EXECUTION COUNTERPART
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LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
dated as of
July 5, 2000
between
XL CAPITAL LTD, X.L. AMERICA, INC., XL INSURANCE LTD, XL EUROPE LTD and
XL MID OCEAN REINSURANCE LTD,
as Account Parties and Guarantors,
The LENDERS Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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$1,000,000,000
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CHASE SECURITIES INC.,
as Advisor, Lead Arranger and Book Manager,
DEUTSCHE BANK AG,
as Syndication Agent
and
MELLON BANK, N.A. and CITIBANK, N.A.,
as Co-Documentation Agents
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS.............................................................................................1
SECTION 1.01. Defined Terms ........................................................................1
SECTION 1.02. Terms Generally......................................................................10
SECTION 1.03. Accounting Terms; GAAP and SAP.......................................................10
ARTICLE II
THE CREDITS............................................................................................11
SECTION 2.01. The Commitments......................................................................11
SECTION 2.02. Issuance and Administration..........................................................12
SECTION 2.03. Reimbursement of LC Disbursements, Etc...............................................13
SECTION 2.04. Termination and Reduction of the Commitments.........................................15
SECTION 2.05. Fees.................................................................................15
SECTION 2.06. Increased Costs......................................................................16
SECTION 2.07. Taxes................................................................................17
SECTION 2.08. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..........................19
SECTION 2.09. Mitigation Obligations; Replacement of Lenders ......................................20
ARTICLE III
GUARANTEE..............................................................................................21
SECTION 3.01. The Guarantee........................................................................21
SECTION 3.02. Obligations Unconditional............................................................21
SECTION 3.03. Reinstatement........................................................................22
SECTION 3.04. Subrogation..........................................................................22
SECTION 3.05. Remedies.............................................................................22
SECTION 3.06. Continuing Guarantee.................................................................23
SECTION 3.07. Rights of Contribution ..............................................................23
SECTION 3.08. General Limitation on Guarantee Obligations..........................................24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.........................................................................24
SECTION 4.01. Organization; Powers.................................................................24
SECTION 4.02. Authorization; Enforceability........................................................24
SECTION 4.03. Governmental Approvals; No Conflicts.................................................24
SECTION 4.04. Financial Condition; No Material Adverse Change......................................25
SECTION 4.05. Properties...........................................................................25
SECTION 4.06. Litigation and Environmental Matters.................................................25
SECTION 4.07. Compliance with Laws and Agreements..................................................26
SECTION 4.08. Investment and Holding Company Status................................................26
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SECTION 4.09. Taxes................................................................................26
SECTION 4.10. ERISA................................................................................26
SECTION 4.11. Disclosure...........................................................................27
SECTION 4.12. Use of Credit........................................................................27
SECTION 4.13. Subsidiaries.........................................................................27
SECTION 4.14. Withholding Taxes....................................................................27
SECTION 4.15. Stamp Taxes..........................................................................27
SECTION 4.16. Legal Form...........................................................................27
ARTICLE V
CONDITIONS.............................................................................................28
SECTION 5.01. Effective Date.......................................................................28
SECTION 5.02. Each Credit Event....................................................................29
ARTICLE VI
AFFIRMATIVE COVENANTS..................................................................................29
SECTION 6.01. Financial Statements and Other Information...........................................29
SECTION 6.02. Notices of Material Events...........................................................31
SECTION 6.03. Preservation of Existence and Franchises.............................................31
SECTION 6.04. Insurance............................................................................32
SECTION 6.05. Maintenance of Properties............................................................32
SECTION 6.06. Payment of Taxes and Other Potential Charges and Priority Claims
Payment of Other Current Liabilities.................................................32
SECTION 6.07. Financial Accounting Practices.......................................................33
SECTION 6.08. Compliance with Applicable Laws......................................................33
SECTION 6.09. Use of Letters of Credit.............................................................33
SECTION 6.10. Continuation of and Change in Businesses.............................................33
SECTION 6.11. Visitation...........................................................................33
ARTICLE VII
NEGATIVE COVENANTS.....................................................................................33
SECTION 7.01. Mergers..............................................................................34
SECTION 7.02. Dispositions.........................................................................34
SECTION 7.03. Liens................................................................................34
SECTION 7.04. Transactions with Affiliates.........................................................35
SECTION 7.05. Ratio of Total Funded Debt to Total Capitalization...................................36
SECTION 7.06. Consolidated Net Worth...............................................................36
SECTION 7.07. Indebtedness.........................................................................36
SECTION 7.08. Claims Paying Ratings................................................................36
SECTION 7.09. Private Act..........................................................................38
ARTICLE VIII
EVENTS OF DEFAULT......................................................................................37
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ARTICLE IX
THE ADMINISTRATIVE AGENT...............................................................................39
ARTICLE X
MISCELLANEOUS..........................................................................................41
SECTION 10.01. Notices..............................................................................41
SECTION 10.02. Waivers; Amendments..................................................................42
SECTION 10.03. Expenses; Indemnity; Damage Waiver...................................................43
SECTION 10.04. Successors and Assigns...............................................................44
SECTION 10.05. Survival.............................................................................47
SECTION 10.06. Counterparts; Integration; Effectiveness.............................................48
SECTION 10.07. Severability.........................................................................48
SECTION 10.08. Right of Setoff......................................................................48
SECTION 10.09. Governing Law; Jurisdiction; Etc. ...................................................48
SECTION 10.10. WAIVER OF JURY TRIAL.................................................................49
SECTION 10.11. Headings.............................................................................50
SECTION 10.12. Treatment of Certain Information; Confidentiality....................................50
SECTION 10.13. Judgment Currency....................................................................51
SCHEDULE I - Commitments
SCHEDULE II - Indebtedness and Liens
SCHEDULE III - Litigation
SCHEDULE IV - Environmental Matters
SCHEDULE V - Subsidiaries
SCHEDULE VI - Letters of Credit
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B-1 - Form of Opinion of Paul S. Giordano, Esq., counsel to XL Capital
EXHIBIT B-2 - Form of Opinion of Martha Bannerman, Esq., counsel to XL America
EXHIBIT B-3 - Form of Opinion of Special U.S. Counsel to the Obligors
EXHIBIT B-4 - Form of Opinion of Special Bermuda Counsel to XL Insurance and XL Mid Ocean
EXHIBIT 5-5 - Form of Opinion of Special Cayman Islands Counsel to XL Capital
EXHIBIT B-6 - Form of Opinion of Special Irish Counsel to XL Europe
EXHIBIT C - Form of Opinion of Special New York Counsel to Chase
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LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT dated as of July
5, 2000, between XL CAPITAL LTD, a company incorporated under the laws of the
Cayman Islands, British West Indies ("XL CAPITAL"), X.L. AMERICA, INC., a
Delaware corporation ("XL AMERICA"), XL INSURANCE LTD, a Bermuda limited
liability corporation ("XL INSURANCE"), XL EUROPE LTD, a company incorporated
under the laws of Ireland ("XL EUROPE") and XL MID OCEAN REINSURANCE LTD, a
Bermuda limited liability corporation ("XL MID OCEAN" and, together with XL
Capital, XL America, XL Insurance and XL Europe, each an "ACCOUNT PARTY" and
each a "GUARANTOR" and collectively, the "ACCOUNT PARTIES" and the "GUARANTORS";
the Account Parties and the Guarantors being collectively referred to as the
"OBLIGORS"), the LENDERS party hereto, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
The Account Parties have requested that the Lenders issue
letters of credit for their account in an aggregate face amount not exceeding
$1,000,000,000 at any one time outstanding, and the Lenders are prepared to
issue such letters of credit upon the terms and conditions hereof. Accordingly,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ACCOUNT PARTIES" means each of XL Capital, XL America, XL
Insurance, XL Europe and XL Mid Ocean.
"ACCOUNT PARTY JURISDICTION" means (a) Bermuda, (b) the Cayman
Islands, (c) the Republic of Ireland and (d) any other country (i) where any
Account Party is licensed or qualified to do business or (ii) from or through
which payments hereunder are made by any Account Party.
"ADMINISTRATIVE AGENT" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly, Controls or is Controlled by or is under
common Control with the Person specified.
"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day, and (b) the
Federal Funds Effective Rate for such day
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PLUS 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective from and
including the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, as the case may be.
"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to and including the Commitment Termination Date.
"BACKSTOPPED LETTER OF CREDIT" means a letter of credit
identified in Schedule VI (a) issued for account of an Account Party, (b) as to
which the issuer thereof has become the beneficiary of a Letter of Credit issued
hereunder under which such beneficiary is entitled to draw in an amount equal to
any drawing under such identified letter of credit and (c) as to which, if the
reimbursement obligations thereunder were originally secured, such beneficiary
terminates any Lien securing such reimbursement obligations upon its receipt of
such Letter of Credit.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City, London, the Cayman
Islands, British West Indies, Bermuda or Ireland are authorized or required by
law to remain closed.
