 30th 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 such 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 or the Guarantor will pay any present or future stamp, court or documentary taxes or any other excise or property taxes, charges or similar levies that arise in any jurisdiction from the execution, delivery or registration of any series of Subordinated Notes or any other document or instrument referred to therein (other than a transfer of such series of Subordinated Notes) or the receipt of any payments with respect to such series of Subordinated Notes, excluding any such taxes, charges or similar levies imposed by any jurisdiction outside the Taxing Jurisdictions in which a Paying Agent is located, other than those resulting from, or required to be paid in connection with, the enforcement of such series of Subordinated Notes, the Indenture or any other such document or instrument following the occurrence of any Event of Default with respect to such series of Subordinated Notes, as applicable.

 

Section 2.14. Satisfaction and Discharge.

 

(a) Article IV of the Base Indenture shall apply to the Subordinated Notes of each series and the related Guarantees; provided that any applicable Conditions to Redemption shall be satisfied (i) in the case of a discharge of such series of Subordinated Notes, at the time of such discharge, and (ii) in the case of a defeasance of such series of Subordinated Notes, at the time of the deposit of cash or U.S. government obligations as described in Section 4.03(d) of the Base Indenture.

Section 2.15. Modification and Waiver.

 

(a) Article IX of the Base Indenture shall apply to the Subordinated Notes of each series and the related Guarantees; provided that any amendment or modification to the Indenture or a series of Subordinated Notes shall require the prior consent of the Competent Supervisory Authority, if such consent is then required under the Applicable Supervisory Regulations and any amendment or modification made or purported to be made without such consent shall be void.

 

ARTICLE III

REDEMPTION OF THE SUBORDINATED NOTES

 

Pursuant to Section 3.01(6) and Section 12.01 of the Base Indenture, the provisions of this Article III and Article XII of the Base Indenture shall apply to each of the 2025 Subordinated Notes and the 2045 Subordinated Note, as applicable; provided, that (a) the notice periods set forth herein shall supersede those set forth in Section 12.02 and the first paragraph of Section 12.04 of the Base Indenture, and (b) Section 12.06 of the Base Indenture shall be deemed modified to the extent necessary to give effect to the deferral of the applicable redemption payment solely if the applicable Conditions to Redemption are not satisfied on the applicable Redemption Date, as expressly set forth in this Article III.

 

Section 3.1. Final Redemption.

 

(a) Unless previously redeemed or purchased and cancelled, each series of Subordinated Notes shall become finally due and payable, and shall be redeemed, on the Final Maturity Date for such series of Subordinated Notes at a redemption price equal to the principal amount thereof, together with accrued and unpaid interest (including Arrears of Interest) on such series of Subordinated Notes to, but excluding, the Final Maturity Date, and any Additional Amounts thereon.

 

(b) The Company shall notify the Trustee and the Holders of the applicable series of Subordinated Notes in writing not less than 10 Business Days prior to the applicable Scheduled Maturity Date (or as soon as reasonably practicable if the applicable Conditions to Redemption are no longer satisfied as of a date less than 10 Business Days prior to the applicable Scheduled Maturity Date) if the applicable Conditions to Redemption will not be satisfied on the applicable Scheduled Maturity Date, which written notice shall state the cause of the failure to satisfy such conditions, and the redemption of such series of Subordinated Notes shall be deferred until such time as the applicable Conditions to Redemption are satisfied. In such event, the Company shall further notify the Trustee and the Holders of such series of Subordinated Notes in writing not more than 5 Business Days following the satisfaction of the applicable Conditions to Redemption that such conditions have been satisfied and stating the date that final payment on such series of Subordinated Notes will occur, which shall be the 10th Business Day following the date such conditions were satisfied. If at any time following the date of such written notice and prior to the stated Redemption Date the applicable Conditions to Redemption are no longer satisfied, the above notice provisions shall again apply.

Section 3.2. Optional Redemption of Subordinated Notes.

 

(a) Beginning on March 31, 2020 and provided that the applicable Conditions to Redemption have been satisfied and will continue to be satisfied if the optional redemption payment were made on such series of Subordinated Notes, each series of Subordinated Notes may be redeemed, in whole at any time or in part from time to time, at the Company’s option, at a redemption price equal to accrued and unpaid interest (including Arrears of Interest) on the principal amount of such series of Subordinated Notes being redeemed to, but excluding, the Redemption Date, and any Additional Amounts thereon, plus the greater of:

 

(i) with respect to the 2025 Subordinated Notes, (A) 100% of the principal amount of the 2025 Subordinated Notes to be redeemed, and (B) the sum of the present values of the remaining scheduled payments of principal and interest on the 2025 Subordinated Notes to be redeemed (not including any portion of such payments of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 40 basis points; and

 

(ii) with respect to the 2045 Subordinated Notes, (A) 100% of the principal amount of the 2045 Subordinated Notes to be redeemed, and (B) the sum of the present values of the remaining scheduled payments of principal and interest on the 2045 Subordinated Notes to be redeemed (not including any portion of such payments of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 50 basis points.

 

(b) Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the date of redemption to each Holder of the Subordinated Notes of such series to be redeemed. The Company shall notify the Trustee and the Holders of such series of Subordinated Notes in writing not less than 10 Business Days prior to the applicable Redemption Date (or as soon as reasonably practicable if the applicable Conditions to Redemption are no longer satisfied as of a date less than 10 Business Days prior to the applicable Redemption Date) if the applicable Conditions to Redemption will not be satisfied on the applicable Redemption Date, which written notice shall state the cause of the failure to satisfy such conditions, and the redemption shall be deferred until such time as the applicable Conditions to Redemption are satisfied. In such event, the Company shall further notify the Trustee and the Holders of such series of Subordinated Notes in writing not more than 5 Business Days following the satisfaction of the applicable Conditions to Redemption that such conditions have been satisfied and stating the new Redemption Date for such series of Subordinated Notes, which shall be the 10th Business Day following the date such conditions were satisfied. If at any time following the date of such written notice and prior to the new Redemption Date the applicable Conditions to Redemption are no longer satisfied, the above notice provisions shall again apply.

 

(c) Unless the Company defaults in payment of the Redemption Price (including, for this purpose, a non-payment in the event the applicable Conditions to Redemption have not been satisfied), on and after the Redemption Date, interest will cease to accrue on the Subordinated Notes of such series or portions thereof called for redemption.

Section 3.3. Specified Event Redemption of Subordinated Notes.

 

(a) Each series of Subordinated Notes may be redeemed at the Company’s option and sole discretion, in whole but not in part, within 90 days following the occurrence of a Specified Event (a “Specified Event Redemption”); provided that, at the time of such Specified Event Redemption, the applicable Conditions to Redemption are satisfied and will continue to be satisfied after the redemption payment is made and, if not so satisfied, such Specified Event Redemption will be deferred until such time as the Conditions to Redemption are satisfied. A series of Subordinated Notes will be redeemed at a Redemption Price equal to the principal amount thereof, together with accrued and unpaid interest (including Arrears of Interest) on such series of Subordinated Notes being redeemed to, but excluding, the Redemption Date, and any Additional Amounts thereon.

 

(b) Notice of any Specified Event Redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to the Trustee and each Holder of Subordinated Notes of the series to be redeemed at its registered address (which notice will be irrevocable). The Company shall notify the Trustee and the Holders of such series of Subordinated Notes in writing not less than 10 Business Days prior to the applicable Redemption Date (or as soon as reasonably practicable if the applicable Conditions to Redemption are no longer satisfied as of a date less than 10 Business Days prior to the applicable Redemption Date) if the applicable Conditions to Redemption will not be satisfied on the applicable Redemption Date, which written notice shall state the cause of the failure to satisfy such conditions, and the Specified Event Redemption shall be deferred until such time as the applicable Conditions to Redemption are satisfied. In such event, the Company shall further notify the Trustee and the Holders of such series of Subordinated Notes in writing not more than 5 Business Days following the satisfaction of the applicable Conditions to Redemption that such conditions have been satisfied and stating the new Redemption Date for such series of Subordinated Notes, which shall be the 10th Business Day following the date such conditions were satisfied. If at any time following the date of such written notice and prior to the new Redemption Date the applicable Conditions to Redemption are no longer satisfied, the above notice provisions shall again apply.

 

(c) Such notice shall state the specified Redemption Date, the facts establishing the right of the Company or the Guarantor to redeem the Subordinated Notes of such series, and that all Outstanding Subordinated Notes of such series shall be redeemed at the applicable Redemption Price on the Redemption Date automatically and without any further action by the Holders of such series of Subordinated Notes.

 

(d) Unless the Company defaults in the payment of the redemption price (including, for this purpose, a non-payment in the event the applicable Conditions to Redemption have not been satisfied), on and after the Redemption Date, interest will cease to accrue on the Subordinated Notes of such series to be redeemed.

 

Section 3.4. Conditions to Redemptions.

 

(a) The “Conditions to Redemption” are satisfied on any day with respect to a scheduled redemption (including the applicable Scheduled Maturity Date and the applicable Final Maturity Date) or a planned purchase of the Subordinated Notes of a series, if:

(i) the redemption or purchase of the Subordinated Notes of such series would not result in, or accelerate the occurrence of, an Insolvency Event; and

 

(ii) no Solvency Capital Event has occurred and is continuing or would be caused by the redemption or the purchase of the Subordinated Notes of such series, unless (A) the Competent Supervisory Authority has given, and not withdrawn by such date, its prior consent to the redemption of the Subordinated Notes of such series and the payment of accrued and unpaid interest and Arrears of Interest (if any) and any Additional Amounts thereon or to the purchase of the Subordinated Notes of such series (to the extent it may give such prior consent in accordance with the Applicable Supervisory Regulations), (B) the repaid or purchased principal amounts of such series of Subordinated Notes have been replaced by other at least equivalent regulatory capital of at least equal status, and (C) the Minimum Capital Requirement is complied with after the repayment or purchase of such series of Subordinated Notes; provided, that if under the Applicable Supervisory Regulations no such consent, replacement or ongoing compliance with the Minimum Capital Requirement (as the case may be) is required at the time in order for the Subordinated Notes of such series to qualify or continue to qualify, as applicable, as Tier 2 Capital of the Company, the Guarantor or the Regulated Group, such consent, replacement or ongoing compliance with the Minimum Capital Requirement (as the case may be) shall be deemed to be satisfied for the purposes of this clause (ii); and

 

(iii) the Competent Supervisory Authority has given, and not withdrawn by such date, its prior consent to the redemption of the Subordinated Notes of such series and the payment of accrued and unpaid interest and Arrears of Interest (if any) and any Additional Amounts thereon or to the purchase of the Subordinated Notes of such series; provided, that if under the Applicable Supervisory Regulations no such consent is required at the time in order for the Subordinated Notes of such series to qualify or continue to qualify, as applicable, as Tier 2 Capital of the Company, the Guarantor or the Regulated Group, this clause (iii) shall not apply; and

 

(iv) in the event of a redemption or the purchase of the subordinated notes of a series on or prior to March 31, 2020, including pursuant to a Specified Event Redemption, the repaid or purchased principal amounts have been replaced by other at least equivalent regulatory capital of at least equal status as contemplated by the Delegated Regulation or, if the Delegated Regulation is amended or replaced, the nearest corresponding provision (if any) of the Delegated Regulation as amended or of the replacement measure (as applicable); provided, that if under the Applicable Supervisory Regulations no such replacement by other at least equivalent regulatory capital of at least equal status is required at the time in order for the Subordinated Notes of such series to qualify or continue to qualify, as applicable, as Tier 2 Capital of the Company, the Guarantor or the Regulated Group, this clause (iv) shall not apply.

 

(b) In the event that a series of Subordinated Notes are not redeemed as a result of a failure to satisfy the Conditions to Redemption, interest on such series of Subordinated Notes will continue to accrue and be paid on each Interest Payment Date (subject to Section 2.4) until

the first date on which final payment on such series of Subordinated Notes may be made as described above under Section 3.1, at which time the Subordinated Notes of such series will become due and payable, and will be finally redeemed at the principal amount of the Subordinated Notes of such series, together with accrued and unpaid interest (including any Arrears of Interest) and any Additional Amounts thereon in the manner and subject to the conditions stated above.

 

(c) Notwithstanding any other provision in a series of Subordinated Notes or the Indenture, in the event of non-payment on a scheduled Redemption Date resulting from a failure to satisfy the applicable Conditions to Redemption in accordance with this Section 3.4, the series of Subordinated Notes to be redeemed will not become due and payable on such date, and such non-payment will not constitute an Event of Default under the Indenture or the Subordinated Notes of such series and will not give Holders of the Subordinated Notes of such series or the Trustee any right to accelerate repayment of the Subordinated Notes of such series.

 

(d) An Officers’ Certificate relating to a series of Subordinated Notes in connection with any redemption under this Article III certifying that (i) the applicable Conditions to Redemption have not been met or would not be met if the final redemption payment for such series of Subordinated Notes were made, or (ii) the applicable Conditions to Redemption have been met and would continue to be met if the final redemption payment for such series of Subordinated Notes were made or no such Conditions to Redemption apply shall, in the absence of manifest error, be treated and accepted by the Company, the Guarantor, the Trustee, the Holders of the Subordinated Notes of the applicable series and all other interested parties as correct and sufficient evidence thereof, shall be final and binding on such parties, and the Trustee shall be entitled to rely on such Officers’ Certificate without liability to any Person.

 

Section 3.5. Special Mandatory Redemption of Subordinated Notes.

 

(a) If the Acquisition is not consummated, or the Implementation Agreement is terminated, in each case, on or prior to December 15, 2015 (each, a “Special Mandatory Redemption Event”), the Company will be required to redeem all of the Subordinated Notes of each series then Outstanding on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price.

 

(b) Notice of a special mandatory redemption will be mailed (or otherwise delivered to Holders of the 2025 Subordinated Notes and the 2045 Subordinated Notes, as applicable, in accordance with the procedures of DTC) promptly after the occurrence of the Special Mandatory Redemption Event (and in any event no later than 2:00 p.m., New York City time, on the fifth Business Day immediately following such event) to the Trustee and each Holder of the Subordinated Notes of each series at its registered address.

 

(c) The Conditions to Redemption will not apply to a special mandatory redemption.

 

(d) Payment of the Special Mandatory Redemption Price and performance of the Company’s obligations with respect to the special mandatory redemption may be performed in any event by the Guarantor or any of its other subsidiaries on behalf of the Company.

ARTICLE IV

EVENT OF DEFAULT

 

Section 4.1. Event of Default.

 

(a) Sections 5.01, 5.02 and 5.03 of the Base Indenture shall not apply to the 2025 Subordinated Notes or the 2045 Subordinated Notes.

 

(b) An “Event of Default” with respect to the 2025 Subordinated Notes and the 2045 Subordinated Notes, as applicable, will occur only upon the occurrence of a Winding-Up.

 

(c) If an Event of Default under the Indenture occurs, the entire principal amount of the Subordinated Notes of each affected series, together with accrued and unpaid interest (including Arrears of Interest) and any Additional Amounts thereon, shall automatically become due and payable without any declaration or other action on the part of the Trustee or any Holder of the 2025 Subordinated Notes or the 2045 Subordinated Notes, as applicable. The right of acceleration only applies upon the occurrence of an Event of Default under Section 4.1(b). For the avoidance of doubt, any failure to pay interest on a series of Subordinated Notes when due as a result of a Mandatory Deferral Event or any failure to pay principal of a series of Subordinated Notes when due as a result of any of the applicable Conditions to Redemption not being satisfied shall not constitute an Event of Default under the Indenture or such series of Subordinated Notes.

