Alterra Capital DEFA14A Additional proxy soliciting materials | SEC 4 Mar 10

Exhibit 10.5

EXECUTION VERSION

THIRD AMENDMENT AND LIMITED CONSENT TO CREDIT AGREEMENT

THIS THIRD AMENDMENT AND LIMITED CONSENT TO CREDIT AGREEMENT, dated as of the 3rd day of March, 2010 (this “Amendment”), is entered into by and among Max Bermuda Ltd. (f/k/a Max Re Ltd.), a Bermuda company (“Max Bermuda”) and Max Capital Group Ltd. (f/k/a Max Re Capital Ltd.), a Bermuda company (“Max Capital” and together with Max Bermuda, each a “Borrower” and collectively the “Borrowers”), various financial institutions which are parties hereto (the “Lenders”), Bank of America, N.A., as fronting bank (in such capacity, the “Fronting Bank”), Bank of America, N.A., as letter of credit administrator (in such capacity, the “LC Administrator”) and Bank of America, N.A., as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).

RECITALS

A. The Borrowers, the Lenders and the Administrative Agent are parties to the Credit Agreement, dated as of August 7, 2007 (as amended, restated, supplemented or modified from time to time and in effect on the date hereof, the “Existing Credit Agreement”, and after giving effect to the amendments in Article II of this Amendment, the “Credit Agreement”). Capitalized terms used herein without definition shall have the meanings given to them in the Existing Credit Agreement.

B. Max Capital and Harbor Point Limited, a Bermuda company organized under the laws of Bermuda (“Harbor Point”), have proposed a business combination (the “Amalgamation”) in which Max Capital has formed a wholly owned Subsidiary in Bermuda in connection with the Amalgamation (“Amalco Sub”) and, pursuant to the Amalgamation Agreement (as defined below) upon satisfaction of certain conditions precedent, amalgamate Amalco Sub with Harbor Point with the amalgamated company (the “Amalgamated Company”) being the amalgamated entity. Immediately after the Amalgamation, the Amalgamated Company will directly own 100% of the equity interests of (i) Harbor Point Agency Limited and (ii) Harbor Point Re Limited (“Harbor Point Re”). Max Capital will own 100% of the equity interests of (i) Max Bermuda, (ii) Max USA Holdings Ltd. (“Max US”), (iii) Max UK Holdings Ltd. (“Max UK”), (iv) Max Managers Ltd., (v) Max Capital Services Limited and (vi) the Amalgamated Company.

C. The Borrowers desire to obtain the consent of the Required Lenders to the Amalgamation prior to the public announcement thereof and to make certain amendments to the Existing Credit Agreement, and the Administrative Agent and the Required Lenders have agreed to make such amendments on the terms and conditions set forth herein. Harbor Point is pursuing an amendment of its Amended and Restated Credit Agreement dated as of June 12, 2007 (as amended, restated, supplemented or otherwise modified from time to time and in effect on the date hereof, the “Harbor Point Credit Agreement”), among Harbor Point, Harbor Point Re, Harbor Point U.S. Holdings, Inc., Harbor Point Reinsurance U.S., Inc. (“HPRe US”), the lenders identified therein and Bank of America, N.A., as administrative agent, in substantially similar form as this Amendment.

NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

LIMITED CONSENT

1.1 Subject to the satisfaction of the conditions set forth in Section 3.1 of this Amendment and notwithstanding anything contained in the Existing Credit Agreement to the contrary, the undersigned Lenders hereby each offer their limited consent to the Amalgamation and to the Parent and Amalco Sub entering into the Amalgamation Agreement (as defined below) until the earlier of the following (each, a “Consent Termination Event”) (i) 11:59 p.m. EDT on September 30, 2010, if the Amalgamation shall not have been consummated and the conditions set forth in Section 3.2 herein shall not have been satisfied by such time; (ii) the date upon which the board of directors of either Harbor Point or Max Capital shall have withdrawn or modified its approval of the Amalgamation in a manner that is materially adverse to the Lenders; (iii) the date upon which either Harbor Point or Max Capital advises the Administrative Agent, or the Administrative Agent otherwise reasonably determines, that the Amalgamation Agreement (as defined below) shall have been waived, amended, supplemented or otherwise modified in a manner materially adverse to the Lenders except such amendments or waivers as have been approved by the Administrative Agent with the consent of the Required Lenders; or (iv) the fees (to the extent such fees are due and payable at such time) and, to the extent invoiced, reasonable out-of-pocket expenses (including legal fees and expenses) specified in the engagement letter, dated March 3, 2010, among Harbor Point, Max Capital and Banc of America Securities LLC have not been paid within two Business Days of the Consent Effective Date (as defined below).

1.2 Upon the occurrence of any Consent Termination Event, the limited consent set forth in Section 1.1 hereof shall upon written notice of the Administrative Agent to each of Harbor Point and Max Capital terminate and be of no further force or effect, and all rights and remedies with respect to the matters set forth in Section 1.1 hereof of the Administrative Agent and the Lenders under the Existing Credit Agreement and any other Credit Document shall, without any further action by any Person, automatically be reinstated as if the limited consent set forth in Section 1.1 hereof had not become effective; provided that the occurrence of a Consent Termination Event in and of itself shall not constitute a Default or Event of Default under the Existing Credit Agreement. This limited consent shall not constitute or be deemed to be a waiver of, consent to or departure from, any other term or provision in the Existing Credit Agreement, which shall continue in full force and effect, nor shall this limited consent constitute a course of dealing among the parties.

