The Master Agreement sets forth the method of establishing letters of credit under the Facility. In the event of any inconsistency between the terms of this Letter and the terms of any Facility Document, the terms of this Letter shall prevail.
Notwithstanding clause 1(a) of the Master Agreement, the Bank hereby agrees to issue during the term of the Facility upon request from the Company a Credit, provided that the Bank shall be entitled to decline any request to issue a Credit without liability to the Company or any third party to whom the Company owes an obligation if:
Citibank, N.A. London branch is registered in the U.K. at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, Tel +44 (0) 20 7986 4000 Fax +44 (0) 20 7986 2266 under No. BR001018 and is authorized and regulated by the Financial Services Authority. VAT No. GB 429 6256 29.Citibank, N.A. is incorporated with limited liability under the National Bank Act of the U.S.A. and has its head office at 399 Park Avenue, New York, NY 10043, U.S.A. Ultimately owned by Citigroup Inc., New York, U.S.A.
Fees
The Company shall pay to the Bank in advance on the date of this Letter and on each Quarter Day a letter of credit fee (the “Utilization Fee”) in an amount equal to 0.275% (on an annualised basis) of the Facility Limit less the principal amount of undrawn credit on that Quarter Day.
The Company shall pay to the Bank on the date of this Letter and on each Quarter Day a commitment fee (the “Commitment Fee”) in an amount equal to 0.10% (on an annualised basis) of the principal amount of undrawn credit on that Quarter Day.
Repayment and expiry
The Facility shall expire on 31 December 2006 (the “Expiry Date”), provided that Credits that were issued prior to the Expiry Date shall remain outstanding for the term of such Credit. The Bank and the Company shall commence negotiations, without being under any obligation, on the renewal of the Facility at least 60 days before the Expiry Date.
Representations and warranties
The Company repeats the representations, warranties and undertakings laid out in clauses 1(f) and (g) of the Master Agreement in favour of the Bank in relation to this Letter as if they were more fully laid out herein, on the date of acceptance of this Letter and on each day it requests to issue a Credit (by reference to the facts and circumstances then existing) until this Letter has expired or terminated.
The Bank represents and warrants to the Company that:
| (a) | the Bank has and will at all times have the necessary power to enable it to enter into and perform the obligations expressed to be assumed by it under this Letter; |
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| (b) | this Letter constitutes the Bank’s legal, valid, binding and enforceable obligation effective in accordance with its terms; and |
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| (c) | all necessary authorisations to enable or entitle the Bank to enter into this Letter have been obtained and are in full force and effect and will remain in such force and effect at all times during the subsistence of this Letter. |
Costs and expenses
The Company undertakes to indemnify the Bank, on demand, for and against all actions, proceedings, losses, damages, charges, costs, expenses, claims and demands which you may incur, pay or sustain (apart from the Bank’s own or its affiliates’, directors’, employees’ or agents’ gross negligence, bad faith or wilful misconduct) in connection with this Letter (including non-exclusively the cost of all registrations and any other reasonable legal fees that the Bank incurs in relation to the Facility).
Citibank, N.A. London branch is registered in the U.K. at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, Tel +44 (0) 20 7986 4000 Fax +44 (0) 20 7986 2266 under No. BR001018 and is authorized and regulated by the Financial Services Authority. VAT No. GB 429 6256 29.Citibank, N.A. is incorporated with limited liability under the National Bank Act of the U.S.A. and has its head office at 399 Park Avenue, New York, NY 10043, U.S.A. Ultimately owned by Citigroup Inc., New York, U.S.A.
Certificates
Any demand, notification or certificate issued by the Bank specifying any amount due under this Letter or any Facility Document or any determination of any ratio shall, in the absence of manifest error, be conclusive and binding on the Company.
Instructions by Company
Notwithstanding clause 5 of the General Communications Indemnity, except as explicitly provided in this Letter, the Master Agreement, the Pledge Agreement and the Account Control Agreement, neither the Bank nor any of its affiliates (a) shall have the right to refuse to accept any instruction or communication given or made by the Company in respect of the Facility or any account maintained with the Bank or any affiliate and (b) shall have the right to charge any fee in respect of such instruction or communication during the term of the Facility.
Miscellaneous
The rights of each party to this Letter and the Facility Documents may be exercised as often as necessary; are cumulative and not exclusive of its rights under the general law; and may be waived only in writing and specifically. Delay in exercising or non-exercise of any such right is not a waiver of that right.
If any provision of this Letter or any Facility Document is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect (i) the legality, validity or enforceability in that jurisdiction of any other provision of that document; or (ii) the legality, validity or enforceability in any other jurisdiction of that or any other provision of that document.