 

(d) Within 90 days after the occurrence of any Event of Default hereunder with respect to the Subordinated Notes of any series or the failure of the Company or the Guarantor to comply with any term or condition under the Subordinated Notes of any series or the Indenture with respect to such series of Subordinated Notes, the Trustee shall transmit by mail to all Holders of Subordinated Notes of such series, as their names and addresses appear in the Security Register, notice of such Event of Default or such failure to comply that is actually known to a Responsible Officer of the Trustee. The foregoing provisions of this Section 4.1(d) replace the provisions of Section 6.02 of the Base Indenture.

 

(e) Notwithstanding anything in this Article IV to the contrary, the Trustee may, at its discretion and without further notice, institute such proceedings or take such steps or actions against the Company or the Guarantor as it may think fit to enforce any term or condition binding on the Company or the Guarantor under each series of Subordinated Notes or the Indenture with respect to such series of Subordinated Notes (other than any payment obligation of the Company or the Guarantor under or arising from such series of Subordinated Notes or the Indenture with respect to such series of Subordinated Notes, including any payment of damages awarded for breach of any obligations thereunder) but in no event shall the Company or the Guarantor, by virtue of the institution of any such proceedings or the taking of such steps or actions, be obliged to pay any sum or sums, in cash or otherwise, sooner than the same would otherwise have been payable by it under the terms of the applicable series of Subordinated Notes. Nothing in this Section 4.1(e) shall, however, (i) prevent the Trustee from proving in any Winding-Up or administration of the Company or the Guarantor and/or claiming in any liquidation of the Company or the Guarantor in respect of any payment obligation of the Company or the Guarantor, in each case where such payment obligation arises from a series of Subordinated Notes or the

Indenture (including, without limitation, payment of any principal, interest (including Arrears of Interest) and any Additional Amounts in respect of such series of Subordinated Notes or any payment of damages awarded for breach of any obligations under such series of Subordinated Notes or the Indenture with respect to such series of Subordinated Notes), or (ii) impair the right of any Holder to receive payment of principal of, or interest (including Arrears of Interest) and any Additional Amounts on such Holder’s Subordinated Notes of any series on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Subordinated Notes of any series.

 

ARTICLE V

SUBORDINATION OF THE GUARANTEES

 

Pursuant to Section 11.01(a) of the Base Indenture, the provisions of this Article IV and Article XI of the Base Indenture shall apply to each of the 2025 Subordinated Notes and the 2045 Subordinated Note, as applicable.

 

Section 5.1. Agreement to Subordinate.

 

(a) The Guarantor covenants and agrees, and each Holder of a series of Subordinated Notes, by such Holder’s acceptance thereof likewise covenants and agrees, that the Guarantee of the 2025 Subordinated Notes and the 2045 Subordinates Notes, as applicable, shall be subject to the provisions of this Article V; and each Holder of the 2025 Subordinated Notes and the 2045 Subordinates Notes, as applicable, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.

 

(b) The payment by the Guarantor of its obligations under the applicable Guarantee shall, to the extent and in the manner hereinafter set forth, be subordinated and junior in right of payment to the prior payment in full of all Guarantor Senior Indebtedness, whether outstanding at the date of this First Supplemental Indenture or thereafter incurred.

 

(c) No provision of this Article V shall prevent the occurrence of any Event of Default under the Indenture or have any effect on the rights of the Holders of a series of Subordinated Notes or the Trustee to make a demand for payment on the Guarantor pursuant to this article.

 

Section 5.2. Default on Guarantor Senior Indebtedness.

 

(a) No direct or indirect payment by or on behalf of the Guarantor in respect of the Guarantee of a series of Subordinated Notes, whether pursuant to the terms of the applicable Guarantee or upon acceleration, by way of repurchase, redemption, defeasance or otherwise of such series of Subordinated Notes, will be made if, at the time of such payment, there exists a default in the payment when due of all or any portion of the obligations under or in respect of any Guarantor Senior Indebtedness, whether at maturity, on account of mandatory redemption or prepayment, acceleration or otherwise, and such default shall not have been cured or waived or the benefits of this sentence waived by or on of the holders of such Guarantor Senior Indebtedness.

(b) In addition, during the continuance of any non-payment default or non-payment event of default with respect to any Guarantor Senior Indebtedness pursuant to which the maturity thereof may be accelerated, and upon receipt by the Trustee of written notice (a “Guarantor Payment Blockage Notice”) from a holder or holders of such Guarantor Senior Indebtedness or the trustee or agent acting on behalf of such Guarantor Senior Indebtedness, then, unless and until such default or event of default has been cured or waived or has ceased to exist or such Guarantor Senior Indebtedness has been discharged or repaid in full in cash, or the requisite holders of such Guarantor Senior Indebtedness have otherwise agreed in writing, no payment of any kind or character with respect to any principal of or interest on or distribution with respect to the affected series of Subordinated Notes will be made by or on behalf of the Guarantor on account of or with respect to the applicable Guarantee, during a period (a “Guarantor Payment Blockage Period”) commencing on the date of receipt of such Guarantor Payment Blockage Notice by the Trustee and ending 179 days thereafter.

 

(c) Notwithstanding anything herein to the contrary, (x) in no event will a Guarantor Payment Blockage Period extend beyond 179 days from the date the Guarantor Payment Blockage Notice in respect thereof was given and (y) there must be 180 days in any 360-day period during which no Guarantor Payment Blockage Period is in effect. Not more than one Guarantor Payment Blockage Period may be commenced with respect to the Guarantee of a series of Subordinated Notes during any period of 360 consecutive days. No default or event of default that existed or was continuing on the date of commencement of any Guarantor Payment Blockage Period with respect to the Guarantor Senior Indebtedness initiating such Guarantor Payment Blockage Period may be, or be made, the basis for the commencement of any other Guarantor Payment Blockage Period with respect to a series of Subordinated Notes by the holder or holders of such Guarantor Senior Indebtedness or the trustee or agent acting on behalf of such Guarantor Senior Indebtedness, whether or not within a period of 360 consecutive days, unless such default or event of default has been cured or waived for a period of not less than 90 consecutive days.

 

(d) In the event that, notwithstanding the foregoing, any payment under the applicable Guarantee shall be received by the Trustee when such payment is prohibited by Section 5.2(c), such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Guarantor Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Guarantor, to the extent necessary to pay such Guarantor Senior Indebtedness in full, in cash, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Guarantor Senior Indebtedness, before any payment or distribution is made to the Holders of the applicable series of Subordinated Notes or to the Trustee under the applicable Guarantee.

 

Section 5.3. Liquidation; Dissolution; Bankruptcy.

 

(a) Upon any distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, to creditors upon any total or partial dissolution, winding-up, liquidation or reorganization of the Guarantor, whether voluntary or involuntary, assignment for the benefit of creditors or marshalling of the Guarantor’s assets, or in bankruptcy, insolvency, receivership or other similar proceedings, whether voluntary or involuntary, all principal,

premium, if any, and interest due or to become due to all Guarantor Senior Indebtedness shall first be paid in full in cash, or such payment duly provided for to the satisfaction of the holders of the Guarantor Senior Indebtedness, before the Holders of either series of Subordinated Notes are entitled to receive or retain any payment under the applicable Guarantee; and upon any such dissolution or winding-up or liquidation or reorganization, any payment by the Guarantor, or distribution of assets of the Guarantor of any kind or character whether in cash, property or securities, which the Holders of either series of Subordinated Notes or the Trustee would be entitled to receive from the Guarantor, except for the provisions of this article, shall be paid by the Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the applicable Holders or by the Trustee under the Indenture if received by them or it, directly to the holders of Guarantor Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Guarantor, to the extent necessary to pay such Guarantor Senior Indebtedness in full in cash, or such payment duly provided for to the satisfaction of the holders of the Guarantor Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the benefit of the holders such Guarantor Senior Indebtedness, before any payment or distribution is made to the Holders of either series of Subordinated Notes or to the Trustee under the applicable Guarantee.

 

(b) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Guarantor of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee before all Guarantor Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Guarantor Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Guarantor, to the extent necessary to pay such Guarantor Senior Indebtedness in full, in cash, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Guarantor Senior Indebtedness, before any payment or distribution is made to the Holders of either series of Subordinated Notes or to the Trustee under the applicable Guarantee.

 

(c) For purposes of this article, the words “cash, property or securities” shall not be deemed to include shares of stock of the Guarantor as reorganized or readjusted, or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this article with respect to the Guarantee to the payment of all Guarantor Senior Indebtedness that may at the time be outstanding; provided, however, that (i) such Guarantor Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Guarantor Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The amalgamation or consolidation of the Guarantor with, or the merger of the Guarantor into, another corporation or the liquidation or dissolution of the Guarantor following the conveyance or transfer of its properties or assets substantially as an entirety, to another corporation upon the terms and conditions provided for in Article VIII of the Base Indenture shall not be deemed a dissolution, winding-up, liquidation or

reorganization for the purposes of this Section 5.3 if such other corporation shall, as part of such amalgamation, consolidation, merger, conveyance or transfer, comply with the conditions stated in Article VIII of the Base Indenture. Nothing in Section 5.2 or in this Section 5.3 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07 of the Base Indenture.

 

(d) If the Trustee or any Holder of a series of Subordinated Notes does not file a proper claim or proof of debt in the form required in any proceeding referred to above prior to 30 days before the expiration of the time to file such claim in such proceeding, then the holder of any Guarantor Senior Indebtedness is hereby authorized, and has the right, to file an appropriate claim or claims for or on behalf of such Holder.

 

Section 5.4. Subrogation.

 

(a) Subject to the payment in full of all Guarantor Senior Indebtedness then outstanding, the rights of the Holders of the applicable series of Subordinated Notes shall be subrogated to the rights of the holders of such Guarantor Senior Indebtedness to receive payments or distributions of cash, property or securities of the Guarantor applicable to such Guarantor Senior Indebtedness until the principal of and interest on the applicable series of Subordinated Notes shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Guarantor Senior Indebtedness of any cash, property or securities to which the Holders of such series of Subordinated Notes or the Trustee would be entitled except for the provisions of this article, and no payment over pursuant to the provisions of this Article to or for the benefit of the holders of such Guarantor Senior Indebtedness by such Holders or the Trustee, shall, as between the Guarantor, its creditors other than holders of such Guarantor Senior Indebtedness, and such Holders, be deemed to be a payment by the Guarantor to or on account of such Guarantor Senior Indebtedness. It is understood that the provisions of this article are and are intended solely for the purposes of defining the relative rights of the Holders of each series of Subordinated Notes, on the one hand, and the holders of such Guarantor Senior Indebtedness, on the other hand.

 

(b) Nothing contained in this Article V or elsewhere in the Indenture or in a series of Subordinated Notes is intended to or shall impair, as between the Guarantor, its creditors other than the holders of Guarantor Senior Indebtedness, and the Holders of such series of Subordinated Notes, the obligation of the Guarantor, which is absolute and unconditional, to make payments on the applicable Guarantee as and when the same shall become due and payable in accordance with its terms, or is intended to or shall affect the relative rights of the Holders of such series of Subordinated Notes and creditors of the Guarantor other than the holders of Guarantor Senior Indebtedness of the Company nor shall anything herein or therein prevent the Trustee or any Holder of such series of Subordinated Notes from exercising all remedies otherwise permitted by applicable law upon default under the Indenture with respect to such series of Subordinated Notes, subject to the rights, if any, under this article of the holders of such Guarantor Senior Indebtedness in respect of cash, property or securities of the Guarantor received upon the exercise of any such remedy.

 

(c) Upon any payment or distribution of assets of the Guarantor referred to in this article, the Trustee, subject to the provisions of Section 6.01 of the Base Indenture, and the Holders of each series of Subordinated Notes shall be entitled to rely conclusively upon any order

or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, delivered to the Trustee or the Holders of each series of Subordinated Notes, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of Guarantor Senior Indebtedness and other indebtedness of the Guarantor the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this article.

 

Section 5.5. Trustee to Effectuate Subordination.

 

(a) Each Holder of each series of Subordinated Notes by such Holder’s acceptance thereof authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this article and appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.

 

Section 5.6. Notice by the Company.

 

(a) The Guarantor shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Guarantor that would prohibit the making of any payment of monies to or by the Trustee in respect of the Guarantee of any series of Subordinated Notes pursuant to the provisions of this article. Notwithstanding the provisions of this article or any other provision of the Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of monies to or by the Trustee in respect of the applicable Guarantee pursuant to the provisions of this article, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Guarantor or a Holder of such series of Subordinated Notes or holders of Guarantor Senior Indebtedness or from any representative or trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section 6.01 of the Base Indenture, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section 5.6 at least two Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Subordinated Note), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which such money was received, and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date.

 

(b) The Trustee, subject to the provisions of Section 6.01 of the Base Indenture, shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Guarantor Senior Indebtedness (or a trustee or representative on behalf of such holder), to establish that such notice has been given by a holder of such Guarantor Senior Indebtedness or a trustee or representative on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Guarantor Senior Indebtedness to participate in any payment or distribution pursuant to this article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such

Guarantor Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this article and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.

 

Section 5.7. Rights of the Trustee; Holders of Guarantor Senior Indebtedness.

 

(a) The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article V in respect of any Guarantor Senior Indebtedness at any time held by it, to the same extent as any other holder of Guarantor Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.

 

(b) With respect to the holders of Guarantor Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article V and no implied covenants or obligations with respect to the holders of such Guarantor Senior Indebtedness shall be read into the Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of such Guarantor Senior Indebtedness and, subject to the provisions of Section 6.01 of the Base Indenture, the Trustee shall not be liable to any holder of such Guarantor Senior Indebtedness if it shall pay over or deliver to Holders of the applicable series of Subordinated Notes, the Guarantor or any other Person money or assets to which any holder of such Guarantor Senior Indebtedness shall be entitled by virtue of this article or otherwise.

 

Section 5.8. Subordination May Not be Impaired.

 

(a) No right of any present or future holder of any Guarantor Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Guarantor with the terms, provisions and covenants of the Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with.

 

(b) Without in any way limiting the generality of the foregoing paragraph, the holders of Guarantor Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of a series of Subordinated Notes, without incurring responsibility to the Holders of such series of Subordinated Notes and without impairing or releasing the subordination provided in this article or the obligations hereunder of the Holders of such series of Subordinated Notes to the holders of such Guarantor Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, such Guarantor Senior Indebtedness, or otherwise amend or supplement in any manner such Guarantor Senior Indebtedness or any instrument evidencing the same or any agreement under which such Guarantor Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing such Guarantor Senior Indebtedness; (iii) release any Person liable in any manner for the collection of such Guarantor Senior Indebtedness; and (iv) exercise or refrain from exercising or waive any rights against the Guarantor and any other Person.

(c) Each present and future holder of Guarantor Senior Indebtedness shall be entitled to the benefit of the provisions of this article notwithstanding that such holder is not a party to this Indenture.

 

Section 5.9. Article Applicable to Paying Agents.

 

(a) In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting under the Indenture, the term “Trustee” as used in this article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this article in addition to or in place of the Trustee; provided, however, that this Section 5.9 shall not apply to the Guarantor or any Affiliate of the Guarantor if it or such Affiliate acts as Paying Agent.

 

Section 5.10. Defeasance of This Article.