ARTICLE II

AMENDMENTS TO CREDIT AGREEMENT

Effective as of the Third Amendment Effective Date:

2.1Amendments to Section 1.1 Consisting of New Definitions. The following definitions are hereby added to Section 1.1 of the Existing Credit Agreement in appropriate alphabetical order:

Acquisition means any transaction or series of related transactions, consummated on or after the date hereof, by which the Parent directly, or indirectly through one or more Subsidiaries, (i) acquires any going business, division thereof or line of business, or all or substantially all of the assets, of any Person, whether through purchase of assets, merger or otherwise, or (ii) acquires securities or other ownership interests of any Person that, following such Acquisition, will be deemed a Subsidiary of the Parent.

Affected Party means a “Credit Party” as defined in either this Agreement or the Harbor Point Credit Agreement.

Amalco Sub means the Bermuda company and Wholly Owned Subsidiary of the Parent formed in connection with the Amalgamation.

Amalgamated Company means the Bermuda company resulting from the amalgamation of Amalco Sub and Harbor Point.

Amalgamation means the amalgamation, pursuant to the Amalgamation Agreement, of Amalco Sub and Harbor Point into the Amalgamated Company, with the Amalgamated Company becoming a Wholly Owned Subsidiary of the Parent.

Amalgamation Agreement means the Agreement and Plan of Amalgamation, dated as of March 3, 2010 by and among Harbor Point, Amalco Sub and Max Capital, in the form attached as Annex B to the Third Amendment, as amended, modified, restated or supplemented from time to time in accordance with the terms of the Third Amendment.

Amalgamation Date means the date on which (a) the “Effective Time” under the Amalgamation Agreement occurs, (b) the application for registration of an amalgamated company in connection with the amalgamation of Amalco Sub and Harbor Point has been filed with the proper Governmental Authority and (c) the conditions inArticle VI of the Amalgamation Agreement have been satisfied.

Attributable Indebtedness means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

Commercial Paper means commercial paper, maturing not more than one year from the date of issue, which is issued by an entity (except an Affiliate of the Borrowers) rated at least A-1 by S&P or P-1 by Moody’s or the equivalent rating from another nationally recognized agency.

Credit Party means Max Capital, Max Bermuda, the Amalgamated Company and, if such Person executes a Guaranty, Amalco Sub and Harbor Point.

Debtor Relief Laws means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Bermuda or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Disposition orDispose means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

Equity Interests means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

ERISA Affiliate means any trade or business (whether or not incorporated) under common control with any Credit Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Credit Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by a Credit Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any material liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Credit Party or any ERISA Affiliate.

Financial Strength Rating means the rating that has been most recently announced by A.M. Best Company, Inc. as the “financial strength rating” for any Material Insurance Subsidiary.

Foreign Benefit Plan means any employee benefit plan, pension plan or welfare plan not subject to ERISA which is maintained or contributed to for the benefit of the employees of a Credit Party or its Subsidiaries which, under applicable law, (a) is required to be funded through a trust or similar funding vehicle or (b) creates or could result in a Lien on any property of a Credit Party or any of its Subsidiaries.

Guarantee means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt or other obligation payable or performable by another Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Debt or other obligation of the payment or performance of such Debt or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt or other obligation of any other Person, whether or not such Debt or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien); provided, however, that (i) obligations of any Insurance Subsidiary (including without limitation any guarantee by the Parent or any of its Subsidiaries of such Person’s Insurance Subsidiaries’ obligations thereunder) under Primary Policies, Reinsurance Agreements and Retrocession Agreements (including security posted to secure obligations thereunder), (ii) obligations of the Parent or any of its Subsidiaries to guarantee payment of any real property lease for office premises entered into by a direct or indirect Subsidiary of such Person in the ordinary course of business, (iii) obligations of the Parent or any of its Subsidiaries arising in the ordinary course of business pursuant to letters to certain insurers, reinsurers and insurance brokers to contribute or cause to be contributed sufficient capital surplus to any direct or indirect Subsidiary of such Person in the event that such Subsidiary is unable or unwilling in whole or in part for financial reasons to make payment of any of its claims, losses or expenses pursuant to Primary Policies on or Reinsurance Agreements issued to clients of the addressees of such letters and (iv) agreements by Max Bermuda or any other Insurance Subsidiary in favor of any of its Insurance Subsidiaries to maintain the capital of such Insurance Subsidiary at 150% of the required regulatory level (collectively, the “Permitted Transactions”) shall not be deemed to be Guarantees or constitute Debt of such Person for the purposes of this Agreement. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect

thereof as determined by the guaranteeing Person in good faith, provided that the amount of any Guarantee described in clause (b) of the immediately preceding sentence shall be the lesser of (x) the fair market value of such assets at such date of determination (determined in good faith by the Parent) and (y) the amount of such Debt or other obligation of such other Person. The term Guarantee as a verb has a corresponding meaning.

Guaranty means a guaranty substantially in the form of Annex C of the Third Amendment.

Harbor Point means Harbor Point Limited, a Bermuda company organized under the laws of Bermuda.

Harbor Point Credit Agreement means the Amended and Restated Credit Agreement dated as of June 12, 2007 (as amended, restated, supplemented or otherwise modified from time to time and in effect on the Third Amendment Effective Date) among Harbor Point, Harbor Point Re, Harbor Point U.S. Holdings, Inc., HPRe US, the lenders identified therein and Bank of America, N.A., as administrative agent.

Harbor Point Credit Documents means the “Loan Documents” as defined in the Harbor Point Credit Agreement.

Harbor Point U.S. Holdings means Harbor Point U.S. Holdings, Inc., a Delaware corporation.

Harbor Point Re means Harbor Point Re Limited, a Bermuda company.

HPRe US means Harbor Point Reinsurance U.S., Inc., a Connecticut insurance company.

Insurance Regulatory Authority means, with respect to any Insurance Subsidiary, the Governmental Authority charged with regulating insurance companies or insurance holding companies in its jurisdiction of domicile and, to the extent that it has regulatory authority over such Insurance Subsidiary, in each other jurisdiction in which such Insurance Subsidiary conducts business or is licensed to conduct business.

