Exhibit 4.1


EXECUTION COPY


DATED NOVEMBER 18, 2008


SYNCORA PRIVATE TRUST COMPANY LIMITED


DEED CONSTITUTING


The CCRA Purpose Trust






TABLE OF CONTENTS


	
 

	
 

	
 


	
Name

	
 

	
1


	
 

	
 

	
 


	
Definitions and Construction

	
 

	
1


	
 

	
 

	
 


	
Purposes

	
 

	
4


	
 

	
 

	
 


	
Payment of Dividends and
 Accumulation of Income

	
 

	
4


	
 

	
 

	
 


	
Proceeds

	
 

	
5


	
 

	
 

	
 


	
Termination Provisions

	
 

	
5


	
 

	
 

	
 


	
Business Combinations and
 Recapitalisations

	
 

	
6


	
 

	
 

	
 


	
Administration and Management

	
 

	
6


	
 

	
 

	
 


	
Power to Change Governing Law
 and Forum

	
 

	
7


	
 

	
 

	
 


	
Irrevocable Trust and Power to
 Vary

	
 

	
7


	
 

	
 

	
 


	
Ownership and Prohibited
 Transfers or Sales

	
 

	
7


	
 

	
 

	
 


	
Schedule A

	
 

	
9


	
 

	
 

	
 


	
Schedule B

	
 

	
11


	
 

	
 

	
 


	
Schedule C

	
 

	
16


	
 

	
 

	
 


	
Schedule D

	
 

	
21


	
 

	
 

	
 


	
Schedule E

	
 

	
26


	
 

	
 

	
 


	
Schedule F

	
 

	
28












THIS
DECLARATION OF TRUST dated
November 18, 2008 is made BY SYNCORA PRIVATE TRUST COMPANY LIMITED,a company incorporated under the laws of
Bermuda whose registered office is at Richmond House, 12 Par La Ville Road,
Hamilton HM08, Bermuda (“the First Trustee”). 


BACKGROUND


	
 

	
 


	
(A)

	
The First Trustee wishes to
 create a purpose trust within the meaning of the Trusts (Special Provisions)
 Act 1989 and declare further trusts and powers, in the terms set out below
 and wishes to declare that having received on or before the date hereof it
 holds the Initial Fund (as defined below) upon the trusts and with and
 subject to the powers and provisions set out below. 


	
 

	
 


	
(B)

	
It is intended that the Shares
 will be transferred to the Trustees (as defined below) to hold on the trusts
 set out below. 


	
 

	
 


	
(C)

	
Simultaneously with the
 execution of this deed, the Company (as defined below) has entered into a
 deed of covenant and indemnity in favour of the First Trustee in the form set
 out in Schedule D. 





OPERATIVE
PROVISIONS


	
 

	
 

	
 


	
1.

	
NAME


	
 

	
 


	
 

	
This Trust shall be known as The
 CCRA Purpose Trust or by such other title as
 the Trustees may from time to time determine in writing.


	
 

	
 


	
2.

	
DEFINITIONS AND
 CONSTRUCTION


	
 

	
 


	
 

	
In this Trust where the context
 admits the following definitions and rules of construction shall apply:


	
 

	
 

	
 


	
 

	
2.1

	
“affiliate” means, with respect
 to any person, any other person directly or indirectly Controlling,
 Controlled by or under common Control with such person, provided that none of
 the SCA Parties shall be deemed to be an affiliate of any of the XL Parties. 


	
 

	
 

	
 


	
 

	
2.2

	
“assets” shall be construed
 according to the widest generality and any reference in this Trust to any
 asset other than money shall include the proceeds of sale of that asset. 


	
 

	
 

	
 


	
 

	
2.3

	
“the Company” shall mean Syncora
 Holdings Ltd (formerly known as Security Capital Assurance Ltd), a Bermuda
 exempted company. 


	
 

	
 

	
 


	
 

	
2.4

	
“the Consenting Counterparties”
 means the counterparties to credit default swap agreements with affiliates of
 XLCA that became parties to the Master Restructuring Agreement and are named
 on Schedule F hereto. 


	
 

	
 

	
 


	
 

	
2.5

	
“the Consenting Counterparty
 Restructuring Agreement” means that certain agreement entered into after the
 date hereof among the SCA Parties and Consenting Counterparties representing
 not less than the Minimum Consenting CDS Counterparty Restructuring Threshold
 (as such term is defined in the Master Restructuring Agreement) to give
 effect to the CDS Counterparty Restructuring (as such term is defined in the
 Master Restructuring Agreement) (the parties to the Consenting Counterparty
 Restructuring Agreement referred to herein as “the CCRA Parties”). 





1






	
 

	
 

	
 


	
 

	
2.6

	
“the Consenting Counterparties
 Enforcer” means the Consenting Counterparties or the Consenting
 Counterparties Enforcer for the time being of this Trust as appointed in
 accordance with the provisions of Schedule C. 


	
 

	
 

	
 


	
 

	
2.7

	
“Control,” “Controlled,” or
 “Controlling,” with respect to the relationship between or among two or more
 persons, means the possession, directly or indirectly, or as trustee,
 personal representative or executor, of the power to direct or cause the
 direction of the affairs or management of a person, whether through the
 ownership of voting securities, as trustee, as personal representative or
 executor, by contract, by credit arrangement or otherwise. 


	
 

	
 

	
 


	
 

	
2.8

	
“corporation” or “corporate
 body” means any body, public or private, incorporated anywhere in the world
 and includes any company or corporation whether limited by shares or by
 guarantee and any other legal entity or organisation, such as without
 limitation, a limited partnership, a general partnership, limited liability
 company or a limited duration company.


	
 

	
 

	
 


	
 

	
2.9

	
“the Enforcers” shall be the
 persons named in Schedule C or such additional or other person or persons who
 is or are for the time being occupying the office of Enforcers pursuant to
 the provisions of Schedule C. 


	
 

	
 

	
 


	
 

	
2.10

	
“the Governing Law” means,
 subject to any change effected by clause 9, the law of Bermuda which law
 shall govern all matters of validity, construction, effect and administration
 of this Trust. 


	
 

	
 

	
 


	
 

	
2.11

	
“the Initial Fund” means Ten
 United States Dollars. 


	
 

	
 

	
 


	
 

	
2.12

	
“the Master Restructuring
 Agreement” means the Master Commutation, Release and Restructuring Agreement
 dated as of July 28, 2008 among the Company, XLCA, XLI, the Consenting
 Counterparties and the other parties thereto, as amended, supplemented or
 otherwise modified from time to time. 


	
 

	
 

	
 


	
 

	
2.13

	
“person” means any individual or
 corporation and shall be taken to include any charity (whether or not
 incorporated) and any non-charitable unincorporated body. 


	
 

	
 

	
 


	
 

	
2.14

	
“proceeds” means all assets
 received upon the sale or any other disposition of an asset comprised in the
 Trust Fund other than new additional or changed number of the Shares of the
 Company received in a transaction described in Clause 7.2. 


	
 

	
 

	
 


	
 

	
2.15

	
“the Purposes” means those
 purposes set out in Clause 3. 


	
 

	
 

	
 


	
 

	
2.16

	
“the Restructuring Effective
 Time” shall mean such time that the Consenting Counterparty Restructuring
 Agreement shall first become effective. 


	
 

	
 

	
 


	
 

	
2.17

	
“securities” includes shares,
 stocks, bonds, notes, debentures and debenture stock and any interest of a
 member in a corporation (and any options or warrants in respect of any of
 them) and includes securities payable to bearer and otherwise transferable by
 delivery, with or without endorsement. 


	
 

	
 

	
 


	
 

	
2.18

	
“SCA Parties” has the meaning
 set forth in the Master Restructuring Agreement. 


	
 

	
 

	
 


	
 

	
2.19

	
“SCA Registration Rights
 Agreement” means the Registration Rights Agreement dated as of the date
 hereof between the Company and the First Trustee, as amended, supplemented or
 otherwise modified from time to time. 





2






	
 

	
 

	
 

	
 


	
 

	
2.20

	
“SCA Shareholder Agreement”
 means the Shareholder Agreement dated as of the date hereof between the
 Company and the First Trustee, as amended, supplemented or otherwise modified
 from time to time. 


	
 

	
 

	
 


	
 

	
2.21

	
“the Shares” means the
 30,069,049 common shares of the Company which represent approximately 46% of
 the issued and outstanding common shares of the Company and which are held by
 the Bank of Bermuda as escrow agent immediately prior to the transfer of such
 common shares to this Trust in accordance with the terms of the Master
 Restructuring Agreement and the Escrow Agreement (as defined in the Master
 Restructuring Agreement). 


	
 

	
 

	
 


	
 

	
2.22

	
“taxes” means any tax, duty or
 other fiscal imposition arising anywhere in the world. 


	
 

	
 

	
 


	
 

	
2.23

	
“the Termination Date” means the
 earliest to occur of: 


	
 

	
 

	
 


	
 

	
 

	
2.23.1

	
the expiration of the period of
 five years commencing at the date of this Trust (which period shall be the
 applicable perpetuity period);


	
 

	
 

	
 

	
 


	
 

	
 

	
2.23.2

	
the Trustees’ distribution of
 all proceeds from the sale or other disposition of all assets comprised in
 the Trust Fund to the relevant parties in accordance with the provisions of
 Clause 5.1; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
2.23.3

	
from and after the Restructuring
 Effective Time, the date the Trust shall be terminated in accordance with the
 terms of the Consenting Counterparty Restructuring Agreement. 


	
 

	
 

	
 

	
 


	
 

	
2.24

	
“this Trust” means the trust
 created by this deed. 


	
 

	
 

	
 


	
 

	
2.25

	
“trust corporation” has the
 meaning, if any, given to that term under the Governing Law. 


	
 

	
 

	
 


	
 

	
2.26

	
“the Trustees” means the First
 Trustee or the trustee or trustees for the time being of this Trust. 