 

(a) Notwithstanding anything contained herein to the contrary, payments from cash or the proceeds of United States Government Obligations held in trust under Article IV of the Base Indenture by the Trustee (or other qualifying trustee) and which were deposited in accordance with the terms of Article IV of the Base Indenture and not in violation of Section 5.2 hereof for the payment of principal of and interest on a series of Subordinated Notes shall not be subordinated to the prior payment of any Guarantor Senior Indebtedness or subject to the restrictions set forth in this article, and none of the Holders of such series of Subordinated Notes shall be obligated to pay over any such amount to the Guarantor or any holder of such Guarantor Senior Indebtedness or any other creditor of the Guarantor.

 

Section 5.11. Subordination Language to be Included in the Subordinated Notes. Each series of Subordinated Notes shall contain a subordination provision which will be substantially in the following form:

 

“The Subordinated Notes and related Guarantees are subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full of all Senior Indebtedness and Guarantor Senior Indebtedness, as applicable. Each Holder by accepting a Subordinated Note agrees to such subordination and authorizes the Trustee to give it affect.”

 

Section 5.12. Trustee Not Fiduciary for Holders of Guarantor Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Guarantor Senior Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of a series of Subordinated Notes or to the Guarantor or to any other Person cash, property or securities to which any holders of Guarantor Senior Indebtedness shall be entitled by virtue of this Article V or otherwise. With respect to the holders of Guarantor Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article V and no implied covenants or obligations with respect to holders of Guarantor Senior Indebtedness shall be read into the Indenture against the Trustee.

ARTICLE VI

TERMINATION OF THE REPLACEMENT CAPITAL COVENANT

 

Section 6.1. Covered Debt; Record Date.

 

Pursuant to Section 4(c) of the Replacement Capital Covenant, the Company hereby establishes March 30, 2015 as the record date to determine the Holders (as defined in Replacement Capital Covenant) of the then-effective series of Covered Debt (as defined in the Replacement Capital Covenant), which will be, as of that date, the 2045 Subordinated Notes, for purposes of consenting to the termination of the Replacement Capital Covenant as provided in this Article VI.

 

Section 6.2. Termination of Replacement Capital Covenant.

 

Subject to Section 6.4, each and every Holder (as defined in the Base Indenture) of the 2045 Subordinated Notes as of March 30, 2015, in such capacity as a Holder (as defined in each Replacement Capital Covenant) of the Covered Debt, irrevocably consents to the termination of the Replacement Capital Covenant and the obligations of the Company thereunder.

 

Section 6.3. Effectiveness of Termination.

 

The termination of the Replacement Capital Covenant and the obligations of the Company described in Section 6.2 above shall be effective immediately after the 2045 Subordinated Notes become the “Covered Debt” for purposes of the Replacement Capital Covenant and no further action of the Holders (as defined in the Replacement Capital Covenant) shall be required to effectuate such termination.

 

Section 6.4. Representations and Agreements.

 

By purchasing the 2045 Subordinated Notes, each Holder (as defined in the Base Indenture) shall be deemed to have represented, warranted and agreed to and with the Company, in each case, as applicable, for itself and its successors, transferees and assigns, that upon the 2045 Subordinated Notes becoming the Covered Debt as defined in and for purposes of the Replacement Capital Covenant, each such Holder (as defined in the Replacement Capital Covenant) and purchaser (i) waives any reliance on any covenant, promise or agreement (whether express or implied) set forth in the Replacement Capital Covenant prior to such termination, and (ii) shall not take or attempt to take any action to enforce any such covenant, promise or agreement set forth the Replacement Capital Covenant prior to such termination.

 

ARTICLE VII

APPOINTMENT OF THE TRUSTEE FOR THE SUBORDINATED NOTES

 

Section 7.1. Appointment of Trustee.

 

Pursuant and subject to the Indenture, the Company and the Guarantor hereby appoint the Trustee as trustee to act on behalf of the Holders of each series of Subordinated Notes, and as the principal Paying Agent and Security Registrar for each series of Subordinated Notes, effective upon

execution and delivery of this First Supplemental Indenture. By execution, acknowledgment and delivery of this First Supplemental Indenture, the Trustee hereby accepts appointment as Trustee, Paying Agent and Security Registrar with respect to each series of Subordinated Notes, and agrees to perform such obligations upon the terms and conditions set forth in the Base Indenture and in this First Supplemental Indenture.

 

Section 7.2. Rights, Powers, Duties and Obligations of the Trustee.

 

Any rights, powers, duties and obligations by any provisions of the Indenture conferred or imposed upon the Trustee shall, insofar as permitted by law, be conferred or imposed upon and exercised or performed by the Trustee with respect to each series of Subordinated Notes.

 

ARTICLE VIII

MISCELLANEOUS

 

Section 8.1. Application of First Supplemental Indenture.

 

Each and every term and condition contained in this First Supplemental Indenture that modifies, amends or supplements the terms and conditions of the Base Indenture with respect to either series of Subordinated Notes shall apply only to the Subordinated Notes of such series created hereby and not to any past or future series of Securities issued under the Base Indenture.

 

Section 8.2. Benefits of First Supplemental Indenture.

 

Nothing contained in this First Supplemental Indenture shall or shall be construed to confer upon any Person other than a Holder of a series of Subordinated Notes, the Company, the Guarantor and the Trustee any right or interest to avail itself or himself, as the case may be, of any benefit under any provision of the Base Indenture or this First Supplemental Indenture related to such series of Subordinated Notes.

 

Section 8.3. Amendment of First Supplemental Indenture. The Company, the Guarantor and the Trustee any time and from time to time, may amend, modify or supplement this First Supplemental Indenture in accordance with the provisions of Article IX of the Base Indenture.

 

Section 8.4. Effective Date.

 

This First Supplemental Indenture shall be effective as of the date first above written and upon the execution and delivery hereof by each of the parties hereto.

 

Section 8.5. Governing Law; Waiver of Jury Trial; Submission to Jurisdiction; Judgment Currency.

 

THIS FIRST SUPPLEMENTAL INDENTURE AND EACH SUBORDINATED NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.

EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE SUBORDINATED NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

Each of the Company, the Guarantor and the Trustee hereby irrevocably and unconditionally submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in the Borough of Manhattan in New York City for the purposes of all legal proceedings arising out of or relating to any series of Subordinated Notes, the Indenture or the transactions contemplated thereby. The Company, the Guarantor and the Trustee irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Each of the Company and the Guarantor hereby designates and appoints Puglisi & Associates, 850 Library Avenue, Suite 204, Newark, Delaware 19711, as its authorized agent upon which process may be served in any legal suit, action or proceeding arising out of or relating to the Indenture which may be instituted in any federal or state court in the Borough of Manhattan, The City of New York, New York, and agrees that service of process upon such agent, and written notice of said service to the Company or the Guarantor, as applicable, by the Person serving the same, shall be deemed in every respect effective service of process upon the Company or the Guarantor, as applicable, in any such suit, action or proceeding and further designate its domicile, the domicile of Puglisi & Associates specified above and any domicile Puglisi & Associates may have in the future as its domicile to receive any notice hereunder (including service of process). If for any reason Puglisi & Associates (or any successor agent for this purpose) shall cease to act as agent for service of process as provided above, the Company and the Guarantor will promptly appoint a successor agent for this purpose reasonably acceptable to the Trustee. The Company and the Guarantor agree to take any and all actions as may be necessary to maintain such designation and appointment of such agent in full force and effect.

 

Each of the Company and the Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium of, or interest or other amount on the Subordinated Notes (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the requisite amount of the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which a final unappealable judgment is entered and (b) its obligations under the Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with clause (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by

judgment being obtained for any other sum due under the Indenture. For purpose of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to be closed.

 

Section 8.6. Counterparts.

 

This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

Section 8.7. Ratification of Base Indenture.

 

The Base Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.

 

Section 8.8. Validity and Sufficiency.

 

The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and the Guarantor.

IN WITNESS WHEREOF, each party hereto has executed this First Supplemental Indenture as of the day and year first before written.

 

	XLIT LTD., as Issuer
	By:	/s/ Peter Porrino
	Name:	Peter Porrino
	Title:	Director

 

SIGNED AND DELIVERED AS A DEED FOR AND ON BEHALF OF

 

XL GROUP PLC as Guarantor

 

BY ITS LAWFULLY APPOINTED ATTORNEY

 

 

/s/ Peter Porrino

Name:	Peter Porrino
Title:	Executive Vice President and Chief Financial Officer
IN THE PRESENCE OF
Witness
/s/ Kirstin Gould
Name:
Kirstin Gould
Address: XL House
8 St. Stephen’s Green
Dublin 2, Ireland
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

By:	/s/ Patrick Giordano
	Name: Patrick Giordano
	Title: Vice President

EXHIBIT A

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE GUARANTOR, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES, INCLUDING THE PAYMENT OF PRINCIPAL AND INTEREST.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR (II) BY A NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

No. 1
CUSIP No. 98420EAC9
ISIN No. US98420EAC93
$[●]

 

XLIT LTD.

 

4.450% SUBORDINATED NOTES DUE 2025

 

XLIT LTD., a Cayman Islands exempted company duly organized and existing under the laws of the Cayman Islands (the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns the principal sum of [●] United States dollars (U.S. $[●]), as such amount may be increased or decreased as set forth on the Schedule of Increases or Decreases in the Global Note annexed hereto, on March 31, 2025 (such date is hereinafter referred to as the “2025 Scheduled Maturity Date”), and to pay interest thereon (including Arrears of Interest), from March 30, 2015, or from the most recent date to which interest has been paid or duly provided for, at the rate of 4.450% per annum to, but excluding the relevant Interest Payment Date (as defined below), until the Final Maturity Date or earlier redemption.

 

Interest on this 2025 Subordinated Note initially shall be payable semi-annually in arrears on March 30 and September 30 of each year (each, an “Interest Payment Date”), commencing on September 30, 2015 through and including the Final Maturity Date or earlier redemption. On the Final Maturity Date or earlier date of redemption, the Company will pay accrued and unpaid interest from the most recent date to which interest has been paid or provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this 2025 Subordinated Note (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest, which shall be March 15 and September 15, respectively (whether or not a Business Day) preceding the relevant Interest Payment Date.

 

If, as of any Interest Payment Date, a Mandatory Deferral Event has occurred and is continuing or would occur if payment of interest accrued on this 2025 Subordinated Notes were made on such Interest Payment Date, the Company or the Guarantor, as applicable, shall be required to defer payment of all (and not less than all) of the interest accrued on this 2025 Subordinated Note as of such Interest Payment Date pursuant to the mandatory deferral provisions set forth in the Indenture.

 

If, as of the 2025 Scheduled Maturity Date, the Conditions to Redemption have not been satisfied, final redemption of this 2025 Subordinated Note shall be deferred until the Final Maturity Date, pursuant to the redemption provisions.

 

Principal of and the interest on this 2025 Subordinated Note will be payable at the Corporate Trust Office, or, at the option of the Company, by check mailed to each Holder at its address set forth in the Security Register; provided, however, that if a Holder has given wire transfer instructions to the Company and the Paying Agent and Security Registrar at least ten Business Days prior to the applicable payment date, principal of and the interest on this 2025 Subordinated Note

will be payable by wire transfer of immediately available funds to the account specified in such instructions.

 

Interest on this 2025 Subordinated Note will be computed on the basis of a 360-day year comprised of twelve 30-day months. The amount of interest payable for any period shorter than a full semi-annual period for which interest is computed will be computed on the basis of the actual number of days elapsed in the 180-day period.

 

Reference is hereby made to the further provisions of this 2025 Subordinated Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if fully set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by the manual signature of one of its authorized signatories, this 2025 Subordinated Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

IN WITNESS WHEREOF, the Company has caused this 2025 Subordinated Note to be executed and delivered as a deed.

 

	Dated:
	XLIT Ltd.
	By:
	Name:
	Title:

IN WITNESS WHEREOF, the Company has caused this 2025 Subordinated Note to be executed and delivered as a deed.

 

	Dated:
	XLIT Ltd.

	By:

	Name:
	Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.

 

	Dated:
	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

	By:

	Authorized Signatory

[REVERSE OF NOTE]

 

This 2025 Subordinated Note is one of a duly authorized issue of securities of the Company designated as its “4.450% Subordinated Notes due 2025” (herein sometimes referred to as the “2025 Subordinated Notes”), initially limited in aggregate principal amount to $500.0 million, issued under and pursuant to an Indenture, dated as of March 30, 2015 (the “Base Indenture”), duly executed and delivered by and among the Company, as issuer, XL Group Public Limited Company, a public company limited by shares, as guarantor (the “Guarantor”), and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of March 30, 2015 (the “First Supplemental Indenture”), duly executed and delivered by and among the Company, the Guarantor and the Trustee (such Base Indenture as amended and supplemented by the First Supplemental Indenture, the “Indenture”), to which the Indenture and all subsequent indentures supplemental thereto relating to the 2025 Subordinated Notes reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the 2025 Subordinated Notes and of the terms upon which the 2025 Subordinated Notes are, and are to be, authenticated and delivered.

 

The 2025 Subordinated Notes are issuable only in registered form without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, 2025 Subordinated Notes so issued are exchangeable for a like aggregate principal amount of 2025 Subordinated Notes of a different authorized denomination, as requested by the Holder surrendering the same.

 

Beginning on March 31, 2020, and provided that the applicable Conditions to Redemption have been satisfied and will continue to be satisfied if the optional redemption payment were made on the 2025 Subordinated Notes, the 2025 Subordinated Notes may be redeemed, in whole at any time or in part from time to time, at the Company’s option, at a redemption price equal to the accrued and unpaid interest (including Arrears of Interest) on the principal amount of the 2025 Subordinated Notes being redeemed to, but excluding, the Redemption Date plus the greater of: (A) 100% of the principal amount of the 2025 Subordinated Notes to be redeemed, and (B) the sum of the present values of the remaining scheduled payments of principal and interest on the 2025 Subordinated Notes to be redeemed (not including any portion of such payments of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 40 basis points, as provided in, and subject to the terms of, the Indenture.

 

The 2025 Subordinated Notes may be redeemed at the Company’s option and sole discretion, in whole but not in part, within 90 days following the occurrence of a Specified Event; provided that, at the time of such Specified Event Redemption, the applicable Conditions to Redemption are satisfied and will continue to be satisfied after the redemption payment is made and, if not so satisfied, such Specified Event Redemption will be deferred until such time as the Conditions to Redemption are satisfied. The 2025 Subordinated Notes will be redeemed at a Redemption Price equal to the principal amount thereof, together with accrued and unpaid interest (including Arrears of Interest) on the 2025 Subordinated Notes being redeemed to, but excluding, the Redemption Date, and any Additional Amounts thereon.

If the Acquisition is not consummated, or the Implementation Agreement is terminated, in each case, on or prior to December 15, 2015, the Company will be required to redeem all of the 2025 Subordinated Notes then Outstanding on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price.

 

No sinking fund is provided for the 2025 Subordinated Notes.

 

The 2025 Subordinated Notes and related Guarantees are subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full of all Senior Indebtedness or Guarantor Senior Indebtedness, as applicable. Each Holder by accepting a 2025 Subordinated Note agrees to such subordination and authorizes the Trustee to give it affect.