Material Subsidiary means each of the Amalgamated Company, Max Bermuda, Harbor Point Re, each Material Insurance Subsidiary, and each other Subsidiary (after elimination of intercompany accounts) whose consolidated total assets or total revenues exceed 5% of the consolidated total assets or total revenues of the Parent and its Subsidiaries for the most recent Fiscal Quarter for which financial statements have been delivered pursuant toSection 5.1(a)(i);provided,however that prior to the date after the Amalgamation Date on which financial statements are provided as required in Section 5.1, the Pro Forma Financial Statements shall be used.

Max UK means Max UK Holdings Ltd. (f/k/a Imagine Group (UK) Limited), a company formed under the laws of England and Wales.

Multiemployer Plan means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which a Credit Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

OFAC means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.

PBGC means the Pension Benefit Guaranty Corporation.

Pension Plan means any employee pension benefit plan (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by a Credit Party or any ERISA Affiliate or to which a Credit Party or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

Pro Forma Financial Statements means the pro forma balance sheet and income statement giving effect to the Amalgamation and the transactions contemplated thereby and hereby for the five fiscal years ending December 31, 2014 contained in the Project Lighthouse Projections dated February 11, 2010 delivered to the Lenders and any update to such pro forma balance sheet and income statement delivered prior to the Amalgamation Date.

Proxy Statement means the joint proxy statement of the Parent and Harbor Point and the prospectus of the Parent and Harbor Point in connection with the solicitation of shareholder consent to the matters specified in the Amalgamation Agreement.

Reportable Event means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.

Restricted Payment means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of a Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person thereof).

Retrocession Agreements means any agreement, treaty, certificate or other arrangement whereby any Insurance Subsidiary transfers, cedes or retrocedes to another insurer or reinsurer all or part of such Insurance Subsidiary’s liability under a policy or policies of insurance issued by such Insurance Subsidiary or under a Reinsurance Agreement assumed by such Insurance Subsidiary.

Sanctioned Country means a country subject to a sanctions program identified on the list maintained by OFAC and available at http://www.treas.gov/offices/enforcement/ofac/sanctions, or as otherwise published from time to time.

Sanctioned Person means (i) a Person named on the list of Specially Designated Nationals or Blocked Persons maintained by OFAC available at http://www.treas.gov/offices/enforcement/ofac/sdn, or as otherwise published from time to time, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a Person resident in a Sanctioned Country, to the extent subject to a sanctions program administered by OFAC.

Swap Contract means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, property catastrophe futures or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a Master Agreement), including any such obligations or liabilities under any Master Agreement.

Swap Termination Value means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

Synthetic Lease Obligation means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

Third Amendment means the Third Amendment and Limited Consent to Credit Agreement dated as of the 3rd day of March, 2010 among Max Bermuda, Max Capital, the Lenders party thereto and the Administrative Agent.

Third Amendment Effective Date has the meaning specified in the Third Amendment.

Threshold Amount means $50,000,000.

Wholly Owned means, with respect to any Subsidiary of any Person, that 100% of the outstanding Equity Interests of such Subsidiary is owned, directly or indirectly, by such Person.

2.2Amendments to Section 1.1 Consisting of Modified Definitions. The following definitions in Section 1.1 of the Existing Credit Agreement are hereby amended in their entirety and read as follows:

Applicable Rate means, from time to time, the following percentages per annum, based upon the Parent Debt Rating as set forth below:


		Non-Use Fee				Applicable Rate for Eurodollar Rate Loans		Utilization Fee		Base Rate Loans		Letter of Credit Fee
Pricing Level	Parent Debt Rating	Tranche A		Tranche B		Tranche B		Tranche B		Tranche B		Tranche A		Tranche B
1	³ A-/A3	0.125	%	0.250	%	1.900	%	0.100	%	0.000	%	0.500	%	1.900	%
2	BBB+/Baa1	0.125	%	0.300	%	2.150	%	0.100	%	0.000	%	0.500	%	2.150	%
3	BBB/Baa2	0.125	%	0.375	%	2.400	%	0.100	%	0.000	%	0.500	%	2.400	%
4	BBB-/Baa3	0.125	%	0.450	%	2.650	%	0.100	%	0.000	%	0.500	%	2.650	%
5	<BBB-/Baa3	0.125	%	0.600	%	3.150	%	0.100	%	0.000	%	0.500	%	3.150	%

however, the Tranche A Letter of Credit fee will equal 0.700% any time the Financial Strength Rating of Max Bermuda is below A-.

Parent Debt Rating means, as of any date of determination, the rating as determined by either S&P or Moody’s (collectively, the “Parent Debt Ratings”) of the Parent’s non-credit-enhanced, senior unsecured long-term debt;provided that (a) if the respective Parent Debt Ratings issued by the foregoing rating agencies differ by one level, then the Pricing Level for the higher of such Parent Debt Ratings shall apply (with the Parent Debt Rating for Pricing Level 1 being the highest and the Parent Debt Rating for Pricing Level 5 being the lowest); (b) if there is a split in Parent Debt Ratings of more than one level, then the Pricing Level that is one level lower than the Pricing Level of the higher Parent Debt Rating shall apply; (c) if Parent has only one Parent Debt Rating, the Pricing Level that is one level lower than that of such Parent Debt Rating shall apply; and (d) if Parent does not have any Parent Debt Rating, Pricing Level 5 shall apply.

Each change in the Applicable Rate resulting from a publicly announced change in the Parent Debt Rating shall be effective during the period commencing on the date of the public announcement of each upgrade or downgrade and ending on the date immediately preceding the effective date of the next such change.

Base Rate means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate for a one-month Interest Period commencing on such day plus 1%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

Cash means (a) Dollars held in a Custody Account or (b) any overnight or other investment money market funds of the Securities Intermediary (or an Affiliate of such Securities Intermediary) at which a Custody Account is held.