"CAPITAL LEASE OBLIGATIONS" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" means the occurrence of any of the
following events or conditions: (a) any Person or group of Persons (as used in
Sections 13 and 14 of the Securities Exchange Act of 1934, and the rules and
regulations thereunder) shall have become the beneficial owner (as defined in
rules promulgated by the SEC) of more than 40% of the voting securities of XL
Capital; (b) the sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all, or substantially all, of the assets of
XL Capital; or (c) a majority of the members of XL Capital's board of directors
are persons who are then serving on
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the board of directors without having been elected by the board of directors or
having been nominated for election by its shareholders.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.06(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CHASE" means The Chase Manhattan Bank.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITMENT" means, with respect to each Lender, the
commitment of such Lender to issue Letters of Credit hereunder. The initial
amount of each Lender's Commitment is set forth on Schedule I, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Commitment, as applicable, but in each case as such Commitment may be (a)
reduced from time to time pursuant to Section 2.04 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.04. The initial aggregate amount of the Lenders' Commitments is
$1,000,000,000.
"COMMITMENT TERMINATION DATE" means June 29, 2001.
"CONFIRMING LENDER" means, with respect to any Lender, any
other bank that has agreed, by delivery of an agreement in form and substance
satisfactory to the Administrative Agent that such other bank will itself honor
the obligations of such Lender in respect of a draft complying with the terms of
a Letter of Credit as if, and to the extent, such other bank were the "ISSUING
LENDER" named in such Letter of Credit.
"CONSOLIDATED NET WORTH" means, at any time, the consolidated
stockholders' equity of XL Capital and its Subsidiaries.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CREDIT AGREEMENT" means the 364-Day Credit Agreement dated as
of July 5, 2000 between the Obligors, the lenders party thereto and Chase, as
administrative agent for such lenders.
"CREDIT DOCUMENTS" means, collectively, this Agreement and the
Letter of Credit Documents.
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"DEFAULT" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DOLLARS" or "$" refers to lawful money of the United States
of America.
"EFFECTIVE DATE" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
"ENVIRONMENTAL LAWS" means any Law, whether now existing or
subsequently enacted or amended, relating to (a) pollution or protection of the
environment, including natural resources, (b) exposure of Persons, including but
not limited to employees, to Hazardous Materials, (c) protection of the public
health or welfare from the effects of products, by-products, wastes, emissions,
discharges or releases of Hazardous Materials or (d) regulation of the
manufacture, use or introduction into commerce of Hazardous Materials, including
their manufacture, formulation, packaging, labeling, distribution,
transportation, handling, storage or disposal.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of an Account Party or any
Subsidiary resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract or agreement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.
"EQUITY RIGHTS" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any shareholders' or voting trust agreements) for the
issuance, sale, registration or voting of, or securities convertible into, any
additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with any Account Party, is treated as a single
employer under Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by any Account Party or
any of such Account Party's ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by any
Account Party or any ERISA Affiliate from the PBGC or a plan administrator of
any notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (f) the incurrence by any Account Party or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
any Account Party or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from any Account Party or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VIII.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of any Account Party hereunder, (a) Taxes imposed on
(or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits Taxes imposed by
the United States of America or any similar Tax imposed by any other
jurisdiction in which any Account Party is located or (c) with respect to any
Lender (other than an assignee pursuant to a request by XL Capital pursuant to
Section 2.09(b)) any Indemnified Tax that (i) is in effect and would apply to
amounts payable to such Lender at the time such Lender becomes a party to this
Agreement (or designates a new lending ofce), other than any Indemnified Tax
imposed on any payment to any Lender to the extent such Lender (or its assignee,
as the case may be) was entitled, at the time of designation of a new lending
office (or assignment, as the case may be) to receive additional amounts from
such Account Party with respect to such Indemnified Tax pursuant to Section
2.07(a) or (ii) is attributable to such Lender's failure or inability to comply
with Section 2.07(e).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means, with respect to any Obligor, a
principal financial officer of such Obligor.
"GAAP" means generally accepted accounting principles in the
United States of America.
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"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, or of any other nation, or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or
any property constituting security therefor for the purpose of assuring the
holder of such Indebtedness, (ii) to advance or provide funds or other support
for the payment or purchase of any such Indebtedness or to maintain working
capital, solvency or other balance sheet condition of such other Person
(including without limitation keepwell agreements, maintenance agreements,
comfort letters or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (iii) to lease or purchase
property, securities or services primarily for the purpose of assuring the
holder of such Indebtedness, or (iv) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount of any
Guarantee hereunder shall (subject to any limitations set forth therein) be
deemed to be an amount equal to the outstanding principal amount of the
Indebtedness in respect of which such Guarantee is made. The terms "GUARANTEE"
and "GUARANTEED" used as a verb shall have a correlative meaning.
"GUARANTORS" means each of XL Capital, XL America, XL
Insurance, XL Europe and XL Mid Ocean.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"INDEBTEDNESS" means, for any Person, without duplication (it
being understood, for the avoidance of doubt, that insurance payment
liabilities, as such, and liabilities arising in the ordinary course of such
Person's business as an insurance or reinsurance company (including GICs) or
corporate member of The Council of Lloyd's or as a provider of financial or
investment services or contracts (in each case other than in connection with the
provision of financing to such Person or any of such Person's Affiliates) shall
not be deemed to constitute Indebtedness): (i) all indebtedness or liability for
or on account of money borrowed by, or for or on account of deposits with or
advances to (but not including accrued pension costs, deferred income taxes or
accounts payable of) such Person; (ii) all obligations (including contingent
liabilities) of such
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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Person evidenced by bonds, debentures, notes, banker's acceptances or similar
instruments; (iii) all indebtedness or liability for or on account of property
or services purchased or acquired by such Person; (iv) any amount secured by a
Lien on property owned by such Person (whether or not assumed) and Capital Lease
Obligations of such Person (without regard to any limitation of the rights and
remedies of the holder of such Lien or the lessor under such capital lease to
repossession or sale of such property); (v) the maximum available amount of all
standby letters of credit issued for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed); and (vi)
all Guarantees of such Person.
"INDEMNIFIED TAXES" means Taxes (including Other Taxes)
imposed on the Administrative Agent or any Lender on or with respect to any
payment hereunder or the execution, delivery or enforcement of, or otherwise
with respect to this Agreement other than Excluded Taxes.
"ISSUING LENDER" means any Lender in its capacity as an issuer
of one or more Letters of Credit hereunder.
"LAW" means any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Governmental Authority.
"LC DISBURSEMENT" means a payment made by a Lender pursuant to
a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time PLUS (b) the
aggregate amount of all LC Disbursements under Letters of Credit that have not
yet been reimbursed by or on behalf of the Account Parties at such time. The LC
Exposure of any Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.
"LENDER AFFILIATE" means with respect to any Lender, (a) an
Affliate of such Lender or (b) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender.
"LENDERS" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for the rights
and obligations of the parties concerned or at risk with respect to such Letter
of Credit.
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"LETTERS OF CREDIT" means Letters of Credit issued under
Section 2.01.
"LIEN" means, with respect to any asset, any mortgage, deed of
trust, pledge, lien, security interest, charge or other encumbrance or security
arrangement of any nature whatsoever, including but not limited to any
conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security.
"MARGIN STOCK" means "margin stock" within the meaning of
Regulations T, U and X of the Board.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the assets, business, financial condition or operations of an Account Party
and its Subsidiaries taken as a whole; or (b) the ability of an Account Party to
perform any of its payment or other material obligations under this Agreement.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance
Commissioners.
"NAIC APPROVED LENDER" means (a) any Lender that is a bank
listed on the most current Bank List of banks approved by the NAIC (the "NAIC
LENDER LIST") or (b) any Lender as to which its Confirming Lender is a bank
listed on the NAIC Lender List.
"NON-U.S. BENEFIT PLAN" means any plan, fund (including any
superannuation fund) or other similar program established or maintained outside
the United States by any Account Party or any of their Subsidiaries, with
respect to which such Account Party or such Subsidiary has an obligation to
contribute, for the benefit of employees of such Account Party or such
Subsidiary, which plan, fund or other similar program provides, or results in,
the type of benefits described in Section 3(1) or 3(2) of ERISA, and which plan
is not subject to ERISA or the Code.
"OBLIGORS" means each of the Account Parties and each of the
Guarantors.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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of ERISA, and in respect of which any Account Party or any ERISA Affiliate is
(or, if such plan were terminated, would under Section 4069 of ERISA be deemed
to be) an "employer" as defined in Section 3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"PRIVATE ACT" means separate legislation enacted in Bermuda
with the intention that such legislation apply specifically to an Account Party,
in whole or in part.
"QUARTERLY DATES" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date hereof.
"REGISTER" has the meaning assigned to such term in Section
10.04.
"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REPLACED LETTER OF CREDIT" means a letter of credit
identified in Schedule VI (a) issued for account of an Account Party and (b) as
to which the beneficiary thereof has become the beneficiary of a Letter of
Credit issued hereunder that contains a provision to the effect that such Letter
of Credit shall be of no force or effect, and no drawing under such Letter of
Credit may be made, unless and until the issuer of such identified letter of
credit receives such identified letter of credit within 30 days after the date
of issuance of such Letter of Credit together with instructions from such
beneficiary to cancel such identified letter of credit.
