EXHIBIT 1.1
CONFORMED COPY
$100,000,000
in Aggregate Liquidation Amount
Capital Securities
RenaissanceRe Capital Trust
PURCHASE AGREEMENT
------------------
March 4, 1997
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Salomon Brothers Inc
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
RenaissanceRe Capital Trust, a statutory business trust organized under the
Business Trust Act (the "Delaware Act") of the State of Delaware (Chapter 38,
Title 12 of the Delaware Code, 12 Del. (Sections 3801 et seq.)) (the "Trust"),
and RenaissanceRe Holdings Ltd., a Bermuda company (the "Company" and, together
with the Trust, the "Offerors"), confirm their agreements with Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and
Xxxxxxx Xxxxxxxx Inc (collectively, the "Initial Purchasers," which term shall
also include any initial purchaser substituted as hereinafter provided in
Section 11 hereof), with respect to the issue and sale by the Trust and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective numbers set forth in Schedule A hereto of 100,000 Series A 8.54%
Capital Securities (liquidation amount of $1,000 per security) representing
undivided beneficial interests in the assets of the Trust (the "Series A Capital
Securities"). The aforesaid 100,000 Series A Capital Securities to be purchased
by the Initial Purchasers are hereinafter referred to as the "Designated
Securities." The Series A Capital Securities will be guaranteed by the Company,
to the extent described in the Offering Memorandum (as defined below), with
respect to distributions and payments upon liquidation, redemption and otherwise
pursuant to the Series A Capital Securities Guarantee Agreement (the "Series A
Capital Securities Guarantee"), to be dated as of the Closing Time (as defined
in Section 2(b) hereof), between the Company and The Bank of New York, as
Trustee (the "Guarantee Trustee").
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The entire proceeds from the sale of the Capital Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of its common
securities (the "Common Securities"), as guaranteed by the Company to the extent
set forth in the Offering Memorandum with respect to distributions and payments
upon liquidation, redemption and otherwise pursuant to the Common Securities
Guarantee Agreement (the "Common Securities Guarantee" and, together with the
Series A Capital Securities Guarantee, the "Guarantees"), to be dated as of the
Closing Time, and will be used by the Trust to purchase $103,092,783.51 in
aggregate principal amount of Series A 8.54% Junior Subordinated Deferrable
Interest Debentures due March 1, 2027 (the "Series A Subordinated Debentures")
issued by the Company. The Capital Securities and the Common Securities will be
issued pursuant to the Amended and Restated Declaration of Trust, to be dated as
of the Closing Time (the "Declaration"), among the Company, as sponsor, Xxxxx X.
Xxxxx, Xxxx X. Xxxxxxx, Xx. and Xxxxxx Xxxxxxx, as administrative trustees (the
"Administrative Trustees"), The Bank of New York, as property trustee (the
"Property Trustee"), and The Bank of New York (Delaware), as Delaware trustee
(the "Delaware Trustee," and, together with the Property Trustee and the
Administrative Trustees, the "Trustees"). The Series A Subordinated Debentures
will be issued pursuant to an indenture, to be dated as of March 7, 1997 (the
"Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee").
The Series A Capital Securities may be issued either in certificated or book-
entry form. The Series A Capital Securities issued in book-entry form will be
issued to Cede & Co. as nominee of The Depository Trust Company ("DTC") pursuant
to a letter of representation, to be dated as of the Closing Time (the "DTC
Representation Letter"), among the Trust, the Property Trustee and DTC.
The Series A Capital Securities, the Series A Capital Securities Guarantee and
the Series A Subordinated Debentures are hereinafter collectively referred to as
the "Series A Securities."
The Series A Capital Securities will be subject to the registration rights set
forth in the registration rights agreement (the "Registration Rights Agreement")
among the Company, the Trust and the Initial Purchasers, to be executed on and
dated as of the Closing Time. Pursuant to the Registration Rights Agreement,
the Offerors will agree, among other things, to file with the Securities and
Exchange Commission (the "Commission") (i) a registration statement (the
"Exchange Offer Registration Statement") under the Securities Act of 1933, as
amended (the "1933 Act"), relating to the Series B 8.54% Capital Securities
(liquidation amount $1,000 per security) of the Trust (the "Series B Capital
Securities"), the Series B Capital Securities Guarantee (the "Series B Capital
Securities Guarantee") and the Series B 8.54% Junior Subordinated Deferrable
Interest Debentures due March 1, 2027 (the "Series B Subordinated Debentures"
and, collectively with the Series B Capital Securities and the Series B Capital
Securities Guarantee, the "Series B Securities"), to be offered in exchange for
the Series A Securities (such offer to exchange being referred to as the
"Exchange Offer") and/or (ii) a shelf
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registration statement pursuant to Rule 415 under the 1933 Act (the "Shelf
Registration Statement") relating to the resale by certain holders of the Series
A Securities.
The Series A Securities and the Series B Securities are collectively referred
to as the "Securities"; the Series A Capital Securities and the Series B Capital
Securities are jointly referred to as the "Capital Securities"; the Series A
Subordinated Debentures and the Series B Subordinated Debentures are jointly
referred to as the "Subordinated Debentures"; and the Series A Capital
Securities Guarantee and the Series B Capital Securities Guarantee are jointly
referred to as the "Capital Securities Guarantees." The Indenture, the
Declaration, the Registration Rights Agreement, the DTC Representation Letter,
the Guarantees and this Agreement are hereinafter referred to collectively as
the "Operative Documents."
The Offerors understand that the Initial Purchasers propose to make an
offering of the Designated Securities on the terms and in the manner set forth
herein and agree that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Designated Securities to
purchasers ("Subsequent Purchasers") at any time after the date of this
Agreement. The Designated Securities are to be offered and sold through the
Initial Purchasers without being registered under the 1933 Act, in reliance upon
exemptions therefrom. Pursuant to the terms of the Designated Securities,
investors that acquire Designated Securities may only resell or otherwise
transfer such Designated Securities if such Designated Securities are hereafter
registered under the 1933 Act or if an exemption from the registration
requirements of the 1933 Act is available (including the exemption afforded by
Rule 144A ("Rule 144A") or Regulation S ("Regulation S") of the rules and
regulations promulgated by the Commission under the 1933 Act (the "1933 Act
Regulations")).
The Offerors have prepared and will deliver to each Initial Purchaser, as soon
as practicable, but not later than March 4, 1997, copies of a final offering
memorandum dated March 4, 1997 (the "Offering Memorandum"), for use by such
Initial Purchaser in connection with its solicitation of purchases of, or
offering of, the Designated Securities. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (or any amendment or supplement to such document), including
exhibits thereto and any documents incorporated therein by reference, which has
been prepared and delivered by the Offerors to the Initial Purchasers in
connection with their solicitation of purchases of, or offering of, the
Designated Securities.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included," "specified" or "stated" in
the Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing by the Company of any
document under the Securities Exchange Act of 1934, as amended (the "1934 Act")
which is incorporated by reference in the Offering Memorandum.
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1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to each
Initial Purchaser as of the date hereof and as of the Closing Time referred to
in Section 2(a), and agree with each Initial Purchaser, as follows:
(i) The Offering Memorandum does not, and at the Closing Time will not,
contain an untrue statement of a material fact or omit to state a 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 the representation and warranty in this subsection shall not
apply to statements in or omissions from the Offering Memorandum made in
reliance upon and in conformity with information furnished to the Offerors
in writing by or on behalf of any Initial Purchaser through Xxxxxxx Xxxxx
expressly for use in the Offering Memorandum.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum at the time they were or hereafter are
filed with the Commission complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Offering Memorandum, at the date of the
Offering Memorandum and at the Closing Time, do not and will not include 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.