Cash Equivalents means, at any time:

(a) time deposits, certificates of deposit or money market deposits, maturing not more than two years after the date of determination, which are issued by a financial institution which is rated at least AA- by S&P or Aa3 by Moody’s (whether or not a Lender);

(b) any repurchase agreement with a term of one year or less which

(i) is entered into with

(A) any Lender, or

(B) any other commercial banking institution which is rated at least BBB- by S&P or Baa3 by Moody’s or 2 or above by the National Association of Insurance Commissioners, and

(ii) is secured by a fully perfected Lien in any obligation of the type described in any ofclauses (a) through(c) that has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution) thereunder;

(d) investments in short-term asset management accounts offered by any Lender for the purpose of investing in loans to any corporation (other than an Affiliate of the Borrowers) organized under the laws of any state of the United States or of the District of Columbia and rated at least A-1 by S&P or P-1 by Moody’s.

Change of Control means an event or series of events by which:

(a) any “person” or “group” (as such terms are used inSections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee,

agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of at least 51% or more of the equity securities of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right) without regard to the voting limitations set forth in the Organization Documents of the Parent;

(b) during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or

(c) the Parent fails to own, directly or indirectly, free and clear of all Liens, 100% of the Equity Interests of Max Bermuda, the Amalgamated Company, Harbor Point Re, Harbor Point U.S. Holdings, Inc. or HPRe US or any other Person who becomes a “Designated Borrower” under the Harbor Point Credit Agreement without regard to any voting limitations set forth in the Organization Documents of such Subsidiary.

Consolidated Net Income means, for any period, for the Parent and its Subsidiaries on a consolidated basis, the net income of the Parent and its Subsidiaries (excluding extraordinary gains but including extraordinary losses) for that period calculated in accordance with GAAP.

Credit Documents means this Agreement, each Guaranty, each Letter of Credit, LC Application and LC Amendment Application, the Fee Letter, the Security Agreement, and all other agreements, instruments, certificates, documents, schedules or other written indicia delivered by a Credit Party in connection with any of the foregoing.

Debt means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) all direct or contingent obligations of such Person arising under bankers’ acceptances, bank guaranties, surety bonds and similar instruments and all obligations of such Person in respect of letters of credit;

(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) capital leases and Synthetic Lease Obligations;

(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preferenceplus accrued and unpaid dividends; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Debt of any Person shall include the Debt of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, except to the extent such Debt is expressly made non-recourse to such Person. Debt shall not include (i) obligations arising from the honoring of a check, draft or similar instrument against insufficient funds provided such obligation is extinguished within three Business Days of its incurrence, (ii) obligations of any Insurance Subsidiary under any Primary Policy, Reinsurance Agreement or Retrocession Agreement, or (iii) compensatory grants of equity awards in respect of the Parent’s Equity Interests (including, without limitation, options, restricted stock and restricted stock units) on account of the performance of services.

Eligible Investments means Cash, Cash Equivalents, Commercial Paper, MBS Investments, Corporate/Municipal Securities, Government Debt and G7 Securities which (a) have the required rating as set forth on Schedule 1.2, (b) are capable of being marked to market on a daily basis and (c) are held in the Custody Account.

ERISA means the Employee Retirement Income Security Act of 1974.

Eurodollar Rate means, for any Interest Period with respect to (a) any Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period and (b) any Base Rate Loan, the BBA LIBOR at approximately 11:00 a.m., London time, on the date of determination for Dollar deposits being delivered in the London interbank eurodollar market for a term of one month commencing that day. If such rate is not available at such time for any reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.

Fair Market Value means (a) with respect to any publicly traded security (other than those set forth inclause (b)) the closing price for such security on the largest exchange on which such security is traded (or if not traded on an exchange, then the average of the closing bid and ask prices quoted over-the-counter) on the date of the determination (as such prices are reported in The Wall Street Journal (Midwest Edition) or if not so reported, in any nationally recognized financial journal or newspaper), (b) with respect to Cash, Cash Equivalents and Commercial Paper, the amounts thereof, and (c) with respect to any Investment (other than those set forth inclauses (a), and(b)), the price for such Investment on the date of calculation obtained from a generally recognized source approved by the Administrative Agent or the most recent bid quotation from such approved source (or, if no generally recognized source exists as to a particular Investment, any other source specified by the Parent to which the Administrative Agent does not reasonably object). With respect to Investments denominated in a currency other than Dollars, the Dollar equivalent thereof (using a method agreed upon by the Parent and the Administrative Agent) shall be used for purposes of determining the Fair Market Value of such Investment.

Investment means as to any Person, any investment of any Person, whether by means of security purchase, capital contribution, loan, time deposit or otherwise, and shall include Cash, Cash Equivalents and Commercial Paper.

Investment Portfolio means, as of any date, the Fixed Maturities and Alternative Investments of Max Bermuda and its Subsidiaries as shown on Max Bermuda’s balance sheet.

Material Adverse Effect means a material adverse effect upon (a) the business, assets, properties, results of operations or condition (financial or otherwise) of the Parent and its Subsidiaries, taken as a whole, (b) the ability of any Credit Party to perform its

payment or other material obligations under this Agreement or any of the other Credit Documents to which it is a party or (c) the legality, validity or enforceability of this Agreement or any of the other Credit Documents against any Credit Party party thereto or the rights and remedies of the Administrative Agent and the Lenders hereunder and thereunder.

Material Insurance Subsidiary means Max Bermuda, Harbor Point Re, HPRe US and each other Insurance Subsidiary whose consolidated total assets or total revenues exceed 5% of the consolidated total assets or total revenues of the Parent and its Subsidiaries for the most recent fiscal quarter for which financial statements have been delivered pursuant toSection 5.1(a) or(b); provided, however that prior to the date after the Amalgamation Date on which financial statements are provided as required in Section 5.1, the Pro Forma Financial Statements shall be used.