In no event shall the Bank be liable on any theory of liability for any special, indirect, consequential or punitive damages except to the extent any such damages arise from the gross negligence, bad faith or wrongful misconduct of the Bank or the Bank’s affiliates, directors, employees, advisors or agents, and the Company hereby waives, releases and agrees (for itself and on behalf of the other members of the Group) not to sue upon any such claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its or their favour.
Clauses 12, 13 and 14 of the Master Agreement shall apply in respect of this Letter.
The terms of this Letter may not be waived, modified or amended unless such waiver, modification or amendment is in writing and signed by you. The Bank may not assign any of its rights hereunder without the prior written consent of the Company, provided that the prior written consent of the Company shall not be required for assignments to any holding company, subsidiary or affiliate of Citigroup Inc. The Company may not assign any of its rights hereunder without the prior written consent of the Bank.
Citibank, N.A. London branch is registered in the U.K. at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, Tel +44 (0) 20 7986 4000 Fax +44 (0) 20 7986 2266 under No. BR001018 and is authorized and regulated by the Financial Services Authority. VAT No. GB 429 6256 29.Citibank, N.A. is incorporated with limited liability under the National Bank Act of the U.S.A. and has its head office at 399 Park Avenue, New York, NY 10043, U.S.A. Ultimately owned by Citigroup Inc., New York, U.S.A.
Definitions and interpretation
Unless otherwise defined herein, terms defined in any Facility Document shall have the same meanings when used in this Letter. The following terms shall have the following meanings.
Business Day means a day (other than a Saturday or a Sunday) on which banks are generally open in London, Dublin and New York.
Facility Documents means the documents specified in paragraphs 3(a) through 3(e) and any other document pursuant to which a security interest, guarantee or other form of credit support is created or exists in favour of the Bank in respect of the obligations of the Company under this Letter.
Group means the Company and each other person from time to time included in the consolidated financial statements of the Company.
Quarter Day means 1 January, 1 April, 1 July and 1 October, provided that if any such day would otherwise fall on a day that is not a Business Day, such Quarter Day shall be the next succeeding Business Day.
In this Letter (unless otherwise provided):
(a) words importing the singular shall include the plural and vice versa;
references to:
| | (i) | paragraphs are to be construed as references to the paragraphs of this Letter; |
| | | |
| | (ii) | any document shall be construed as references to that document, as amended, varied, novated or supplemented; |
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| | (iii) | any statute or statutory provision shall include any statute or statutory provision which amends, extends, consolidates or replaces the same; |
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| (iv) | any document or person being acceptable or approved or satisfactory shall be construed as meaning acceptable to or approved by or satisfactory to the Bank in its reasonable discretion; |
| | | |
| | (v) | a person shall be construed so as to include that person's assignors, transferees or successors in title and shall be construed as including references to an individual, firm, partnership, joint venture, company, corporation, body corporate, unincorporated body of persons or any state or any agency of a state; and |
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| | (vi) | time are to London time. |
Citibank, N.A. London branch is registered in the U.K. at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, Tel +44 (0) 20 7986 4000 Fax +44 (0) 20 7986 2266 under No. BR001018 and is authorized and regulated by the Financial Services Authority. VAT No. GB 429 6256 29.Citibank, N.A. is incorporated with limited liability under the National Bank Act of the U.S.A. and has its head office at 399 Park Avenue, New York, NY 10043, U.S.A. Ultimately owned by Citigroup Inc., New York, U.S.A.
The headings in this Letter are for convenience only and shall be ignored in construing this Letter.
Governing law
This Letter shall be governed by English law and for the benefit of the Bank the Company irrevocably submit to the jurisdiction of the English Courts in respect of any dispute which may arise from or in connection with this Letter or any Credit.
A person who is not a party to this Letter has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Letter.
Yours faithfully
| /s/ Phil Arch |
| For and on behalf of Citibank Ireland Financial Services plc |
| Phil Arch |
| Vice President |
| |
| |
| Accepted and agreed on |
| |
| |
| /s/ Robert P. Myron |
| For and on behalf of PXRE Reinsurance Ltd |
| Robert P. Myron |
| Executive Vice President & Chief Financial Officer |
| |
Citibank, N.A. London branch is registered in the U.K. at Citigroup Centre, Canada Square, Canary Wharf, London E14 5LB, Tel +44 (0) 20 7986 4000 Fax +44 (0) 20 7986 2266 under No. BR001018 and is authorized and regulated by the Financial Services Authority. VAT No. GB 429 6256 29.Citibank, N.A. is incorporated with limited liability under the National Bank Act of the U.S.A. and has its head office at 399 Park Avenue, New York, NY 10043, U.S.A. Ultimately owned by Citigroup Inc., New York, U.S.A.