(iii) None of the Offerors nor any of their respective affiliates (as
defined in Rule 501(b) of Regulation D ("Regulation D") under the 1933
Act), directly or indirectly, has solicited any offer to buy or offered to
sell, or will solicit any offer to buy or offer to sell any security which
is or would be integrated with the sale of the Series A Securities in a
manner that would require the offer or sale of the Series A Securities to
be registered under the 1933 Act. None of the Offerors nor any of their
respective affiliates (as defined in Rule 501(b) of Regulation D), directly
or indirectly, has engaged or will engage, in connection with the offering
of any security which is or would be integrated with the sale of the Series
A Securities (a) in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the 1933 Act or (b) in any directed
selling efforts within the meaning of Rule 902 under the 1933 Act in the
United States. Assuming the accuracy of the representations and warranties
of, and compliance with their agreements by, the Initial Purchasers set
forth herein, it is not necessary in connection with the offer, sale and
delivery of the Series A Securities to the Initial Purchasers, or in
connection with the initial resale of the Series A Securities by the
Initial Purchasers in accordance herewith, to register the offer or sale of
the
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Series A Securities under the 1933 Act or to qualify any of the Series A
Securities under the Trust Indenture Act of 1939, as amended.
(iv) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations under the
Operative Documents, as applicable, and the Designated Securities; the
Trust is not a party to or otherwise bound by any material agreement other
than those described in the Offering Memorandum; and the Trust is and will
at the Closing Time, under current law, be classified for United States
federal income tax purposes as a grantor trust.
(v) Ernst & Young, the accountants who audited the financial statements
and related schedules as of December 31, 1993, 1994 and 1995 and for the
years ended December 31, 1994 and 1995 and the period beginning June 7,
1993 (date of incorporation) through December 31, 1993 included in the
Offering Memorandum and the financial statements and related schedules as
of and for the year December 31, 1996 (the "1996 Financial Statements"),
are independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(vi) The consolidated financial statements incorporated by reference in
the Offering Memorandum and the 1996 Financial Statements fairly present
the consolidated financial position of the Company and its subsidiaries,
including Renaissance Reinsurance Ltd. ("Renaissance Reinsurance") and
Glencoe Insurance Ltd. ("Glencoe Insurance;" together with Renaissance
Reinsurance, the "Subsidiaries"), as at the dates indicated and the
consolidated results of their operations for the periods specified; except
as otherwise stated in the Offering Memorandum, such financial statements
were prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis.
(vii) Each of the Company and its Subsidiaries, has filed all reports,
information statements and other documents with the insurance regulatory
authorities of its jurisdictions of incorporation and domicile as are
required to be filed pursuant to the insurance statutes of such
jurisdictions, including the statutes relating to companies which control
insurance companies, and the rules, regulations and interpretations of the
insurance regulatory authorities thereunder (the "Applicable Insurance
Laws"), and has duly paid all taxes (including franchise taxes and similar
fees) it is required to have paid under the Applicable Insurance Laws,
except where the failure to file such statements or reports or pay such
taxes would not have a material adverse effect on the financial condition,
earnings or business of the Company and its Subsidiaries considered as one
enterprise (a "Material Adverse Effect"), and each of the Company and its
Subsidiaries maintains its books and records in accordance with the
Applicable Insurance Laws, except where the failure to so maintain its
books and records would not have a Material Adverse Effect; all
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of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable.
(viii) This Agreement has been duly executed and delivered by the
Offerors.
(ix) The Declaration has been duly authorized by the Company and, at the
Closing Time, will have been duly executed and delivered by the Company and
the Trustees, and assuming the due authorization, execution and delivery of
the Declaration by the Trustees, the Declaration will, at the Closing Time,
be a valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that enforcement
thereof may be limited by the receivership, conservatorship and supervisory
powers of bank regulatory agencies generally as well as to bankruptcy,
insolvency (including without limitation all laws relating to fraudulent
transfers), reorganization, moratorium, liquidation, receivership or other
similar laws affecting creditors' rights generally or by general principles
of equity (regardless of whether enforcement is considered in a proceeding
at law or in equity) and the availability of equitable remedies
(collectively, the "Enforceability Exceptions") and except that any rights
to indemnity and contribution described therein may be limited by state or
federal securities laws or the public policy underlying such laws.
(x) The Common Securities, when duly authorized by the Declaration and,
when issued and delivered by the Trust to the Company against payment
therefor as described in the Offering Memorandum, will be validly issued
and fully paid and non-assessable undivided beneficial interests in the
assets of the Trust; the issuance of the Common Securities will not be
subject to preemptive or other similar rights; at the Closing Time, all of
the issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equitable right.
(xi) At the Closing Time, the Series A Capital Securities, when duly
authorized by the Declaration and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully paid
and non-assessable undivided beneficial interests in the assets of the
Trust; the issuance of the Series A Capital Securities will not be subject
to preemptive or other similar rights; at the Closing Time, the Series B
Capital Securities will have been duly authorized by the Trust and, when
duly issued and delivered against payment therefor upon consummation of the
Exchange Offer, will be validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust; and the Capital
Securities will be in the form contemplated by, and entitled to the
benefits of, the Declaration and will conform to the descriptions thereof
in the Offering Memorandum.
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(xii) Each of the Guarantees has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and, assuming the due authorization, execution and delivery by the
Guarantee Trustee, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; upon consummation of the Exchange Offer, the
Series B Capital Securities Guarantee will have been duly executed and
delivered by the Company, and will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by the Enforceability Exceptions; and the Guarantees will conform
to the descriptions thereof in the Offering Memorandum.
(xiii) The Indenture has been duly authorized by the Company and, at the
Closing Time, will have been duly executed and delivered by the Company
and, upon receipt of the purchase price in respect of the Junior
Subordinated Debentures, will constitute a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions.
(xiv) The Series A Subordinated Debentures have been duly authorized by
the Company; at the Closing Time the Series A Subordinated Debentures will
have been duly executed by the Company and, when issued, authenticated and
delivered in the manner provided for in the Indenture and delivered to the
Trust against payment therefor as described in the Offering Memorandum,
will constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by the Enforceability Exceptions;
the Series B Subordinated Debentures have been duly authorized by the
Company and, when duly executed and delivered by the Company and
authenticated in the manner provided in the Indenture, and upon receipt of
the purchase price therefor, upon consummation of the Exchange Offer will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms except to the extent
that enforcement thereof may be limited by the Enforceability Exceptions;
and the Subordinated Debentures will be in the form contemplated by, and
entitled to the benefits of, the Indenture and will conform in all material
respects to the description thereof in the Offering Memorandum.
(xv) The Registration Rights Agreement has been duly authorized by the
Offerors and, at the Closing Time, will have been duly executed and
delivered and will constitute a valid and binding agreement of the
Offerors, enforceable against the Offerors in accordance with its terms,
except to the extent enforcement thereof may be limited by the
Enforceability Exceptions and except that rights to indemnity
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and contribution may be limited by state or federal securities laws or the
public policy underlying such laws.
(xvi) Each of the Operative Documents conforms in all material respects
to the description thereof contained in the Offering Memorandum.
(xvii) Each of the Administrative Trustees is an officer or employee of
the Company and has been duly authorized by the Company to execute and
deliver the Declaration.
(xviii) Since the respective dates as of which information is given in
the Offering Memorandum, except as otherwise stated therein, (A) there has
been no Material Adverse Effect, (B) there have been no transactions
entered into by the Company or any Subsidiary, other than those in the
ordinary course of business, which are material with respect to the Company
and its Subsidiaries considered as one enterprise and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock, except to the extent described in the
Offering Memorandum.
(xix) The Company has been duly formed and is validly existing as a
company in good standing under the laws of Bermuda with the power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and to enter into and
perform its obligations under the Purchase Agreement; and the Company is
duly qualified as a foreign company to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a Material
Adverse Effect.
(xx) Renaissance Reinsurance and Glencoe Insurance are the only
subsidiaries of the Company. Each of the Subsidiaries has been duly formed,
is validly existing as a company in good standing under the laws of the
jurisdiction of its incorporation, has the power and authority to own,
lease and operate its properties and to conduct its business as described
in the Offering Memorandum, and is duly qualified as a foreign company to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify would not have a Material Adverse Effect; all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable. All of the shares of
Renaissance Reinsurance and a majority of the shares of Glencoe Insurance
are owned of record by the Company, in each case free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim.
(xxi) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Offering Memorandum under
the caption "Capitalization;"
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all of the outstanding shares of capital stock of the Company have been
duly authorized and validly issued, and are fully paid and non-assessable.