	
 

	
 

	
 


	
 

	
2.27

	
“the Trust Fund” means:- 


	
 

	
 

	
 


	
 

	
 

	
2.27.1

	
the Initial Fund; 


	
 

	
 

	
 

	
 


	
 

	
 

	
2.27.2

	
all assets paid or transferred
 to, or so as to be under the control of the Trustees as additions to the
 Trust Fund; 


	
 

	
 

	
 

	
 


	
 

	
 

	
2.27.3

	
all accumulations (if any) of
 income added to the Trust Fund; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
2.27.4

	
the assets from time to time
 representing the above. 


	
 

	
 

	
 

	
 


	
 

	
2.28

	
“XLCA” means Syncora Guarantee
 Inc. (formerly known as XL Capital Assurance Inc.), a New York insurance
 company. 


	
 

	
 

	
 


	
 

	
2.29

	
The “XLCA Enforcer” means XLCA
 or the XLCA Enforcer for the time being of this Trust as appointed in
 accordance with the provisions of Schedule C. 


	
 

	
 

	
 


	
 

	
2.30

	
“XLI” means XL Insurance
 (Bermuda) Ltd (formerly known as X.L. Insurance Ltd), a Bermuda exempted
 company. 


	
 

	
 

	
 


	
 

	
2.31

	
“XL Parties” has the meaning set
 forth in the Master Restructuring Agreement. 





3






	
 

	
 

	
 

	
 

	
 


	
 

	
2.32

	
Words denoting the singular
 shall include the plural and vice versa. 


	
 

	
 

	
 


	
 

	
2.33

	
Words denoting any gender shall
 include both the other genders. 


	
 

	
 

	
 


	
 

	
2.34

	
References to any statutory
 provision shall include any statutory modification or re-enactment of such
 provision. 


	
 

	
 

	
 


	
 

	
2.35

	
Clause headings are included for
 reference and shall not affect the interpretation of this deed. 


	
 

	
 

	
 


	
 

	
2.36

	
The Schedules hereto form part
 of this deed and shall be deemed to be incorporated in the body of this deed.
 


	
 

	
 


	
3.

	
PURPOSES


	
 

	
 

	
 


	
 

	
3.1

	
Subject to the provisions of
 Clause 4 and Clause 5, the Trustees shall hold the Trust Fund and the income
 of the Trust Fund on trust to pay, transfer, appropriate or apply all or any
 part or parts of the Trust Fund and the income of the Trust Fund, at such
 time or times and in such manner, for or towards or in furtherance of the
 following purposes. 


	
 

	
 

	
 


	
 

	
3.2

	
The purposes of this Trust are:-
 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
To acquire by receipt of a
 contribution ownership of the Shares, to maintain custody and control of the
 Shares pending disposition thereof in accordance with the terms of this Trust
 and, until such disposition, the Trustees shall have the exclusive power and
 authority exercised in good faith to take such other actions as shareholder
 as the Trustees think are or may be necessary or appropriate in their sole
 discretion. 


	
 

	
 

	
 

	
 


	
 

	
 

	
3.2.1

	
Without limiting the foregoing
 to engage in the following activities: 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(a)

	
to own, hold, manage and/or dispose
 of the Trust Fund in accordance with the terms of this Trust; 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(b)

	
to deal with any dividends,
 distributions or any other income of the Trust Fund in accordance with the
 provisions of Clause 4; 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(c)

	
to deal with the proceeds in accordance
 with the provisions of Clause 5; and 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
(d)

	
to perform or cause to be
 performed all of the other obligations of the Trustees under this Trust. 


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
3.2.2

	
To exercise the Trustees’ rights
 as shareholder of the Company and provide such support and assistance as
 considered necessary and advisable by the Trustees, including in accordance
 with Clause 1.2.3 of Schedule B and Clause 1.2.4 of Schedule B and otherwise
 as may be required by law.


	
 

	
 

	
 

	
 

	
 


	
4.

	
PAYMENT OF
 DIVIDENDS AND ACCUMULATION OF INCOME


	
 

	
 

	
 

	
 

	
 


	
 

	
4.1

	
If the Company pays or issues
 dividends or makes other distributions relating to the Trust Fund or if any
 other income arises from the Trust Fund, the Trustees shall accept and
 receive such dividends, distributions and other income. Upon receipt of any
 such





4






	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
dividends, distributions or
 other income and subject to the provisions of Clause 4.2, such dividends,
 distributions and other income shall be distributed promptly:


	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
4.1.1

	
until the Restructuring
 Effective Time or the earlier arrival of the Termination Date, to XLCA, which
 payment or distribution to XLCA shall be treated as “SCA Share Sale Proceeds”
 for purposes of Section 6.12 of the Master Restructuring Agreement; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
4.1.2

	
from and after the Restructuring
 Effective Time (if it shall occur before the Termination Date) and until the
 Termination Date, to such persons in such proportions and upon such terms as
 the CCRA Parties may appoint, direct or determine in the terms of the
 Consenting Counterparty Restructuring Agreement, and the execution and
 delivery of the Consenting Counterparty Restructuring Agreement to the
 Trustees shall be conclusive evidence of the exercise of this power by the
 CCRA Parties. 


	
 

	
 

	
 

	
 


	
 

	
4.2

	
If the dividend, distribution or
 other income is in the form of securities, such securities shall be held in
 accordance with the terms of this Trust. 


	
 

	
 

	
 


	
5.

	
PROCEEDS


	
 

	
 


	
 

	
5.1

	
Proceeds shall be paid promptly
 together with any interest earned thereon: 


	
 

	
 

	
 


	
 

	
 

	
5.1.1

	
until the Restructuring Effective
 Time or the earlier arrival of the Termination Date, to XLCA, which payment
 or distribution to XLCA shall be treated as “SCA Share Sale Proceeds” for
 purposes of Section 6.12 of the Master Restructuring Agreement; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
5.1.2

	
from and after the Restructuring
 Effective Time (if it shall occur before the Termination Date) and until the
 Termination Date, to such persons in such proportions and upon such terms as
 the CCRA Parties may appoint, direct or determine in the terms of the
 Consenting Counterparty Restructuring Agreement, and the execution and
 delivery of the Consenting Counterparty Restructuring Agreement to the
 Trustees shall be conclusive evidence of the exercise of this power by the
 CCRA Parties. 


	
 

	
 

	
 

	
 


	
 

	
5.2

	
Together with the proceeds and interest
 thereon as described in Clause 5.1, the Trustees shall deliver or cause to be
 delivered a notice setting forth the number of Shares and/or a description of
 any other assets sold or disposed of in exchange for such proceeds, the
 nature and kind of consideration comprising such proceeds (including the
 aggregate dollar amount of any cash consideration) and the amount of interest
 earned thereon. 


	
 

	
 

	
 

	
 


	
6.

	
TERMINATION
 PROVISIONS


	
 

	
 


	
 

	
On the Termination Date the
 Trustees shall cease the application of the capital and income of the Trust
 Fund towards the Purposes and: 


	
 

	
 


	
 

	
6.1

	
Upon termination of this Trust
 in accordance with Clause 2.23.1 the Trustees shall: 


	
 

	
 

	
 


	
 

	
 

	
6.1.1

	
If the Termination Date occurs
 prior to the Restructuring Effective Time, deliver free of trust to XLCA a
 certificate or certificates for the Shares, properly endorsed for transfer
 and any other property constituting the Trust Fund; and 





5






	
 

	
 

	
 

	
 

	
 


	
 

	
 

	
6.1.2

	
If the Termination Date occurs
 on or after the Restructuring Effective Time, deliver free of trust a
 certificate or certificates for the Shares, properly endorsed for transfer
 and any other property constituting the Trust Fund to such persons in such
 proportions and upon such terms as the CCRA Parties may appoint, direct or
 determine in the terms of the Consenting Counterparty Restructuring
 Agreement, and the execution and delivery of the Consenting Counterparty
 Restructuring Agreement to the Trustees shall be conclusive evidence of the
 exercise of this power by the CCRA Parties.; and 


	
 

	
 

	
 

	
 


	
 

	
6.2

	
Upon termination of the Trust in
 accordance with Clause 2.23.3, the Trustees shall deliver free of trust a
 certificate or certificates for the Shares, properly endorsed for transfer
 and any other property constituting the Trust Fund to such persons in such
 proportions and upon such terms as the CCRA Parties may appoint, direct or
 determine in the terms of the Consenting Counterparty Restructuring
 Agreement, and the execution and delivery of the Consenting Counterparty
 Restructuring Agreement to the Trustees shall be conclusive evidence of the
 exercise of this power by the CCRA Parties. 


	
 

	
 

	
 


	
7.

	
BUSINESS
COMBINATIONS AND RECAPITALISATIONS  


	
 

	
 


	
 

	
7.1

	
Any merger, consolidation,
 reorganisation or dissolution of the Company or the sale of all or substantially
 all of the assets of the Company pursuant to which common shares or other
 voting securities of another corporation are to be issued in payment or
 exchange for or upon conversion of the Shares shall constitute a disposition
 of the Shares which shall be subject to the provisions of Clause 5. 


	
 

	
 

	
 


	
 

	
7.2

	
In the event of an increase in
 the amount of outstanding common shares of the Company by virtue of a stock
 split or the decrease in the number of common shares of the Company because
 of a contraction of shares or a change in the number of outstanding shares as
 a result of some other capitalisation in which the Company receives no
 consideration for the issuance of the additional or reduced amount of common
 shares, the new additional or changed number of the Shares shall be held by
 the Trustees. 


	
 

	
 

	
 


	
8.

	
ADMINISTRATION
 AND MANAGEMENT


	
 

	
 


	
 

	
8.1

	
Subject to the provisions of
 Clause 1.2.3 of Schedule B and Clause 1.2.4 of Schedule B the Trustees shall
 conduct the affairs of this Trust in such manner as they may consider
 appropriate, and they shall make such arrangements in relation to the
 administration of this Trust as they consider advisable to further the
 purposes of this Trust. 