"REQUIRED LENDERS" means, at any time, Lenders having
Commitments representing more than 50% of the sum of the total Commitments at
such time; provided that, if the Commitments have expired or been terminated,
"Required Lenders" means Lenders having more than 50% of the aggregate LC
Exposure of the Lenders.
"SAP" means, as to each Account Party and each Subsidiary that
offers insurance products, the statutory accounting practices prescribed or
permitted by the relevant Governmental Authority for such Account Party's or
such Subsidiary's domicile for the preparation of its financial statements and
other reports by insurance corporations of the same type as such Account Party
or such Subsidiary in effect on the date such statements or reports are to be
prepared, except if otherwise notified by XL Capital as provided in Section
1.03.
"SEC" means the Securities and Exchange Commission or any
successor entity.
"SUBSIDIARY" means, with respect to any Person (the "PARENT"),
at any date, any corporation (or similar entity) of which a majority of the
shares of outstanding capital stock normally entitled to vote for the election
of directors (regardless of any contingency which does or may suspend or dilute
the voting rights of such capital stock) is at such time owned directly or
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indirectly by the parent or one or more subsidiaries of the parent. Unless
otherwise specified, "Subsidiary" means a Subsidiary of an Account Party.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TOTAL FUNDED DEBT" means, at any time, all Indebtedness of XL
Capital and its Subsidiaries which would at such time be classified in whole or
in part as a liability on the consolidated balance sheet of XL Capital in
accordance with GAAP.
"TRANSACTIONS" means the execution, delivery and performance
by the Obligors of this Agreement and the other Credit Documents to which any
Account Party is intended to be a party and the issuance of Letters of Credit
hereunder.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.03. ACCOUNTING TERMS; GAAP AND SAP. Except as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP or SAP, as the context
requires, each as in effect from time to time; provided that, if XL Capital
notifies the Administrative Agent that the Account Parties request an amendment
to any provision hereof to eliminate the effect of any change occurring after
the date hereof in GAAP or SAP, as the case may be, or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Account Parties that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or SAP, as
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the case may be, or in the application thereof, then such provision shall be
interpreted on the basis of GAAP or SAP, as the case may be, as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. THE COMMITMENTS.
(a) GENERAL. Subject to the terms and conditions set forth
herein, at the request of any Account Party the Lenders agree at any time and
from time to time during the Availability Period to issue Letters of Credit for
account of such Account Party in an aggregate amount that will not result in the
total LC Exposures exceeding the total Commitments (it being understood that
Letters of Credit may be issued, or be outstanding, for the account of more than
one of the Account Parties at any time). Each Letter of Credit shall be in such
form as is consistent with the requirements of the applicable regulatory
authorities in Illinois, California or New York as reasonably determined by the
Administrative Agent or as otherwise agreed to by the Administrative Agent and
XL Capital; PROVIDED that, without the prior consent of each Lender, no Letter
of Credit may be issued that would vary the several and not joint nature of the
obligations of the Lenders thereunder as provided in the next succeeding
sentence. Each Letter of Credit shall be issued by all of the Lenders, acting
through the Administrative Agent, at the time of issuance as a single multi-bank
letter of credit, but the obligation of each Lender thereunder shall be several
and not joint, based upon its Applicable Percentage of the aggregate undrawn
amount of such Letter of Credit.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION. To
request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), an Account Party shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Administrative Agent) to the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension, as the
case may be (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (d) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and the terms and conditions of (and such other information as shall be
necessary to prepare, amend, renew or extend, as the case may be) such Letter of
Credit. If any Letter of Credit shall provide for the automatic extension of the
expiry date thereof unless the Administrative Agent gives notice that such
expiry date shall not be extended, then the Administrative Agent will give such
notice if requested to do so by the Required Lenders in a notice given to the
Administrative Agent not more than 60 days, but not less than 45 days, prior to
the current expiry date of such Letter of Credit. If requested by the
Administrative Agent, such Account Party also shall submit a letter of credit
application on Chase's standard form in connection with any request for a Letter
of Credit. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of
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credit application or other agreement submitted by any Account Party to, or
entered into by any Account Party with, the Administrative Agent relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.
(c) LIMITATIONS ON AMOUNTS. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon such issuance, amendment,
renewal or extension of each Letter of Credit the Account Parties shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension, (A) the aggregate LC Exposure of the Lenders
shall not exceed the excess, if any, of (i) the aggregate amount of the
Commitments over (ii) the aggregate stated amount of all letters of credit
identified in Schedule VI (other than Backstopped Letters of Credit and Replaced
Letters of Credit) at the time outstanding and (B) the sum of (i) the LC
Exposure of each Lender plus (ii) the aggregate stated amount of all letters of
credit identified in Schedule VI issued by such Lender (other than Backstopped
Letters of Credit and Replaced Letters of Credit) at the time outstanding shall
not exceed the Commitment of such Lender.
(d) EXPIRY DATE. Each Letter of Credit shall expire at or
prior to the close of business on the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension).
(e) OBLIGATION OF LENDERS. The obligation of any Lender under
any Letter of Credit shall be several and not joint and shall at any time be in
an amount equal to such Lender's Applicable Percentage of the aggregate undrawn
amount of such Letter of Credit, and each Letter of Credit shall expressly so
provide.
SECTION 2.02. ISSUANCE AND ADMINISTRATION. Each Letter of
Credit shall be executed and delivered by the Administrative Agent in the name
and on behalf of, and as attorney-in-fact for, each Lender party to such Letter
of Credit, and the Administrative Agent shall act under each Letter of Credit,
and each Letter of Credit shall expressly provide that the Administrative Agent
shall act, as the agent of each Lender to (a) receive drafts, other demands for
payment and other documents presented by the beneficiary under such Letter of
Credit, (b) determine whether such drafts, demands and documents are in
compliance with the terms and conditions of such Letter of Credit and (c) notify
such Lender and the Account Parties that a valid drawing has been made and the
date that the related LC Disbursement is to be made; provided that the
Administrative Agent shall have no obligation or liability for any LC
Disbursement under such Letter of Credit, and each Letter of Credit shall
expressly so provide. Each Lender hereby irrevocably appoints and designates the
Administrative Agent as its attorney-in-fact, acting through any duly authorized
officer of Chase, to execute and deliver in the name and on behalf of such
Lender each Letter of Credit to be issued by such Lender hereunder. Promptly
upon the request of the Administrative Agent, each Lender will furnish to the
Administrative Agent such powers of attorney or other evidence as any
beneficiary of any Letter of Credit may reasonably request in order to
demonstrate that the Administrative Agent has the power to act as
attorney-in-fact for such Lender to execute and deliver such Letter of Credit.
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SECTION 2.03. REIMBURSEMENT OF LC DISBURSEMENTS. ETC.
(a) REIMBURSEMENT. If any Lender shall make any LC
Disbursement in respect of any Letter of Credit, regardless of the identity of
the Account Party of such Letter of Credit, the Account Parties jointly and
severally agree that they shall reimburse such Lender in respect of such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than noon, New York City time, on (i) the Business Day
that the Account Parties receive notice of such LC Disbursement, if such notice
is received prior to 10:00 a.m., New York City time, or (ii) the Business Day
immediately following the day that the Account Parties receive such notice, if
such notice is not received prior to such time.
(b) REIMBURSEMENT OBLIGATIONS ABSOLUTE. The Account Parties'
joint and several obligations to reimburse LC Disbursements as provided in
paragraph (a) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Letter of Credit, or any term or provision
therein, (ii) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment under a Letter
of Credit against presentation of a draft or other document that does not comply
strictly with the terms of such Letter of Credit (PROVIDED that the Account
Parties shall not be obligated to reimburse such LC Disbursements unless payment
is made against presentation of a draft or other document that at least
substantially comply with the terms of such Letter of Credit), (iv) at any time
or from time to time, without notice to any Account Party, the time for any
performance of or compliance with any of such reimbursement obligations of any
other Account Party shall be waived, extended or renewed, (v) any of such
reimbursement obligations of any other Account Party shall be amended or
otherwise modified in any respect, or any guarantee of any of such reimbursement
obligations shall be released, substituted or exchanged in whole or in part or
otherwise dealt with, (vi) the occurrence of any Default, (vii) the existence of
any proceedings of the type described in clause (g) or (h) of Article VIII with
respect to any other Account Party or any guarantor of any of such reimbursement
obligations, (viii) any lack of validity or enforceability of any of such
reimbursement obligations against any other Account Party or any guarantor of
any of such reimbursement obligations, or (ix) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of the
obligations of any Account Party hereunder.