(xxii) The Securities conform (or will conform) to all statements
relating thereto contained in the Offering Memorandum; and the Securities
are not subject to preemptive or other similar rights, except pursuant to
the Registration Rights Agreement and such rights as have been duly and
irrevocably waived prior to the date hereof.
(xxiii) The Trust is not in violation of the Certificate of Trust filed
with the state of Delaware or the Declaration and neither the Company nor
any Subsidiary is in violation of its respective Memorandum of Association
or Bye-laws and neither the Trust, the Company nor any Subsidiary is in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Trust, the Company
or any Subsidiary is a party or by which the Trust, the Company or any
Subsidiary is bound, or to which any of the property or assets of the
Trust, the Company or any Subsidiary is subject, other than any such
violation or default that would not have a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the Operative
Documents, and the consummation of the transactions contemplated herein and
therein, have been duly authorized by all necessary action by or on behalf
of the Trust and the Company and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien or encumbrance upon any property or assets of the Trust, the Company
or any Subsidiary pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Trust, the Company
or any Subsidiary is a party or by which it or either of them may be bound,
or to which any of the property or assets of the Trust, the Company or any
Subsidiary is subject, nor will such action result in any violation of the
provisions of the Memorandum of Association or Bye-laws of the Company or
any Subsidiary, the Declaration or any applicable law, administrative
regulation or administrative or court decree, other than any such conflict,
breach or violation that would not have a Material Adverse Effect. Neither
the Trust, the Company nor any Subsidiary has received any notice from any
other party to any material treaty, contract, agreement or arrangement that
such other party intends not to perform such treaty, contract, agreement or
arrangement, and neither the Trust, the Company nor its Subsidiaries has
any knowledge that any other party to such treaties, contracts, agreements
or arrangements will be unable to perform such treaty, contract, agreement
or arrangement, except to the extent that the Company or any Subsidiary has
made provision which it deems adequate for potential uncollectible
reinsurance.
(xxiv) No labor dispute with the employees of the Company or its
Subsidiaries exists or, to the knowledge of the Offerors, is threatened,
that might reasonably be expected to have a Material Adverse Effect.
(xxv) There is no action, suit or proceeding before or by any court or
governmental agency or body (including, without limitation, any insurance
regulatory
10
agency or body), domestic or foreign, now pending, or, to the knowledge of
the Offerors, threatened, against or affecting the Trust, the Company or
any Subsidiary, which is required to be disclosed in the Offering
Memorandum (other than as disclosed therein), or which, considered singly
or in the aggregate, might have a Material Adverse Effect, or which might
prevent the consummation of this Agreement; and all pending legal or
governmental proceedings to which the Trust, the Company or any Subsidiary
is a party or of which any of their respective properties or assets is the
subject which are not described in the Offering Memorandum, including
ordinary routine litigation incidental to the business, considered in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(xxvi) No authorization, approval or consent of any court or
governmental authority or agency (including, without limitation, any
insurance regulatory agency or body) is necessary in connection with the
offering or sale of the Securities hereunder, except such as may be
required under the Securities Exchange Act of 1934, as amended (the "1934
Act"), the rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations"), the Exchange Control Regulations promulgated
pursuant to the Exchange Control Act 1972 of Bermuda or state or foreign
securities laws which the Initial Purchasers have the responsibility to
obtain.
(xxvii) Each of the Trust, the Company and the Subsidiaries possesses
such licenses, certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
(including, without limitation, any such item from any insurance regulatory
agency or body) necessary to conduct the business now operated by them,
except where the failure to possess such certificates, authorizations or
permits would not have a Material Adverse Effect, and neither the Trust,
the Company nor any Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling, or finding, would have a Material
Adverse Effect. Except as disclosed in the Offering Memorandum, no
insurance regulatory agency or body has issued any order or decree
impairing, restricting or prohibiting (A) payment of dividends by the
Company or by any Subsidiary to the Company, or (B) the continuation of the
business of the Trust, the Company or any Subsidiary in all material
respects as presently conducted.
(xxviii) Each of the Trust, the Company and its Subsidiaries has good
title to all properties owned by it, in each case free and clear of all
liens, encumbrances and defects except (i) as do not materially interfere
with the use made and proposed to be made of such properties or (ii) as
could not reasonably be expected to have a Material Adverse Effect.
(xxix) There are no holders of securities (debt or equity) of the Trust,
the Company or its Subsidiaries, or holders of rights, options or warrants
to obtain securities of the Trust, the Company or its Subsidiaries, who
have the right to request the Company
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to register securities held by them under the 1933 Act (or, subject to
certain conditions, their respective transferees), except pursuant to the
Registration Rights Agreement or as set forth or incorporated by reference
in the Offering Memorandum.
(xxx) Neither the Trust nor the Company has taken and will take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price
of the Designated Securities.
(xxxi) The Series A Capital Securities will at the Closing Time be
eligible for resale pursuant to Rule 144A and will not be, at the Closing
Time, of the same class of securities of the Company or the Trust listed on
a national securities exchange registered under Section 6 of the 1934 Act,
or quoted in a U.S. automated interdealer quotation system.
(xxxii) Neither the Trust, the Company nor any Subsidiary is, and
following the issuance of the Securities and the consummation of the
transactions contemplated by the Operative Documents and the application of
the proceeds as described in the Offering Memorandum, neither the Trust,
the Company nor any Subsidiary will be, an "investment company" or a
company "controlled" by an "investment company" which is required to be
registered under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(b) Any certificate signed by any trustee of the Trust or any duly
authorized officer of the Company delivered to any Initial Purchaser or to
counsel to the Initial Purchasers shall be deemed a representation and warranty
by the Trust or the Company, as the case may be, to each Initial Purchaser as to
the matters covered thereby.
2. SALE AND DELIVERY TO INITIAL PURCHASERS; CLOSING.
(a) Designated Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Initial Purchaser the number of
Designated Securities set forth in Schedule A opposite the name of such Initial
Purchaser, and each Initial Purchaser, severally and not jointly, agrees to
purchase from the Trust, at a price of $1,000 per Designated Security, the
number of Designated Securities set forth in Schedule A opposite the name of
such Initial Purchaser, plus any additional number of Designated Securities
which such Initial Purchaser may become obligated to purchase pursuant to the
provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Designated Securities shall be made at the offices of
Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other places as shall be agreed upon by the Initial Purchaser and the
Company, at 10:00 A.M. on the third (fourth, if the pricing occurs after 4:30
P.M. on any given day) business day after the date of pricing (unless postponed
in accordance with the provisions of Section 11), or such other time not later
than ten business days
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after such date as shall be agreed upon by the Initial Purchasers and the
Company (and such time and date of payment and delivery being herein called
"Closing Time").
All payments shall be made to the Trust in immediately available funds
payable to the order of the Trust against delivery to the Initial Purchasers of
certificates for (or book-entry delivery of) the Designated Securities to be
purchased by them. It is understood that each Initial Purchaser has authorized
Xxxxxxx Xxxxx for its own account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Designated Securities which it has agreed
to purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Initial Purchasers, may (but shall not be obligated to) make payment of the
purchase price for the Designated Securities to be purchased by any Initial
Purchaser whose payment has not been received by the Closing Time, but such
payment shall not relieve such Initial Purchaser from its obligations hereunder.
The certificates representing the Designated Securities which are not resold to
institutional "accredited investors" shall be registered in the name of Cede &
Co. pursuant to the DTC Representation Letter and shall be made available for
examination and packaging by the Initial Purchasers in The City of New York not
later than the last business day prior to the Closing Time.
(c) Initial Purchasers' Compensation. As compensation to the Initial
Purchasers for their commitments hereunder and in view of the fact that the
proceeds of the sale of Designated Securities will be used to purchase
Subordinated Debentures of the Company, the Company hereby agrees to pay at the
Closing Time to Xxxxxxx Xxxxx in immediately available funds, for the accounts
of the several Initial Purchasers, a commission of $10.00 per Designated
Security to be delivered by the Trust hereunder at Closing Time.
(d) Denominations. Certificates for the Designated Securities shall be
in such denominations and registered in such names as the Initial Purchasers may
request in writing at least two full business days before the Closing Time. The
certificates for the Designated Securities will be made available for
examination and packaging by the Initial Purchasers in the City of New York
not later than the business day prior to the Closing Time.