	
 

	
 

	
 


	
 

	
8.2

	
The Trustees shall in addition
 and without prejudice to all other powers at law have the powers and
 immunities set out in the Schedule to section 17 of The Trusts (Special
 Provisions) Act 1989 (except those contained in Clauses 3(b) and 4(6)
 thereof) which shall be incorporated herein by reference to form Clause 1 of
 Schedule A hereto and renumbered to follow sequentially without the
 incorporation of the above mentioned excepted clauses provided that all
 references to a beneficiary or beneficiaries in such Schedule shall be deemed
 to refer to the purposes of this Trust and additionally the Trustees shall
 have the powers and provisions set out in Clause 2 of Schedule A provided
 that the Trustees shall not exercise any of their powers other than in
 furtherance of the purposes of this Trust or pursuant to Clause 4 or Clause
 5. 


	
 

	
 

	
 


	
 

	
8.3

	
In the event that there is any
 conflict between any one or more of the provisions comprised in or
 incorporated into Schedule A hereto (“the servient provisions”) and any
 provision or provisions of this Trust other than those comprised in or
 incorporated into Schedule A hereto (“the dominant provisions”), the dominant
 provisions shall prevail.





6






	
 

	
 

	
 

	
 

	
 


	
9.

	
POWER TO CHANGE
 GOVERNING LAW AND FORUM


	
 

	
 


	
 

	
9.1

	
The Trustees may at any time or
 times before the Termination Date declare by writing (with the written
 consent of the Enforcers) that from the date of the declaration (and subject
 to any future declaration in exercise of this power) the Governing Law shall
 be changed to the law of some other jurisdiction, state or territory in any
 part of the world. 


	
 

	
 

	
 


	
 

	
9.2

	
So often as any declaration
 shall be made the Trustees may make such consequential alterations or
 additions in or to the trusts, powers and provisions of this Trust as the
 Trustees may consider necessary or desirable to ensure that the trusts, powers
 and provisions of this Trust shall (mutatis mutandis) be as valid and
 effective under the new Governing Law as they are under the original
 Governing Law of this Trust. 


	
 

	
 

	
 


	
 

	
9.3

	
Subject to the power to change
 the forum for the administration of this Trust contained below, the forum for
 the administration of this Trust shall be the courts of the Governing Law. 


	
 

	
 

	
 


	
 

	
9.4

	
The Trustees may at any time or
 times declare by writing (with the written consent of the Enforcers) that
 from the date of the declaration (and subject to any future declaration in
 exercise of this power) the forum for the administration of this Trust shall
 be the courts of any jurisdiction in the world, whether or not such courts
 are of the jurisdiction which is for the time being the Governing Law of this
 Trust. 


	
 

	
 

	
 


	
 

	
9.5

	
The Trustees may carry on the
 general administration of this Trust in any jurisdiction in the world,
 whether or not the jurisdiction is for the time being the Governing Law of
 this Trust or the courts of the jurisdiction are for the time being the forum
 for the administration of these trusts and whether or not the Trustees or any
 of them are for the time being resident and/or domiciled in, or incorporated
 in and/or carrying on business in, or otherwise connected with, the
 jurisdiction. 


	
 

	
 

	
 


	
10.

	
IRREVOCABLE
 TRUST AND POWER TO VARY


	
 

	
 


	
 

	
This Trust is irrevocable
 provided however that, subject to the provisions of Clause 11, the Trustees
 may in writing (but only with the written consent of the Enforcers) vary, add
 to, alter or amend any or all of the provisions of this Trust (including,
 without limitation, the purposes in clause 3) as the Trustees in their
 absolute discretion think fit. 


	
 

	
 


	
11.

	
OWNERSHIP AND
 PROHIBITED TRANSFERS OR SALES


	
 

	
 


	
 

	
11.1

	
Notwithstanding any provision of
 this Trust to the contrary the Trustees shall be obligated at all times prior
 to the Termination Date to retain ownership of the Shares until they are sold
 or otherwise disposed of in accordance with the terms of this Trust. 


	
 

	
 

	
 


	
 

	
11.2

	
Notwithstanding any provision of
 this Trust to the contrary, the Trustees may not, under any circumstances,
 transfer any of the Shares to any SCA Party, any Consenting Counterparty or
 any of their respective affiliates prior to the Termination Date. 


	
 

	
 

	
 


	
 

	
11.3

	
Notwithstanding any provision of
 this Trust to the contrary no sale or other disposition of the Shares may be
 made prior to October 15, 2008, except as set forth in the Consenting
 Counterparty Restructuring Agreement. 


	
 

	
 

	
 


	
12.

	
PROVISION TO
 AVOID RESULTING TRUST


	
 

	
 


	
 

	
12.1

	
Subject to all the other trusts,
 powers and provisions hereof affecting the Trust Fund and the income thereof
 and if and so far as such trusts, powers and provisions shall fail or for 





7






	
 

	
 

	
 


	
 

	
 

	
any reason be found to be
 invalid or found not to otherwise deal fully with the Trust Fund and the
 income thereof with the effect that (without this clause) all or any part of
 the Trust Fund or the income thereof would be held on a resulting trust
 absolutely for XLI or the Escrow Agent (as defined in the Master
 Restructuring Agreement), the whole or such part of the Trust Fund and the
 income thereof that would otherwise be held on a resulting trust for XLI or
 the Escrow Agent shall instead be held upon trust absolutely for XLCA.





          IN
WITNESS whereof the First Trustee has executed and delivered this instrument as
its deed on the date shown on page one. 


8






SCHEDULE A


In
furtherance of the Purposes and subject to Clause 8.2 and Clause 8.3 above but
not further or otherwise the Trustees shall have the following additional
powers:- 


	
 

	
 

	
 


	
1.

	
Incorporation by Reference 


	
 

	
 


	
 

	
Further administrative powers
 incorporated by reference to the Trusts (Special Provisions) Act 1989, as
 amended. 


	
 

	
 


	
2.

	
Further Powers


	
 

	
 

	
 


	
 

	
2.1

	
to construct, maintain, improve
 or alter any buildings or works (so far as necessary for carrying out the
 purposes of the this Trust) on land comprised in the Trust Fund; 


	
 

	
 

	
 


	
 

	
2.2

	
to sell, lease, demise, let,
 license and generally manage and deal with any land or buildings or interest
 therein in such manner as the Trustees shall think fit; 


	
 

	
 

	
 


	
 

	
2.3

	
to borrow money subject to such
 consents as may be required by law on such terms as to interest repayment or
 otherwise as the Trustees may think fit without security or (subject as
 aforesaid) upon the security of the whole or any part or parts of the Trust
 Fund and to use such money so borrowed for any purpose for which capital of
 the Trust Fund may be used; 


	
 

	
 

	
 


	
 

	
2.4

	
to seek the advice of any person
 who is in the opinion of the Trustees qualified to advise on the management
 of any land comprised in the Trust Fund or the making and changing of
 investments of this Trust; 


	
 

	
 

	
 


	
 

	
2.5

	
to employ any person firm or
 company not being a Trustee to manage or assist in managing the Trust Fund
 upon such reasonable terms as the Trustees think fit and to pay a secretary
 and other such officials or staff not being a trustee as the Trustees may in
 their discretion from time to time determine and to enter into agreements and
 to fix such reasonable salaries as the Trustees may deem proper and to enter
 into any service agreements which they shall consider to be necessary
 including the power to determine any such employment upon such terms as the
 Trustees may decide and to make all reasonable and necessary provisions for
 the payment of pensions and superannuation to or on behalf of employees and
 their widows or widowers and dependants; 


	
 

	
 

	
 


	
 

	
2.6

	
to apply capital or income in
 insuring any buildings or other property to their full value; 


	
 

	
 

	
 


	
 

	
2.7

	
when making grants of any funds
 to any charities to accept as a good discharge in respect of any such funds
 the receipt of the treasurer or secretary or other authorized officer for the
 time being of such charities; 


	
 

	
 

	
 


	
 

	
2.8

	
in respect of any property
 subject to the trust hereof to vest the same in any corporation or any other
 person or persons (whether or not being one or more of the Trustees) as
 nominee or nominees for the Trustees; 


	
 

	
 

	
 


	
 

	
2.9

	
to make contributions as they
 may think fit or otherwise to assist (and whether out of capital or income)
 towards the purposes of this Trust; 


	
 

	
 

	
 


	
 

	
2.10

	
to pay and discharge any rent
 rates taxes costs of insurance improvements repairs or other outgoings
 payable from time to time in respect of any property held subject to these
 trusts and to pay and discharge all expenses incurred in the exercise of any
 powers conferred upon the Trustees by, or in conformity with, the provisions
 of this deed 





9






	
 

	
 

	
 


	
 

	
 

	
or by any transfer to the
 Trustees upon these trusts of any freehold leasehold or other property any
 legal or other administrative expenses payable from time to time in
 connection with these trusts or with any property held on such trusts; 


	
 

	
 

	
 


	
 

	
2.11

	
to invest any moneys for the
 time being comprised in the Trust Fund and also in the hands of the Trustees
 and for the time being unapplied in the names or under the control of the
 Trustees in or upon any investments authorised by this deed with power to
 vary or transpose investments for or into others of any nature so authorised;
 


	
 

	
 

	
 


	
 

	
2.12

	
to do all such lawful acts or
 things as shall further the attainment of the purposes of this Trust and so
 far as may be necessary to do such acts or things in collaboration with any
 person.





10






SCHEDULE B


Rights and Immunities of the Trustees


	
 

	
 

	
 

	
 


	
1.

	
Width of discretions


	
 

	
 

	
 

	
 


	
 

	
1.1

	
Every power by this Trust or by
 law conferred on the Trustees shall confer an absolute discretion. 