 

In the case of an Event of Default described in Section 4.1(b) of the First Supplemental Indenture, the entire principal amount of the 2025 Subordinated Notes, together with accrued and unpaid interest (including Arrears of Interest) and any Additional Amounts thereon, will automatically become due and payable without any declaration or other action on the part of the Trustee or any Holder. The right of acceleration only applies upon the occurrence of an Event of Default as described in Section 4.1(b) of the First Supplemental Indenture. For the avoidance of doubt, any failure to pay interest on the 2025 Subordinated Notes when due as a result of a Mandatory Deferral Event or any failure to pay principal of the 2025 Subordinated Notes when due as a result of any of the applicable Conditions to Redemption not being satisfied shall not constitute an Event of Default under the Indenture or the 2025 Subordinated Notes.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the 2025 Subordinated Notes at any time by the Company, the Guarantor and the Trustee with the written consent of the Holders of not less than a majority in principal amount of the 2025 Subordinated Notes at the time Outstanding. The Indenture also contains, with certain exceptions as therein provided, provisions permitting Holders of not less than a majority in principal amount of the 2025 Subordinated Notes at the time Outstanding, on behalf of the Holders of all the 2025 Subordinated Notes, to waive compliance by the Company and the Guarantor with certain provisions of the Indenture. Any such consent or waiver by the Holder of this 2025 Subordinated Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2025 Subordinated Note and of any 2025 Subordinated Note issued in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this 2025 Subordinated Note or such other 2025 Subordinated Note. Any amendment or modification to the Indenture or the 2025 Subordinated Notes shall require the prior consent of the Competent Supervisory Authority, if such consent is then required under the Applicable Supervisory Regulations and any amendment or modification made or purported to be made without such consent shall be void.

 

As provided in and subject to the provisions of the Indenture, the Holder of this 2025 Subordinated Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless (i) such Holder shall have previously given the Trustee written notice of a continuing Event of Default, (ii) the Holders of not less than 25% in principal amount of the 2025 Subordinated Notes that are Outstanding shall have made a written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to it, (iii) the

Trustee shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity, and (iv) the Trustee shall not have received from the Holders of a majority in principal amount of the 2025 Subordinated Notes that are Outstanding a direction inconsistent with such written request during such 60-day period. The foregoing shall not apply to any suit instituted by any Holder of this 2025 Subordinated Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

This 2025 Subordinated Note is entitled to the benefit of the Guarantee set forth in Article XI of the Base Indenture.

 

No reference herein to the Indenture and no provision of this 2025 Subordinated Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this 2025 Subordinated Note at the times, places and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2025 Subordinated Note is registrable on the Security Register upon surrender of this 2025 Subordinated Note for registration of transfer at the Corporate Trust Office of the Trustee or at such other office or agency of the Company as may be designated by it for such purpose in the Borough of Manhattan, The City of New York (which shall initially be an office or agency of the Trustee), or at such other offices or agencies as the Company may designate, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Security Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing, and thereupon one or more new 2025 Subordinated Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees by the Security Registrar. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to recover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentation of this 2025 Subordinated Note for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this 2025 Subordinated Note is registered as the owner thereof for all purposes, whether or not such 2025 Subordinated Note be overdue, and none of the Company, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary.

 

No recourse for the payment of the principal of (and premium, if any on) or interest (including Arrears of Interest) on this 2025 Subordinated Note and no recourse under or upon any obligation, covenant or agreement of the Company or the Guarantor in the Indenture or any indenture supplemental thereto or in any 2025 Subordinated Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer or director or subsidiary, as such, past, present or future, of the Company, the Guarantor or any successor entity thereof, either directly or through the Company, the Guarantor or any successor entity, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of consideration for the issue hereof, expressly waived and released.

This 2025 Subordinated Note is a Global Note and is subject to the provisions of the Indenture relating to Global Notes, including the limitations in Section 2.03 of the Base Indenture on transfers and exchanges of Global Notes.

 

THE INDENTURE, THE GUARANTEE AND THIS 2025 SUBORDINATED NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.

 

All capitalized terms used in this 2025 Subordinated Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM		- as tenants in common		UNIF GIFT MIN ACT
						(Cust)
TEN ENT		- as tenants by the entireties		Custodian for:
						(Minor)
JT TEN		- as joint tenants with rights of survivorship and not as tenants in common		Under Uniform Gifts to Minors Act of:
						(State)

 

Additional abbreviations may also be used though not on the above list.

ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned assigns and transfers this 2025 Subordinated Note to:

 

(Insert assignee’s social security or tax identification number)

 

(Insert address and zip code of assignee)

 

and irrevocably appoint                   agent to transfer this 2025 Subordinated Note on the Security Register. The agent may substitute another to act for him or her.

 

Dated:

 

Signed:

 

Signature Guarantee:

 

(Sign exactly as your name appears on the other side of this 2025 Subordinated Note)

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

 

The following increases or decreases in this Global Note have been made:

 

Amount of Decrease in Stated Amount of the Global Note		Amount of Increase in Stated Amount of the Global Note		Stated Amount of the Global Note Following Such Decrease/Increase		Signature of Authorized Signatory of Trustee		Date

EXHIBIT B

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE GUARANTOR, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES, INCLUDING THE PAYMENT OF PRINCIPAL AND INTEREST.

 

UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR (II) BY A NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.

 

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

No. 1
CUSIP No. 98420EAD7
ISIN No. US98420EAD76
$[●]

 

XLIT LTD.

 

5.500% SUBORDINATED NOTES DUE 2045

 

XLIT LTD., a Cayman Islands exempted company duly organized and existing under the laws of the Cayman Islands (the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co. or registered assigns the principal sum of [●] United States dollars (U.S. $[●]), as such amount may be increased or decreased as set forth on the Schedule of Increases or Decreases in the Global Note annexed hereto, on March 31, 2045 (such date is hereinafter referred to as the “2045 Scheduled Maturity Date”), and to pay interest thereon (including Arrears of Interest), from March 30, 2015, or from the most recent date to which interest has been paid or duly provided for, at the rate of 5.500% per annum to, but excluding the relevant Interest Payment Date (as defined below), until the Final Maturity Date or earlier redemption.

 

Interest on this 2045 Subordinated Note initially shall be payable semi-annually in arrears on March 30 and September 30 of each year (each, an “Interest Payment Date”), commencing on September 30, 2015 through and including the Final Maturity Date or earlier redemption. On the Final Maturity Date or earlier date of redemption, the Company will pay accrued and unpaid interest from the most recent date to which interest has been paid or provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this 2045 Subordinated Note (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest, which shall be March 15 and September 15, respectively (whether or not a Business Day) preceding the relevant Interest Payment Date.

 

If, as of any Interest Payment Date, a Mandatory Deferral Event has occurred and is continuing or would occur if payment of interest accrued on this 2045 Subordinated Notes were made on such Interest Payment Date, the Company or the Guarantor, as applicable, shall be required to defer payment of all (and not less than all) of the interest accrued on this 2045 Subordinated Note as of such Interest Payment Date pursuant to the mandatory deferral provisions set forth in the Indenture.

 

If, as of the 2045 Scheduled Maturity Date, the Conditions to Redemption have not been satisfied, final redemption of this 2045 Subordinated Note shall be deferred until the Final Maturity Date, pursuant to the redemption provisions.

 

Principal of and the interest on this 2045 Subordinated Note will be payable at the Corporate Trust Office, or, at the option of the Company, by check mailed to each Holder at its address set forth in the Security Register; provided, however, that if a Holder has given wire transfer instructions to the Company and the Paying Agent and Security Registrar at least ten Business Days prior to the applicable payment date, principal of and the interest on this 2045 Subordinated Note

will be payable by wire transfer of immediately available funds to the account specified in such instructions.

 

Interest on this 2045 Subordinated Note will be computed on the basis of a 360-day year comprised of twelve 30-day months. The amount of interest payable for any period shorter than a full semi-annual period for which interest is computed will be computed on the basis of the actual number of days elapsed in the 180-day period.

 

Reference is hereby made to the further provisions of this 2045 Subordinated Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if fully set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by the manual signature of one of its authorized signatories, this 2045 Subordinated Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

IN WITNESS WHEREOF, the Company has caused this 2045 Subordinated Note to be executed and delivered as a deed.

 

	Dated:
	XLIT Ltd.
	By:
	Name:
	Title:

IN WITNESS WHEREOF, the Company has caused this 2045 Subordinated Note to be executed and delivered as a deed.

 

	Dated:
	XLIT Ltd.

	By:

	Name:
	Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.

 

	Dated:
	WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

	By:

	Authorized Signatory

[REVERSE OF NOTE]

 

This 2045 Subordinated Note is one of a duly authorized issue of securities of the Company designated as its “5.500% Subordinated Notes due 2045” (herein sometimes referred to as the “2045 Subordinated Notes”), initially limited in aggregate principal amount to $500.0 million, issued under and pursuant to an Indenture, dated as of March 30, 2015 (the “Base Indenture”), duly executed and delivered by and among the Company, as issuer, XL Group Public Limited Company, a public company limited by shares, as guarantor (the “Guarantor”), and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of March 30, 2015 (the “First Supplemental Indenture”), duly executed and delivered by and among the Company, the Guarantor and the Trustee (such Base Indenture as amended and supplemented by the First Supplemental Indenture, the “Indenture”), to which the Indenture and all subsequent indentures supplemental thereto relating to the 2045 Subordinated Notes reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the 2045 Subordinated Notes and of the terms upon which the 2045 Subordinated Notes are, and are to be, authenticated and delivered.

 

The 2045 Subordinated Notes are issuable only in registered form without coupons, in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, 2045 Subordinated Notes so issued are exchangeable for a like aggregate principal amount of 2045 Subordinated Notes of a different authorized denomination, as requested by the Holder surrendering the same.

 

Beginning on March 31, 2020, and provided that the applicable Conditions to Redemption have been satisfied and will continue to be satisfied if the optional redemption payment were made on the 2045 Subordinated Notes, the 2045 Subordinated Notes may be redeemed, in whole at any time or in part from time to time, at the Company’s option, at a redemption price equal to the accrued and unpaid interest (including Arrears of Interest) on the principal amount of the 2045 Subordinated Notes being redeemed to, but excluding, the Redemption Date plus the greater of: (A) 100% of the principal amount of the 2045 Subordinated Notes to be redeemed, and (B) the sum of the present values of the remaining scheduled payments of principal and interest on the 2045 Subordinated Notes to be redeemed (not including any portion of such payments of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus 50 basis points, as provided in, and subject to the terms of, the Indenture.

 

The 2045 Subordinated Notes may be redeemed at the Company’s option and sole discretion, in whole but not in part, within 90 days following the occurrence of a Specified Event; provided that, at the time of such Specified Event Redemption, the applicable Conditions to Redemption are satisfied and will continue to be satisfied after the redemption payment is made and, if not so satisfied, such Specified Event Redemption will be deferred until such time as the Conditions to Redemption are satisfied. The 2045 Subordinated Notes will be redeemed at a Redemption Price equal to the principal amount thereof, together with accrued and unpaid interest (including Arrears of Interest) on the 2045 Subordinated Notes being redeemed to, but excluding, the Redemption Date, and any Additional Amounts thereon.

If the Acquisition is not consummated, or the Implementation Agreement is terminated, in each case, on or prior to December 15, 2015, the Company will be required to redeem all of the 2045 Subordinated Notes then Outstanding on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price.

 

No sinking fund is provided for the 2045 Subordinated Notes.

 

The 2045 Subordinated Notes and related Guarantees are subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full of all Senior Indebtedness or Guarantor Senior Indebtedness, as applicable. Each Holder by accepting a 2045 Subordinated Note agrees to such subordination and authorizes the Trustee to give it affect.

 

In the case of an Event of Default described in Section 4.1(b) of the First Supplemental Indenture, the entire principal amount of the 2045 Subordinated Notes, together with accrued and unpaid interest (including Arrears of Interest) and any Additional Amounts thereon, will automatically become due and payable without any declaration or other action on the part of the Trustee or any Holder. The right of acceleration only applies upon the occurrence of an Event of Default as described in Section 4.1(b) of the First Supplemental Indenture. For the avoidance of doubt, any failure to pay interest on the 2045 Subordinated Notes when due as a result of a Mandatory Deferral Event or any failure to pay principal of the 2045 Subordinated Notes when due as a result of any of the applicable Conditions to Redemption not being satisfied shall not constitute an Event of Default under the Indenture or the 2045 Subordinated Notes.

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the 2045 Subordinated Notes at any time by the Company, the Guarantor and the Trustee with the written consent of the Holders of not less than a majority in principal amount of the 2045 Subordinated Notes at the time Outstanding. The Indenture also contains, with certain exceptions as therein provided, provisions permitting Holders of not less than a majority in principal amount of the 2045 Subordinated Notes at the time Outstanding, on behalf of the Holders of all the 2045 Subordinated Notes, to waive compliance by the Company and the Guarantor with certain provisions of the Indenture. Any such consent or waiver by the Holder of this 2045 Subordinated Note shall be conclusive and binding upon such Holder and upon all future Holders of this 2045 Subordinated Note and of any 2045 Subordinated Note issued in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this 2045 Subordinated Note or such other 2045 Subordinated Note. Any amendment or modification to the Indenture or the 2045 Subordinated Notes shall require the prior consent of the Competent Supervisory Authority, if such consent is then required under the Applicable Supervisory Regulations and any amendment or modification made or purported to be made without such consent shall be void.

 

As provided in and subject to the provisions of the Indenture, the Holder of this 2045 Subordinated Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless (i) such Holder shall have previously given the Trustee written notice of a continuing Event of Default, (ii) the Holders of not less than 25% in principal amount of the 2045 Subordinated Notes that are Outstanding shall have made a written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity satisfactory to it, (iii) the

Trustee shall have failed to institute any such proceeding for 60 days after receipt of such notice, request and offer of indemnity, and (iv) the Trustee shall not have received from the Holders of a majority in principal amount of the 2045 Subordinated Notes that are Outstanding a direction inconsistent with such written request during such 60-day period. The foregoing shall not apply to any suit instituted by any Holder of this 2045 Subordinated Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

This 2045 Subordinated Note is entitled to the benefit of the Guarantee set forth in Article XI of the Base Indenture.

 

No reference herein to the Indenture and no provision of this 2045 Subordinated Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this 2045 Subordinated Note at the times, places and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this 2045 Subordinated Note is registrable on the Security Register upon surrender of this 2045 Subordinated Note for registration of transfer at the Corporate Trust Office of the Trustee or at such other office or agency of the Company as may be designated by it for such purpose in the Borough of Manhattan, The City of New York (which shall initially be an office or agency of the Trustee), or at such other offices or agencies as the Company may designate, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Security Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing, and thereupon one or more new 2045 Subordinated Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees by the Security Registrar. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to recover any tax or other governmental charge payable in connection therewith.

 

Prior to due presentation of this 2045 Subordinated Note for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this 2045 Subordinated Note is registered as the owner thereof for all purposes, whether or not such 2045 Subordinated Note be overdue, and none of the Company, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary.

 

No recourse for the payment of the principal of (and premium, if any on) or interest (including Arrears of Interest) on this 2045 Subordinated Note and no recourse under or upon any obligation, covenant or agreement of the Company or the Guarantor in the Indenture or any indenture supplemental thereto or in any 2045 Subordinated Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer or director or subsidiary, as such, past, present or future, of the Company, the Guarantor or any successor entity thereof, either directly or through the Company, the Guarantor or any successor entity, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of consideration for the issue hereof, expressly waived and released.

This 2045 Subordinated Note is a Global Note and is subject to the provisions of the Indenture relating to Global Notes, including the limitations in Section 2.03 of the Base Indenture on transfers and exchanges of Global Notes.

 

THE INDENTURE, THE GUARANTEE AND THIS 2045 SUBORDINATED NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS OF SUCH STATE.