(e) Initial Purchasers' Representations and Warranties. Each Initial
Purchaser severally and not jointly represents and warrants to, and agrees with,
the Company that it is a Qualified Institutional Buyer (as defined in Section
6(a)(i) and an Institutional Accredited Investor (as defined in Section 6(a)(i)
and is purchasing the Designated Securities pursuant to an exemption from the
registration requirements of the 1933 Act.
3. COVENANTS OF THE OFFERORS.
The Offerors covenant with each Initial Purchaser as follows:
(a) The Offerors will furnish to each Initial Purchaser and counsel to
the Initial Purchasers, as soon as available and without charge, such
number of copies of the Preliminary Offering Memorandum and the Offering
Memorandum and any amendments or supplements thereto as such Initial
Purchaser or counsel may reasonably request.
13
(b) The Offerors will immediately notify each Initial Purchaser, and
(if requested) confirm such notice in writing, of (x) any filing made by
the Offerors of information relating to the offering of Designated
Securities with any securities exchange or any other regulatory body in the
United States or any other jurisdiction, and (y) prior to the completion of
the placement of any Designated Securities by the Initial Purchasers as
evidenced by a notice in writing from the Initial Purchasers to the
Offerors, any material changes in or affecting the earnings or business
affairs of the Trust, or the Company and its Subsidiaries considered as one
enterprise, which (i) make any statement in the Offering Memorandum false
or misleading or (ii) are not disclosed in the Offering Memorandum. In such
event or if during such time any event shall occur or condition shall exist
as a result of which it is necessary, in the reasonable opinion of counsel
for the Initial Purchasers or the Offerors, to amend or supplement the
Offering Memorandum in order that the Offering Memorandum will not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances then existing, the Company will promptly prepare
such amendment or supplement so that, as so amended or supplemented, the
Offering Memorandum will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then existing, not
misleading.
(c) The Offerors will advise each Initial Purchaser promptly of any
proposal to amend or supplement the Offering Memorandum and will not effect
such amendment or supplement without the consent of the Initial Purchasers,
which consent shall not be unreasonably withheld. Neither the consent of
the Initial Purchasers, nor the Initial Purchasers' delivery of any such
amendment or supplement, shall constitute a waiver of any of the conditions
set forth in Section 5 hereof.
(d) The Offerors will endeavor, in cooperation with the Initial
Purchasers, to qualify the Designated Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions
of the United States as the Initial Purchasers may designate and to
maintain such qualifications in effect for as long as may be necessary to
complete the distribution of the Designated Securities, but in no event for
a period of more than one year from the date of the Offering Memorandum;
provided, however, that the Offerors shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which they are not so qualified
or to file a general consent to service of process in any jurisdiction or
to amend its Memorandum of Association or By-laws or the Declaration, as
the case may be. In each jurisdiction in which the Designated Securities
have been so qualified, the Company will file or cause to be filed such
statements and reports as may be required by the laws of such jurisdiction
to continue such qualification in effect for as long as may be necessary to
complete the distribution of the Designated Securities, but in no event for
a period of more than one year from the date of the Offering Memorandum.
14
(e) During a period of 90 days from the date of the Offering
Memorandum, neither the Trust nor the Company will, without the prior
written consent of Xxxxxxx Xxxxx (which consent shall not be unreasonably
withheld), directly or indirectly, sell, offer to sell, contract to sell,
grant any option for the sale of, or otherwise dispose of, any Capital
Securities or any security convertible into or exchangeable or exercisable
for Capital Securities or the Subordinated Debentures or any debt
securities substantially similar (including provisions with respect to the
deferral of interest) to the Subordinated Debentures or any equity security
substantially similar to the Capital Securities (except for Securities
issued pursuant to this Agreement), whether issued by the Trust or any
entity in which the Company has an interest; provided, however, that the
foregoing restrictions shall not apply to any disposal of the Subordinated
Debentures following any liquidation of the Trust.
(f) The Offerors shall take all reasonable action necessary to enable
Standard & Poor's Ratings Services, a division of McGraw Hill, Inc.
("S&P"), and Xxxxx'x Investors Service, Inc. ("Moody's") to provide their
respective credit ratings of the Capital Securities.
(g) The Offerors will cooperate with the Initial Purchasers and use
their reasonable best efforts to permit the Series A Capital Securities to
be eligible for clearance and settlement through the facilities of DTC.
(h) The Trust will use the net proceeds received by it from the sale of
the Series A Capital Securities, and the Company will use the proceeds
received by it from the sale of the Series A Subordinated Debentures, in
the manner specified in the Offering Memorandum under the heading "Use of
Proceeds".
15
4. PAYMENT OF EXPENSES.
(a) Expenses. The Company will pay all expenses incident to the
performance of the obligations of the Company and the Trust under this
Agreement, including (i) the preparation and printing of, and delivery to the
Initial Purchasers of copies of, the Preliminary Offering Memorandum and the
Offering Memorandum (including any amendments and supplements thereto, the
financial statements and exhibits and, if necessary, any document incorporated
therein by reference), (ii) the printing and distribution of this Agreement, the
Operative Documents, any agreement among Initial Purchasers and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of Series A Securities, (iii) the preparation, issuance and delivery of
the certificates for the Series A Securities to the Initial Purchasers,
including capital duties, stamp duties and stock transfer taxes, if any, payable
upon the sale of the Series A Securities to the Initial Purchasers, (iv) the
fees and disbursements of the Company's and the Trust's counsel and accountants,
(v) the qualification of the Series A Securities under securities laws in
accordance with the provisions of Section 3(c), including filing fees and the
reasonable fees and disbursements of counsel for the Initial Purchasers in
connection therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the printing and delivery to the Initial Purchasers of copies of
the Blue Sky Survey, (vii) rating agency fees and (viii) the fees and expenses
of any trustee appointed under any of the Operative Documents, including the
fees and disbursements of counsel for such trustees in connection with the
Operative Documents.
(b) Termination of Agreement. If this Agreement is terminated by the
Initial Purchasers in accordance with the provisions of Section 5, Section
10(a)(i) or Section 11, the Company shall reimburse the Initial Purchasers for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Initial Purchasers.
5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS.
The obligations of the Initial Purchasers hereunder are subject to the
accuracy in all material respects of the representations and warranties of the
Offerors, to the performance by the Offerors of their obligations hereunder and
to the following further conditions:
(a) At Closing Time, the Initial Purchasers shall have received:
(1) The opinion, dated as of Closing Time, of Xxxxxxx Xxxx &
Xxxxxxxxx, counsel for the Offerors, in form and substance reasonably
satisfactory to counsel for the Initial Purchasers, to the effect that:
(i) The Indenture, when duly authorized, executed,
authenticated and delivered by the Debenture Trustee and upon
payment of the purchase price for the Series A Subordinated
Debentures, will constitute a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with
its terms except (A) the extent that enforceability thereof may be
limited by (1) bankruptcy, insolvency,
16
reorganization, moratorium, fraudulent conveyance, or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (2) general principles of equity (regardless of
whether considered at law or in equity) and (B) that provisions of
the Indenture providing for the payment of liquidated damages may
be unenforceable, in whole or in part.
(ii) The Registration Rights Agreement, when duly authorized,
executed and delivered by the Initial Purchasers, constitutes a
valid and binding agreement of each of the Company and the Trust
enforceable against each of the Company and the Trust in accordance
with its terms except (1) to the extent that enforceability thereof
may be limited by (A) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B)
general principles of equity (regardless of whether considered at
law or in equity), (2) that rights to indemnity and contribution
contained in the Registration Rights Agreement may be limited by
state or federal law or public policy and (3) that rights to
receive liquidated damages contained therein may be unenforceable,
in whole or in part.
(iii) Each of the Series A Capital Securities Guarantee and the
Common Securities Guarantee constitutes, and the Series B Capital
Securities Guarantee, when issued in the Exchange Offer as
contemplated in the Registration Rights Agreement and when duly
authorized, executed and delivered by the Capital Securities
Guarantee Trustee and the Common Securities Guarantee Trustee, as
applicable, will constitute, a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms except to the extent that enforceability thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether considered at law or in
equity).