	
 

	
 

	
 


	
 

	
1.2

	
In amplification of the
 foregoing; 


	
 

	
 

	
 


	
 

	
 

	
1.2.1

	
subject to the provisions of
 Clause 11.3 above, the Trustees shall have the exclusive power and authority
 in their sole discretion, exercised in good faith in accordance with the
 Purposes, to sell (and to determine the terms and conditions of such a sale),
 all or a portion of the Shares in one or more private or public transactions
 in accordance with the applicable laws, whether in whole or in part; 


	
 

	
 

	
 

	
 


	
 

	
 

	
1.2.2

	
subject to the provisions of
 Clause 1.2.3 of this Schedule, the Trustees shall have the exclusive right
 and obligation to vote the Shares and at all times prior to the Termination
 Date the Trustees shall have full power and authority, and are empowered to
 vote (or give written consent in person or by proxy, at all meetings of
 shareholders of the Company), the Shares as they in their sole judgement,
 believe to be in accordance with the Purposes and to do any and all other
 things and take any and all other actions as fully as any shareholder of the
 Company might do if personally present at a meeting of the shareholders of
 the Company or otherwise, all to the fullest extent permitted by law; 


	
 

	
 

	
 

	
 


	
 

	
 

	
1.2.3

	
if at any time the Trustees
 shall have the right pursuant to the SCA Shareholder Agreement to nominate
 one or more nominees to the Company’s board of directors, the Trustees shall
 nominate such person or persons in accordance with Schedule E; 


	
 

	
 

	
 

	
 


	
 

	
 

	
1.2.4

	
if at any time the size of the
 Company’s board is reduced and pursuant to Section 2(b)(i) of the SCA
 Shareholder Agreement the Trustees are required to direct one or more of its
 nominees to the Company’s board to resign from the Company’s board, the
 Trustees shall have the right, in their sole and absolute discretion, to
 select the person or persons from among the Trustees’ then existing nominees
 to the Company’s board to be directed to resign (it being understood that the
 Trustees shall not be liable for any error of judgment, or any action taken,
 in selecting among such nominees as long as such selection is made by the
 Trustees in good faith); 


	
 

	
 

	
 

	
 


	
 

	
 

	
1.2.5

	
the Trustees shall not amend or
 modify the SCA Shareholder Agreement or the Registration Rights Agreement
 without the prior written consent of the Enforcers; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
1.2.6

	
subject to the above the
 Trustees shall have the exclusive power and authority in their sole
 discretion exercised in good faith in accordance with the Purposes, to
 exercise, direct and enforce any and all rights that the Trustees may have
 under the SCA Shareholder Agreement (including the determination as to
 whether to assert any claim, commence any action or settle, dismiss or
 continue the prosecution of any such action).





11






	
 

	
 

	
 


	
 

	
1.3

	
The Trustees may exercise any
 power by this Trust or by law conferred by majority. Any trustee who is not a
 member of such majority (including a dissenting trustee) shall be obliged to
 join in any deed or writing made, or act to be done, in the name of the
 Trustees pursuant to a majority decision of the Trustees if requested by the
 majority of the Trustees to do so. 


	
 

	
 

	
 


	
2.

	
Release or restriction of powers


	
 

	
 


	
 

	
The Trustees may release or
 restrict the future exercise of any power by this Trust or by law conferred
 on the Trustees notwithstanding the fiduciary nature of such power. Any
 release or restriction shall bind any future trustee unless the contrary is
 expressly stated. 


	
 

	
 

	
 


	
3.

	
Indemnity


	
 

	
 


	
 

	
3.1

	
Each Trustee shall be entitled
 to a full indemnity out of the capital and/or income of the Trust Fund in
 respect of any costs, expenses or any other liabilities of whatsoever nature
 (including any taxes and associated penalties and interest for which they are
 personally liable and any liability which may be payable to an Outgoing
 Trustee (as defined below)) incurred by the trustee in or about the professed
 execution of the trusts and powers of this Trust, but not in respect of any
 costs, expenses or any other liabilities incurred by any trustee in acting or
 omitting to act in a manner in which the trustee is not entitled to the
 protection of the exclusion of liability provisions contained in this Trust. 


	
 

	
 

	
 


	
 

	
3.2

	
Any of the Trustees (including
 an Outgoing Trustee as defined below) shall be entitled to assert a lien over
 any of the capital and/or income of the Trust Fund in order to secure his
 right of indemnity or, at his election, to release any capital and/or income
 of the Trust Fund subject to the recipient and/or the continuing trustee (as
 the case may be) granting to the trustee (and the trustee’s successors and
 assigns) a charge over the released assets securing the right of indemnity
 and/or an express indemnity. 


	
 

	
 

	
 


	
 

	
3.3

	
Without prejudice to the entitlement
 of a retiring or removed trustee to request that the trustee be granted an
 express indemnity on retirement or removal, the rights of indemnity conferred
 by this Trust shall endure following the retirement or removal, death or (as
 the case may be) liquidation of a trustee (an “Outgoing Trustee”) to the
 intent that an Outgoing Trustee and his personal representatives or (as the
 case may be) its liquidator shall be entitled to assert the same rights of
 indemnity in respect of costs, expenses or other liabilities of whatsoever
 nature (including any taxes for which the Outgoing Trustee is personally
 liable) as the Outgoing Trustee would have been entitled to assert had the
 Outgoing Trustee remained in office as a trustee of this Trust at the time
 when the right of indemnity is asserted. 


	
 

	
 

	
 


	
4.

	
Exclusion of liability


	
 

	
 


	
 

	
4.1

	
In the professed execution of
 the trusts and powers of this Trust, no trustee or member or officer or
 employee of any corporation which is a trustee of this Trust shall be liable
 for any loss to the Trust Fund or the income of the Trust Fund arising by
 reason of any improper investment made or retained in good faith, or for the
 negligence or fraud of any agent, nominee, delegate or sub-delegate appointed
 by or with the authority of the Trustees or any of them (notwithstanding that
 the appointment of the agent, nominee, delegate or sub-delegate was not
 strictly necessary or expedient), or by reason of any mistake or omission
 made in good faith by any trustee, or by reason of any other matter or thing
 whatsoever undertaken in good faith, except actual fraud or dishonesty. 


	
 

	
 

	
 


	
 

	
4.2

	
Without prejudice to the
 generality of the foregoing:





12






	
 

	
 

	
 

	
 


	
 

	
 

	
4.2.1

	
in any case where the Trustees
 have appointed and reasonably relied in good faith on a person or persons to
 manage investments, the Trustees shall not be liable for any loss arising out
 of the failure of the investment policy implemented by or at the direction of
 that person or those persons; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
4.2.2

	
the exclusion of liability provided
 for above shall extend to any matter or thing arising out of any trustee, or
 any member or officer or employee of a corporate trustee, acting in good
 faith as a member or officer or employee of any corporation incorporated or
 acquired pursuant to the powers of the Trustees. 


	
 

	
 

	
 

	
 


	
5.

	
Supervision of officers of
 corporations


	
 

	
 


	
 

	
The Trustees shall not be bound
 or required to interfere in the management or conduct of the business of any
 corporation and may waive any requirement for the appointment of auditors or
 for the preparation of accounts even though the Trustees control the whole or
 the majority of the securities of such corporation (or of its parent
 corporation). So long as the Trustees shall have no notice of any act of
 dishonesty or misappropriation of assets or other deliberate misconduct on
 the part of the officers or employees having the management of any
 corporation, the Trustees shall be at liberty to leave the conduct of its
 business (including the payment or non-payment of dividends) wholly to its
 officers or employees. 


	
 

	
 


	
6.

	
Charging clauses


	
 

	
 


	
 

	
6.1

	
Any of the Trustees who shall be
 an individual engaged in any profession or business either alone or in
 partnership: 


	
 

	
 

	
 


	
 

	
 

	
6.1.1

	
may be appointed to act as a
 trustee on a like charging basis to that provided for in relation to
 corporate trustees below; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
6.1.2

	
subject to that, shall be
 entitled to charge and be paid all professional or other proper charges for
 business done or time spent or services rendered by the trustee or his firm
 in connection with this Trust, whether or not within the usual scope of his
 or his firm’s profession or business and including acts which a trustee not
 being in any profession or business could have done personally. 


	
 

	
 

	
 

	
 


	
 

	
6.2

	
Any of the Trustees which shall
 be a trust corporation or other corporate trustee shall be entitled to charge
 and be paid the fees for its services as may be agreed at the time of its
 appointment by the Enforcers and the terms and conditions relating to fees
 may include provision for the subsequent variation of the fees from time to
 time with the agreement of the Enforcers. In the absence of an agreement, any
 trust corporation or corporate trustee shall be entitled to charge and be
 paid fees for its services in accordance with its usual scale or schedule of
 fees from time to time in effect. 


	
 

	
 

	
 


	
7.

	
Incidental profits


	
 

	
 


	
 

	
7.1

	
Any trustee or any member or
 officer or employee of any corporate trustee of this Trust may act as an
 officer or employee of any corporation (or of any subsidiary of such
 corporation) the securities of which are comprised in the Trust Fund and may
 retain any remuneration or other benefits received by virtue of the office or
 employment notwithstanding that any votes or other rights attaching to the
 securities have been instrumental in procuring or maintaining that person in
 the remunerated office or employment. 


	
 

	
 

	
 


	
 

	
7.2

	
Any trustee or any member or
 officer or employee of any corporate trustee of this Trust or any corporation
 in the same group of corporations as any corporate trustee of this 





13






	
 

	
 

	
 

	
 


	
 

	
 

	
Trust shall be entitled to
 retain any brokerage or commission paid by any broker, agent or insurance
 office to that person (or his firm) in connection with the acquisition or
 dealing with any assets or the effecting of, or payment of, any premium on
 any policy subject or intended to become subject to this Trust. 


	
 

	
 

	
 


	
 

	
7.3

	
Any trustee or any firm or
 corporation of which a trustee is a member or officer or employee or any
 corporation in the same group of corporations as any corporate trustee of
 this Trust which carries on the business of banking or providing investment
 services may act as banker or investment adviser (as the case may be) to this
 Trust on the same terms as are offered to any ordinary customer without being
 liable to account for any profits arising therefrom. 


	
 

	
 

	
 


	
8.

	
Conflicts of interest 


	
 

	
 


	
 

	
Any of the Trustees may join in
 exercising any of the powers by this Trust or by law conferred on the
 Trustees (whether of a beneficial or administrative nature) notwithstanding
 that he may have some other interest (either personally or in some other
 fiduciary capacity) in the manner or result of exercising the power. 


	
 

	
 

	
 

	
 


	
9.

	
Information and confidentiality


	
 

	
 

	
 

	
 


	
 

	
9.1

	
The Trustees shall (without
 being requested for the same) provide or cause to be provided the Enforcers
 with copies of the following: 


	
 

	
 

	
 


	
 

	
 

	
9.1.1

	
accounts of this Trust; 


	
 

	
 

	
 

	
 


	
 

	
 

	
9.1.2

	
copies of this deed and of deeds
 and other written instruments executed pursuant to this deed; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
9.1.3

	
copies of legal and other
 professional advice received by the Trustees. 