 

All capitalized terms used in this 2045 Subordinated Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

ABBREVIATIONS

 

The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM		- as tenants in common		UNIF GIFT MIN ACT
						(Cust)
TEN ENT		- as tenants by the entireties		Custodian for:
						(Minor)
JT TEN		- as joint tenants with rights of survivorship and not as tenants in common		Under Uniform Gifts to Minors Act of:
						(State)

 

Additional abbreviations may also be used though not on the above list.

ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned assigns and transfers this 2045 Subordinated Note to:

 

 

(Insert assignee’s social security or tax identification number)

 

 

(Insert address and zip code of assignee)

 

and irrevocably appoint             agent to transfer this 2045 Subordinated Note on the Security Register. The agent may substitute another to act for him or her.

 

Dated:

 

Signed:

 

Signature Guarantee:

 

(Sign exactly as your name appears on the other side of this 2045 Subordinated Note)

 

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE

 

The following increases or decreases in this Global Note have been made:

 

Amount of Decrease in Stated Amount of the Global Note		Amount of Increase in Stated Amount of the Global Note		Stated Amount of the Global Note Following Such Decrease/Increase		Signature of Authorized Signatory of Trustee		Date

Exhibit 4.6

 

This Termination of Replacement Capital Covenant, dated as of March 30, 2015 (this “Termination”), is made by XLIT Ltd., an exempted company duly incorporated with limited liability and existing under the laws of the Cayman Islands (together with its successors and assigns, the “Company”).

 

R E C I T A L S

 

A. The Company previously issued Fixed/Floating Series E Perpetual Non-Cumulative Preference Ordinary Shares, liquidation preference U.S. $1,000 per share (the “Series E Preference Shares”), and entered into a replacement capital covenant (the “Replacement Capital Covenant”) in connection with such Series E Preference Shares in favor of the Holders of its Covered Debt (as such terms are defined in the Replacement Capital Covenant);

 

B. The Company desires to terminate the Replacement Capital Covenant and pursuant to Section 4(a) thereof, the Replacement Capital Covenant shall so terminate on the date on which the Holders of a majority in principal amount of the then-effective series of Covered Debt consent or agree in writing to the termination of the Replacement Capital Covenant and the obligations of the Company thereunder;

 

C. The Company established a record date of March 30, 2015 (the “Record Date”) pursuant to Section 4(c) of the Replacement Capital Covenant, for purposes of establishing the Holders whose consent is required to terminate its obligations under the Replacement Capital Covenant;

 

D. The holders of the Company’s 5.500% subordinated notes due 2045 (the “2045 Subordinated Notes”) issued pursuant to an indenture, which the Company, as issuer, and XL Group plc (“XL”), as guarantor, entered into with Wells Fargo Bank, National Association, as trustee (the “Trustee”), on March 30, 2015 (the “Base Indenture”), as supplemented by a supplemental indenture, which the Company and XL entered into with the Trustee on March 30, 2015 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), became the Covered Debt under the Replacement Capital Covenant, effective as of the Record Date; and

 

E. Pursuant to the terms of the Indenture, the Company has received the requisite consent of the Holders of a majority in principal amount of the 2045 Subordinated Notes as of the Record Date to effect this Termination.

 

NOW, THEREFORE, in accordance with Section 4(a) of the Replacement Capital Covenant, the Company hereby terminates the Replacement Capital Covenant and the obligations of the Company thereunder are and shall be of no further force or effect.

IN WITNESS WHEREOF, the Company has caused this Termination to be executed by its duly authorized officer, as of the day and year first above written.

 

	XLIT Ltd.
	By:	/s/ Kirstin Gould
		Name:  Kirstin Gould
		Title: Secretary

Exhibit 4.7

 

Replacement Capital Covenant, dated as of March 30, 2015 (this “Replacement Capital Covenant”), by XLIT Ltd., an exempted company duly incorporated with limited liability and existing under the laws of the Cayman Islands (together with its successors and assigns, the “Company”), in favor of and for the benefit of each Covered Debtholder (as defined below).

 

Recitals

 

A. The Company previously issued 1,000,000 Series E Perpetual Non-Cumulative Preference Ordinary Shares, liquidation preference U.S. $1,000 per share (the “Series E Preference Shares”) and entered into a replacement capital covenant, dated as of March 15, 2007 (the “Old Replacement Capital Covenant”), in connection with such Series E Preference Shares.

 

B. This Replacement Capital Covenant is the “New RCC” described in the prospectus supplement, dated March 24, 2015, filed with the United States Securities and Exchange Commission (the “Commission”) by the Company pursuant to Rule 424(b)(2) on March 25, 2015 relating to the offering of the Company’s 5.500% Subordinated Notes due March 31, 2045 issued in the aggregate principal amount of $500,000,000 (the “Initial Covered Debt”).

 

C. The Company’s 5.500% Subordinated Notes due 2045 (the “2045 Subordinated Notes”), issued under an indenture, dated as of March 30, 2015 (the “Base Indenture”), among the Company, XL Group plc (the “Guarantor”) and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture, dated as of March 30, 2015 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, the Guarantor and the Trustee, became the Covered Debt under the Old Replacement Capital Covenant, effective as of the date hereof.

 

D. Pursuant to the terms of the First Supplemental Indenture, the Company has received the requisite consent of the Covered Debtholders under the Old Replacement Capital Covenant to terminate the Old Replacement Capital Covenant and the Company’s obligations thereunder.

 

E. The Company terminated the Old Replacement Capital Covenant in accordance with its terms effective as of the date hereof.

 

F. The Company is entering into and disclosing the content of this Replacement Capital Covenant in the manner provided below with the intent that the covenants provided for in this Replacement Capital Covenant be enforceable by each Covered Debtholder and that the Company be estopped from disregarding the covenants in this Replacement Capital Covenant, in each case to the fullest extent permitted by applicable law.

 

G. The Company acknowledges that reliance by each Covered Debtholder upon the covenants in this Replacement Capital Covenant is reasonable and foreseeable by the Company and that, were the Company to disregard its covenants in this Replacement Capital Covenant, each Covered Debtholder would have sustained an injury as a result of its reliance on such covenants.

 

NOW, THEREFORE, the Company hereby covenants and agrees as follows in favor of and for the benefit of each Covered Debtholder.

SECTION 1. Definitions. Capitalized terms used in this Replacement Capital Covenant (including the Recitals) have the meanings set forth in Schedule I hereto.

 

SECTION 2. Limitations on Redemption or Repurchase of Series E Preference Shares. Subject to Section 5, the Company hereby promises and covenants to and for the benefit of each Covered Debtholder that, on or before the Termination Date, neither the Company nor any of its Subsidiaries shall redeem or purchase all or any part of the Series E Preference Shares, except to the extent that the applicable redemption or purchase price (exclusive of declared and unpaid dividends thereon) does not exceed the sum of the following amounts:

 

(i)

200% of the aggregate amount of (a) net cash proceeds received by the Company and its Subsidiaries since the most recent Measurement Date from the sale of Ordinary Shares, Rights to acquire Ordinary Shares and Mandatorily Convertible Preferred Shares to Persons other than the Company and its Subsidiaries and (b) the Market Value of any Ordinary Shares that the Company or its Subsidiaries have issued to Persons other than the Company or its Subsidiaries since the most recent Measurement Date in connection with the conversion or exchange of any convertible or exchangeable securities, other than securities for which the Company or any of its Subsidiaries has received equity credit from any NRSRO (as defined below); plus

 

(ii)

200% of the aggregate amount of net cash proceeds received by the Company and its Subsidiaries since the most recent Measurement Date from the sale of securities included in clause (a) of the definition of Qualifying Capital Securities to Persons other than the Company and its Subsidiaries; plus

 

(iii)

100% of the aggregate amount of net cash proceeds received by the Company and its Subsidiaries since the most recent Measurement Date from the sale of securities included in clause (b) of the definition of Qualifying Capital Securities to Persons other than the Company and its Subsidiaries.

 

SECTION 3. Covered Debt.

 

(a) The Company represents and warrants that the Initial Covered Debt is Eligible Debt.

 

(b) During the 30-calendar-day period immediately preceding any Redesignation Date with respect to the Covered Debt then in effect, the Company shall identify the series of Eligible Debt that will become the Covered Debt on and after such Redesignation Date in accordance with the following procedures:

 

(i)

the Company shall identify each series of its then outstanding long-term indebtedness for money borrowed that is Eligible Debt;

 

(ii)

the Company shall designate one of such series to be the series of Eligible Debt that will become Covered Debt on and after such Redesignation Date, but if (and only if) the Company fails to designate a series of Eligible Debt as the Covered Debt by the close of business on such Redesignation Date, the Eligible Debt that will become the Covered Debt will be determined in accordance with the following procedures;

 

(A)

if only one series of the Company’s then outstanding long-term indebtedness for money borrowed is Eligible Debt, such series shall become the Covered Debt commencing on the related Redesignation Date; and

 

(B)

if the Company has more than one outstanding series of long-term indebtedness for money borrowed that is Eligible Debt, the series that has the latest occurring final maturity date as of

the date of the procedures in Section 3(b)(ii) are applied shall become the Covered Debt on the related Redesignation Date.

 

(iii)

The series of outstanding long-term indebtedness for money borrowed that is determined to be Covered Debt pursuant to Section 3(b)(ii) above shall be the Covered Debt for purposes of this Replacement Capital Covenant for the period commencing on the related Redesignation Date and continuing to, but not including, the Redesignation Date as of which a new series of outstanding long-term indebtedness for money borrowed is next determined to be the Covered Debt pursuant to the procedures set forth in this Section 3(b).

 

(iv)

In connection with the identification of any new series of Covered Debt, the Company shall give the notices and/or make the filings or website postings provided for in Section 3(d) within the time frame provided for in such section.

 

(c) Automatic Redesignation Event. Upon the occurrence of an Automatic Redesignation Event, the then-existing Covered Debt shall automatically cease to be the Covered Debt and the Exchange Debt shall automatically become the Covered Debt.

 

(d) Notice. In order to give effect to the intent of the Company described in Recital F, the Company covenants that:

 

(i)

simultaneously with the execution of this Replacement Capital Covenant or as soon as practicable after the date hereof, it shall give notice to the Holder(s) of the Initial Covered Debt, in the manner provided in the indenture, fiscal agency agreement or other instrument relating to the Initial Covered Debt, of this Replacement Capital Covenant and the rights granted to such Holder(s) hereunder and (A) if the Initial Covered Debt includes securities issued in the United States, file a copy of this Replacement Capital Covenant with the Commission as an exhibit to a Current Report on Form 8-K (or any succesor form) under the Exchange Act or (B) if the Initial Covered Debt was predominately offered outside of the United States, (I) post a copy of this Replacement Capital Covenant on the Company’s website (currently: www.xlgroup.com) (or any other similar electronic platform generally available to the public), (II) as promptly as practicable, cause a notice of the execution of this Replacement Capital Covenant to be posted on the Bloomberg screen for the Initial Covered Debt or any successor Bloomberg screen or similar vendor’s screen the Company reasonably believes is appropriate (each an “Investor Screen”) and (III) cause a hyperlink to the execution copy of this Replacement Capital Covenant to be included on the Investor Screen for the Initial Covered Debt;

 

(ii)

it shall, if a series of the Company’s long-term indebtedness for money borrowed that includes securities issued in the United States (1) becomes Covered Debt or (2) ceases to be Covered Debt, (A) give notice of such occurrence within 30 calendar days to the holders of such long-term indebtedness for money borrowed in the manner provided for in the indenture, fiscal agency agreement or other instrument under which such long-term indebtedness for money borrowed was issued and (B) if and so long as it is a reporting company under the Exchange Act, report such change, except if such series becomes or ceases to be Covered Debt as a result of an Automatic Redesignation Event pursuant to Section 3(c), by filing a Current Report on Form 8-K (or any succesor form) including or incorporating by reference a copy of this Replacement Capital Covenant;

 

(iii)

it shall, if a series of the Company’s long-term indebtedness for money borrowed that was predominately offered outside of the United States (1) becomes Covered Debt or (2) ceases to be Covered Debt, (A) give notice of such occurrence within 30 calendar days to the holders of such long-term indebtedness for money borrowed in the manner provided for in the indenture, fiscal agency agreement or other instrument under which such long-

term indebtedness for money borrowed was issued, (C) as promptly as practicable, post a notice of such change on the Company’s website (or any other similar electronic platform generally available to the public), (D) as promptly as practicable, cause a notice of such occurrence to be posted on the Investor Screen for the then-effective series of Covered Debt and (E) cause a hyperlink to the execution copy of this Replacement Capital Covenant to be included on the Investor Screen for such Covered Debt;

 

(iv)

to the extent that the Company has posted information pursuant to clause (i)(B) or clause (iii), at least once annually, it shall verify that the postings required in such clauses are functional and accessible and, if necessary, cause such functionality and accessibility to be restored;

 

(v)

if and so long as it is a reporting company under the Exchange Act, the Company shall include in each annual report filed with the Commission on Form 10-K (or any succesor form) under the Exchange Act a description of the covenant set forth in Section 2 and identify the series of long-term indebtedness for borrowed money that is Covered Debt as of the date such Form 10-K (or any succesor form) is filed with the Commission;

 

(vi)

if and so long as it is not a reporting company under the Exchange Act, the Company shall post on its website (or any other similar electronic platform generally available to the public) the information required by clauses (d)(ii) and (d)(v); and

 

(vii)

promptly upon request by any Holder of Covered Debt, provide such Holder with an executed copy of this Replacement Capital Covenant.

 

SECTION 4. Termination, Amendment and Waiver.

 

(a) The obligations of the Company pursuant to this Replacement Capital Covenant shall remain in full force and effect until the earliest date (the “Termination Date”) to occur of:

 

(i)

April 15, 2047, subject to extension as provided in Section 4(b)(ii), or, if earlier, the date on which (A) the Series E Preference Shares are no longer outstanding and (B) the Company’s obligations under this Replacement Capital Covenant have been fulfilled or, pursuant to Section 5, are no longer applicable;

 

(ii)

the date, if any, on which the Holder(s) of a majority of the then-outstanding principal amount of the then-effective series of Covered Debt consent or agree to the termination of this Replacement Capital Covenant and the obligations of the Company hereunder;

 

(iii)

the date on which the Company does not have any series of outstanding Eligible Debt;

 

(iv)

the occurrence of a Rating Agency Event or Change of Control Event;

 

(v)

the date on which S&P no longer assigns the Company a solicited rating on senior debt issued or guaranteed by the Company; and

 

(vi)

the date on which the termination of ths Replacement Capital Covenant would have no effect on the equity credit provided by S&P with respect to the Series E Preference Shares.

 

From and after the Termination Date, the obligations of the Company pursuant to this Replacement Capital Covenant shall be of no further force and effect.