Neither the Administrative Agent, nor any Lender nor any of
their Related Parties shall have any liability or responsibility by reason of or
in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond their control;
PROVIDED that the foregoing shall not be construed to excuse the Administrative
Agent or a Lender from liability to any Account Party to the extent of
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any direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Account Parties to the extent permitted by
applicable law) suffered by any Account Party that are caused by the gross
negligence or wilful misconduct of the Administrative Agent or a Lender. The
parties hereto expressly agree that:
(i) the Administrative Agent may accept documents that appear
on their face to be in substantial compliance with the terms of a
Letter of Credit without responsibility for further investigation,
regardless of any notice or information to the contrary, and may make
payment upon presentation of documents that appear on their face to be
in substantial compliance with the terms of such Letter of Credit;
(ii) the Administrative Agent shall have the right, in its
sole discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Administrative Agent when determining whether drafts
and other documents presented under a Letter of Credit comply with the
terms thereof (and the parties hereto hereby waive, to the extent
permitted by applicable law, any standard of care inconsistent with the
foregoing).
(c) DISBURSEMENT PROCEDURES. The Administrative Agent shall,
within a reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under any Letter of Credit. The
Administrative Agent shall promptly after such examination (i) notify each of
the Lenders and the Account Parties by telephone (confirmed by telecopy) of such
demand for payment and (ii) deliver to each Lender a copy of each document
purporting to represent a demand for payment under such Letter of Credit. With
respect to any drawing properly made under a Letter of Credit, each Lender will
make an LC Disbursement in respect of such Letter of Credit in accordance with
its liability under such Letter of Credit and this Agreement, such LC
Disbursement to be made to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders. The Administrative
Agent will make any such LC Disbursement available to the beneficiary of such
Letter of Credit by promptly crediting the amounts so received, in like funds,
to the account identified by such beneficiary in connection with such demand for
payment. Promptly following any LC Disbursement by any Lender in respect of any
Letter of Credit, the Administrative Agent will notify the Account Parties of
such LC Disbursement; PROVIDED that any failure to give or delay in giving such
notice shall not relieve the Account Parties of their obligation to reimburse
the Lenders with respect to any such LC Disbursement.
(d) INTERIM INTEREST. If any LC Disbursement is made, then,
unless the Account Parties shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Account Parties reimburse such LC
Disbursement, at the rate per annum equal to (i) 1% PLUS the Alternate Base Rate
to but excluding the date three Business Days after such LC Disbursement and
(ii) from and including
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the date three Business Days after such LC Disbursement, 3% lug the Alternate
Base Rate.
(e) RIGHT OF CONTRIBUTION. The Account Parties hereby agree,
as between themselves, that if any Account Party shall pay any reimbursement
obligation in respect of any LC Disbursement with respect to a Letter of Credit
issued to support the obligations of another Account Party (the "SPECIFIED
ACCOUNT PARTY"), the Specified Account Party shall, on demand (but subject to
the next sentence), pay to such first Account Party an amount equal to the
amount of such reimbursement. The payment obligation of a Specified Account
Party to another Account Party under this paragraph (e) shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
the Specified Account Party under this Agreement and each other Credit Document,
and such other Account Party shall not exercise any right or remedy with respect
to such reimbursement until payment and satisfaction in full of all of such
obligations of the Specified Account Party.
SECTION 2.04. TERMINATION AND REDUCTION OF THE COMMITMENTS.
(a) SCHEDULED TERMINATION. Unless previously terminated, the
Commitments shall terminate at the close of business on the Commitment
Termination Date.
(b) VOLUNTARY TERMINATION OR REDUCTION. The Account Parties
may at any time terminate, or from time to time reduce, the Commitments;
PROVIDED that (i) each reduction of the Commitments shall be in an amount that
is $25,000,000 or a larger multiple of $5,000,000 and (ii) the Account Parties
shall not terminate or reduce the Commitments if the total LC Exposures would
exceed the total Commitments.
(c) NOTICE OF VOLUNTARY TERMINATION OR REDUCTION. XL Capital
shall notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by XL Capital pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
by XL Capital may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by XL
Capital (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied.
(d) EFFECT OF TERMINATION OR REDUCTION. Any termination or
reduction of the Commitments shall be permanent. Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments.
SECTION 2.05. FEES.
(a) FACILITY FEE. XL Capital agrees to pay to the
Administrative Agent for account of each Lender a facility fee, which shall
accrue at a rate per annum equal to 0.07%, (i) prior to the termination of such
Lender's Commitment, on the daily amount of such Commitment (whether used or
unused) during the period from and including the Effective Date to but
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excluding the earlier of the date such Commitment terminates and the Commitment
Termination Date and (ii) if such Lender continues to have any LC Exposure after
its Commitment terminates, on the daily amount of such Lender's LC Exposure from
and including the date on which such Lender's Commitment terminates to but
excluding the date on which such Lender ceases to have any LC Exposure. Accrued
facility fees shall be payable on each Quarterly Date and on the earlier of the
date the Commitments terminate and the Commitment Termination Date; PROVIDED
that after the termination of the Commitments, facility fees shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) LETTER OF CREDIT FEE. XL Capital agrees to pay to the
Administrative Agent for account of each Lender a letter of credit fee which
shall accrue at a rate per annum equal to 0.305% on the average daily aggregate
undrawn amount of all outstanding Letters of Credit during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure. Letter of credit fees accrued through and including each
Quarterly Date shall be payable on the third Business Day following such
Quarterly Date, commencing on the first such date to occur after the Effective
Date; PROVIDED that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Letter of credit fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) ADMINISTRATIVE AGENT FEES. XL Capital agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between XL Capital and the Administrative
Agent.
(d) PAYMENT OF FEES. All fees payable hereunder shall be paid
on the dates due, in immediately available funds, to the Administrative Agent
for distribution, in the case of the facility fees and the letter of credit fees
referred to in paragraphs (a) and (b) of this Section, to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.06. INCREASED COSTS.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender; or
(ii) impose on any Lender any other condition affecting this
Agreement or any Letter of Credit;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Letter of Credit or to reduce the amount of
any sum received or receivable by such Lender hereunder, then the Account
Parties jointly and severally agree that they will pay to
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such Lender such additional amount or amounts as will compensate such Lender for
such additional costs incurred or reduction suffered.
(b) CAPITAL REQUIREMENTS. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Letters of Credit issued by such Lender to a level below that which such Lender
or such Lender's holding company could have achieved but for such Change in Law
(taking into consideration such Lender's policies and the policies of such
Lender's holding company with respect to capital adequacy), then from time to
time the Account Parties will pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender's holding company for any
such reduction suffered.
(c) CERTIFICATES FROM LENDERS. A certificate of a Lender
setting forth such Lender's good faith determination of the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to XL
Capital and shall be conclusive absent manifest error. The Account Parties shall
pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof by XL Capital.
(d) DELAY IN REQUESTS. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; PROVIDED that the
Account Parties shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than 90 days prior
to the date that such Lender notifies XL Capital of the Change in Law giving
rise to such increased costs or reductions and of such Lender's intention to
claim compensation therefor; PROVIDED FURTHER that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 90 day
period referred to above shall be extended to include the period of retroactive
effect thereof.
SECTION 2.07. TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on
account of any obligation of the Account Parties hereunder shall be made free
and clear of and without deduction for any Indemnified Taxes; PROVIDED that if
any Account Party shall be required to deduct any Indemnified Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or Lender (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Account Party shall make such deductions and
(iii) such Account Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) PAYMENT OF OTHER TAXES BY THE ACCOUNT PARTIES. In
addition, each Account Party shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
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(c) INDEMNIFICATION BY THE ACCOUNT PARTIES. The Account
Parties shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand to XL Capital therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by the Administrative
Agent or such Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to XL Capital by a Lender, or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive as between such
Lender or the Administrative Agent, as the case may be, and the Account Parties
absent manifest error.
(d) EVIDENCE OF PGYMENTS. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by any Account Party to a
Governmental Authority, XL Capital on behalf of such Account Party shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) EXEMPTIONS. Each Lender and the Administrative Agent
shall, at the written request of XL Capital, provide to any Account Party such
form, certification or similar documentation, if any (each duly completed,
accurate and signed) as is currently required by any Account Party Jurisdiction
or any other jurisdiction, or comply with such other requirements, if any, as is
currently applicable in such Account Party Jurisdiction or any other
jurisdiction, in order to obtain an exemption from, or reduced rate of,
deduction, payment or withholding of Indemnified Taxes or Other Taxes to which
such Lender or the Administrative Agent is entitled pursuant to an applicable
tax treaty or the law of such Account Party Jurisdiction or any other
jurisdiction; provided that XL Capital shall have furnished to such Lender or
the Administrative Agent in a reasonably timely manner copies of such
documentation and notice of such requirements together with applicable
instructions. The Account Parties shall not be required to indemnify any Lender
or the Administrative Agent under Section 2.07(a) or (c) for any Indemnified
Taxes or Other Taxes to the extent such Indemnified Taxes or Other Taxes would
not be imposed but for the failure by such Lender or the Administrative Agent,
as the case may be, to comply with the provisions of the preceding sentence.