	
 

	
 

	
 

	
 


	
 

	
9.2

	
The Enforcers shall have full
 rights to receive information concerning this Trust and its administration
 from the Trustees and to inspect and take copies of trust documents and shall
 also be entitled to the information and documents specified in sub-clause 9.3
 below. 


	
 

	
 

	
 

	
 


	
 

	
9.3

	
Subject to the Governing Law of
 this Trust, the Trustees need not disclose to anyone apart from the
 Enforcers: 


	
 

	
 

	
 


	
 

	
 

	
9.3.1

	
any document that records the
 reasons of the Trustees for the way in which they have exercised any of their
 powers or discretions; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
9.3.2

	
any document concerned with the
 exercise or proposed exercise by the Trustees of any of the powers or
 discretions or the performance or proposed performance by the Trustees of any
 trusts or duties. 


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
          Appointment
 and Retirement of the Trustees 


	
 

	
 

	
 

	
 


	
10.

	
Persons who may serve as
 trustees


	
 

	
 

	
 

	
 


	
 

	
10.1

	
Any individual or corporation
 may be appointed and serve as a trustee notwithstanding that the individual
 or corporation is resident and/or domiciled, or incorporated and/or carrying
 on business, outside the jurisdiction of the Governing Law and that as a
 result of the appointment (and any retirement occurring in connection with
 the appointment) all, or a majority, of the Trustees are resident and/or
 domiciled, or incorporated and/or carrying 





14






	
 
	
 
	
 
	
 

	
 
	
 
	
on business, outside the
 jurisdiction of the Governing Law and carrying on the administration of this
 Trust outside the jurisdiction of the Governing Law and notwithstanding that
 all or any of the assets subject to the trusts of this Trust are situated in
 the jurisdiction of the Governing Law. 

	
 
	
 
	
 
	
 

	
 
	
10.2
	
The power of appointing new
 trustees shall not be exercisable solely by virtue of a trustee remaining
 outside the jurisdiction of the Governing Law for any period. 

	
 
	
 
	
 

	
11.
	
Number of trustees

	
 
	
 
	
 
	
 

	
 
	
Subject to any express provision
 of this Trust to the contrary and without prejudice to any restriction under
 the Governing Law on the number of trustees necessary to give a receipt for
 capital money or otherwise, a single trustee (whether or not being a trust
 corporation) may act for all the purposes of this Trust. 

	
 
	
 

	
12.
	
Power of appointment and removal
 of new trustees

	
 
	
 

	
 
	
The power of appointing new
 trustees and the power to remove trustees of this Trust shall be exercisable
 by writing and shall be vested in the Enforcers. 

	
 
	
 

	
13.
	
Retirement of trustees

	
 
	
 
	
 
	
 

	
 
	
13.1
	
Any trustee may retire from the
 office of trustee either forthwith or at some specified future date or event
 by writing (which may be in counterparts) to which the trustee retiring and
 the other trustees of this Trust are party and written notice and a copy of
 which shall be given to the Enforcers. 

	
 
	
 
	
 

	
 
	
13.2
	
No retirement shall take effect
 unless following the retirement there will be at least one trustee (or the
 greater number of trustees as may be required by any mandatory provision of
 the Governing Law) remaining in office. 

	
 
	
 
	
 
	
 

	

Separate Bodies Of Trustees 

	
 
	
 
	
 
	
 

	
14.
	
Appointment of separate bodies
 of trustees

	
 
	
 
	
 
	
 

	
 
	
14.1
	
A separate person or body of
 persons may be appointed to act as the Trustees in relation to any specified
 share or part of the Trust Fund and the income of the Trust Fund. 

	
 
	
 
	
 

	
 
	
14.2
	
If and so long as one or more
 shares or parts of the Trust Fund and the income of the Trust Fund have a
 separate person or body of persons acting as the Trustees in relation to such
 assets, the provisions of this schedule shall apply to each such person or body
 of persons as if references to the share or part of the Trust Fund and the
 income of the Trust Fund in question were substituted for references to the
 Trust Fund and the income of the Trust Fund. 




15






SCHEDULE C


	
 

	
 

	
 

	
 


	
1.

	
Initial Enforcers and Unanimity


	
 

	
 

	
 

	
 


	
 

	
1.1

	
Subject to the provisions of
 Clauses 2, 3, 5 and 6 of this Schedule, the Enforcers shall be XLCA and the
 Consenting Counterparties (together “the First Enforcers”). 


	
 

	
 

	
 


	
 

	
1.2

	
All actions of the Enforcers
 shall only be effective if they are the result of a unanimous decision of the
 XLCA Enforcer and the Consenting Counterparties Enforcer. 


	
 

	
 

	
 


	
2.

	
Appointment and Resignation of
 the XLCA Enforcer


	
 

	
 


	
 

	
2.1

	
The XLCA Enforcer shall have the
 power, by writing:- 


	
 

	
 

	
 


	
 

	
 

	
2.1.1

	
to add to the number of persons
 then serving as the XLCA Enforcer; 


	
 

	
 

	
 

	
 


	
 

	
 

	
2.1.2

	
to appoint a person or persons
 to serve as the XLCA Enforcer in the event all other persons cease to serve
 as the XLCA Enforcer and that appointment may be made irrevocably or may be
 made so as to be revocable up until the time it takes effect; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
2.1.3

	
to make provisions concerning
 how any two or more persons entitled to exercise the powers of the XLCA
 Enforcer at a given time shall exercise those powers. 


	
 

	
 

	
 

	
 


	
 

	
2.2

	
Any person other than XLCA
 appointed to serve as the XLCA Enforcer shall accept that appointment in
 writing. Copies of any appointment and acceptance shall be supplied to the
 Trustees and all other Enforcers in office at that time as soon as is
 practicable. 


	
 

	
 

	
 


	
3.

	
Persons who may serve as XLCA
 Enforcers


	
 

	
 

	
 

	
 


	
 

	
Any individual or corporation
 may be appointed and serve as an XLCA Enforcer notwithstanding that the
 individual or corporation is resident and/or domiciled, or incorporated
 and/or carrying on business, outside the jurisdiction of the Governing Law. 


	
 

	
 


	
4.

	
XLCA Enforcers acting together


	
 

	
 


	
 

	
Subject to the exercise of the
 power contained in Clause 2.1.3 of this Schedule, in any case where there are
 two or more persons entitled to exercise the powers of the XLCA Enforcer at a
 given time, the powers shall be exercisable by majority. 


	
 

	
 


	
5.

	
Resignation of the XLCA Enforcer


	
 

	
 


	
 

	
5.1

	
Subject to the provisions of
 Clause 5.2 of this Schedule, any person serving as an XLCA Enforcer or
 appointed to be an XLCA Enforcer: 


	
 

	
 

	
 


	
 

	
 

	
5.1.1

	
may resign by writing to that
 effect which may be signed in advance of assuming office as an XLCA Enforcer;
 


	
 

	
 

	
 

	
 


	
 

	
 

	
5.1.2

	
shall, as soon as is
 practicable, supply the Trustees and all other Enforcers in office at that
 time with a copy of the resignation; 


	
 

	
 

	
 

	
 


	
 

	
 

	
5.1.3

	
shall, in the case of any
 prospective resignation, as soon as is practicable supply the Trustees and
 all other Enforcers in office at that time with a copy of the resignation. 





16






	
 
	
 
	
 
	
 

	
 
	
5.2
	
No XLCA Enforcer may resign if as a
 consequence there would be no XLCA Enforcer. 

	
 
	
 
	
 

	
6.
	
The Consenting Counterparties
 Enforcer

	
 
	
 

	
 
	
The provisions of Clauses 2 to 5
 of this Schedule shall apply to the Consenting Counterparties Enforcer as if
 those clauses had been repeated verbatim herein provided that all references
 to the XLCA Enforcer or the XLCA Enforcers shall be deemed to refer to the
 Consenting Counterparties Enforcer or the Consenting Counterparties Enforcers
 respectively. 

	
 
	
 

	

Rights and Immunities of the Enforcer

	
7.
	
Width of discretions  

	
 
	
 

	
 
	
Every power conferred on the
 Enforcers shall confer an absolute and non-fiduciary discretion and no person
 shall be entitled to compel control or otherwise interfere with the exercise
 by the Enforcers of any such power. 

	
 
	
 
	
 
	
 

	
8.
	
Statutory Power to Enforce

	
 
	
 

	
 
	
The Enforcers, XLCA and any
 person appointed by a majority of the Consenting Counterparties are each
 appointed by this Trust as a person entitled to make application to the
 Supreme Court for an order relating to the enforcement of this Trust in accordance
 with the provisions of Section 12B of the Trusts (Special Provisions) Act
 1989. 

	
 
	
 

	
9.
	
Release or restriction of powers

	
 
	
 

	
 
	
9.1
	
The Enforcers may by writing
 release or restrict the future exercise of any power conferred on the
 Enforcer. Any release or restriction shall bind any persons appointed in the
 future to be Enforcers unless the contrary is expressly stated. 

	
 
	
 
	
 
	
 

	
 
	
9.2
	
The Enforcers shall, as soon as
 is practicable, supply the Trustees with any release or restriction of power.
 

	
 
	
 
	
 

	
10.
	
Indemnity

	
 
	
 
	
 
	
 

	
 
	
Each Enforcer other than the
 First Enforcers and any of their respective affiliates shall be entitled to a
 full indemnity out of the Trust Fund and/or the income of the Trust Fund in
 respect of any costs, expenses or any other liabilities of whatsoever nature
 incurred in or about the professed execution of powers under this Trust, but
 not in respect of any costs, expenses or any other liabilities incurred by
 any such Enforcer in acting or omitting to act in a manner in which that
 person is not entitled to the protection of the exclusion of liability
 provisions contained in this Trust. 

	
 
	
 

	
11.
	