Material Party means each Credit Party, each Material Insurance Subsidiary and each other Subsidiary whose consolidated total assets or total revenues exceed 5% of the consolidated total assets or total revenues of the Parent and its Subsidiaries for the most recent fiscal quarter for which financial statements have been delivered pursuant toSection 5.1(a) or(b);provided, however that prior to the date after the Amalgamation Date on which financial statements are provided as required inSection 5.1, the Pro Forma Financial Statements shall be used.

MBS Investments means MBS (Agency CMOs) which constitute TACs, PACs and Sequentials (as such terms are defined by Bloomberg Inc.) and shall not include Support Tranches (as such term is defined by Bloomberg Inc.) and MBS (Agency Pass-Throughs). The weighted average duration of such MBS Investments shall be less than or equal to seven years. The maximum weighted average life of any single MBS Investment shall not exceed 12 years. The Fair Market Value of all MBS Investments included within Eligible Investments shall not exceed 30% of the total Fair Market Value. To the extent MBS Investments included within Eligible Investments violate the restrictions set forth herein, the Fair Market Value of such MBS Investments shall be excluded from the Tranche A Borrowing Base; provided, however, that only those MBS Investments having the lowest aggregate Fair Market Value whose exclusions will result in compliance shall be excluded from the Tranche A Borrowing Base.

Net Worth means, for any Person and its consolidated Subsidiaries, shareholders’ equity calculated in accordance with GAAP.

Parent Debt means the consolidated Debt of the Parent and its Subsidiaries. For purposes of calculating consolidated Debt (i) the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date, (ii) the amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date, (iii) the amount of any Debt described in clause (e) of the definition of Debt shall be the lesser of the fair market value of such assets at such date of determination (determined in good faith by the Parent) and the amount of such Debt, (iv) Debt under clause (b) of the definition thereof shall be included only to the extent that payments have

been made or draws have been honored under such instruments but not reimbursed, and (v) Debt shall not include any payment of obligations arising under a repurchase, securities loan or similar agreement, except for the excess of the payment of obligations for which such Person is liable under such agreement over the value of the collateral securing such payment obligations.

Plan means any employee benefit plan (as such term is defined in Section 3(3) of ERISA) established by a Credit Party or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

Total Return Equity Swap shall mean (a) Debt of Max Bermuda secured by the common shares of MDS which is incurred for the purpose of acquiring assets which qualify to be held in trusts which secure Max Bermuda’s obligations under Reinsurance Agreements and Primary Policies, and (b) any substantially similar financial arrangement or transaction entered into by Max Bermuda.

2.3Amendments to Section 1.1 Consisting of Deleting Definitions. The following definitions in Section 1.1 of the Existing Credit Agreement are hereby deleted: ABS, Acquisition Closing Date, Capital Stock, Capitalized Lease, Contingent Liabilities, Hedging Obligations, Imagine UK, MBS (Non-Agency CMOs), Permitted Guarantees, Purchase Money Debt, Purchase Money Lien and UK Acquisition.

2.4Amendment to Section 2.14 (Mandatory Reduction). Section 2.14(a) of the Existing Credit Agreement is amended in its entirety to read as follows:

[Intentionally Omitted.]

2.5Amendment to Section 2.15 (Fees). Section 2.15(c) of the Existing Credit Agreement is amended in its entirety to read as follows:

“(c) Max Bermuda shall pay to the Administrative Agent for the account of each Lender in accordance with its Percentage, a utilization fee equal to the Applicable Rate times the aggregate principal amount of outstanding Loans on each day that the aggregate principal amount of outstanding Loans exceed 50% of the combined Tranche B Commitments in effect (or, if terminated, in effect immediately prior to such termination). The utilization fee shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December commencing on the first such date to occur after the Amalgamation Date through the Final Expiry Date of the Tranche B Obligations. Utilization fees shall accrue at all times, including at any time during which one or more of the conditions inArticle VIII are not met.”

2.6Amendment to Section 2.16(a) (Computation of Fees and Interest). Section 2.16(a) of the Existing Credit Agreement is amended in its entirety to read as follows:

“(a) All computations of interest for LC Advances and Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each

Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid,provided that any Loan that is repaid on the same day on which it is made shall, subject toSection 2.10(d), bear interest for one day.”

2.7Amendment to Section 4.1 (Due Organization). Section 4.1(c) is amended by inserting the words “except when the failure to do so would not have a Material Adverse Effect” at the end thereof.

2.8Amendment to Section 4.2 (Litigation and Contingent Liabilities). The last sentence of Section 4.2 of the Existing Credit Agreement is amended in its entirety to read as follows:

“other than any liability incident to such claims, litigation or proceedings, the Parent and its Subsidiaries have no material Guarantees.”

2.9Amendment to Section 4.3 (Employee Benefit Plans). Section 4.3 of the Existing Credit Agreement is amended in its entirety to read as follows:

“SECTION 4.3ERISA.

(a) Except as could not reasonably be expected to have a Material Adverse Effect: (i) each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws and (ii) each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Parent, nothing has occurred which would prevent, or cause the loss of, such qualification. The Parent and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.

(b) There are no pending or, to the best knowledge of the Parent, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

(c)(i) No ERISA Event has occurred or is reasonably expected to occur that could reasonably be expected to have a Material Adverse Effect; (ii) neither the Parent nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability under Title IV of ERISA with respect to any Pension Plan (other than (x) premiums due and not delinquent under Section 4007 of ERISA and (y) required contributions thereto); (iii) no Credit Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any material liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in material liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iv) no Credit Party nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA.