Upon the written request of XL Capital, each Lender and the Administrative Agent
will provide to XL Capital such form, certification or similar documentation
(each duly completed, accurate and signed) as may in the future be required by
any Account Party Jurisdiction or any other jurisdiction, or comply with such
other requirements, if any, as may be applicable in such Account Party
Jurisdiction or any other jurisdiction in order to obtain an exemption from, or
reduced rate of, deduction, payment or withholding of Indemnified Taxes or Other
Taxes to which such Lender or the Administrative Agent is entitled pursuant to
an applicable tax treaty or the law of the relevant jurisdiction, provided that
neither such Lender nor the Administrative Agent shall have any obligation to
provide such form, certification or similar document if it would be unduly
burdensome, would require such Lender or the Administrative Agent to disclose
any confidential information or would otherwise be materially disadvantageous to
such Lender or the Administrative Agent and provide further that the Account
Party shall have furnished to such Lender or the
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Administrative Agent in a reasonably timely manner copies of such documentation
and notice of such requirements together with applicable instructions.
SECTION 2.08. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS.
(a) PAYMENTS BY THE ACCOUNT PARTIES. The Account Parties shall
make each payment required to be made by them hereunder (whether reimbursement
of LC Disbursements, interest or fees, or under Section 2.06 or 2.07, or
otherwise) or under any other Credit Document (except to the extent otherwise
provided therein) prior to 12:00 noon, New York City time, on the date when due,
in immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offces at 270 Park Avenue, New
York, New York, except payments pursuant to Sections 2.06, 2.07 and 10.03, which
shall be made directly to the Persons entitled thereto. The Administrative Agent
shall distribute any such payments received by it for account of any other
Person to the appropriate recipient promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments hereunder shall be made in Dollars.
(b) APPLICATION OF INSUFFICIENT PAYMENTS. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, to pay interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second,
to pay unreimbursed LC Disbursements then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of unreimbursed LC
Disbursements then due to such parties.
(c) PRO RATA TREATMENT. Except to the extent otherwise
provided herein: (i) each reimbursement of LC Disbursements shall be made to the
Lenders, each payment of fees under Section 2.05 shall be made for account of
the Lenders, and each termination or reduction of the amount of the Commitments
under Section 2.04 shall be applied to the respective Commitments of the
Lenders, pro rata according to the amounts of their respective Commitments and
(ii) each payment of interest shall be made for account of the Lenders pro rata
in accordance with the amounts of interest then due and payable to the
respective Lenders.
(d) SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any LC Disbursements resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its LC Disbursements and accrued
interest thereon then due than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of LC Disbursements;
PROVIDED that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such
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participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by any Account Party
pursuant to and in accordance with the express terms of this Agreement or any
payment obtained by a Lender as consideration for the assignment of or sale of a
participation in LC Disbursements to any assignee or participant, other than to
any Account Party or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Account Party consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Account Party rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Account Party in the amount of such participation.
(e) PRESUMPTIONS OF PAYMENT. Unless the Administrative Agent
shall have received notice from an Account Party prior to the date on which any
payment is due to the Administrative Agent for account of the Lenders hereunder
that such Account Party will not make such payment, the Administrative Agent may
assume that such Account Party has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders
the amount due. In such event, if the relevant Account Party has not in fact
made such payment, then each of the Lenders severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) CERTAIN DEDUCTIONS BY THE ADMINISTRATIVE AGENT. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.08(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.09. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Lender
requests compensation under Section 2.06, or if any Account Party is required to
pay any additional amount to any Lender or any Governmental Authority for
account of any Lender pursuant to Section 2.07, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Letters of Credit hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or Affiliates, if, in the
reasonable judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.06 or 2.07, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. Each Account Party hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) REPLACEMENT OF LENDERS. If any Lender requests
compensation under Section 2.06, or if any Account Party is required to pay any
additional amount to any Lender or any Governmental Authority for account of any
Lender pursuant to Section 2.07, or if any
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Lender defaults in its obligation to make LC Disbursements hereunder, or if any
Lender ceases to be an NAIC Approved Lender, then XL Capital may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in Section 10.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); PROVIDED that (i) XL Capital shall have received the prior written
consent of the Administrative Agent, which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding amount of its LC Disbursements, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
relevant Account Party (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.06 or payments required to be made pursuant to Section 2.07, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
relevant Account Party to require such assignment and delegation cease to apply.
ARTICLE III
GUARANTEE
SECTION 3.01. THE GUARANTEE. Each Guarantor hereby jointly and
severally guarantees to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the LC Disbursements (and
interest) made by the Lenders to each of the Account Parties (other than such
Guarantor in its capacity as an Account Party hereunder) and all other amounts
from time to time owing to the Lenders or the Administrative Agent by such
Account Parties under this Agreement, in each case strictly in accordance with
the terms thereof (such obligations being herein collectively called the
"GUARANTEED OBLIGATIONS"). Each Guarantor hereby further jointly and severally
agrees that if any Account Party (other than such Guarantor in its capacity as
an Account Party hereunder) shall fail to pay in full when due (whether at
stated maturity, by acceleration or otherwise) any of the Guaranteed
Obligations, such Guarantor will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
SECTION 3.02. OBLIGATIONS UNCONDITIONAL. The obligations of
the Guarantors under Section 3.01 are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Account Parties under this Agreement or
any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other
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circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Article that the obligations of the Guarantors hereunder shall be absolute and
unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Guarantors hereunder, which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Agreement or any other agreement or instrument referred to herein
shall be done or omitted; or
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or any other agreement or instrument referred to herein shall
be waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in
part or otherwise dealt with.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against any
Account Party under this Agreement or any other agreement or instrument referred
to herein, or against any other Person under any other guarantee of, or security
for, any of the Guaranteed Obligations.
SECTION 3.03. REINSTATEMENT. The obligations of the Guarantors
under this Article shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of any Account Party in respect of
the Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Guarantors
jointly and severally agree that they will indemnify the Administrative Agent
and each Lender on demand for all reasonable costs and expenses (including
reasonable fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
SECTION 3.04. SUBROGATION. The Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments
they shall not exercise any right or remedy arising by reason of any performance
by them of their guarantee in Section 3.01, whether by subrogation or otherwise,
against any Account Party or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations.
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SECTION 3.05. REMEDIES. The Guarantors jointly and severally
agree that, as between the Guarantors and the Lenders, the obligations of the
Borrowers under this Agreement may be declared to be forthwith due and payable
as provided in Article VIII (and shall be deemed to have become automatically
due and payable in the circumstances provided in Article VIII) for purposes of
Section 3.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due
and payable) as against any Borrower and that, in the event of such declaration
(or such obligations being deemed to have become automatically due and payable),
such obligations (whether or not due and payable by any Borrower) shall
forthwith become due and payable by the Guarantors for purposes of Section 3.01.
SECTION 3.06. CONTINUING GUARANTEE. The guarantee in this
Article III is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
SECTION 3.07. RIGHTS OF CONTRIBUTION. The Guarantors (other
than XL Capital) hereby agree, as between themselves, that if any such Guarantor
shall become an Excess Funding Guarantor (as defined below) by reason of the
payment by such Guarantor of any Guaranteed Obligations, each other Guarantor
(other than XL Capital) shall, on demand of such Excess Funding Guarantor (but
subject to the next sentence), pay to such Excess Funding Guarantor an amount
equal to such Guarantor's Pro Rata Share (as defined below and determined, for
this purpose, without reference to the properties, debts and liabilities of such
Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of
such Guaranteed Obligations. The payment obligation of a Guarantor to any Excess
Funding Guarantor under this Section shall be subordinate and subject in right
of payment to the prior payment in full of the obligations of such Guarantor
under the other provisions of this Article III and such Excess Funding Guarantor
shall not exercise any right or remedy with respect to such excess until payment
and satisfaction in full of all of such obligations.
For purposes of this Section, (i) "EXCESS FUNDING GUARANTOR"
means, in respect of any Guaranteed Obligations, a Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"EXCESS PAYMENT" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "PRO RATA SHARE" means, for any Guarantor, the
ratio (expressed as a percentage) of (x) the amount by which the aggregate
present fair saleable value of all properties of such Guarantor (excluding any
shares of stock of any other Guarantor) exceeds the amount of all the debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder and any obligations of any other Guarantor that have been Guaranteed
by such Guarantor) to (y) the amount by which the aggregate fair saleable value
of all properties of all of the Guarantors (other than XL Capital) exceeds the
amount of all the debts and liabilities (including contingent, subordinated,
unmatured and unliquidated liabilities, but excluding the obligations of the
Guarantors under this Article III) of all of the Guarantors (other than XL
Capital), determined (A) with respect to any Guarantor that is a party hereto on
the date hereof,
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as of the date hereof, and (B) with respect to any other Guarantor, as of the
date such Guarantor becomes a Guarantor hereunder.