Exclusion of liability

	
 
	
 
	
 
	
 

	
 
	
In the professed execution of
 powers under this Trust no Enforcer or member or officer or employee of any
 corporation which is an Enforcer of this Trust shall be liable for any loss
 to the Trust Fund or the income of the Trust Fund arising by reason of any
 mistake or omission made in good faith by any such Enforcer or by reason of
 any other matter or thing whatsoever undertaken in good faith except actual
 fraud. 




17






	
 

	
 

	
 

	
 


	
12.

	
Charging clauses


	
 

	
 


	
 

	
12.1

	
Any Enforcer other than the
 First Enforcers and any of their respective affiliates who shall be an
 individual engaged in any profession or business either alone or in partnership:
 


	
 

	
 

	
 


	
 

	
 

	
12.1.1

	
may be appointed to act as an
 Enforcer on a like charging basis to that provided for in relation to
 corporate Enforcers below; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
12.1.2

	
subject to that, shall be
 entitled to charge and be paid all professional or other proper charges for
 business done or time spent or services rendered by the Enforcer or his firm
 in connection with this Trust, whether or not within the usual scope of his
 or his firm’s profession or business and including acts which an Enforcer not
 being in any profession or business could have done personally. 


	
 

	
 

	
 

	
 


	
 

	
12.2

	
Any corporation which is an
 Enforcer shall be entitled to charge and be paid the fees for its services as
 may be agreed at the time of its appointment by the Trustees. The terms and
 conditions relating to its appointment may include provision for the
 subsequent variation of such fees from time to time with the agreement of the
 Trustees as may be specified in those terms and conditions for the purpose of
 approving any variation. In the absence of agreement, it shall be entitled to
 charge and be paid fees for its services in accordance with its usual scale
 or schedule of fees from time to time in effect. 


	
 

	
 

	
 


	
13.

	
Incidental profits


	
 

	
 


	
 

	
13.1

	
Any Enforcer or any member or
 officer or employee of any corporate Enforcer of this Trust may act as an
 officer or employee of any corporation (or of any subsidiary of such
 corporation) the securities of which are comprised in the Trust Fund and may
 retain any remuneration or other benefit which is received by virtue of such
 office or employment notwithstanding that any votes or other rights attaching
 to the securities have been instrumental in procuring or maintaining that
 person in such remunerated office or employment. 


	
 

	
 

	
 


	
 

	
13.2

	
Any Enforcer or any member or
 officer or employee of any corporate Enforcer of this Trust or any
 corporation in the same group of corporations as any corporate Enforcer of
 this Trust shall be entitled to retain any brokerage or commission paid by
 any broker, agent or insurance office to that person (or his firm) in
 connection with the acquisition or dealing with any assets or the effecting
 of, or payment of, any premium on any policy subject or intended to become
 subject to this Trust. 


	
 

	
 

	
 


	
 

	
13.3

	
Any Enforcer or any firm or corporation
 of which an Enforcer is a member or officer or employee or any corporation in
 the same group of corporations as any corporate Enforcer of this Trust which
 carries on the business of banking or providing investment services may act
 as banker or investment adviser (as the case may be) to this Trust on the
 same terms as are offered to any ordinary customer without being liable to
 account for any profits arising therefrom. 


	
 

	
 

	
 


	
14.

	
Conflicts of interest


	
 

	
 

	
 

	
 


	
 

	
Any Enforcer may join in
 exercising any of the powers by this Trust or by law conferred on the
 Enforcers notwithstanding that he or it may have some other interest (either
 personally or in some fiduciary capacity) in the manner or result of
 exercising the power. 





18






	
 
	
 
	
 
	
 

	
15.
	
Information and confidentiality

	
 
	
 

	
 
	
Subject to the Governing Law of
 this Trust, the Enforcers need not disclose to anyone apart from the
 Trustees: 

	
 
	
 
	
 
	
 

	
 
	
15.1
	
Any document that records the
 reasons of the Enforcers for the way in which they have exercised any of
 their powers or discretions; and 

	
 
	
 
	
 
	
 

	
 
	
15.2
	
Any document concerned with the
 exercise or proposed exercise by the Enforcers of any of the powers or
 discretions or the performance or proposed performance by the Enforcers of
 any trusts or duties. 

	
 
	
 
	
 
	
 

	

All Incidental Powers

	
 
	
 
	
 
	
 

	
16.
	
All incidental powers

	
 
	
 
	
 
	
 

	
 
	
The Enforcers shall have and be
 entitled to exercise all powers otherwise enjoyed by an absolute beneficial
 owner which the Enforcers consider necessary or expedient in order to carry
 out the functions of the office of the Enforcers under this Trust including
 (without prejudice to the generality of the foregoing) similar powers to
 those conferred on the Trustees by Schedule A concerning agents and disputes.
 

	
 
	
 
	
 
	
 

	
17.
	
Notices

	
 
	
 
	
 
	
 

	
 
	
All notices required or permitted
 hereunder shall be in writing and shall be deemed effectively given (i) upon
 personal delivery to the person to be notified, (ii) when sent by confirmed
 facsimile if sent during normal business hours of the recipient, if not, then
 on the next business day or (iii) one business day after deposit with a
 nationally recognized overnight courier, specifying next day delivery, with
 written verification of receipt. All communications shall be sent to the
 addresses set forth below or such other address or facsimile number as a
 person may from time to time specify by notice to, in the case of the
 Trustees, the Enforcers, and, in the case of an Enforcer, to the Trustees and
 the other Enforcer: 

	
 
	
 
	
 
	
 

	
 
	
 
	
If to the Trustees: 

	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
Syncora Private Trust Company
 Ltd

 Richmond House

 12 Par La Ville Road

 Hamilton, HM 081, Bermuda

 Attention: Craig MacIntyre, Director

 Facsimile No.: (441) 298-7849

	
 
	
 
	
 
	
 

	
 
	
 
	
with a copy (which shall not
 constitute notice) to:

	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
Conyers Dill & Pearman

 Clarendon House

 2 Church Street

 PO Box HM 666

 Hamilton HM CX

 Bermuda

 Attention: Charles Collis

 Fax: (441) 292-4720




19






	
 

	
 

	
 

	
 


	
 

	
 

	
If to the XLCA Enforcer:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Syncora Guarantee Inc.

 A.S. Cooper Building

 26 Reid Street, 4th Floor

 Hamilton HM 11

 Bermuda

 Attention: General Counsel

 Fax: (441) 296-4351


	
 

	
 

	
 

	
 


	
 

	
 

	
with a copy (which shall not
 constitute notice) to:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Weil, Gotshal & Manges LLP,

 767 Fifth Avenue

 New York, New York 10153

 Attention: Gary Holtzer

 Fax: (212) 310-8007


	
 

	
 

	
 

	
 


	
 

	
 

	
If to the Consenting
 Counterparties Enforcer:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
CDS Counterparties

 c/o FTI Consulting, Inc.

 633 West Fifth Street

 Suite 1600

 Los Angeles, CA 90071

 Attention: M. Freddie Reiss

 Fax: (213) 689-1220


	
 

	
 

	
 

	
 


	
 

	
 

	
with a copy (which shall not
 constitute notice) to:


	
 

	
 

	
 

	
 


	
 

	
 

	
 

	
Davis Polk & Wardwell

 450 Lexington Avenue

 New York, NY 10017 

 Attention: Donald S. Bernstein

 Fax: (212) 450-3092





20






Schedule D


THIS DEED OF COVENANT AND INDEMNITY
dated [l]
[l],
2008 (the “Commencement Date”) is made by SYNCORA GUARANTEE INC. (formerly known as XL Capital Assurance
Inc.),
a company incorporated under the laws of the State of New York whose registered
office is at 1221 Avenue of the Americas, New York, NY 10020 (the “Company”)
in favour of SYNCORA PRIVATE TRUST COMPANY
LIMITED,a company
incorporated under the laws of Bermuda whose registered office is at Richmond
House, 12 Par La Ville Road, Hamilton HM08, Bermuda (the “Trustee”)
(each, a “Party” and, together, the “Parties”). 


BACKGROUND


	
 

	
 

	
 

	
 


	
(A)

	
This deed is supplemental to a trust (the “Trust”)
 established by a Declaration of Trust made by the Trustee of even date
 herewith (the “Trust Deed”) and known as The CCRA Purpose Trust. 


	
 

	
 


	
(B)

	
The Trustee is the present trustee of the
 Trust. 


	
 

	
 


	
(C)

	
The Company has agreed to covenant with and
 indemnify the Trustee, and its respective successors in title, directors,
 officers and employees and the directors, officers and employees of its
 successors in title (together, the “Covenantees”) in the terms set out
 below. 


	
 

	
 


	
OPERATIVE PROVISIONS


	
 


	
1.

	
DEFINITIONS 


	
 

	
 


	
 

	
In this Deed, where the context admits, the
 following definitions shall apply and subject thereto the definitions and
 rules of construction contained in the Trust Deed shall apply: 


	
 

	
 


	
 

	
1.1

	
“Agreed Fees” means the Minimum Fee
 and the Annual Fee. 


	
 

	
 

	
 


	
 

	
1.2

	
“Annual Fee” means the sum of one
 hundred thousand United States Dollars (US$100,000) to be paid annually on
 the first anniversary after the Minimum Fee and thereafter until the
 Termination Date. 


	
 

	
 

	
 


	
 

	
1.3

	
“Excepted Liabilities” means any
 cost, expense or other liability incurred by any Covenantee in acting or
 omitting to act in a manner in which the trustee is not entitled to the
 protection of the exclusion of liability provisions contained in the Trust
 Deed. 


	
 

	
 

	
 


	
 

	
1.4

	
“Indemnity Fund” means: 


	
 

	
 

	
 

	
 


	
 

	
 

	
1.4.1

	
the sum of One million United States
 Dollars (US$1,000,000) transferred on the date of execution of this Deed to
 the Trustee by or on behalf of the Company; and 


	
 

	
 

	
 

	
 


	
 

	
 

	
1.4.2

	
the assets from time to time representing
 the above. 