 

(b) This Replacement Capital Covenant may be amended or supplemented from time to time by a written instrument signed only by the Company after obtaining the consent of the Holder(s) of a majority of the

then-outstanding principal amount of the then-effective series of Covered Debt; provided that this Replacement Capital Covenant may be amended or supplemented from time to time by a written instrument signed only by the Company (and without the consent of the Holder(s) of the then-effective series of Covered Debt) if:

 

(i)

the sole effect of such amendment or supplement is either (A) to impose additional restrictions on the ability of (1) the Company to redeem or purchase the Series E Preference Shares or (2) any Subsidiary to purchase the Series E Preference Shares or (B) to impose additional restrictions on, or to eliminate certain of, the types of securities qualifying as Qualifying Capital Securities and in each case an officer of the Company has delivered to the Holders of the then-effective series of Covered Debt in the manner provided for in the indenture, fiscal agency agreement or other instrument under which such Covered Debt was issued a written certificate to that effect;

 

(ii)

such amendment or supplement extends the date specified in Section 4(a)(i);

 

(iii)

the effect of such amendment or supplement is to eliminate Ordinary Shares, Rights to acquire Ordinary Shares or Mandatorily Convertible Preferred Shares as a security or securities covered by Section 2(i); provided that, after the date of this Replacement Capital Covenant, an accounting standard or interpretive guidance of an existing accounting standard, issued by an organization or regulator that has responsibility for establishing or interpreting accounting standards in the United States or other appropriate jurisdiction, as applicable, followed by the Guarantor becomes effective or applicable to the Guarantor such that there is more than an insubstantial risk that the failure to eliminate Ordinary Shares, Rights to acquire Ordinary Shares or Mandatorily Convertible Preferred Shares as a security or securities covered by Section 2(i) would result in a reduction in the Guarantor’s fully diluted earnings per share as calculated in accordance with generally accepted accounting principles (“EPS”), or the Guarantor otherwise has been advised in writing by a nationally recognized independent accounting firm that there is more than an insubstantial risk that the failure to eliminate such securities as a security or securities covered by Section 2(i) would result in a reduction in the Guarantor’s fully diluted EPS; or

 

(iv)

such amendment or supplement is not materially adverse to the Holder(s) of the then-effective series of Covered Debt and an officer of the Company has delivered to the Holder(s) of the then effective series of Covered Debt in the manner provided for in the indenture, fiscal agency agreement or other instrument with respect to such Covered Debt a written certificate stating that, in his or her determination, such amendment or supplement is not materially adverse to the Holder(s) of the then-effective series of Covered Debt.

 

(c) For purposes of Section 4(b)(iv), an amendment or supplement that adds new types of securities qualifying as Replacement Capital Securities, or modifies the requirements of securities qualifying as Replacement Capital Securities, will not be deemed materially adverse to the Holders of the then-effective series of Covered Debt if, following such amendment or supplement, this Replacement Capital Covenant would constitute a Qualifying Replacement Capital Covenant.

 

(d) For purposes of Sections 4(a) and 4(b), the Holder(s) whose consent or agreement is required to terminate, amend or supplement this Replacement Capital Covenant or the obligations of the Company under this Replacement Capital Covenant shall be the Holder(s) of the then-effective series of Covered Debt as of a record date established by the Company that is not more than 30 calendar days prior to the date on which the Company proposes that such termination, amendment or supplement becomes effective.

SECTION 5. Limitation on Applicability of this Replacement Capital Covenant. The promises and covenants contained in this Replacement Capital Covenant shall not apply and be of no force and effect upon the occurrence of one or more of the following events:

 

(a) S&P upgrades the Company’s holding company issuer credit rating by at least one notch above A-;

 

(b) the Series E Preference Shares are redeemed by the Company due to a Tax Event;

 

(c) if after proper notice of redemption for the Series E Preference Shares has been given to the holders of the Series E Preference Shares, a Market Disruption Event occurs and prevents the Company from raising proceeds in accordance with Section 2 to redeem the Series E Preference Shares subject to such redemption; provided that if during the pendency of such Market Disruption Event the Company repurchases or redeems the Series E Preference Shares or a Subsidiary of the Company purchases the Series E Preference Shares (in a manner that, but for the existence of the Market Disruption Event, would not have been permitted by this Replacement Capital Covenant) then, at such time as the Market Disruption Event shall cease to exist, the Company promises and covenants to issue Replacement Capital Securities to raise proceeds, in accordance with Section 2, in an amount sufficient to repurchase or redeem the Series E Preference Shares; or

 

(d) if the Company repurchases or redeems or a Subsidiary purchases up to 10% of the Series E Preference Shares by reference to aggregate liquidation preference in any one-year period, to such repurchase, redemption or purchase; provided that no more than 25% of the Series E Preference Shares by reference to aggregate liquidation preference shall be so repurchased, redeemed or purchased in any ten-year period, and that this Replacement Capital Covenant shall continue to apply to any Series E Preference Shares repurchased, redeemed or purchased in excess of such thresholds; provided, further, that any Series E Preference Shares the Company or any of its Subsidiaries acquires or holds as a result of the acquisition, consolidation or merger of any Person by or into the Company or any of its Subsidiaries, or the acquisition of all or substantially all assets of any Person by the Company or any of its Subsidiaries, shall be deemed not to be or have been repurchased, redeemed or purchased by the Company or any of its Subsidiaries for purposes of this Section 5(d), and shall not be counted in determining whether such thresholds have been met.

 

SECTION 6. Miscellaneous.

 

(a) This Replacement Capital Covenant shall be governed by, and construed in accordance with, the laws of the State of New York.

 

(b) This Replacement Capital Covenant shall be binding upon the Company and its successors and assigns (provided that, in the event the Company sells, conveys, transfers or otherwise disposes of all or substantially all its assets to any Person and (i) such person assumes all the obligations of the Company under the indenture governing the then applicable Covered Debt and the indenture governing the Series E Preference Shares, (ii) such Person assumes all the obligations of the Company under the Replacement Capital Covenant or equivalent obligations with respect to its own securities and (iii) the Company is released from its obligations under the indenture governing the then applicable Covered Debt and the indenture governing the Series E Preference Shares, the Company shall be released from all its obligations hereunder), and shall inure to the benefit of the Covered Debtholders as they exist from time-to-time (it being understood and agreed by the Company that any Person who is a Covered Debtholder at the time such Person initiates an action, claim or proceeding to enforce such Person’s rights under this Replacement Capital Covenant after the Company has violated its covenants in Section 2 and before the series of long-term indebtedness for money borrowed held by such Person is no longer Covered Debt, such Person’s rights under this Replacement Capital Covenant shall not terminate by reason of such series of long-term indebtedness for money borrowed no longer being Covered Debt until the termination of such claim or proceeding). Except as specifically provided herein, this Replacement Capital Covenant shall have no other beneficiaries, and no Persons other than a Holder of Covered Debt is entitled to rely on this Replacement Capital Covenant.

 

(c) All demands, notices, requests and other communications to the Company under this Replacement Capital Covenant shall be deemed to have been duly given and made if in writing and:

(i)

if served by personal delivery upon the Company, on the day so delivered (or, if such day is not a Business Day, the next succeeding Business Day); or

 

(ii)

if delivered by registered post or certified mail, return receipt requested, or sent to the Company by a national or international courier service, on the date of receipt by the Company (or, if such date of receipt is not a Business Day, the next succeeding Business Day),

 

and in each case to the Company at the address set forth below, or at such other address as the Company may thereafter notify to Covered Debtholders or post on its website (or any other similar electronic platform generally available to the public) as the address for notices under this Replacement Capital Covenant:

 

XLIT Ltd.
XL House
8 St. Stephen’s Green
Dublin 2
Ireland
Attention:
Facsimile No:

IN WITNESS WHEREOF, the Company has caused this Replacement Capital Covenant to be executed by its duly authorized officer, as of the day and year first above written.

 

	XLIT Ltd.
	By:	/s/ Kirstin Gould
		Name: Kirstin Gould
		Title: Secretary

Schedule 1

 

Definitions

 

“Automatic Redesignation Event” means the consummation of an exchange offer pursuant to which a majority in principal amount of the then-existing series of Covered Debt is exchanged for a new series of Eligible Debt; provided that the Company shall have included in a document filed with the Commission a statement that upon consummation of such exchange offer, the Exchange Debt shall become the Covered Debt and the then-existing series of Covered Debt shall cease to be Covered Debt.

 

“Business Day” means a day that in the City of New York or in any Place of Payment (as defined in the Indenture) is not a day on which banking institutions are authorized by law or regulation to close.

 

“Change in Control Event” means:

 

(a) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of amalgamation, merger or consolidation), in one or a series of related transactions, of all or substantially all of the Company’s properties or assets and the properties or assets of the Company’s subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than a wholly owned subsidiary of the Company;

 

(b) the consummation of any transaction (including, without limitation, any amalgamation, merger or consolidation) the result of which is that any “person” becomes the beneficial owner, directly or indirectly, of more than 50% of the Company’s Voting Stock, measured by voting power rather than the number of shares; or

 

(c) the first day on which a majority of the members of the Company’s board of directors are not Continuing Directors. “Continuing Directors” are those directors who (i) were members of the board of directors on the first date that any of the Series E Preference Shares were issued or (ii) were elected or appointed to the Company’s board of directors with the approval of a majority of the Continuing Directors who were members of the board of directors at the time of such election or appointment (either by specific vote or by approval of our proxy statement in which such members were named as a nominee for election as a director, without objection to such nomination).

 

“Commission” means the United States Securities and Exchange Commission, or any successor agency.

 

“Company” has the meaning specified in the introduction to this instrument.

 

“Covered Debt” means (a) at the date of this Replacement Capital Covenant and continuing to but not including the first Redesignation Date, the Initial Covered Debt and (b) thereafter, commencing with each Redesignation Date or upon an Automatic Redesignation Event and continuing to but not including the next succeeding Redesignation Date or upon an Automatic Redesignation Event, the Eligible Debt identified pursuant to Section 3(b) as the Covered Debt for such period or the applicable Exchange Debt, as the case may be.

 

“Covered Debtholder” at any time means each Person to the extent that such Person at such time holds (whether as a Holder or a beneficial owner holding through a participant in a clearing agency) long-term indebtedness for money borrowed of the Company during the period that such long-term indebtedness for money borrowed is Covered Debt; provided that, except as provided in Section 6(b), a Person who has sold all of its right, title and interest in Covered Debt shall cease to be a Covered Debtholder at the time of such sale if, at such time, the Company has not breached or repudiated, or threatened to breach or repudiate, its obligations hereunder.

 

“Eligible Debt” means, at any time in respect of any issuer, each series of outstanding unsecured long-term indebtedness for money borrowed of such issuer that (a) upon a bankruptcy, liquidation, dissolution or winding up of the issuer, ranks senior to the Series E Preference Shares, (b) has an outstanding principal amount of not less than $100,000,000, and (c) was issued through or with the assistance of a commercial or investment banking firm or firms acting as underwriters, initial purchasers or placement or distribution agents, or was issued in exchange for

Eligible Debt or other securities that were issued through or with the assistance of a commercial or investment banking firm or firms acting as underwriters, initial purchasers or placement or distribution agents. For purposes of this definition as applied to securities with a CUSIP number, each issuance of long-term indebtedness for money borrowed that has (or, if such indebtedness is held by a trust or other intermediate entity established directly or indirectly by the issuer, the securities of such intermediate entity that have) a separate CUSIP number shall be deemed to be a series of the issuer’s long-term indebtedness for money borrowed that is separate from each other series of such indebtedness.

 

“EPS” has the meaning specified in Section 4(b)(iii).

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

“Exchange Debt” means, at any time, the series of Eligible Debt for which the then-existing series of Covered Debt is exchanged pursuant to an Automatic Redesignation Event.

 

“Holder” means, as to the Covered Debt then in effect, each holder of such Covered Debt as reflected on the securities register maintained by or on behalf of the Company with respect to such Covered Debt.

 

“Initial Covered Debt” means the Company’s 5.500% Subordinated Notes due March 31, 2045 issued in the aggregate principal amount of $500,000,000 (CUSIP: 98420EAD7).

 

“Mandatorily Convertible Preferred Shares” means Preference Ordinary Shares with (a) no prepayment obligation on the part of the issuer thereof, whether at the election of the holders or otherwise, and (b) a requirement that the Preference Ordinary Shares convert into Ordinary Shares within approximately three years from the date of its issuance at a conversion ratio within a range established at the time of issuance of such Preference Ordinary Shares, subject to customary anti-dilution provisions.

 

“Market Disruption Events” means the occurrence or existence of any of the following events or sets of circumstances:

 

(a)

any suspension or material disruption of trading or settlement of one of the exchanges (and/or their electronic trading platform) on which Replacement Capital Securities are listed; or

 

(b)

any change in political conditions, any outbreak or escalation of hostilities, terrorist attacks or crisis such that the issuance by the Company of its Replacement Capital Securities is deemed to be impracticable.

 

“Market Value” means, on any date, the closing sale price per share of Ordinary Shares (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions by the New York Stock Exchange or, if the Ordinary Shares are not then listed on the New York Stock Exchange, as reported by the principal U.S. securities exchange on which the Ordinary Shares are traded or quoted; if the Ordinary Shares are not either listed or quoted on any U.S. securities exchange on the relevant date, the market price will be the average of the mid-point of the bid and ask prices for the Ordinary Shares on the relevant date submitted by at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

 

“Measurement Date” means, with respect to any redemption, repurchase or purchase of the Series E Preference Shares, the date that is 360 days prior to the date of such redemption, repurchase or purchase; provided that the 360-day period may be increased by the number of days during which there exists a Market Disruption Event during the period between the Measurement Date and the date of such redemption, repurchase or purchase.

 

“NRSRO” means a nationally recognized statistical rating organization within the meaning of Section 3(a)(62) of the Exchange Act, or any successor provision.

“Ordinary Shares” means any ordinary shares or any other equity securities of the Company (including ordinary shares or any other equity securities held as treasury shares) or rights to acquire ordinary shares or any other equity securities of the Company that have no preference in the payment of dividends or amounts payable upon the liquidation, dissolution or winding up of the Company (including a share or security that tracks the performance of, or relates to the results of, a business, unit or division of the Company), and any shares or securities that have no preference in the payment of dividends or amounts payable upon liquidation, dissolution or winding up and are issued in exchange therefor in connection with a merger, consolidation, binding share exchange, business combination, recapitalization or other similar event.

 

“Person” means any individual, company, partnership, joint venture, trust, limited liability company, corporation or other entity, unincorporated organization or government or any agency or political subdivision thereof.

 

“Preference Ordinary Shares” means preference ordinary shares of the Company and any securities issued in exchange therefor in connection with a merger, consolidation, binding share exchange, business combination, recapitalization or other similar event.

 

“Qualifying Capital Securities” means:

 

(a)

any instrument that achieves high equity credit from S&P under the relevant guidelines at the time of repurchase, redemption or purchase of the Series E Preference Shares; or

 

(b)

any instrument that (i) includes the same deferral features and ranking as the Series E Preference Shares and matures no earlier than April 15, 2047 or (ii) would have achieved at least the same equity credit from S&P as the Series E Preference Shares at the time of issuance of the Series E Preference Shares.

 

“Qualifying Replacement Capital Covenant” means (a) a replacement capital covenant that is substantially similar to this Replacement Capital Covenant or (b) a replacement capital covenant, as identified by the Company’s Board of Directors, or a duly authorized committee thereof, acting in good faith and in its reasonable discretion and reasonably construing the definitions and other terms of this Replacement Capital Covenant that restricts the related issuer from repaying, redeeming or purchasing, and its Subsidiaries from purchasing, identified securities except to the extent of the applicable percentage of the net proceeds from the issuance of specified replacement capital securities that have terms and provisions at the time of redemption, repayment or purchase that are as or more equity-like than the securities then being repaid, redeemed or purchased within the 360-day period prior to the applicable redemption, repayment or purchase date without regard to the term of such replacement capital covenant.

 

“Rating Agency Event” means the determination by the Company of a change in the hybrid ratings methodology employed by S&P, which change results in a lower equity credit (including up to a lesser amount) to the Company than the equity credit assigned by S&P to the Series E Preference Shares on the date hereof, or a shortening of the length of time the Series E Preference Shares are assigned such equity credit as compared to the length of time they would have been assigned such equity credit on the date hereof.