SECTION 3.08. GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Guarantor under Section 3.01
would otherwise, taking into account the provisions of Section 3.07, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under Section
3.01, then, notwithstanding any other provision hereof to the contrary, the
amount of such liability shall, without any further action by such Guarantor,
any Lender, the Administrative Agent or any other Person, be automatically
limited and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders that:
SECTION 4.01. ORGANIZATION; POWERS. Such Borrower and each of
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 4.02. AUTHORIZATION; ENFORCEABILITY. The Transactions
are within such Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by such Borrower and constitutes
a legal, valid and binding obligation of such Borrower, enforceable against such
Borrower in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights and
(b) the application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 4.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The
Transactions (a) do not require any consent or approval of (including any
exchange control approval), registration or filing with, or any other action by,
any Governmental Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of such Borrower or any
of its Subsidiaries or any order of any Governmental Authority, (c) will not
violate or result in a default under any material indenture, agreement or other
instrument binding upon such Borrower or any of its Subsidiaries or assets, or
give rise to a right thereunder to
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require any payment to be made by any such Person, and (d) will not result in
the creation or imposition of any Lien on any asset of such Borrower or any of
its Subsidiaries.
SECTION 4.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(a) FINANCIAL CONDITION. Such Borrower has heretofore
furnished to the Lenders the consolidated balance sheet and statements of
income, stockholders' equity and cash flows of such Borrower and its
consolidated Subsidiaries (A) as of and for the fiscal years ended December 31,
1998 and December 31, 1999, reported on by PricewaterhouseCoopers LLP,
independent public accountants (as provided in XL Capital's Report on Form 10-K
filed with the SEC for the fiscal year ended December 31, 1999), and (B) as of
and for the fiscal quarter ended March 31, 2000, as provided in XL Capital's
Report on Form 10-Q filed with the SEC for the fiscal quarter ended March 31,
2000. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of such Borrower and
its respective consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP or (in the case of XL Europe, XL Insurance or XL Mid
Ocean) SAP, subject to year-end audit adjustments and the absence of footnotes
in the case of the statements referred to in clause (B) of the first sentence of
this paragraph.
(b) NO MATERIAL ADVERSE CHANGE. Since December 31, 1999, there
has been no material adverse change in the assets, business, financial condition
or operations of such Borrower and its Subsidiaries, taken as a whole.
SECTION 4.05. PROPERTIES.
(a) PROPERTY GENERALLY. Such Borrower and each of its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, subject only to Liens permitted
by Section 7.03 and except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) INTELLECTUAL PROPERTY. Such Borrower and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by such Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 4.06. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) ACTIONS, SUITS AND PROCEEDINGS. Except as disclosed in
Schedule III or as routinely encountered in claims activity, there are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of such Borrower, threatened
against or affecting such Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that could
reasonably
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be expected, individually or in the aggregate, to result in a Material Adverse
Effect or (ii) that involve this Agreement or the Transactions.
(b) ENVIRONMENTAL MATTERS. Except as disclosed in Schedule IV
and except with respect to any other matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither such Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required for its business under any
Environmental Law, (ii) has incurred any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv)
knows of any basis for any Environmental Liability.
SECTION 4.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Such
Borrower and each of its Subsidiaries is in compliance with all laws,
regulations and orders of any Governmental Authority applicable to it or its
property and all indentures, agreements and other instruments binding upon it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 4.08. INVESTMENT AND HOLDING COMPANY STATUS. Such
Borrower is not (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
SECTION 4.09. TAXES. Such Borrower and each of its
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan by an amount that could
reasonably be expected to result in a Material Adverse Effect.
Except as could not reasonably be expected to result in a
Material Adverse Effect, (i) all contributions required to be made by any
Borrower or any of their Subsidiaries with respect to a Non-U.S. Benefit Plan
have been timely made, (ii) each Non-U.S. Benefit Plan has been maintained in
compliance with its terms and with the requirements of ally and all applicable
laws and has been maintained, where required, in good standing with the
applicable Governmental Authority and (iii) neither any Borrower nor any of
their Subsidiaries has
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incurred any obligation in connection with the termination or withdrawal from
any Non-U.S. Benefit Plan.
SECTION 4.11. DISCLOSURE. The reports, financial statements,
certificates or other information furnished by such Borrower to the Lenders in
connection with the negotiation of this Agreement or delivered hereunder (taken
as a whole) do not contain any material misstatement of fact or omit to state
any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that, with
respect to projected financial information, such Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
SECTION 4.12. USE OF CREDIT. Neither such Borrower nor any of
its Subsidiaries is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose, whether immediate,
incidental or ultimate, of buying or carrying Margin Stock. No part of the
proceeds of any Loan hereunder will be used to buy or carry any Margin Stock
(except for repurchases of the capital stock of XL Capital and purchases of
Margin Stock in accordance with XL Capital's Statement of Investment Policy
Objectives and Guidelines as in effect on the date hereof or as it may be
changed from time to time by a resolution duly adopted by the board of directors
of XL Capital (or any committee thereof)). The purchase of any Margin Stock with
the proceeds of any Loan will not be in violation of Regulation U or X of the
Board and, after applying the proceeds of such Loan, not more than 25% of the
value of the assets of XL Capital and its Subsidiaries taken as a whole consists
or will consist of Margin Stock.
SECTION 4.13. SUBSIDIARIES. Set forth in Schedule V is a
complete and correct list of all of the Subsidiaries of XL Capital as of the
date hereof, together with, for each such Subsidiary, (i) the jurisdiction of
organization of such Subsidiary, (ii) each Person holding ownership interests in
such Subsidiary and (iii) the percentage of ownership of such Subsidiary
represented by such ownership interests. Except as disclosed in Schedule V, (x)
each of XL, Capital and its Subsidiaries owns, free and clear of Liens, and has
the unencumbered right to vote, all outstanding ownership interests in each
Person shown to be held by it in Schedule V, (y) all of the issued and
outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) except as disclosed in
filings of XL Capital with the SEC prior to the date hereof, there are no
outstanding Equity Rights with respect to any Borrower.
SECTION 4.14. WITHHOLDING TAXES. Based upon information with
respect to each Lender provided by each Lender or the Administrative Agent, as
of the date hereof, the payment of principal of and interest on the Loans, the
fees under Section 2.09 and all other amounts payable hereunder will not be
subject, by withholding or deduction, to any Taxes imposed by any Borrower
Jurisdiction.
SECTION 4.15. STAMP TAXES. To ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement or any promissory
notes evidencing Loans made (or to be made), it is not necessary that this
Agreement or such promissory notes or any other document be filed or recorded
with any Governmental Authority or that any stamp or similar tax be paid on or
in respect of this Agreement or such promissory notes, or any other document
other than such filings and recordations that have already been made and such
stamp or similar taxes that have already been paid.
SECTION 4.16. LEGAL FORM. Each of this Agreement and any
promissory notes evidencing Loans made (or to be made) is in proper legal form
under the laws of any Borrower Jurisdiction for the admissibility thereof in the
courts of such Borrower Jurisdiction.
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ARTICLE V
CONDITIONS
SECTION 5.01. EFFECTIVE DATE. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which the
Administrative Agent shall have received each of the following documents, each
of which shall be satisfactory to the Administrative Agent (and to the extent
specified below, to each Lender) in form and substance (or such condition shall
have been waived in accordance with Section 10.02):
(a) EXECUTED COUNTERPARTS. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) OPINIONS OF COUNSEL TO THE OBLIGORS. Opinions, each dated
the Effective Date, of (i) Paul S. Giordano, Esq., counsel to XL
Capital, substantially in the form of Exhibit B-1, (ii) Martha
Bannerman, Esq., counsel to XL America, substantially in the form of
Exhibit B-2, (iii) Cahill Gordon & Reindel, special U.S. counsel for
the Obligors, substantially in the form of Exhibit B-3, (iv) Conyers,
Dill & Pearman, special Bermuda counsel to XL Insurance and XL Mid
Ocean, substantially in the form of Exhibit B-4, (v) Hunter & Hunter,
special Cayman Islands counsel to XL Capital, substantially in the form
of Exhibit B-5 and (vi) A&L Goodbody, special Irish counsel to XL
Europe, substantially in the form of Exhibit B-6.
(c) OPINION OF SPECIAL NEW YORK COUNSEL TO CHASE. An opinion,
dated the Effective Date, of Milbank, Tweed, Hadley & McCloy LLP,
special New York counsel to Chase, substantially in the form of Exhibit
C (and Chase hereby instructs such counsel to deliver such opinion to
the Lenders).
(d) CORPORATE DOCUMENTS. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of the Obligors, the
authorization of the Transactions and any other legal matters relating
to the Obligors, this Agreement or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its
counsel.
(e) OFFICER'S CERTIFICATE. A certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial
Officer of XL Capital, confirming compliance with the conditions set
forth in the lettered clauses of the first sentence of Section 5.02.
(f) OTHER DOCUMENTS. Such other documents as the
Administrative Agent or any Lender or special New York counsel to Chase
may reasonably request.
The obligation of any Lender to make its initial Loan
hereunder is also subject to the payment by XL Capital of such fees as XL
Capital shall have agreed to pay to
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any Lender or the Administrative Agent in connection herewith, including the
reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy LLP, special New
York counsel to Chase, in connection with the negotiation, preparation,
execution and delivery of this Agreement and the Loans hereunder (to the extent
that reasonably detailed statements for such fees and expenses have been
delivered to XL Capital).