(iv) The Series A Subordinated Debentures, when executed,
authenticated and delivered in the manner provided for in the
Indenture and when duly authenticated by the Debenture Trustee and
paid for in accordance with the Indenture and the Debenture
Subscription Agreement dated March 4, 1997 between the Company and
the Trust, and the Series B Subordinated Debentures, when executed,
authenticated and delivered in the manner provided for in the
Indenture and issued in the Exchange Offer as contemplated in the
Registration Rights Agreement, 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 except (A) to the extent that enforceability thereof
may be limited by
17
(1) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, or other similar laws now or hereafter in effect
relating to creditors' rights generally and (2) general principles
of equity (regardless of whether considered at law or in equity)
and (B) that provisions of the Debentures (including provisions of
the Indenture incorporated by reference therein) providing for the
payment of liquidated damages may be unenforceable, in whole or in
part.
(v) Each of the Operative Documents to which the Trust is a
party, assuming due authorization and execution by the Trust, has
been duly delivered by the Trust.
(vi) The documents incorporated by reference in the Offering
Memorandum (except for the financial statements and notes thereto
and other financial or statistical data included therein or omitted
therefrom and except to the extent that any statement therein is
modified or superseded in the Offering Memorandum), as of the dates
they were filed with the Commission, satisfy in all material
respects the requirements of the 1934 Act and the rules and
regulations promulgated thereunder.
(vii) The Series A Securities conform in all material respects
as to legal matters to the description thereof contained in the
Offering Memorandum under the captions "Description of Capital
Securities," "Description of Junior Subordinated Debentures,"
"Description of Guarantee" and "Relationship Among the Capital
Securities, the Junior Subordinated Debentures and the Guarantee."
(viii) The statements under the caption "Certain Federal Income
Tax Considerations" in the Offering Memorandum address all material
U.S. Federal income tax considerations affecting the Company and
holders of Designated Securities (other than those tax
considerations that depend on circumstances specific for such
holders) and the statements of law contained therein are accurate
in all material respects and such discussion reflects the opinion
of such counsel with respect to the matters of law referred to
therein.
(ix) The Junior Subordinated Debentures will be classified for
United States federal income tax purposes as indebtedness of the
Company; and the Trust will be classified for United States federal
income tax purposes as a grantor trust and not as an association
taxable as a corporation.
(x) The descriptions in the Offering Memorandum of U.S.
insurance statutes and regulations set forth under the caption
18
"RenaissanceRe Holdings Ltd.--Regulation" are accurate in all
material respects.
(xi) No authorization, approval, consent or order of any U.S.
court or governmental authority or agency is required in connection
with the offering or sale of the Securities to the Initial
Purchasers hereunder, except such as have been obtained and such as
may be required under state or foreign securities laws (as to which
counsel need express no opinion).
(xii) To the best of such counsel's knowledge and information,
(i) there are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described or
referred to in the Offering Memorandum other than those described,
referred to or incorporated by reference (including the exhibits to
any such documents so incorporated by reference) therein and (ii)
the descriptions thereof or references thereto are correct in all
material respects.
(xiii) To the best of such counsel's knowledge and information,
there are no U.S. legal or governmental proceedings pending or
threatened against the Trust, the Company or any Subsidiary which
are required to be disclosed in the Offering Memorandum, other than
those disclosed or incorporated by reference (including the
exhibits to any such documents so incorporated by reference)
therein, and all pending U.S. legal or governmental proceedings to
which the Company or any Subsidiary is a party or to which any of
their properties is subject which are not described in the Offering
Memorandum, including ordinary routine litigation incidental to the
business of the Company or any Subsidiary, as applicable, when
considered in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(xiv) To the best of such counsel's knowledge and information,
the execution, delivery and performance of this Agreement, the
Operative Documents and the consummation of the transactions
contemplated herein and therein and compliance by the Company with
its obligations hereunder and thereunder, do not and will not at
the Closing Time conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien
or encumbrance upon any property or assets of the Trust, the
Company or any Subsidiary pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument required
to be described in the Offering Memorandum (or any amendment or
supplement thereto) to which the Trust, the Company or any
Subsidiary is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Trust, the Company
or any Subsidiary is subject, nor will such action result in any
violation of (A) the provisions of any applicable U.S.
19
law, (B) any U.S. administrative regulation or (C) any U.S.
administrative or court decree, known to them.
(xv) Neither the Trust, the Company nor any Subsidiary is
required to be registered as an "investment company" under the
Investment Company Act.
In rendering their opinions as aforesaid, Xxxxxxx Xxxx & Xxxxxxxxx
may rely, as to factual matters, on written certificates of officers
of the Company, as to matters of Bermuda law, on the opinion of
Xxxxxxx, Xxxx & Xxxxxxx, dated as of the Closing Time and, as to
matters of Delaware law, on the opinion of Morris, Nichols, Arsht &
Xxxxxxx, dated as of the Closing Time; provided that (1) the Initial
Purchasers are notified in advance of Xxxxxxx Xxxx & Xxxxxxxxx'x
intention to rely on the opinions of Xxxxxxx, Xxxx & Xxxxxxx and
Morris, Nichols, Arsht & Xxxxxxx, as the case may be, (2) such
reliance is expressly authorized by such opinion so relied upon and
such opinion is delivered to the Initial Purchasers and is reasonably
satisfactory to them and their counsel, and (3) Xxxxxxx Xxxx &
Xxxxxxxxx shall state in their opinion that they believe that they and
the Initial Purchasers are justified in relying on such opinion.
(2) The opinion, dated as of the Closing Time, of Morris,
Nichols, Arsht & Xxxxxxx, Delaware counsel for the Offerors, in form
and substance reasonably satisfactory to counsel for the Initial
Purchasers to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act;
(ii) Under the Delaware Business Trust Act and the
Declaration, the Trust has the business trust power and
authority to (a) execute and deliver, and to perform its
obligations under, the Operative Documents to which it is a
party, (b) issue and perform its obligations under the Series A
Capital Securities, the Series B Capital Securities and the
Common Securities and (c) purchase and hold the Series A
Subordinated Debentures and the Series B Subordinated
Debentures;
(iii) Each of the Operative Documents to which the Trust
is a party has been duly authorized and executed by the Trust;
(iv) The Declaration constitutes a valid and binding
agreement of the Company, the Administrative Trustees named
therein and the Delaware Trustee and is enforceable against the
Company, such Administrative Trustees and the Delaware Trustee
in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i)
20
bankruptcy, insolvency, receivership, liquidation, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
remedies, (ii) general principles of equity (regardless of
whether considered and applied in a proceeding in equity or at
law), and (iii) considerations of public policy and the effect
of applicable law relating to fiduciary duties;
(v) The Series A Capital Securities and the Series B
Capital Securities have been duly authorized for issuance by the
Trust; and the Series A Capital Securities, when issued,
executed, authenticated and delivered in the manner provided for
in the Declaration and paid for in accordance with this
Agreement, and the Series B Capital Securities, when executed,
authenticated and delivered in the Exchange Offer, pursuant to
and in accordance with the terms of the Declaration, as
contemplated in the Registration Rights Agreement, the Exchange
Offer Registration Statement and this Agreement, will represent,
subject to the qualifications set forth in paragraph (vi) below,
fully paid and nonassessable undivided beneficial interests in
the assets of the Trust and will entitle the holder thereof to
the benefits of the Declaration, except to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, receivership, liquidation, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
remedies, (ii) general principles of equity (regardless of
whether considered and applied in a proceeding in equity or at
law), and (iii) considerations of public policy and the effect
of applicable law relating to fiduciary duties;
(vi) The holders of the Series A Capital Securities and
the Series B Capital Securities will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware (provided that no
opinion is expressed as to any holder of Securities that is, was
or becomes a named Trustee of the Trust); it being understood,
however, that the holders of the Securities may be subject to
the withholding provisions of Section 11.4 of the Declaration
and may be required to make payment or provide indemnity or
security as set forth in the Declaration or pursuant to the
Exchange Offer; and
(vii) Under the Delaware Business Trust Act and the
Declaration, the issuances of the Series A Capital Securities
and the Series B Capital Securities will not be subject to
preemptive rights.