(d) With respect to any Foreign Benefit Plan, (i) except as could not reasonably be expected to have a Material Adverse Effect, each Foreign Benefit Plan is in compliance in all material respects with applicable law, (ii) the aggregate of the accumulated benefit obligations under all Foreign Benefit Plans does not exceed the current fair market value of the assets held in the trust or similar funding vehicles for such Foreign Benefit Plans in an amount in excess of the Threshold Amount, and (iii) reasonable reserves have been established in accordance with prudent business practice or where required by ordinary accounting practices in the jurisdiction in which such Foreign Benefit Plan is maintained. There are no material actions, suits or claims (other than routine claims for benefits) pending, or to the knowledge of the Parent threatened against it or any of its Subsidiaries with respect to any Foreign Benefit Plan which could reasonably be expected to result in a Material Adverse Effect.”

2.10Amendment to Section 4.4 (Regulated Entities). Section 4.4 of the Existing Credit Agreement is hereby amended by replacing the words “Neither the Parent nor Max Bermuda” in the first sentence with “Neither the Parent nor any of its Subsidiaries”.

2.11Amendment to Section 4.12 (Financial Condition). Section 4.12 of the Existing Credit Agreement is hereby amended by adding the following:

“The Pro Forma Financial Statements reflect adjustments made on a pro forma basis to give effect to the consummation of the Amalgamation in accordance with Regulation S-X of the Securities Act of 1933. The Pro Forma Financial Statements have been prepared based on stated assumptions made in good faith and having a reasonable basis set forth therein, present fairly in all material respects the consolidated financial condition of Max Capital and Harbor Point and their Subsidiaries on an unaudited pro forma basis as of the date set forth therein after giving effect to the consummation of the Amalgamation.”

2.12Amendments to Section 8.2 (Conditions to Credit Extensions). Section 8.2 of the Existing Credit Agreement is hereby amended as follows:

(i) Section 8.2(b) of the Existing Credit Agreement in its entirety to read as follows

“(b)No Default. No Default or Event of Default shall have occurred and be continuing or will result from the making of the Credit Extensions and no Default or Event of Default shall have occurred and be continuing under the Credit Documents or the Harbor Point Credit Agreement or will result from the making of the Credit Extensions.”

(ii) Section 8.2(c) of the Existing Credit Agreement in its entirety to read as follows:

“(c) All warranties and representations contained in this Agreement (other thanSection 4.2 except in the case of the initial Credit Extension) and the other Credit Documents shall be true and correct in all material respects as of the date of any Credit Extension, with the same effect as though made on the date of and concurrently with the

making of such Credit Extension (except where such representation speaks as of specified date) and (ii) all covenants contained herein and in the Credit Documents to be performed by the Credit Parties prior to the date of any Credit Extension shall have been performed.”

2.13Amendments to Covenants and Events of Default. Articles V, VI and VII of the Existing Credit Agreement are hereby amended by substituting Annex A attached hereto therefor.

2.14Amendments to Schedules. Schedules 1.1 (Concentration Limits) and 1.2 (Borrowing Base Calculation) of the Existing Credit Agreement are hereby amended by substituting Schedules 1.1 and 1.2 attached hereto therefor.

ARTICLE III

CONDITIONS OF EFFECTIVENESS

3.1 The limited consent set forth in Article I of this Amendment shall become effective as of the date (the “Consent Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied:

(a) The Administrative Agent shall have received a counterpart of this Amendment executed and delivered by the Borrowers, the Administrative Agent and the Required Lenders (with ten counterparts to be delivered after the Consent Effective Date).

(b) The representations and warranties of the Borrowers contained in the Existing Credit Agreement and the other Credit Documents are true and correct in all material respects as of the Consent Effective Date, with the same effect as though made on such date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).

(c) An amendment to the Harbor Point Credit Agreement in substantially the same form as this Amendment has been executed and delivered by Harbor Point, Harbor Point Re, Harbor Point U.S. Holdings, Inc., HPRe US, the Administrative Agent and the Required Lenders (as defined in the Harbor Point Credit Agreement) and the conditions precedent set forth in Section 3.1 thereof shall have been satisfied.

(d) No Default or Event of Default has occurred and is continuing or will result from the execution and delivery or effectiveness of Article I of this Amendment or the Amalgamation Agreement.

(e) There has not occurred since December 31, 2009 any Material Adverse Effect (as defined in the Existing Credit Agreement).

3.2 The amendments set forth in Article II of this Amendment shall become effective as of the date (the “Third Amendment Effective Date”) when, and only when, each of the following conditions precedent shall have been satisfied or waived:

(a) The Administrative Agent shall have received the following (in such number as the Administrative Agent may deem appropriate):

(i) A Guaranty in substantially the form of Annex C to this Amendment executed and delivered by each of Max Capital, the Amalgamated Company, and, if required by the Administrative Agent in its sole discretion, Harbor Point and Amalco Sub, pursuant to which such Person guarantees the Obligations of the Borrowers under the Credit Agreement;

(ii) Legal opinions of counsel to the Credit Parties (including, without limitation, opinions of New York and Bermuda counsel) as may be reasonably requested by the Administrative Agent;

(iii) A certificate of an Executive Officer of each Borrower certifying that after giving effect to the amendments in Article II and filing of the Amalgamation Agreement:

(A) No Default or Event of Default has occurred and is continuing or will result from the execution and delivery or effectiveness of the amendments set forth herein or the Amalgamation;

(B) The representations and warranties of the Credit Parties (other than Sections 4.3 and 4.12, in each case, with respect to Harbor Point) contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects as of the Third Amendment Effective Date, with the same effect as though made on such date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);

(C) There are no material insurance regulatory proceedings pending or, to the knowledge of such Executive Officer, threatened against Max Capital, the Amalgamated Company or any Insurance Subsidiary in any jurisdiction; and

(D) There has not occurred since December 31, 2009 (x) any Material Adverse Effect described in clauses (b) or (c) of the definition thereof in the Existing Credit Agreement after giving effect to the amendment to such definition contained in this Amendment or (y) any Material Adverse Effect (as defined in Section 8.13 of the Amalgamation Agreement) on Max Capital and its Subsidiaries (after giving effect to the Amalgamation).