	
 

	
 

	
 

	
 


	
 

	
1.5

	
“Liabilities” means any costs,
 expenses or any other liabilities of whatsoever nature (including any taxes
 and associated penalties and interest for which they are personally liable
 and any liability which may be payable to an Outgoing Trustee (as defined in
 clause 4.3 below)) incurred by the Trustee in or about the professed
 execution of the trusts and powers of the Trust (the “Service”), other than
 Excepted Liabilities. 


	
 

	
 

	
 

	
 


	
 

	
1.6

	
The “Minimum Fee” means the sum of
 one hundred and seventy-five thousand United States Dollars (US$175,000) to
 be paid on the date hereof. 





21






	
 

	
 

	
 

	
 


	
 

	
1.7

	
“Repayment Date” means: 


	
 

	
 

	
 


	
 

	
 

	
1.7.1

	
the date six months after the earlier of
 (i) the Termination Date of the Trust and (ii) the date on which the Trustee
 ceases to be trustee of the Trust; or 


	
 

	
 

	
 

	
 


	
 

	
 

	
1.7.2

	
such other date as shall be agreed between
 the Trustee and the Company. 


	
 

	
 

	
 

	
 


	
2.

	
COVENANT AND INDEMNITY


	
 

	
 


	
 

	
The Company hereby covenants with the
 Covenantees:


	
 

	
 


	
 

	
2.1

	
To pay the Minimum Fee to the Trustee on
 the Commencement Date in consideration of the Service for the period
 beginning with the Commencement Date and ending on the first anniversary of
 the Commencement Date and thereafter until the Termination Date to pay the
 Annual Fee annually thereafter in advance for the period commencing on the
 date when payment is due and ending one year after that date; if the Trustee
 ceases to be trustee of the Trust, then the Trustee shall refund the
 last-paid Annual Fee pro rata for the portion remaining of the annual period
 ending on the date the next payment is due provided such refund shall not
 apply to the Minimum Fee. 


	
 

	
 

	
 


	
 

	
2.2

	
In addition to the Agreed Fees, to pay to
 the Trustee all reasonable legal costs and expenses and disbursements, stamp
 duty and all registration and document fees incurred by the Trustee in
 connection with the execution of the Trust and the continued administration
 of the Trust and all ancillary expenses in connection therewith (the “Legal
 Fees and Expenses”); 


	
 

	
 

	
 


	
 

	
2.3

	
At all times fully and effectually to
 indemnify the Covenantees in respect of any Liabilities which are not
 otherwise paid to the Covenantees from the Trust Fund pursuant to the
 provisions of the Trust Deed. 


	
 

	
 

	
 


	
 

	
2.4

	
To reimburse the Covenantees for any legal
 or other expenses (including, without limitation, reasonable expenses of any
 experts, counsel or agents) reasonably incurred by any of the aforesaid
 persons in connection with investigating, preparing for or defending against
 any action or claim, whether or not in connection with any pending or
 threatened litigation, relating to the Liabilities as such expenses are
 incurred.


	
 

	
 


	
3.

	
PROCEDURE FOR INDEMNIFICATION 


	
 

	
 


	
 

	
3.1

	
If the Company has become obligated to
 indemnify pursuant to clause 2.3 or if any suit, action, investigation, claim
 or proceeding is begun, made or instituted as a result of which the Company
 may become obligated to a Covenantee (for the purposes of this clause 3, the
 “Indemnified Party”) hereunder, the Indemnified Party shall give
 written notice to the Company within a sufficiently prompt time to avoid
 prejudice to the Company, specifying in reasonable detail the facts upon
 which the claimed right to indemnification is or may be based; provided,
 however, that the failure of the Indemnified Party to give notice as provided
 in this clause 3 shall not relieve the Company of its obligations hereunder,
 except to the extent that the Company is actually prejudiced by such failure
 to give notice. 


	
 

	
 

	
 


	
 

	
3.2

	
The Company may elect to defend, compromise
 and settle, at the Company’s own expense and by the Company’s own counsel
 reasonably satisfactory to the Indemnified Party, any third party claim. If
 the Company elects to defend a third party claim, it shall, within 30 days of
 its receipt of notice of such third party claim (or sooner, if the nature of
 such third party claim so requires), notify the Indemnified Party of its
 intent to do so and such Indemnified Party shall cooperate in the defence of
 such third party claim to the





22






	
 

	
 

	
 

	
 


	
 

	
 

	
extent reasonably requested in writing by
 the Company. Even after notice from the Company of its election to assume the
 defence of a third party claim, the Company shall be liable to such
 Indemnified Party under this clause 3 for all legal or other expenses
 subsequently incurred by such Indemnified Party in connection with the
 defence thereof. If the Company elects not to defend against a third party
 claim, such Indemnified Party may defend, compromise and settle such third
 party claim subject to the conditions set forth below. Notwithstanding the
 foregoing, (i) neither the Company nor an Indemnified Party, as the party
 controlling the defence of a third party claim, may compromise or settle any
 claim or consent to the entry of any judgment for other than monetary damages
 without the prior written consent of the Company or the Indemnified Party, as
 applicable; provided, that (upon reasonable notice thereof) consent to such
 compromise or settlement or such entry of a judgment shall not be
 unreasonably withheld or delayed, and (ii) the Company shall not consent to
 the entry of any judgment or enter into any compromise or settlement which
 does not include as an unconditional term thereof the giving by the claimant
 or plaintiff to such Indemnified Party and all other Indemnified Parties,
 subject to such third party claim, of a full and final release from all
 liability in respect of such claim or litigation. 


	
 

	
 

	
 


	
 

	
3.3

	
Any claim on account of an indemnifiable
 loss hereunder which does not result from a third party claim shall be
 asserted by written notice given by the Indemnified Party to the Company. 


	
 

	
 

	
 


	
4.

	
INDEMNITY FUND


	
 

	
 


	
 

	
4.1

	
The Trustee shall hold the Indemnity Fund
 until the Repayment Date, or until the Trustee ceases to be trustee of the
 Trust under the Trust Deed (whereupon the Trustee shall transfer the
 Indemnity Fund to their successor trustee, appointed in accordance with the
 provisions of the Trust Deed) and shall have recourse to payment or
 reimbursement from the Indemnity Fund in the following circumstances, limited
 to those amounts necessary to satisfy such payment or reimbursement
 obligation (for the avoidance of doubt, this section 4.1 does not provide
 general access to the Indemnity Fund for any amounts beyond that necessary to
 remedy such violation): 


	
 

	
 

	
 


	
 

	
 

	
4.1.1

	
The Company does not pay any part of the
 Agreed Fee or Minimum Fee on the due date; 


	
 

	
 

	
 

	
 


	
 

	
 

	
4.1.2

	
The Company does not render payment in
 respect of any Legal Fees and Expenses within thirty (30) calendar days of
 the issuance of the relevant invoice; or 


	
 

	
 

	
 

	
 


	
 

	
 

	
4.1.3

	
The Company does not render payment in
 respect of any Liabilities under clause 2.3 above, subject to the procedures
 outlined in Section 3. 


	
 

	
 

	
 

	
 


	
 

	
4.2

	
On the Repayment Date, the Trustee shall
 transfer the Indemnity Fund to the Company in accordance with payment
 instructions provided in writing to the Trustee by the Company provided, that
 the Trustee shall be able to retain such portion of the Indemnity Fund which
 is reasonably sufficient to meet the those Liabilities identified in written
 notices delivered to the Company in accordance with the provisions of clause
 3.1 above. The Trustee shall release the retained portion of the Indemnity
 Fund at such time and to the extent that such Liability is no longer
 reasonably expected or has become barred due to relevant statutory limitation
 provisions or otherwise is incapable of being advanced. 


	
 

	
 

	
 


	
 

	
4.3

	
Without prejudice to the entitlement of a
 retiring or removed trustee to request that the trustee be granted an express
 indemnity on retirement or removal, the rights of indemnity hereunder shall
 endure following the retirement or removal, death or (as the case may 





23






	
 

	
 

	
 

	
 


	
 

	
 

	
be) liquidation of a trustee (an “Outgoing
Trustee”) to the intent that an Outgoing Trustee and his personal
representatives or (as the case may be) its liquidator shall be entitled to
assert the same rights of indemnity in respect of costs, expenses or other
liabilities of whatsoever nature (including any taxes for which the Outgoing
Trustee is personally liable) as the Outgoing Trustee would have been
entitled to assert had the Outgoing Trustee remained in office as a trustee
of this Trust at the time when the right of indemnity is asserted. 


	
 

	
 

	
 


	
 

	
4.4

	
The Indemnity Fund shall be invested and
 reinvested by the Trustee in readily marketable direct obligations of the
 Government of the United States or any agency or instrumentality thereof or
 readily marketable obligations unconditionally guaranteed by the full faith
 and credit of the Government of the United States. The Trustee shall report
 or cause to be reported to the Company on the last day of each month earnings
 on the Indemnity Fund. 


	
 

	
 

	
 


	
5.

	
ASSIGNMENT 


	
 

	
 


	
 

	
Neither of the Parties shall assign or
 transfer or permit the assignment or transfer of this Deed without the prior
 written consent of the other. All such assignments shall be subject to all
 necessary regulatory approvals.


	
 

	
 


	
6.

	
AMENDMENTS AND WAIVERS 


	
 

	
 


	
 

	
This Deed may not be amended, and none of
 its provisions may be modified, except expressly by an instrument signed by
 the Parties. No failure or delay of a Party in exercising any power or right
 hereunder shall operate as a waiver thereof, nor shall any single or partial
 exercise of any such right or power, or any abandonment or discontinuance of
 steps to enforce such a right or power, preclude any other or further
 exercise thereof or the exercise of any other right or power. No waiver by a
 Party of any provision of this Deed or consent to any departure therefrom
 shall in any event be effective unless the same shall be in writing and
 signed by such Party, and then such waiver or consent shall be effective only
 in the specific instance and for the purpose for which given. 


	
 

	
 


	
7.

	
ENTIRE AGREEMENT 


	
 

	
 


	
 

	
This Deed constitutes the entire agreement
 between the Parties with respect to the subject matter hereof and supersedes
 all other prior negotiations, commitments, agreements and understandings,
 both written and oral, between the Parties with respect to the subject matter
 hereof. 


	
 

	
 


	
8.