(3) The opinion, dated as of Closing Time, of Xxxxxxx, Xxxx &
Xxxxxxx, in form and substance reasonably satisfactory to counsel for the
Initial Purchasers, to the effect that:
21
(i) Each of the Company and its Subsidiaries has been
duly incorporated and is validly existing and in good standing
as a company under the laws of Bermuda.
(ii) The Company has all corporate power and authority
necessary to own, lease and operate its properties, to conduct
its business as described in the Offering Memorandum and to
enter into and perform its obligations under the Purchase
Agreement.
(iii) To the best of such counsel's knowledge,
Renaissance Reinsurance is licensed as a Class 4 general insurer
in Bermuda under the Insurance Xxx 0000 of Bermuda.
(iv) All of the issued and outstanding common shares of
each Subsidiary have been duly authorized and validly issued,
are fully paid and nonassessable. All of the shares of
Renaissance Reinsurance and a majority of the shares of Glencoe
Insurance are owned of record by the Company.
(v) All of the outstanding shares of common stock of
the Company have been duly authorized and validly issued and are
fully paid and nonassessable, and none of the outstanding shares
of capital stock of the Company was issued in violation of the
preemptive rights of any shareholder of the Company contained in
the Company's Memorandum of Association or Bye-Laws.
(vi) Each of the Operative Documents to which the
Company is a party has been duly authorized, executed and
delivered by the Company.
(vii) Each of the Series A Capital Securities Guarantee
and the Common Securities Guarantee has been duly authorized,
executed and delivered by the Company.
(viii) The Series A Subordinated Debentures and the
Series B Subordinated Debentures have been duly authorized for
issuance and sale by the Company.
(ix) To the best of such counsel's knowledge and
information, each Subsidiary is duly licensed or authorized to
carry on its insurance and reinsurance businesses in Bermuda
pursuant to the Insurance Act 1978 of Bermuda (as amended) in
accordance with their respective registrations; to the best
knowledge of such counsel, all such licenses and authorizations
are in full force and effect and no proceedings are pending or
threatened
22
seeking the revocation or limitation thereof, except in any such
cases where the failure by any Subsidiary to be so licensed or
authorized would not (either individually or in the aggregate)
have a Material Adverse Effect.
(x) To the best of such counsel's knowledge and
information, the execution, delivery and performance of this
Agreement and the Operative Documents, and the issuance and
delivery of the Series A Subordinated Debentures, the Series B
Subordinated Debentures, the Series A Capital Securities
Guarantee, the Series B Capital Securities Guarantee and the
Series A Common Securities Guarantee and the consummation by the
Company of the transactions contemplated in this Agreement and
in the Offering Memorandum and compliance by the Company with
the terms of each of the Operative Documents, as applicable, do
not and will not result in any violation of (A) the provisions
of the Memorandum of Association or Bye-laws of the Company or
(B) any applicable Bermuda law.
(xi) The statements in the Offering Memorandum
(including the documents incorporated by reference) under the
captions "Business--Regulation--Bermuda" and "Certain Bermuda
Law Considerations," to the extent that such statements
constitute matters of law, summaries of legal matters, documents
or proceedings, or legal conclusions, have been reviewed by such
counsel and are correct in all material respects.
(4) The opinion, dated as of Closing Time, of Xxxxx, Xxxxxx &
Xxxxxx, LLP, counsel to the Property Trustee, in form and substance
reasonably satisfactory to counsel to the Initial Purchasers.
(5) The opinion, dated as of Closing Time, of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Initial Purchasers, with respect to such
matters as the Initial Purchasers shall reasonably request. In rendering
its opinion above concerning matters governed by the laws of Bermuda and
Delaware, Xxxxxxx Xxxxxxx & Xxxxxxxx may rely on the opinions of
Xxxxxxx, Xxxx & Xxxxxxx and Morris, Nichols, Arsht & Xxxxxxx,
respectively.
(6) Xxxxxxx Xxxx & Xxxxxxxxx and Xxxxxxx Xxxxxxx & Xxxxxxxx
shall each additionally state, in their respective opinions, that
although such counsel has not undertaken to determine independently and,
therefore, does not assume any responsibility, explicitly or implicitly,
for the accuracy, completeness or fairness of the statements contained
in the Offering Memorandum and takes no responsibility therefor, such
counsel has participated in discussions and meetings with officers and
other representatives of the Offerors and discussions with the auditors
for the Offerors in connection with the preparation of the Offering
Memorandum. Each such counsel shall state that nothing has come to such
counsel's attention that has
23
caused such counsel to believe that the Offering Memorandum, at Closing
Time, contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading, it being understood that in each case such counsel need not
express any belief with respect to the financial statements and notes
thereto and the related schedules and other statistical and financial
data and information contained in the Offering Memorandum.
(b) At the Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Offering Memorandum, any material adverse change in the financial
condition, earnings, business or prospects of the Trust, or Company and the
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Initial Purchasers shall have received
a certificate of the President or a Senior Vice President of the Company,
and a certificate of an Administrative Trustee of the Trust, dated as of
Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties of the Offerors set
forth in Section 1(a) are true and correct with the same force and effect
as though expressly made at and as of Closing Time, (iii) the Offerors have
complied with all agreements and satisfied all conditions on their part to
be performed or satisfied at or prior to Closing Time and (iv) no default
exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument on their part to
be performed or satisfied at or prior to the Closing Time.
(c) At the time of the execution of this Agreement, the Initial
Purchasers shall have received from Ernst & Young a letter dated such date,
in form and substance reasonably satisfactory to the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the
other Initial Purchasers, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to initial purchasers
in similar transactions with respect to the financial statements and
certain financial information contained or incorporated by reference in the
Offering Memorandum.
(d) At the Closing Time, the Initial Purchasers shall have received from
Ernst & Young a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection
(d) of this Section, except that the specified date referred to shall be a
date not more than three days prior to Closing Time.
(e) At the Closing Time, the Series A Capital Securities shall be rated
at least "baa3" by Moody's Investor's Service, Inc. and BBB by Standard &
Poor's Ratings Services, and the Trust shall have delivered to the Initial
Purchasers a letter dated the Closing Time, from each such rating agency,
or other evidence satisfactory to the Initial Purchasers, confirming that
the Series A Capital Securities have such ratings; and between the date of
this Agreement and the Closing Time, there shall not have occurred a
downgrading in the rating assigned to the Series A Capital Securities by
any nationally
24
recognized statistical rating organization, and no such organization shall
have publicly announced that it has under surveillance or review its rating
of the Series A Capital Securities.
(f) At the Closing Time, counsel for the Initial Purchasers shall have
been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the sale of the
Series A Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained. All
proceedings taken by the Offerors in connection with the sale of the Series
A Securities as herein contemplated shall be reasonably satisfactory in
form and substance to the Initial Purchasers and counsel for the Initial
Purchasers.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Initial Purchasers by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 7, 8 and 9
shall survive any such termination and remain in full force and effect.
6. SUBSEQUENT OFFERS AND SALES OF THE
DESIGNATED SECURITIES.
(a) Offer and Sale Procedures. Each of the Initial Purchasers and the
Offerors hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Designated Securities:
(i) Offers and Sales Only to Institutional Accredited
-------------------------------------------------
Investors, Qualified Institutional Buyers and Non-U.S. Persons. Offers and
--------------------------------------------------------------
sales of the Designated Securities will be made only by the Initial
Purchasers or Affiliates thereof qualified to do so in the jurisdictions in
which such offers or sales are made. Each such offer or sale shall only be
made (A) to persons whom the offeror or seller reasonably believes to be
qualified institutional buyers (as defined in Rule 144A under the 0000 Xxx)
("Qualified Institutional Buyers"), or (B) to a limited number of other
institutional accredited investors (as such term is defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D) that the offeror or seller
reasonably believes to be and, with respect to sales and deliveries, that
are accredited investors ("Institutional Accredited Investors"), or (C)
non-U.S. persons outside the United States to whom the Initial Purchasers
reasonably believe offers and sales of the Designated Securities may be
made in reliance on Regulation S.