The Administrative Agent shall notify the Borrowers and the
Lenders of the Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02) on or prior to 3:00 p.m., New
York City time, on July 7, 2000 (and, in the event such conditions are not so
satisfied or waived, the Commitments shall terminate at such time).
SECTION 5.02. EACH CREDIT EVENT. The obligation of each Lender
to make any Loan is additionally subject to the satisfaction of the following
conditions:
(a) the representations and warranties of the Obligors set
forth in this Agreement shall be true and correct on and as of the date
of such Loan (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as of such specific
date); and
(b) at the time of and immediately after giving effect to such
Loan, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Obligors on the date thereof as to the matters specified in the preceding
sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrowers covenant and agree with the Lenders that:
SECTION 6.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. Each
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 135 days after the end of each fiscal year of such
Borrower (but in the case of XL Capital, within 100 days after the end
of each fiscal year of XL Capital),
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the audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of such Borrower and
its consolidated Subsidiaries as of the end of and for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year (if such figures were already produced for such
corresponding period or periods) (it being understood that delivery to
the Lenders of XL Capital's Report on Form 10-K filed with the SEC
shall satisfy the financial statement delivery requirements of this
paragraph (a) to deliver the annual financial statements of XL Capital
so long as the financial information required to be contained in such
Report is substantially the same as the financial information required
under this paragraph (a)), all reported on by PricewaterhouseCoopers
LLP or other independent public accountants of recognized national
standing (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such
audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and
results of operations of such Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP or (in the
case of XL Europe, XL Insurance and XL, Mid Ocean) SAP, as the case may
be, consistently applied;
(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of such Borrower, the consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows of such Borrower and its consolidated
Subsidiaries as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for (or, in the case of the balance sheet,
as of the end of) the corresponding period or periods of the previous
fiscal year (if such figures were already produced for such
corresponding period or periods), all certified by a Financial Officer
of such Borrower as presenting fairly in all material respects the
financial condition and results of operations of such Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP or (in the case of XL Europe, XL Insurance and XL Mid Ocean) SAP,
as the case may be, consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes (it being understood
that delivery to the Lenders of XL Capital's Report on Form 10-Q filed
with the SEC shall satisfy the financial statement delivery
requirements of this paragraph (b) to deliver the quarterly financial
statements of XL Capital so long as the financial information required
to be contained in such Report is substantially the same as the
financial information required under this paragraph (b));
(c) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, a certificate signed on behalf
of each Borrower by a Financial Officer (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 7.03, 7.05, 7.06 and 7.07 and
(iii) stating whether any change in GAAP or (in the case of XL Europe,
XL Insurance and XL Mid Ocean) SAP or in the application thereof has
occurred since the date of the audited financial statements referred to
in Section 4.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
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(d) concurrently with any delivery of financial statements
under clause (a) of this Section, a certificate of the accounting firm
that reported on such financial statements stating whether they
obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited
to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by such Borrower or any of its respective Subsidiaries with the
SEC, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any U. S. or other securities
exchange, or distributed by such Borrower to its shareholders
generally, as the case may be;
(f) concurrently with any delivery of financial statements
under clause (a) or (b) of this Section, a certificate of a Financial
Officer of XL Capital, setting forth on a consolidated basis for XL
Capital and its consolidated Subsidiaries as of the end of the fiscal
year or quarter to which such certificate relates (i) the aggregate
book value of assets which are subject to Liens permitted under Section
7.03(g) and the aggregate book value of liabilities which are subject
to Liens permitted under Section 7.03(g) (it being understood that the
reports required by paragraphs (a) and (b) of this Section shall
satisfy the requirement of this clause (i) of this paragraph (f) if
such reports set forth separately, in accordance with GAAP, line items
corresponding to such aggregate book values) and (ii) a calculation
showing the portion of each of such aggregate amounts which portion is
attributable to transactions among wholly-owned Subsidiaries of XL
Capital; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of XL Capital or any of its Subsidiaries, or compliance with
the terms of this Agreement, as the Administrative Agent or any Lender
may reasonably request.
SECTION 6.02. NOTICES OF MATERIAL EVENTS. Each Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default; and
(b) any event or condition constituting, or which could
reasonably be expected to have a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the relevant Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken by such Borrower with respect thereto.
SECTION 6.03. PRESERVATION OF EXISTENCE AND FRANCHISES. Each
Borrower will, and will cause each of its Subsidiaries to, maintain its
corporate existence and its material rights and franchises in full force and
effect in its jurisdiction of incorporation; PROVIDED that the
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foregoing shall not prohibit any merger or consolidation permitted under Section
7.01. Each Borrower will, and will cause each of its Subsidiaries to, qualify
and remain qualified as a foreign corporation in each jurisdiction in which
failure to receive or retain such qualification would have a Material Adverse
Effect.
SECTION 6.04. INSURANCE. Each Borrower will, and will cause
each of its Subsidiaries to, maintain with financially sound and reputable
insurers, insurance with respect to its properties in such amounts as is
customary in the case of corporations engaged in the same or similar businesses
having similar properties similarly situated.
SECTION 6.05. MAINTENANCE OF PROPERTIES. Each Borrower will,
and will cause each of its Subsidiaries to, maintain or cause to be maintained
in good repair, working order and condition the properties now or hereafter
owned, leased or otherwise possessed by and used or useful in its business and
will make or cause to be made all needful and proper repairs, renewals,
replacements and improvements thereto so that the business carried on in
connection therewith may be properly conducted at all times except if the
failure to do so would not have a Material Adverse Effect; PROVIDED, HOWEVER,
that the foregoing shall not impose on such Borrower or any Subsidiary of such
Borrower any obligation in respect of any property leased by such Borrower or
such Subsidiary in addition to such Borrower's obligations under the applicable
document creating such Borrower's or such Subsidiary's lease or tenancy.
SECTION 6.06. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS PAYMENT OF OTHER CURRENT LIABILITIES. Each Borrower will, and
will cause each of its Subsidiaries to, pay or discharge:
(a) on or prior to the date on which penalties attach thereto,
all taxes, assessments and other governmental charges or levies imposed
upon it or any of its properties or income;
(b) on or prior to the date when due, all lawful claims of
matarialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such property; and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property (other than Liens not forbidden by Section 7.03) or which, if
unpaid, might give rise to a claim entitled to priority over general
creditors of such Borrower in any proceeding under the Bermuda
Companies Law or Bermuda Insurance Law, or any insolvency proceeding,
liquidation, receivership, rehabilitation, dissolution or winding-up
involving such Borrower or such Subsidiary;
PROVIDED that, unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, such Borrower need not pay or discharge
any such tax, assessment, charge, levy or claim so long as the validity thereof
is contested in good faith and by appropriate proceedings diligently conducted
and so long as such reserves or other appropriate provisions as
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may be required by GAAP or SAP, as the case may be, shall have been made
therefor and so long as such failure to pay or discharge does not have a
Material Adverse Effect.
SECTION 6.07. FINANCIAL ACCOUNTING PRACTICES. Such Borrower
will, and will cause each of its consolidated Subsidiaries to, make and keep
books, records and accounts which, in reasonable detail, accurately and fairly
reflect its transactions and dispositions of its assets and maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
transactions are recorded as necessary to permit preparation of financial
statements required under Section 6.01 in conformity with GAAP and SAP, as
applicable, and to maintain accountability for assets.
SECTION 6.08. COMPLIANCE WITH APPLICABLE LAWS. Each Borrower
will, and will cause each of its Subsidiaries to, comply with all applicable
Laws (including but not limited to the Bermuda Companies Law and Bermuda
Insurance Laws) in all respects; PROVIDED that such Borrower or any Subsidiary
of such Borrower will not be deemed to be in violation of this Section as a
result of any failure to comply with any such Law which would not (i) result in
fines, penalties, injunctive relief or other civil or criminal liabilities
which, in the aggregate, would have a Material Adverse Effect or (ii) otherwise
impair the ability of such Borrower to perform its obligations under this
Agreement.
SECTION 6.09. USE OF PROCEEDS. Each Borrower will use the
proceeds of all Loans for its general corporate purposes (which may include
funding acquisitions, paying dividends and repurchasing securities).
SECTION 6.10. CONTINUATION OF AND CHANGE IN BUSINESSES. Each
Borrower and its Subsidiaries will continue to engage in substantially the same
business or businesses it engaged in (or proposes to engage in) on the date of
this Agreement and businesses related or incidental thereto.
SECTION 6.11. VISITATION. Each Borrower will permit such
Persons as any Lender may reasonably designate to visit and inspect any of the
properties of such Borrower, to discuss its affairs with its financial
management, and provide such other information relating to the business and
financial condition of such Borrower at such times as such Lender may reasonably
request. Each Borrower hereby authorizes its financial management to discuss
with any Lender the affairs of such Borrower.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, each of the Borrowers covenants and agrees with the Lenders that:
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SECTION 7.01. MERGERS. No Borrower will merge with or into or
consolidate with any other Person, except that if no Default shall occur and be
continuing or shall exist at the time of such merger or consolidation or
immediately thereafter and after giving effect thereto any Borrower may merge or
consolidate with any other corporation, including a Subsidiary, if such Borrower
shall be the surviving corporation.