(iv) A certificate of the secretary or an assistant secretary of each Credit Party (other than the Amalgamated Company), in form and substance reasonably satisfactory to the Administrative Agent, certifying (A) that attached thereto is a true and complete copy of the certificate of incorporation, memorandum of association (or another similar governing document) and all amendments thereto of such Credit Party, certified as of a recent date by the Registrar of Companies for the Bermuda Ministry of Finance, and that the same has not been amended since the date of such certification, (B) that attached thereto is a true and complete copy of the Bye-laws or similar governing document of such Credit Party, as then in effect and as in effect at all times from the date on which the

resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Credit Party authorizing the execution, delivery and performance of the Credit Documents (and, if applicable, the Amalgamation Agreement) to which such Credit Party is or becomes a party, and (D) as to the incumbency and genuineness of the signature of each officer of such Credit Party executing any such Credit Documents, and attaching all such copies of the documents described above;

(v) A certificate of the secretary or an assistant secretary of the Amalgamated Company, in form and substance reasonably satisfactory to the Administrative Agent, certifying (A) that attached thereto is a true and complete copy of the application for registration of an amalgamated company and resulting memorandum of association of the Amalgamated Company and that the same has been presented for filing with the Registrar of Companies for the Bermuda Ministry of Finance, (B) that attached thereto is a true and complete copy of the Bye-laws or similar governing document of the Amalgamated Company then in effect and as in effect at all times from the date on which the resolutions referred to in clause (C) below were adopted to and including the date of such certificate, and (C) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of the Amalgamated Company authorizing the execution, delivery of the Guaranty and the performance of the Guaranty, and the other Credit Documents to which it is a party, and (D) as to the incumbency and genuineness of the signature of each officer of the Amalgamated Company executing the Guaranty or any of the other Credit Documents, and attaching all such copies of the documents described above;

(vi) If there has been a material change from the Pro Forma Financial Statements delivered to the Lenders prior to the date of this Amendment, an update of such Pro Forma Financial Statements;

(vii) A Compliance Certificate executed by Max Capital calculated on a pro forma basis as of the date of the most recent year to date update of the Pro Forma Financial Statements after giving effect to the Amalgamation and this Amendment and certifying as to the Parent Debt Rating;

(viii) A Borrowing Base Certificate executed by Max Bermuda calculated as of the close of business one Business Day prior to the Third Amendment Effective Date giving effect to the Amendments;

(ix) The investment guidelines for Max Capital and its Subsidiaries which will be in effect on the Amalgamation Date;

(x) Satisfactory confirmation from A.M. Best Company, Inc. that the current Financial Strength Rating of Max Bermuda and Harbor Point Re is “A-” (stable) or better (even if such Financial Strength Rating is different than the Financial Strength Rating, if any, required under the Amalgamation Agreement); and

(xi) True, complete and correct copies of the Amalgamation Agreement which shall be in full force and effect and shall not have been amended in a manner that is materially adverse to the Lenders since the Consent Effective Date (except for such amendments as have been approved by the Administrative Agent (with the consent of the Required Lenders)) and, to the extent not included as Exhibits to the Amalgamation Agreement, the other material documents required to be executed in connection with the Closing (as defined in the Amalgamation Agreement).

(b) All approvals, permits and consents of any Governmental Authorities (including, without limitation, all relevant Insurance Regulatory Authorities) in each jurisdiction where any of Max Capital, Amalco Sub, Harbor Point, Harbor Point Re, HPRe US or Max Bermuda underwrite or engage in material business or of other Persons (the failure of which to obtain would reasonably likely be materially detrimental to the Credit Parties or the Lenders), if any, required to be obtained prior to the Closing (as defined in the Amalgamation Agreement) in connection with the execution and delivery of the Amalgamation Agreement, this Amendment (including the effectiveness of the amendments herein) and the other Credit Documents and the consummation of the transactions contemplated hereby and thereby shall have been obtained (without the imposition of restrictions or conditions that are materially adverse to the Administrative Agent, the Fronting Bank or the Lenders with respect to the transactions contemplated hereby), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Administrative Agent shall have received such copies thereof as it shall have reasonably requested; all applicable waiting periods shall have expired or terminated, and no order, injunction or decree shall have been entered by, any Governmental Authority, in each case to enjoin, restrain, restrict, set aside or prohibit, or impose materially adverse conditions upon, the Amalgamation, this Amendment or any of the other Credit Documents or the consummation of the transactions contemplated hereby or thereby that, in any case, would or would reasonably be expected to have a Material Adverse Effect described in clauses (b) or (c) of the definition thereof in the Existing Credit Agreement after giving effect to the amendment to such definition contained in this Amendment or any Regulatory Material Adverse Effect (as defined in the Amalgamation Agreement).

(c) All conditions precedent to the Effective Time (as defined in the Amalgamation Agreement) shall have been satisfied or otherwise waived (with the approval of the Administrative Agent, it being agreed that a change to the Financial Strength Rating condition precedent in the Amalgamation Agreement shall not require the consent of the Administrative Agent), all necessary filings in connection therewith shall have been made, and the Third Amendment Effective Date will be the same as the Amalgamation Date.

(d) The “First Amendment Effective Date” under the Harbor Point Credit Agreement will occur concurrently with the Third Amendment Effective Date hereunder and either (x) no amendments to other credit facilities of Harbor Point and its Subsidiaries or Max Capital and its Subsidiaries, as applicable, shall be necessary in connection with the consummation of the Amalgamation or (y) if any such amendments are required, such amendments are, or concurrently with the Third Amendment Effective Date will become, effective.