(ii) No General Solicitation or Public Offering. The Designated
------------------------------------------
Securities will be offered by approaching prospective Subsequent Purchasers
on an individual basis. No offers or sales of the Designated Securities
shall be made by means of any form of general solicitation or general
advertising (within the meaning of Rule 502(c) under the 0000 Xxx) in the
United States or in any manner involving a public offering (within the
25
meaning of Section 4(2) of the 0000 Xxx) in connection with the offering of
the Designated Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-
---------------------------------
bank Subsequent Purchaser of a Designated Security acting as a fiduciary
for one or more third parties, in connection with an offer and sale to such
purchaser pursuant to clause (a) above, each third party shall, in the
judgment of the applicable Initial Purchaser, be an Institutional
Accredited Investor or a Qualified Institutional Buyer or a non-U.S. person
outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser
---------------------------------
will take reasonable steps to inform, and cause each of its U.S. Affiliates
to take reasonable steps to inform, persons acquiring Designated Securities
from such Initial Purchaser or affiliate, as the case may be, in the United
States that the Designated Securities (A) have not been and will not be
registered under the 1933 Act, (B) are being sold to them without
registration under the 1933 Act in reliance on Rule 144A or in accordance
with another exemption from registration under the 1933 Act, as the case
may be, and (C) may not be offered, sold or otherwise transferred except
(1) to the Company, (2) outside the United States in accordance with
Regulation S, or (3) inside the United States in accordance with (x) Rule
144A to a person whom the seller reasonably believes is a Qualified
Institutional Buyer that is purchasing such Securities for its own account
or for the account of a Qualified Institutional Buyer to whom notice is
given that the offer, sale or transfer is being made in reliance on Rule
144A or (y) an exemption from registration under the 1933 Act (including
the exemption provided by Rule 144), if available.
(v) Minimum Amount. No sale of the Designated Securities to
--------------
any one Subsequent Purchaser will be in blocks of less than U.S. $100,000
liquidation amount.
(vi) Restrictions on Transfer. The transfer restrictions and
------------------------
the other provisions of the Declaration, including the applicable legend
required thereby, shall apply to the Designated Securities except as
otherwise agreed by the Offerors and the Initial Purchasers. Following the
sale of the Designated Securities by the Initial Purchasers to Subsequent
Purchasers pursuant to the terms hereof, the Initial Purchasers shall not
be liable or responsible to the Offerors for any losses, damages or
liabilities suffered or incurred by the Offerors, including any losses,
damages or liabilities under the 1933 Act, arising from or relating to any
resale or transfer of any Designated Security.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser
-------------------------------
will deliver to each purchaser of the Designated Securities from such
Initial Purchaser, in connection with its original distribution of the
Designated Securities, a copy of the Offering Memorandum, as amended and
supplemented at the date of such delivery.
(b) Covenants of the Offerors. Each of the Offerors, jointly and
severally, covenant with each Initial Purchaser as follows:
26
(i) Due Diligence. In connection with the original
-------------
distribution of the Designated Securities, the Offerors agree that, prior
to any offer or sale of the Designated Securities by the Initial
Purchasers, the Initial Purchasers and counsel for the Initial Purchasers
shall have the right to make reasonable inquiries into the business of the
Trust, the Company and its subsidiaries. The Offerors also agree to provide
answers to each prospective Subsequent Purchaser of Designated Securities
who so requests concerning the Trust, the Company and the Subsidiaries (to
the extent that such information is available or can be acquired and made
available to prospective Subsequent Purchasers without unreasonable effort
or expense and to the extent the provision thereof is not prohibited by
applicable law) and the terms and conditions of the offering of the
Securities, as provided in the Offering Memorandum.
(ii) Integration. The Offerors agree that they will not and
-----------
will cause their Affiliates not to make any offer or sale of securities of
the Offerors of any class if, as a result of the doctrine of "integration"
referred to in Rule 502 under the 1933 Act, such offer or sale would render
invalid (for the purpose of (i) the sale of the Designated Securities by
the Trust to the Initial Purchasers, (ii) the resale of the Designated
Securities by the Initial Purchasers to Subsequent Purchasers or (iii) the
resale of the Designated Securities by such Subsequent Purchasers to
others) the exemption from the registration requirements of the 1933 Act
provided by Section 4(2) thereof or by Rule 144A thereunder or otherwise.
(iii) Rule 144A Information. The Company agrees that, in order
---------------------
to render the Designated Securities eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Designated Securities remain
outstanding, the Company will make available, upon request, to any holder
of Designated Securities or prospective purchasers of Designated Securities
the information specified in Rule 144A(d)(4), unless such information is
furnished to the Commission pursuant to Section 13 or 15(d) of the 1934 Act
(such information, whether made available to holders or prospective
purchasers or furnished to the Commission, is herein referred to as
"Additional Information").
(iv) Restriction on Repurchases. Until the expiration of three
--------------------------
years (or such shorter period as may hereafter be referred to in Rule
144(k) (or similar successor rule)) after the original issuance of the
Designated Securities, the Offerors will not, and will cause their
Affiliates not to, purchase or agree to purchase or otherwise acquire any
Designated Securities which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 1933 Act), whether as beneficial
owner or otherwise unless, immediately upon any such purchase, the Offerors
or any Affiliate shall submit such Securities to the Trustee for
cancellation.
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each
Initial Purchaser understands that the Designated Securities have not been
and will not be registered under the 1933 Act and may not be offered or
sold within the United States or to, or for the
27
account or benefit of, U.S. persons except in accordance with Regulation S
under the 1933 Act or pursuant to an exemption from the registration
requirements of the 1933 Act. Each Initial Purchaser represents and agrees,
that, except as permitted below, it has offered and sold Designated
Securities and will offer and sell Designated Securities (i) as part of its
distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Designated Securities
commences and the Closing Time, only in accordance with Rule 903 of
Regulation S or Rule 144A under the 1933 Act or to Institutional Accredited
Investors. Accordingly, neither the Initial Purchasers and their affiliates
nor any persons acting on their behalf have engaged or will engage in any
directed selling efforts with respect to Designated Securities, and the
Initial Purchasers, their affiliates and any person acting on their behalf
have complied and will comply with the offering restriction requirements of
Regulation S. Each Initial Purchaser agrees that, at or prior to
confirmation of a sale of Designated Securities (other than a sale of
Designated Securities pursuant to Rule 144A or to Institutional Accredited
Investors), it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it or through it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to or for the account or
benefit of U.S. persons (i) as part of their distribution at any time
and (ii) otherwise until forty days after the later of the date upon
which the offering of the Securities commenced and the date of closing,
except in either case in accordance with Regulation S or Rule 144A under
the Securities Act. Terms used above have the meanings given to them by
Regulation S.
Each Initial Purchaser severally represents and agrees that it has not
entered and will not enter into any contractual arrangements with respect to the
distribution of the Designated Securities, except with its affiliates that are
Qualified Institutional Buyers or with the prior written consent of the
Offerors.
(d) Compliance with United Kingdom Law. Each Initial Purchaser
represents and agrees that (i) it has not offered or sold and, prior to the
expiry of the period of six months from the date hereof, will not offer or sell
any Designated Securities to persons or invite any person to purchase any
Designated Securities in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to any Designated Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Designated Securities to a person who
28
is of a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1995 or is a person to whom such
document may otherwise lawfully be issued or passed on.
(e) Compliance with Other Laws. Each Initial Purchaser acknowledges
that no action has been taken to permit a public offering of the Designated
Securities in any jurisdiction where action would be required for such purpose.
Each Initial Purchaser agrees that it will not offer or sell any Designated
Securities in any jurisdiction except under circumstances that will result in
compliance with all applicable laws thereof.