 

“Redesignation Date” means, as to the Covered Debt in effect at any time, the earliest of (a) the date that is two years prior to the final maturity date of such Covered Debt or (b) if the Company elects to redeem or defease, or the Company or a Subsidiary of the Company elects to purchase, such Covered Debt either in whole or in part with the consequence that after giving effect to such redemption, defeasance or purchase, the outstanding principal amount of such Covered Debt is less than $100,000,000, the applicable redemption, defeasance or purchase date; provided that with respect to clause (a) above, if the Company has no series of long-term indebtedness for money borrowed that is Eligible Debt other than the Covered Debt at the date that is two years prior to the final maturity date of the Covered Debt, then the Redesignation Date shall be such subsequent date on which the Company issues long-term indebtedness for money borrowed that is Eligible Debt.

 

“Replacement Capital Covenant” has the meaning specified in the introduction to this instrument.

 

“Replacement Capital Securities” means:

(a)

Ordinary Shares;

 

(b)

Rights to acquire Ordinary Shares;

 

(c)

Mandatorily Convertible Preferred Shares; and

 

(d)

Qualifying Capital Securities.

 

“Rights to acquire Ordinary Shares” includes any right to acquire Ordinary Shares, including any right to acquire Ordinary Shares pursuant to a share purchase plan or other plans to the extent cash proceeds are received by the Company.

 

“S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business, or any successor thereto.

 

“Series E Preference Shares” has the meaning specified in Recital A.

 

“Subsidiary” means, at any time, any Person the shares of stock or other ownership interests of which having ordinary voting power to elect a majority of the board of directors or other managers of such Person are at the time owned, or the management or policies of which are otherwise at the time controlled, directly or indirectly through one or more intermediaries (including other Subsidiaries) or both, by another Person.

 

“Termination Date” has the meaning specified in Section 4(a).

 

“Tax Event” means the receipt by the Company or the Guarantor of an opinion of a recognized independent tax counsel to the effect that, as a result of any:

 

(a)

change in or amendment to the laws (or any rules or regulations thereunder) of the Cayman Islands, Ireland or Bermuda, or any political subdivision thereof, or any authority or agency therein having the power to tax, or any other jurisdiction from or through which the Company takes a payment on the Series E Preference Shares or in which the Company or the Guarantor generally becomes subject to taxation, which change or amendment becomes effective on or after the date hereof;

 

(b)

proposed change in those laws or regulations that is announced after the date hereof;

 

(c)

change in or amendment to an official interpretation or application of any such laws, rules or regulations by any legislative body, court, governmental agency or regulatory authority (including the enactment of any legislation and the publication of any judicial decisions or regulatory determination), which change or amendment becomes effective on or after the date hereof; or

 

(d)

threatened challenge asserted in connection with an audit of the Company or the Guarantor, or a threatened challenge asserted in writing against any taxpayer that has raised capital through the issuance of securities that are substantially similar to the Series E Preference Shares,

 

there is more than an insubstantial increase in the risk that interest payable by the Company on the Series E Preference Shares is not, or will not be, deductible by the Company, in whole or in part, for income tax purposes in the applicable jurisdiction.

 

“Voting Stock” means, with respect to any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.

 

Exhibit 5.1

March 30, 2015

 

XL Group plc

XLIT Ltd.

XL House, 8 St. Stephen’s Green

Dublin, Ireland 2

 

Re:

XLIT Ltd. 4.450% Subordinated Notes due 2025 and 5.500% Subordinated Notes due 2045 guaranteed by XL Group plc

Ladies and Gentlemen:

We have acted as special United States counsel to XL Group plc, an Irish public limited company (the “Guarantor”), in connection with the public offering by XLIT Ltd., an exempted company incorporated in the Cayman Islands with limited liability (the “Company”) of $500,000,000 aggregate principal amount of the Company’s 4.450% Subordinated Notes due 2025 (the “2025 Subordinated Notes”) and $500,000,000 aggregate principal amount of the Company’s 5.500% Subordinated Notes due 2045 (the “2045 Subordinated Notes”) to be issued under an indenture, dated as of March 30, 2015 (the “Base Indenture”), among the Company, the Guarantor and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture thereto, dated as of March 30, 2015 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, the Guarantor and the Trustee. The Subordinated Notes and the Guarantees (as defined below) are collectively referred to herein as the “Securities.”

This opinion is being furnished to you in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the “Securities Act”).

In rendering the opinions stated herein, we have examined and relied upon the following:

 

XL Group plc

XLIT Ltd.

March 30, 2015

Page 2

 

 

(i)

the registration statement on Form S-3ASR (File No. 333-199842) of the Company and the Guarantor relating to debt securities and other securities of the Company and the Guarantor filed with the Securities and Exchange Commission (the “Commission”) on November 4, 2014 under the Securities Act, allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Rules and Regulations”), including the information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement being hereinafter referred to as the “Registration Statement”);

(ii)

an executed copy of the Underwriting Agreement, dated March 24, 2015 (the “Underwriting Agreement”), among Morgan Stanley & Co. LLC and Goldman, Sachs & Co., as representatives of the several underwriters named in Schedule I to the Underwriting Agreement (the “Underwriters”), and the Company and the Guarantor, relating to the sale of the Securities;

(iii)

the global certificate evidencing $500,000,000 aggregate principal amount of 4.450% Subordinated Notes due 2025 of the Company (the “2025 Note Certificate”) and the global certificate evidencing $500,000,000 aggregate principal amount of 5.500% Subordinated Notes due 2045 of the Company (together with the 2025 Note Certificate, the “Note Certificates”), each in the form delivered by the Company to the Trustee for authentication and delivery;

(iv)

an executed copy of the Base Indenture; and

(v)

an executed copy of the First Supplemental Indenture, including Section 2.11 thereof that provides that the 2025 Subordinated Notes and the 2045 Subordinated Notes are entitled to the benefits of the guarantee obligations of the Guarantor contained in Article XI of the Base Indenture (collectively, the “Guarantees”).

The Indenture, the Note Certificates and the Underwriting Agreement are referred to herein collectively as the “Transaction Agreements.”

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and the Guarantor and such agreements, certificates and receipts of public officials, certificates of officers or other representatives

 

XL Group plc

XLIT Ltd.

March 30, 2015

Page 3

 

 

of the Company, the Guarantor and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.

In our examination, we have assumed the genuineness of all signatures, including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that the parties thereto had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and, except as expressly set forth in the opinions below, the validity and binding effect thereof on such parties. We have also assumed that each of the Company and the Guarantor has complied and will comply with all aspects of the laws of all relevant jurisdictions (including the laws of the Cayman Islands and Ireland, respectively) in connection with the transactions contemplated by, and the performance of each of their obligations under, the Transaction Agreements, other than the laws of the State of New York insofar as we express our opinions herein. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company, the Guarantor and others and of public officials.

We do not express any opinion as to any laws other than those laws, rules and regulations of the State of New York that, in our experience, are applicable to transactions of the type contemplated by the Transaction Agreements, and to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws (all of the foregoing being referred to as “Opined on Law”). We do not express any opinion with respect to the law of any jurisdiction other than Opined on Law or as to the effect of any such law (other than Opined on Law) on the opinions herein stated. Insofar as the opinions expressed herein relate to matters governed by laws other than Opined on Law, we have assumed, without having made any independent investigation, that such laws do not affect the opinions set forth herein. The opinions expressed herein are based on laws in effect on the date hereof, which laws are subject to change with possible retroactive effect, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:

 

XL Group plc

XLIT Ltd.

March 30, 2015

Page 4

 

 

1.                  The Note Certificates have been duly executed by the Company, to the extent such execution is governed by the laws of the State of New York, and when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the Indenture, the Note Certificates will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms under the laws of the State of New York.

2.                  The Guarantees, when the Note Certificates have been duly authenticated by the Trustee and are issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the Indenture, will constitute valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with its terms under the laws of the State of New York.

The opinions stated herein are subject to the following qualifications:

(a)                the opinions stated herein are limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws affecting creditors’ rights generally, and by general principles of equity (regardless of whether enforcement is sought in equity or at law);

(b)               except to the extent expressly stated in the opinions contained herein, we do not express any opinion with respect to the effect on the opinions stated herein of (i) the compliance or non-compliance of any party to any of the Transaction Agreements with any laws, rules or regulations applicable to such party or (ii) the legal status or legal capacity of any party to any of the Transaction Agreements;

(c)                we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Agreements or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;

(d)               we do not express any opinion with respect to any securities, antifraud, derivatives or commodities laws, rules or regulations or Regulations T, U or X of the Board of Governors of the Federal Reserve System;

(e)                except to the extent expressly stated in the opinions contained herein, we have assumed that neither the execution and delivery by each of the Company and the Guarantor of the Transaction Agreements to which the Company or the Guarantor is a party nor the consummation by each of the Company and the Guarantor of the issuance and sale of the Securities contemplated thereby: (i) conflicts or will conflict with the articles of

 

XL Group plc

XLIT Ltd.

March 30, 2015

Page 5

 

 

association, memorandum of association or any other comparable organizational documents of the Company or the Guarantor, (ii) constitutes or will constitute a violation of, or a default under, any lease, indenture, instrument or other agreement to which the Company, the Guarantor or their respective property is subject, (iii) contravenes or will contravene any order or decree of any governmental authority to which the Company, the Guarantor or their respective property is subject, or (iv) violates or will violate any law, rule or regulation to which the Company, the Guarantor or their respective property is subject;

(f)                we have assumed that neither the execution and delivery by each of the Company and the Guarantor of the Transaction Agreements to which the Company or the Guarantor is a party nor the consummation by the Company or the Guarantor of the issuance and sale of the Securities contemplated thereby, requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction;

(g)               except to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Agreements constitutes the valid and binding obligation of each party to such Transaction Agreement, enforceable against such party in accordance with its terms;

(h)               we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Agreement relating to any indemnification, contribution, exculpation, release or waiver that may be contrary to public policy or violative of federal or state securities laws, rules or regulations;

(i)                 we do not express any opinion with respect to the enforceability of Article XI of the Base Indenture to the extent that such Article provides that the obligations of the Guarantor are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture or the effect thereof on the opinions herein stated;

(j)                 we call to your attention that the opinions stated herein are subject to possible judicial action giving effect to governmental actions or laws of jurisdictions other than those with respect to which we express our opinion; and

(k)               to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in any Transaction Agreement, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity or constitutionality.

 

XL Group plc

XLIT Ltd.

March 30, 2015

Page 6

 

 

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on Form 8-K being filed on the date hereof, and incorporated by reference into the Registration Statement. We also hereby consent to the use of our name under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

Very truly yours,

 

/s/ Skadden, Arps, Slate, Meagher & Flom LLP

 

Exhibit 5.2

 

30 March 2015

 

Dear Sirs

 

XLIT Ltd.

 

We have acted as counsel as to Cayman Islands law to XLIT Ltd., an exempted company incorporated in the Cayman Islands with limited liability (the “Company”), and XL Group plc, an Irish public limited company (the “Guarantor”), in connection with the offering of the Company’s U.S.$500,000,000 4.450% Subordinated Notes due 2025 and U.S.$500,000,000 5.500% Subordinated Notes due 2045 (collectively, the “Notes”), the payment of principal, premium, if any, and interest on which is fully and unconditionally guaranteed (the “Guarantees” and, together with the Notes, the “Securities”) by the Guarantor, to be issued under a subordinated base indenture dated as of 30 March, 2015 (the “Base Indenture”) and a first supplemental indenture thereto dated as of 30 March, 2015 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), each among the Company, the Guarantor and Wells Fargo Bank, National Association, as trustee (the “Trustee”). The prospectus dated 4 November 2014 (the “Base Prospectus”) together with the preliminary prospectus supplement relating to the Securities dated 19 March 2015 is herein called the “Pricing Prospectus” and the Base Prospectus together with the prospectus supplement relating to the Securities dated 24 March 2015 is herein called the “Final Prospectus”.

 

1	Documents Reviewed

 

We have reviewed originals, copies, drafts or conformed copies of the following documents:

 

1.1	The Certificate of Incorporation of the Company dated 16 March 1998 and the Certificates of Incorporation on Change of Name of the Company dated 7 August 1998, 1 February 1999, 1 July 2010 and 8 November 2011.

 

1.2	The Amended and Restated Memorandum and Articles of Association of the Company as adopted pursuant to special resolution of the Company dated 8 November 2011 (the “Memorandum and Articles”).

1.3	The excerpt of the minutes (the “Minutes”) of the meeting of the board of directors of the Company (the “Directors”) held on 19 February 2015 (the “Meeting”) and the corporate records of the Company maintained at its registered office in the Cayman Islands.

 

1.4	A certificate of good standing with respect to the Company issued by the Cayman Islands Registrar of Companies dated 27 March 2015 (the “Certificate of Good Standing”).

 

1.5	A certificate from a Director a copy of which is attached to this opinion letter (the “Director’s Certificate”).

 

1.6	The Pricing Prospectus and the Final Prospectus.

 

1.7	The transaction documents listed in the Second Schedule (the “Transaction Documents”).

 

2	Assumptions

 

The following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion letter. In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy of the Director’s Certificate and the Certificate of Good Standing. We have also relied upon the following assumptions, which we have not independently verified:

 

2.1	The Transaction Documents and the Notes have been or will be authorised and duly executed and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws (other than, with respect to the Company, the laws of the Cayman Islands).

 

2.2

Where a Transaction Document has been provided to us in draft or undated form, it will be duly executed, dated and unconditionally delivered by all parties thereto in materially the same form as the last version provided to us and, where we have been provided with successive drafts of a Transaction Document marked to show changes to a previous draft, all such changes have been accurately marked.

 

2.3	Copies of documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the originals, and translations of documents provided to us are complete and accurate.

 

2.4	All signatures, initials and seals are genuine.

 

2.5	The capacity, power, authority and legal right of all parties under all relevant laws and regulations (other than, with respect to the Company, the laws of the Cayman Islands) to enter into, execute, unconditionally deliver and perform their respective obligations under the Transaction Documents.

 

2.6	There is no contractual or other prohibition or restriction (other than as arising under Cayman Islands law) binding on the Company prohibiting or restricting it from entering into and performing its obligations under the Transaction Documents and the Notes.

 

2.7	The Notes will be issued and authenticated in accordance with the provisions of Indenture.

2.8	No monies paid to or for the account of any party under the Transaction Documents represent or will represent criminal property or terrorist property (as defined in the Proceeds of Crime Law (2014 Revision) and the Terrorism Law (2011 Revision), respectively).

 

2.9	The Company is not a sovereign entity of any state and is not a subsidiary, direct or indirect, of any sovereign entity or state.

 

2.10	No invitation has been or will be made by or on behalf of the Company to the public in the Cayman Islands to subscribe for any of the Notes.

 

2.11	There is nothing under any law (other than the laws of the Cayman Islands) which would or might affect the opinions set out below. Specifically, we have made no independent investigation of the laws of the State of New York.

 

3

Opinions

 

Based upon, and subject to, the foregoing assumptions and the qualifications set out below, and having regard to such legal considerations as we deem relevant, we are of the opinion that:

 

3.1	The Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good standing under the laws of the Cayman Islands.

 

3.2	The Company has all the requisite power and authority under the Memorandum and Articles to enter into, execute and perform its obligations under the Transaction Documents and the Notes, including the issue and offer of the Notes pursuant to the Transaction Documents.