(e) The Credit Parties shall have provided the Administrative Agent and the Lenders with all necessary information, documents and certificates as the Administrative Agent and the Lenders may reasonably request in order to comply with the Patriot Act and related “Know Your Customer” rules and regulations.

(f) There has not occurred since December 31, 2009 (i) any Material Adverse Effect described in clauses (b) or (c) of the definition thereof in the Existing Credit Agreement after giving effect to the amendment to such definition contained in this Amendment or (ii) any Material Adverse Effect (as defined in Section 8.13 of the Amalgamation Agreement) on Max Capital and its Subsidiaries (after giving effect to the Amalgamation).

(g) The representations and warranties of the Credit Parties contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects as of the Third Amendment Effective Date, with the same effect as though made on such date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date).

(h) No Default or Event of Default has occurred and is continuing or will result from the effectiveness of the Amendments in Article II hereof or the Amalgamation Agreement.

(i) All fees and reasonable out-of-pocket expenses of the Administrative Agent and the Arranger (including, without limitation, reasonable and documented legal fees and expenses invoiced prior to such date) in connection with the Third Amendment Effective Date shall have been paid.

(j) A letter from the process agent agreeing to the service of process terms of each Guaranty or other Credit Document requiring the same.

(k) Such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as the Administrative Agent shall have reasonably requested.

ARTICLE IV

CONFIRMATION OF REPRESENTATIONS AND WARRANTIES

Each Credit Party hereby represents and warrants, on and as of the Consent Effective Date and the Third Amendment Effective Date, that (i) the representations and warranties applicable to such Credit Party contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the Consent Effective Date and the Third Amendment Effective Date, both immediately before and after giving effect to the applicable provisions of this Amendment (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct in all material respects as of such date), (ii) this Amendment has been duly authorized, executed and delivered by such Credit Party and constitutes the legal, valid and binding obligation of such Credit Party enforceable against it in accordance with its terms, subject to general principles of equity (regardless of whether considered in a proceeding in equity or at law) and to applicable bankruptcy, insolvency, and

similar laws affecting the enforcement of creditors’ rights generally, (iii) no Default or Event of Default shall have occurred and be continuing on the Consent Effective Date and the Third Amendment Effective Date, both immediately before and after giving effect to the applicable provisions of this Amendment, (iv) the Credit Parties have heretofore furnished to the Administrative Agent true and complete copies of the Amalgamation Agreement (including all exhibits and schedules) and all amendments, modifications and waivers relating thereto (collectively, the “Amalgamation Documents”) and (v) as of the Third Amendment Effective Date, none of the Amalgamation Documents has been amended, modified or supplemented, nor any condition or provision thereof waived, in each case in a manner materially adverse to the Lenders other than as approved by the Administrative Agent with the consent of the Required Lenders, and each such Amalgamation Document is in full force and effect, to the extent applicable.

ARTICLE V

ACKNOWLEDGEMENT AND CONFIRMATION OF THE CREDIT PARTIES

Each of the Credit Parties hereby confirms and agrees that, after giving effect to the applicable provisions of this Amendment, the Credit Agreement and the other Credit Documents remain in full force and effect and enforceable against the Credit Parties in accordance with their respective terms, subject to general principles of equity (regardless of whether considered in a proceeding in equity or at law) and to applicable bankruptcy, insolvency, and similar laws affecting the enforcement of creditors’ rights generally and shall not be discharged, diminished, limited or otherwise affected in any respect, and represents and warrants to the Lenders that it has no knowledge of any claims, counterclaims, offsets, or defenses to or with respect to its obligations under the Credit Documents, or if such Credit Party has any such claims, counterclaims, offsets, or defenses to the Credit Documents or any transaction related to the Credit Documents, the same are hereby waived, relinquished, and released in consideration of the execution of this Amendment. This acknowledgement and confirmation by the Credit Parties is made and delivered to induce the Administrative Agent and the Lenders to enter into this Amendment, and each of the Credit Parties acknowledges that the Administrative Agent and the Lenders would not enter into this Amendment in the absence of the acknowledgement and confirmation contained herein.

ARTICLE VI

MISCELLANEOUS

6.1Governing Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York.

6.2Full Force and Effect. Except as expressly amended hereby, the Existing Credit Agreement shall continue in full force and effect in accordance with the provisions thereof on the date hereof. From and after the Third Amendment Effective Date, any reference to the Credit Agreement or any of the other Credit Documents in any Credit Document shall refer to the Existing Credit Agreement and Credit Documents as amended hereby. This Amendment is limited as specified and shall not constitute or be deemed to constitute an amendment, modification or waiver of any provision of the Credit Agreement except as expressly set forth herein. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement.

6.3Expenses. All reasonable fees and expenses of counsel to the Administrative Agent, and all reasonable out-of-pocket costs and expenses of the Administrative Agent, in each case, in connection with the preparation, negotiation, execution and delivery of this Amendment and the other Credit Documents delivered in connection herewith shall have been paid to the extent invoiced.

6.4Severability. To the extent any provision of this Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Amendment in any jurisdiction.

6.5Successors and Assigns. This Amendment shall be binding upon, inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.

6.6Construction. The headings of the various sections and subsections of this Amendment have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof.

6.7Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery of an executed signature page of this Amendment by facsimile transmission or electronic “.pdf” file shall be effective as delivery of a manually executed counterpart hereof.

[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the date first above written.


MAX CAPITAL GROUP LTD.

By:		/s/ Joseph W. Roberts
Name:		Joseph W. Roberts
Title:		EVP & CFO

MAX BERMUDA LTD.

By:		/s/ Angelo Guagliano
Name:		Angelo Guagliano
Title:		CEO

SIGNATURE PAGE TO