	
GOVERNING LAW 


	
 

	
 


	
 

	
This Deed shall be governed by the law of
 Bermuda and the Company submits to the exclusive jurisdiction of the Courts
 of Bermuda. 


	
 

	
 


	
9.

	
NOTICES 


	
 

	
 


	
 

	
Any notice given under this Deed shall be
 valid in any legible form and shall be duly delivered on transmission to or
 receipt at the addresses of the Parties noted above. 





[Signature Page Follows]


24






IN WITNESS whereof, the Company has executed
and delivered this instrument as a deed on the date first shown above. 


THE COMMON SEAL OF THE COMPANY


was hereunto affixed in the presence of: 


	
 

	
 

	
 


	
 

	
Director 

	
 


	
 

	



	
 

	
 

	
 


	
 

	
Director/Officer

	
 


	
 

	
 

	






Acknowledged and Agreed to by: 


   SYNCORA PRIVATE TRUST
COMPANY LIMITED LIMITED 


	
 

	
 

	
 


	
By:

	
 

	
 


	


	
 


	
Name:

	
 

	
 


	
 

	


	
 


	
Title:

	
 

	
 


	


	
 





25






Schedule E


Nomination of SCA
Shareholder Entity Nominees


          In
accordance with the terms of the SCA Shareholder Agreement, the Initial SCA Shareholder Entity Nominees will serve as the
initial SCA Shareholder Entity Nominees, in each case as defined in the SCA
Shareholder Agreement. The Trustees shall, in accordance with the SCA
Shareholder Agreement, continue to nominate each Initial SCA Shareholder Entity
Nominee as an SCA Shareholder Entity Nominee until such time that such Initial
SCA Shareholder Entity Nominee resigns, is removed or otherwise is unavailable
to serve on the Company’s board. 


          If,
at any time, the Trustees shall have the right pursuant to the SCA Shareholder
Agreement to fill a vacancy on the Company’s board that cannot be filled by an
Initial SCA Shareholder Entity Nominee, whether as a result of an Initial SCA
Shareholder Entity Nominee’s death, resignation or removal from office, an
increase in the number of directors on the Company’s board or otherwise (such
vacancy, an “Open Board Seat”),
the Trustees shall nominate a person to fill such Open Board Seat as follows: 


          A.
If the XLCA Enforcer and the Consenting Counterparties Enforcer or their respective
designees jointly submit in writing to the Trustees the name of a person to
fill such Open Board Seat (such person, a “Jointly
Selected SCA Shareholder Entity Nominee”), the Trustees shall submit
such person’s name to the Company’s Nominating & Governance Committee in
accordance with Section 2(b)(vii) of the SCA Shareholder Agreement and, if such
committee does not object to such person in accordance with such section,
nominate such Jointly Selected SCA Shareholder Entity Nominee as an SCA Shareholder
Entity Nominee pursuant to the SCA Shareholder Agreement. 


          B.
If, however, either the XLCA Enforcer or the Consenting Counterparties Enforcer
delivers a written notice to the Trustees and the other Enforcer stating that
the Enforcers have not been able to agree on a Jointly Selected SCA Shareholder
Entity Nominee, then the Trustees shall nominate a person to fill such Open
Board Seat in accordance with the procedures set forth in paragraphs 1 through
8 below: 


	
 

	
 

	
 

	
 


	
 

	
1.

	
The XLCA Enforcer and the Consenting
 Counterparties Enforcer or their respective designees shall jointly submit a
 single consolidated list containing the names of two proposed individuals to
 fill such Open Board Seat, with one name each proposed by the XLCA Enforcer
 and the Consenting Counterparties Enforcer (each such person set forth on
 such consolidated list, a “Proposed Nominee”).
 The consolidated list shall be a “blind” written submission containing no
 information regarding which Enforcer has submitted a particular name. The
 XLCA Enforcer and the Consenting Counterparties Enforcer shall use their
 reasonable best efforts to cause the consolidated list to be submitted to the
 Trustees as soon as reasonably possible, but no later than 20 business days
 after the delivery of the written notice referred to in paragraph B above
 (unless the XLCA Enforcer and the Consenting Counterparties Enforcer or their
 respective designees agree otherwise). 


	
 

	
 

	
 


	
 

	
2.

	
The consolidated list shall be accompanied
 by a written submission with respect to each Proposed Nominee set forth on
 the consolidated list, which shall contain the following information: 


	
 

	
 

	
 

	
 


	
 

	
 

	
(a)

	
the name, age, business address and
 residence address of such Proposed Nominee; 


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
the principal occupation or employment of
 such Proposed Nominee, and such other biographical information regarding the
 Proposed Nominee as the submitting enforcer deems relevant; and 





26






	
 

	
 

	
 

	
 


	
 

	
 

	
(c)

	
the number of shares of capital stock of
 the Company or any Consenting Counterparty which are owned of record and
 beneficially by such Proposed Nominee. 


	
 

	
 

	
 

	
 


	
 

	
3.

	
The Enforcers shall, upon the Trustees’
 request, endeavor to provide the Trustees with such other information
 reasonably requested by the Trustees with respect to any Proposed Nominee
 (including, at the Trustees’ request, a completed director questionnaire (in
 the form provided by the Secretary of the Company)), which information shall
 be made available to the Trustees in the same “blind” manner as the initial
 written submissions are submitted to the Trustees. 


	
 

	
 

	
 


	
 

	
4.

	
The Trustees shall then choose among the
 Proposed Nominees the person the Trustees deem, in their sole and absolute
 discretion, to be the most qualified director of the Company to fill such
 Open Board Seat. 


	
 

	
 

	
 


	
 

	
5.

	
The Trustees shall submit the name of the
 Proposed Nominee selected in accordance with paragraph 4 above to the
 Company’s Nominating & Corporate Governance Committee in accordance with
 Section 2(b)(vii) of the SCA Shareholder Agreement, upon such Proposed Nominee:
 


	
 

	
 

	
 


	
 

	
 

	
(a)

	
executing a written representation and
 agreement (in the form provided by the Secretary of the Company) stating that
 he or she (A) meets the criteria set forth in the definition of “Independent”
 in the SCA Shareholder Agreement and (B) is not and will not become a party
 to any agreement, arrangement or understanding that would violate the last
 sentence of Section 2(b)(iv) of the SCA Shareholder Agreement; and


	
 

	
 

	
 

	
 


	
 

	
 

	
(b)

	
completing and signing a written director
 questionnaire (in the form provided by the Secretary of the Company) with
 respect to the background, independence and qualification of such Proposed
 Nominee.


	
 

	
 

	
 

	
 


	
 

	
6.

	
If the Company’s Nominating & Corporate
 Governance Committee does not object to the Proposed Nominee submitted to
 such committee solely on the basis provided for in Section 2(b)(vii) of the
 SCA Shareholder Agreement within 10 business days after submission to such
 committee of such Proposed Nominee’s name, a copy of the written submission
 with respect to such Proposed Nominee referred to in paragraph 2 above and
 the documentation with respect to such Proposed Nominee referred to in
 clauses (a) and (b) in paragraph 5 above, such Proposed Nominee shall become
 an SCA Shareholder Entity Nominee in accordance with the SCA Shareholder
 Agreement. If the Company’s Nominating & Corporate Governance Committee
 objects to the Proposed Nominee, the Trustees shall request that the
 Enforcers submit two new names for consideration in accordance with the
 procedures described above, neither of which shall have been submitted on the
 initial consolidated list submitted to the Trustees. 


	
 

	
 

	
 


	
 

	
7.

	
In performing the Trustees’ duties
 hereunder, the Trustees shall be entitled to rely upon any document submitted
 in connection with the written submissions described above including the
 completed and signed written director questionnaires and the signed written
 representation and agreements, and the Trustees shall not be required to
 investigate the truth or accuracy of any statement contained in any such document.
 


	
 

	
 

	
 


	
 

	
8.

	
The Trustees shall not be liable for any
 error of judgment, or any action taken, in selecting the SCA Shareholder
 Entity Nominees so long as the SCA Shareholder Entity Nominees are selected
 by the Trustees as between the Proposed Nominees in good faith. 


	
 

	
 

	
 


	
 

	
9.

	
For the avoidance of doubt, the provisions
 of paragraphs 1 through 8 above shall not apply to a Jointly Selected SCA
 Shareholder Entity Nominee. 





27






Schedule F


Consenting
Counterparties


	
 

	
 

	
 


	
 

	
1.

	
Australia
 and New Zealand Banking Group Limited 


	
 

	
 

	
 


	
 

	
2.

	
Bank
 of America, N.A. 


	
 

	
 

	
 


	
 

	
3.

	
Barclays
 Bank PLC 


	
 

	
 

	
 


	
 

	
4.

	
Calyon
 


	
 

	
 

	
 


	
 

	
5.

	
Canadian
 Imperial Bank of Commerce 


	
 

	
 

	
 


	
 

	
6.

	
Deutsche
 Bank AG London Branch 


	
 

	
 

	
 


	
 

	
7.

	
Dexia
 Bank Belgium SA 


	
 

	
 

	
 


	
 

	
8.

	
Dresdner
 Bank AG, London Branch 


	
 

	
 

	
 


	
 

	
9.

	
Hypo
 Public Finance Bank AG


	
 

	
 

	
 


	
 

	
10.

	
Lehman
 Brothers Inc.


	
 

	
 

	
 


	
 

	
11.

	
Natixis
 


	
 

	
 

	
 


	
 

	
12.

	
Nomura
 International plc 


	
 

	
 

	
 


	
 

	
13.

	
Royal
 Bank of Canada 


	
 

	
 

	
 


	
 

	
14.

	
The
 Royal Bank of Scotland 


	
 

	
 

	
 


	
 

	
15.

	
Société
 Générale


	
 

	
 

	
 


	
 

	
16.

	
UBS
 AG, London branch 


	
 

	
 

	
 


	
 

	
17.

	
Wachovia
 Bank, National Association 





28






THE COMMON SEAL OF THE FIRST TRUSTEE) 


was hereunto affixed in the presence
of:               )





	
 

	
 

	
 


	
 

	
Director 

	
/s/ Charles Collis