 

3.3

The execution and delivery of the Transaction Documents do not, and the issue and offer of the Notes by the Company and the performance by the Company of its obligations thereunder will not, conflict with or result in a breach of any of the terms or provisions of the Memorandum and Articles or any law, public rule, decree or regulation applicable to the Company currently in force in the Cayman Islands.

 

3.4

The execution, delivery and performance of the Transaction Documents have been duly authorised by and on behalf of the Company and the Transaction Documents have been executed on behalf of the Company. Upon the unconditional delivery of the Transaction Documents by any Authorized Officer (as defined in the Minutes) for and on behalf of the Company, the Transaction Documents will have been delivered on behalf of the Company.

 

3.5	The Notes have been duly authorised by the Company and when the Notes are authenticated in the manner set forth in the Indenture and delivered against due payment therefor will be duly executed, issued and delivered.

 

3.6	The Company is not entitled to any immunity under the laws of the Cayman Islands whether characterised as sovereign immunity or otherwise for any legal proceedings in the Cayman Islands to enforce or to collect upon the Transaction Documents or the Notes.

4	Qualifications

 

The opinions expressed above are subject to the following qualifications:

 

4.1	To maintain the Company in good standing under the laws of the Cayman Islands, annual filing fees must be paid and returns made to the Registrar of Companies within the time frame prescribed by law.

 

4.2	We express no opinion as to the meaning, validity or effect of any references to foreign (i.e. non-Cayman Islands) statutes, rules, regulations, codes, judicial authority or any other promulgations and any references to them in the Transaction Documents or the Notes.

 

We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K that will be incorporated by reference into the registration statement on Form S-3 (No. 333-199842). In providing our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the Rules and Regulations of the Securities and Exchange Commission thereunder.

 

We express no view as to the commercial terms of the Transaction Documents or the Notes or whether such terms represent the intentions of the parties and make no comment with regard to warranties or representations that may be made by the Company.

 

The opinions in this opinion letter are strictly limited to the matters contained in the opinions section above and do not extend to any other matters. We have not been asked to review and we therefore have not reviewed any of the ancillary documents relating to the Transaction Documents and express no opinion or observation upon the terms of any such document.

 

This opinion letter may be relied upon by Skadden, Arps, Slate, Meagher & Flom LLP for the purposes solely of any legal opinion that they may be required to give with respect to the transactions contemplated by the Transaction Documents.

 

Yours faithfully

 

/s/ Maples and Calder

First Schedule

 

Addressees

 

1

XLIT Ltd.

XL House

8 St. Stephen’s Green

Dublin 2

Ireland

 

2	XL Group plc

XL House

8 St. Stephen’s Green

Dublin 2

Ireland

Second Schedule

 

Transaction Documents

 

1	Underwriting Agreement dated 24 March 2015 among the Company, the Guarantor, Morgan Stanley & Co. LLC and Goldman, Sachs & Co., as representatives of the underwriters named in Schedule I thereto (the “Underwriting Agreement”).

 

2	The Base Indenture (including the Guarantees) and the First Supplemental Indenture.

 

3	The global certificates evidencing the Notes executed by the Company and authenticated by the Trustee.

 

4	Replacement Capital Covenant dated 30 March 2015 by the Company.

EXHIBIT 5.3

 

A&L Goodbody Solicitors International Financial Services Centre North Wall Quay Dublin 1

 

Tel: +353 1 649 2000 Fax: +353 1 649 2649 email: [email protected] website: www.algoodbody.com dx: 29 Dublin

 

Our ref

DAW/CMC 01-412209

Your ref

Date

30 March 2015

 

XL Group plc

XL House

8 St. Stephens Green,

Dublin 2

Ireland

 

XLIT Ltd.

XL House

8 St. Stephens Green,

Dublin 2

Ireland

 

XLIT Ltd.

US$500,000,000 4.450% Subordinated Notes Due 2025

US$500,000,000 5.500% Subordinated Notes Due 2045

Guaranteed by XL Group plc

 

Dear Sirs,

 

We have acted as legal advisers as to matters of Irish law to XL Group plc, a public company limited by shares, incorporated under the laws of Ireland, with its registered office at XL House, 8 St. Stephens Green, Dublin 2, Ireland (the Guarantor) and XLIT Ltd., a company incorporated in the Cayman Islands with its registered office at XL House, 8 St. Stephens Green, Dublin 2, Ireland (the Issuer) in connection with the provision of the guarantees by the Guarantor (the Guarantees) in respect of the obligations of the Issuer under the US$500,000,000 4.450% Subordinated Notes Due 2025 (the 2025 Notes) and the US$500,000,000 5.500% Subordinated Notes Due 2045 (the 2045 Notes) (the 2025 Notes and the 2045 Notes together the Notes) issued by the Issuer pursuant to the subordinated indenture (the Base Subordinated Indenture) to be dated 30 March 2015 and made among the Issuer, the Guarantor and Wells Fargo Bank, National Association (the Trustee) as supplemented by the first supplemental indenture thereto (the First Supplemental Indenture) to be dated 30 March 2015 and made among the Issuer, the Guarantor and the Trustee.

 

Documents Examined

 

1.

For the purposes of giving this Opinion we have examined (i) the registration statement on Form S-3 (File No. 333-199842) filed with the United States Securities and Exchange Commission (the Commission) under the Securities Act of 1933 of the United States of America, as amended (the Securities Act) (the Registration Statement), including the base prospectus contained therein (the Base Prospectus), (ii) the preliminary prospectus supplement dated 19 March 2015 (together with the Base Prospectus, the Preliminary Prospectus) in connection with the Notes and the Guarantees, (iii) the prospectus supplement dated 24 March 2015 (together with the Base

 

Dublin     Belfast      London      New York      San Francisco      Palo Alto

 

P.M. Law	V.J. Power	S. O’Riordan	E.A. Roberts	D. Widger	J.B. Somerville	D. Main	P.T. Fahy	A. Casey	G. Stanley	C. Morrissey
C.E. Gill	L.A. Kennedy	M.P. McKenna	C. Rogers	C. Christle	M.F. Barr	J. Cahir	A.J. Johnston	B. Hosty	D. Dagostino
E.M. FitzGerald	S.M. Doggett	K.A. Feeney	G. O’Toole	S. O’Croinin	A.M. Curran	M. Traynor	M. Rasdale	M. O’Brien	E. Keane
B.M. Cotter	B. McDermott	M. Sherlock	J.N. Kelly	J.W. Yarr	A. Roberts	P.M. Murray	D. Inverarity	K. Killalea	C. Clarkin
J. G. Grennan	C. Duffy	E.P. Conlon	N. O’Sullivan	D.R. Baxter	M. Dale	N. Ryan	M. Coghlan	L. Mulleady	R. Grey
J. Coman	E.M. Brady	E. MacNeill	M.J. Ward	A. McCarthy	C. McCourt	P. Walker	D.R. Francis	K. Ryan	R. Lyons
P.D. White	P.V. Maher	K.P. Allen	A.C. Burke	J.F. Whelan	R.M. Moore	K. Furlong	L.A. Murphy	E. Hurley	J. Sheehy

 

Consultants:   J.R. Osborne   S.W. Haughey   T.V. O’Connor   Professor J.C.W. Wylie   A.F. Browne   M.A. Greene   A.V. Fanagan   J.A. O’Farrell   I.B. Moore   J.H. Hickson

Prospectus, the Prospectus, and together with the Registration Statement and Preliminary Prospectus, the Offering Documents) in connection with the Notes and the Guarantees; (iv) the documents set out in Schedule 1 (the Transaction Documents, and together with the Offering Documents, the Issue Documents) and (iii) the corporate documents set out in Schedule 2 (the Corporate Documents and, together with the Issue Documents, the Documents).

 

Bases of Opinion

 

2.

2.1.

Terms defined in the Issue Documents have the same meaning in this Opinion.

 

2.2.

This Opinion is confined to matters of Irish law applied by the courts of Ireland as at the date hereof and is given on the basis that it shall be governed by and construed in accordance with Irish law without reference to the provisions of other laws imported by private international law. We have made no investigation of, and express no opinion as to, the laws of any other jurisdiction. We have no knowledge of whether, or to what extent, the laws of a jurisdiction other than Ireland would affect this Opinion.

 

2.3.

This Opinion is limited strictly to the matters stated herein and is not to be read as extending by implication or otherwise to any other matter.

 

2.4.

This Opinion is given as of the date hereof and may not be relied upon as of any later date.

 

Assumptions

 

3.

For the purposes of issuing this Opinion we have made and relied on the following assumptions without any responsibility on our part if any assumption proves to be untrue as we have not independently verified any assumption:

 

3.1.

the authenticity of all documents submitted to us as originals and the completeness and conformity to the originals of all copies of documents of any kind furnished to us;

 

3.2.

that the copies produced to us of minutes of meetings and/or of resolutions are true copies and correctly record the proceedings of such meetings and/or the subject-matter which they purport to record and that any meetings referred to in such copies were duly convened and held and that all resolutions set out in such minutes were duly passed and are in full force and effect;

 

3.3.

the genuineness of the signatures and seals on all original and copy documents which we have examined;

 

3.4.

that the memorandum and articles of association of the Guarantor are correct and up to date;

3.5.

the accuracy and completeness as to factual matters of the representations and warranties of the Guarantor contained in the Documents and the accuracy of all certificates provided to us by the Guarantor;

 

3.6.

that there are no agreements or arrangements in existence which in any way amend or vary the terms of the Transaction as disclosed by the Issue Documents;

 

3.7.

without having made any investigation, that as a matter of the laws of the State of New York and all other applicable law (other than the laws of Ireland), the terms and conditions of the Notes and the provisions of the Transaction Documents constitute legal, valid, binding and enforceable obligations of each of the parties thereto;

 

3.8.

the accuracy and completeness of all information appearing on public records;

 

3.9.

that the Guarantor has entered into the Transaction Documents in good faith, for its legitimate business purposes, for good consideration, and that it will derive commercial benefit from the Transaction;

 

3.10.

that (a) the Guarantor will be fully solvent at the time of and immediately following its entry into the Transaction Documents and the filing of the Registration Statement; (b) the Guarantor will not become insolvent as a consequence of doing any act or thing which the Transaction Documents or the Registration Statement contemplates, permits or requires the Guarantor to do (including providing the Guarantees); (c) no resolution or petition for the appointment of a liquidator or examiner has been passed or presented in relation to the Guarantor; and (d) no receiver has been appointed in relation to any of the assets or undertaking of the Guarantor;

 

3.11.

that the proceeds of the issue of the Notes were not directly or indirectly used to finance a purchase, or subscription made or to be made, by any person for any shares in the Guarantor;

 

3.12.

no authorisations, approvals, licences, exemptions or consents of governmental or regulatory authorities with respect to the agreements or arrangements referred to in the Registration Statement or with respect to the entry of the Guarantor into the Transaction Documents are or will be required to be obtained;

 

3.13.

that, for the purposes of Directive 2003/71/EC, no offering of the Notes will be made to the public within the European Economic Area and no application will be made to have the Notes admitted to the official list or to trading on any regulated market situated or operating within the European Economic Area; and

 

3.14.

the Transaction Documents or the Notes and the transactions and other matters contemplated thereby are not and will not be affected by any financial restrictions arising from orders made by the Minister for Finance under the Financial Transfers Act 1992, the Criminal Justice (Terrorist Offences) Act 2005, the European Communities Act 1972 or

European Communities Regulations being directly applicable or having direct effect in Ireland. Orders which have been made under those acts and regulations that are in effect at the date of this Opinion impose restrictions on financial transfers involving residents of certain countries, certain named individuals and certain named entities arising from the implementation in Ireland of United Nations and EU sanctions.

 

Opinion

 

4.

We express no opinion as to any matters falling to be determined other than under the laws of Ireland and, without reference to provisions of other laws imported by Irish private international law, in Ireland as of the date of this Opinion. Subject to that qualification and to the other qualifications set out herein, we are of the opinion that:

 

4.1.

the Guarantor is a public company duly incorporated with limited liability under the laws of Ireland and is a separate legal entity, subject to suit in its own name. Based only on searches carried out in the Irish Companies Registration Office on 30 March 2015, the Guarantor is validly existing under the laws of Ireland;

 

4.2.

the Guarantor has the necessary power and authority to enable it to execute, deliver and perform the obligations undertaken by it under the Transaction Documents;

 

4.3.

the execution of the Transaction Documents has been duly authorised by the Guarantor;

 

4.4.

the execution, delivery and performance by the Guarantor of the Transaction Documents will not:

 

4.4.1.

cause any law, regulation, rule or order of Ireland to be contravened; or

 

4.4.2.

result in a breach of any of the terms or provisions of the Memorandum or Articles of Association of the Guarantor; and

 

4.5.

the Guarantor is not entitled to claim any immunity from suit, execution, attachment or other legal process in Ireland.

 

Qualifications

 

5.

The opinions set forth in this opinion letter are given subject to the following qualifications:

 

5.1.

this opinion is given subject to general provisions of Irish law relating to insolvency, bankruptcy, liquidation, reorganisation, receivership, moratoria, court scheme of arrangement, administration and examination, and the fraudulent preference of creditors and other Irish law generally affecting the rights of creditors;

 

5.2.

this opinion is subject to the general laws relating to the limitation of actions in Ireland;

5.3.

a determination, description, calculation, opinion or certificate of any person as to any matter provided for in the Transaction Documents might be held by the Irish courts not to be final, conclusive or binding if it could be shown to have an unreasonable, incorrect, or arbitrary basis or not to have been made in good faith;

 

5.4.

additional interest imposed by any clause of any Transaction Documents might be held to constitute a penalty and the provisions of that clause imposing additional interest would thus be held to be void. The fact that such provisions are held to be void would not in itself prejudice the legality and enforceability of any other provisions of the Transaction Documents but could restrict the amount recoverable by way of interest under the Transaction Documents;

 

5.5.

the Offering Documents have been prepared by the Issuer and we have not investigated or verified the truth or accuracy of the information contained therein, nor have we been responsible for ensuring that no material information has been omitted therefrom; and

 

5.6.

we express no opinion on any taxation matters.

 

Reliance

 

6.

6.1.

This Opinion may be relied upon by the Issuer’s legal advisers, Skadden, Arps, Slate, Meagher & Flom LLP and Kirstin Gould, Executive Vice President, General Counsel and Secretary of the Guarantor.

 

6.2.

We hereby consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K that will be incorporated by reference into the Registration Statement and to the reference to this firm in the prospectus constituting a part of the Registration Statement, and in the prospectus supplement related to the offering of the Notes, under the heading “Legal Matters” as counsel for the Guarantor who have passed, in accordance with the terms of this Opinion, on the validity as to matters of Irish law of the Notes being registered by the Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

 

Yours faithfully

 

/s/ A&L Goodbody

 

A&L Goodbody

 

SCHEDULE 1

 

Transaction Documents

 

1.

Base Subordinated Indenture (including the Guarantees) among the Issuer, the Guarantor and the Trustee dated 30 March 2015.

 

2.

First Supplemental Indenture among the Issuer, the Guarantor and the Trustee dated 30 March 2015.

 

3.

Underwriting Agreement dated 24 March 2015 among the Issuer, the Guarantor and the Underwriters.

 

SCHEDULE 2

 

1.

Corporate Certificate of the Guarantor dated 30 March 2015 including, inter alia;

 

o

Resolutions of the directors of the Guarantor; and

 

o

Certified copy of the Certificate of Incorporation, Certificate of Re-registration as a public limited company and Memorandum and Articles of Association of the Guarantor.