7. INDEMNIFICATION.
(a) The Offerors, severally and not jointly, agree to indemnify and
hold harmless each Initial Purchaser and each person, if any, who controls any
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, and each officer and director of each Initial Purchaser and of
any such controlling person to the extent and in the manner set forth in clauses
(i), (ii) and (iii) below:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Offering
Memorandum, including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that such settlement is
effected with the written consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 7(d) hereof, the reasonable fees and
disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above, and such
expenses shall be reimbursed as such expenses are incurred upon requests
from the Initial Purchasers from time to time;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished
29
to the Company by any Initial Purchaser through Xxxxxxx Xxxxx expressly for use
in the Offering Memorandum (or any amendment or supplement thereto); and
provided, further, that the foregoing indemnity with respect to any untrue
statement contained in or omission from the Offering Memorandum shall not inure
to the benefit of any Initial Purchaser (or any person controlling such Initial
Purchaser) from whom the person asserting any such loss, liability, claim,
damage or expense purchased any of the Designated Securities (i) if a copy of
the Offering Memorandum (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto in compliance with Section
3(b) of this Agreement) was not sent or given by or on behalf of such Initial
Purchaser to such person, if such is required by law, at or prior to the written
confirmation of the sale of such Designated Securities to such person and (ii)
if the Offering Memorandum (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability.
(b) Each Initial Purchaser severally agrees to indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) or (b) of this Section, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Offering Memorandum (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Initial Purchaser through Xxxxxxx Xxxxx,
expressly for use in the Offering Memorandum (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 7(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 7(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall any indemnifying party be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from its own counsel for all indemnified parties not having actual or
potential differing interests with it or among any other indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 7 or Section 8 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement,
30
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) 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.
8. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of losses, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Offerors on the one hand and the Initial Purchasers on
the other hand from the offering of the Designated Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Offerors on the one hand and of the Initial Purchasers on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Designated Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Designated Securities pursuant to this Agreement (before deducting expenses)
received by the Trust and the total commission received by the Initial
Purchasers, in each case as set forth on the cover of the Offering Memorandum,
bear to the aggregate initial offering price of the Designated Securities as set
forth on such cover.
The relative fault of the Offerors on the one hand and the Initial
Purchasers on the other hand 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 Offerors on the one hand or by the Initial Purchasers on the
other hand and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Offerors and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation (even if the Initial Purchasers 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 Section 8. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 8 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency
31
or body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Designated Securities purchased by it were resold
exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. The Initial Purchasers' obligations in this
Section 8 to contribute are several in proportion to their respective purchase
obligations and not joint.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, (a) each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, (b) each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company and (c) each person who controls the Trust
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Trust. The Initial Purchasers'
respective obligations to contribute pursuant to this Section 8 are several in
proportion to the number of Designated Securities set forth opposite their
respective names in Schedule A hereto and not joint.
9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Offerors submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Initial Purchaser or
controlling person, or by or on behalf of the Offerors, and shall survive
delivery of the Designated Securities to the Initial Purchasers.
10. TERMINATION OF AGREEMENT.
(a) The Initial Purchasers may terminate this Agreement, by notice to
the Company, at any time at or prior to Closing Time (i) if there has been,
since the date of this Agreement or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the financial condition, earnings, business or prospects of the Company and its
Subsidiaries considered as one enterprise or the Trust, whether or not arising
in the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or in the
international financial markets, or any outbreak of hostilities or escalation of
existing hostilities or other calamity or crisis, in each case the effect of
which is such as to make it, in the judgment of the Initial Purchasers,
32
impracticable to market the Designated Securities or to enforce contracts for
the sale of the Designated Securities or (iii) if trading in any securities of
the Company has been suspended or limited by the Commission, or if trading
generally on either The New York Stock Exchange, Inc. or the NASDAQ National
Market system has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of such exchanges or by order of the Commission or any other governmental
authority, or (iv) if a banking moratorium has been declared by federal or New
York authorities or (v) if there has occurred any change or development
involving a prospective change in national or international political, financial
or economic condition, which in the reasonable opinion of the Initial
Purchasers, is likely to have a material adverse effect on the market for the
Designated Securities.
(b) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party except as
provided in Sections 4, 7 and 8 and, to the extent relevant to the survival of
Sections 7 and 8, Section 1.
(c) This Agreement may also terminate pursuant to the provisions of
Section 2, with the effect stated in such Section.
11. DEFAULT BY ONE OR MORE OF THE
INITIAL PURCHASERS.
If one or more of the Initial Purchasers shall fail at Closing Time to
purchase the Designated Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Initial Purchasers shall
have the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Initial Purchasers, or any other purchasers, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth. If, however, the Initial
Purchasers shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Designated Securities to be purchased on such date, each of the
non-defaulting Initial Purchasers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Initial Purchasers; or
(b) if the number of Defaulted Securities exceeds 10% of the number of
Designated Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Initial
Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
33
In the event of any such default which does not result in a termination
of this Agreement, the Initial Purchasers or the Offerors shall have the right
to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Offering Memorandum or in any other documents
or arrangements.
12. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Initial Purchasers shall be directed
in care of Xxxxxxx Xxxxx at Xxxxxxx Xxxxx World Headquarters, North Tower, World
Financial Center, New York, New York 10281-1305, attention of Xxxxx Xxxx,
Managing Director, telecopy number (000) 000-0000, with a copy to Xxxxxxx
Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of
Xxxxx X. Xxxxxx, Esq., telecopy number (000) 000-0000; notices to the Offerors
shall be directed to them at Xxxxxxxxxxx Xxxxx, 0-00 Xxxx Xxxxxxxx, Xxxxxxxx HM
19 Bermuda, attention of Xxxxx X. Xxxxx, telecopy number (000) 000-0000, with a
copy to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Xxxx X. X'Xxxxxxxx, Esq., telecopy number (000) 000-0000.
13. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Initial Purchasers, the Company, the Trust and their respective successors.
Nothing expressed or implied in this Agreement is intended or shall be construed
to give any person, firm or corporation, other than the Initial Purchasers, the
Company, the Trust and their respective successors, and the controlling persons,
officers and directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Initial Purchasers, the Company, the Trust and their
respective successors, and such controlling persons, officers and directors and
their heirs and legal representatives, and for the benefit of no other person,
firm or corporation. No purchaser of Designated Securities from any Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICT OF LAWS. Specified times of day refer to New York City time. As used
herein, the term "business day" means any day on which The New York Stock
Exchange, Inc. is regularly open for business.
34
15. CONSENT TO JURISDICTION.
With respect to any suit, action or proceeding against it arising out of
or relating to this Agreement, each of the Offerors irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of New York and the United
States District Courts in each case located in the Borough of Manhattan, City
and State of New York. In addition, each such party irrevocably waives any
objection which it may now or hereafter have to the laying of venue of such
suit, action or proceeding brought in any such court and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
For purposes of any such suit, action or proceeding brought in any of
the foregoing courts, each of the Offerors agrees to maintain an agent for
service of process in the Borough of Manhattan, City and State of New York, at
all times while any Designated Securities shall be outstanding, and for that
purpose each of the Offerors hereby irrevocably designates CT Corporation
System, whose office address at the date hereof is 0000 Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, to receive for and on its behalf service of process
in New York. In the event that any such agent for service of process resigns or
ceases to serve as the agent of any such party hereunder, each of the Offerors
agrees to give notice as provided in Section 12 herein of the name and address
of any new agent for service of process with respect to it appointed hereunder.
If, despite the foregoing, in any such suit, action or proceeding
brought in any of the aforesaid courts, there is for any reason no such agent
for service of process of the Company available to be served, then to the extent
that service of process by mail shall then be permitted by applicable law, the
Company further irrevocably consents to the service of process on it in any such
suit, action or proceeding in any such court by the mailing thereof by
registered or certified mail, postage prepaid, to it at its address given in or
pursuant to Section 12 hereof.
Nothing herein contained shall preclude any party from effecting service
of process in any lawful manner or from bringing any suit, action or proceeding
in respect of this Agreement in any other state, country or place.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, when a
counterpart has been executed by each party hereto, all such counterparts taken
together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Initial Purchasers, the Company and the Trust in accordance with its terms.
Very truly yours,
RENAISSANCERE HOLDINGS LTD.
By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice President and Secretary
RENAISSANCERE CAPITAL TRUST
By: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice President and Secretary
Confirmed and Accepted,
as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Salomon Brothers Inc
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx Xxxxxx
------------------------------------------
Authorized Signatory
For itself and on behalf of the other Initial Purchasers
named in Schedule A hereto.
Schedule A
Number of Designated
Initial Purchasers Securities
-----------------------------------------------------------------------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated......................... 50,000
Salomon Brothers Inc......................... 50,000
-------
Total................................ 100,000
=======