SECTION 7.02. DISPOSITIONS. No Borrower will, nor will it
permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or
otherwise transfer or dispose of, voluntarily or involuntarily (any of the
foregoing being referred to in this Section as a "DISPOSITION" and any series of
related Dispositions constituting but a single Disposition), any of its
properties or assets, tangible or intangible (including but not limited to sale,
assignment, discount or other disposition of accounts, contract rights, chattel
paper or general intangibles with or without recourse), except:
(a) Dispositions in the ordinary course of business involving
current assets or other assets classified on such Borrower's balance
sheet as available for sale;
(b) sales, conveyances, assignments or other transfers or
dispositions in immediate exchange for cash or tangible assets,
PROVIDED that any such sales, conveyances or transfers shall not
individually, or in the aggregate for the Borrowers and their
respective Subsidiaries, exceed $500,000,000 in any calendar year; or
(c) Dispositions of equipment or other property which is
obsolete or no longer used or useful in the conduct of the business of
such Borrower or its Subsidiaries.
SECTION 7.03. LIENS. No Borrower will, nor will it permit any
of its Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or assets, tangible or intangible, now owned or hereafter acquired by
it, except:
(a) Liens existing on the date hereof (and extension, renewal
and replacement Liens upon the same property, PROVIDED that the amount
secured by each Lien constituting such an extension, renewal or
replacement Lien shall not exceed the amount secured by the Lien
theretofore existing) and listed on Part B of Schedule II;
(b) Liens arising from taxes, assessments, charges, levies or
claims described in Section 6.06 that are not yet due or that remain
payable without penalty or to the extent permitted to remain unpaid
under the provision of Section 6.06;
(c) Liens on property securing all or part of the purchase
price thereof to such Borrower and Liens (whether or not assumed)
existing on property at the time of purchase thereof by such Borrower
(and extension, renewal and replacement Liens upon the same property);
PROVIDED (i) each such Lien is confined solely to the property so
purchased, improvements thereto and proceeds thereof and (ii) the
aggregate amount of the obligations secured by all such Liens on any
particular property at any time purchased by such Borrower, as
applicable, shall not exceed 100% of the lesser of the fair market
value of such property at such time or the actual purchase price of
such property;
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(d) zoning restrictions, easements, minor restrictions on the
use of real property, minor irregularities in title thereto and other
minor Liens that do not in the aggregate materially detract from the
value of a property or asset to, or materially impair its use in the
business of, such Borrower or any such Subsidiary;
(e) Liens securing Indebtedness permitted by Section 7.07(c)
covering assets whose market value is not materially greater than the
amount of the Indebtedness secured thereby plus a commercially
reasonable margin;
(f) Liens on cash and securities of a Borrower or its
Subsidiaries incurred as part of the management of its investment
portfolio in accordance with XL Capital's Statement of Investment
Policy Objectives and Guidelines as in effect on the date hereof or as
it may be changed from time to time by a resolution duly adopted by the
board of directors, of XL Capital (or any committee thereof);
(g) Liens on (i) assets received, and on actual or imputed
investment income on such assets received, relating and identified to
specific insurance payment liabilities or to liabilities arising in the
ordinary course of any Borrower's or any of their Subsidiary's business
as an insurance or reinsurance company (including GICs) or corporate
member of The Council of Lloyd's or as a provider of financial or
investment services or contracts, or the proceeds thereof, in each case
held in a segregated trust or other account and securing such
liabilities or (ii) any other assets subject to any trust or other
account arising out of or as a result of contractual, regulatory or any
other requirements; PROVIDED that in no case shall any such Lien secure
Indebtedness and any Lien which secures Indebtedness shall not be
permitted under this clause (g);
(h) statutory and common law Liens of materialmen, mechanics,
carriers, warehousemen and landlords and other similar Liens arising in
the ordinary course of business; and
(i) Liens existing on property of a Person immediately prior
to its being consolidated with or merged into any Borrower or any of
their Subsidiaries or its becoming a Subsidiary, and Liens existing on
any property acquired by any Borrower or any of their Subsidiaries at
the time such property is so acquired (whether or not the Indebtedness
secured thereby shall have been assumed) (and extension, renewal and
replacement Liens upon the same property, PROVIDED that the amount
secured by each Lien constituting such an extension, renewal or
replacement Lien shall not exceed the amount secured by the Lien
theretofore existing); PROVIDED that (i) no such Lien shall have been
created or assumed in contemplation of such consolidation or merger or
such Person's becoming a Subsidiary or such acquisition of property and
(ii) each such Lien shall extend solely to the item or items of
property so acquired and, if required by terms of the instrument
originally creating such Lien, other property which is an improvement
to or is acquired for specific use in connection with such acquired
property.
SECTION 7.04. TRANSACTIONS WITH AFFILIATES. No Borrower will,
nor will it permit any of its Subsidiaries to, enter into or carry out any
transaction with (including, without
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limitation, purchase or lease property or services to, loan or advance to or
enter into, suffer to remain in existence or amend any contract, agreement or
arrangement with) any Affiliate of such Borrower, or directly or indirectly
agree to do any of the foregoing, except (i) transactions involving guarantees
or co-obligors with respect to any Indebtedness described in Part A of Schedule
II, (ii) transactions among the Borrowers and their wholly-owned Subsidiaries
and (iii) transactions with Affiliates in good faith in the ordinary course of
such Borrower's business consistent with past practice and on terms no less
favorable to such Borrower or any Subsidiary than those that could have been
obtained in a comparable transaction on an arm's length basis from an unrelated
Person.
SECTION 7.05. RATIO OF TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION. XL Capital will not permit its ratio of (a) Total Funded Debt to
(b) the sum of Total Funded Debt PLUS Consolidated Net Worth to be greater than
0.35:1.00 at any time.
SECTION 7.06. CONSOLIDATED NET WORTH. XL Capital will not
permit its Consolidated Net Worth to be less than the sum of (a) $4,500,000,000
PLUS (b) 25% of net income (if positive) for each fiscal quarter of XL Capital
commencing with the fiscal quarter ending June 30, 2000.
SECTION 7.07. INDEBTEDNESS. No Borrower will, nor will it
permit any of its Subsidiaries to, at any time create, incur, assume or permit
to exist any Indebtedness, or agree, become or remain liable (contingent or
otherwise) to do any of the foregoing, except:
(a) Indebtedness created hereunder,
(b) Indebtedness incurred pursuant to the Letter of Credit
Agreement;
(c) secured Indebtedness (including secured reimbursement
obligations with respect to letters of credit) of any Borrower or any
Subsidiary in an aggregate principal amount (for all Borrowers and
their respective Subsidiaries) not exceeding $300,000,000 at any time
outstanding;
(d) other unsecured Indebtedness, so long as upon the
incurrence thereof no Default would occur or exist;
(e) Indebtedness consisting of accounts or claims payable and
accrued and deferred compensation (including options) incurred in the
ordinary course of business by any Borrower or any Subsidiary;
(f) Indebtedness incurred in transactions described in Section
7.03(f); and
(g) Indebtedness existing on the date hereof and described in
Part A of Schedule II and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount
thereof.
SECTION 7.08. CLAIMS PAVING RATINGS. XL Capital will maintain
at all times a claims-paying rating of at least "A" from A.M. Best & Co. (or its
successor) and XL Insurance
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will maintain at all times a rating of at least "A" from Standard & Poor's
Rating Services (or its successor).
SECTION 7.09. PRIVATE ACT. No Borrower will become subject to
a Private Act other than the X.L. Insurance Company, Ltd. Act, 1989.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall
occur:
(a) any Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of 3 or more days;
(c) any representation or warranty made or deemed made by any
Borrower in or in connection with this Agreement or any amendment or
modification hereof, or in any certificate or financial statement
furnished pursuant to the provisions hereof, shall prove to have been
false or misleading in any material respect as of the time made (or
deemed made) or furnished;
(d) any Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Article VII;
(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article) and such failure
shall continue unremedied for a period of 20 or more days after notice
thereof from the Administrative Agent (given at the request of any
Lender) to such Obligor;
(f) any Borrower or any of its Subsidiaries shall default (i)
in any payment of principal of or interest on any other obligation for
borrowed money in principal amount of $50,000,000 or more, or any
payment of any principal amount of $50,000,000 or more under Hedging
Agreements, in each case beyond any period of grace provided with
respect thereto, or (ii) in the performance of any other agreement,
term or condition contained in any such agreement (other than Hedging
Agreements) under which any such obligation in principal amount of
$50,000,000 or more is created, if the effect of such default is to
cause or permit the holder or holders of such obligation (or trustee on
behalf of such holder or holders) to cause such obligation to become
due prior to its stated maturity or to terminate its commitment under
such agreement, PROVIDED that this clause
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(f) shall not apply to secured Indebtedness that becomes due as a
result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;
(g) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging any Borrower a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization of such Borrower under the Bermuda Companies Law or the
Cayman Islands Companies Law (2000 Revision), or any other similar
applicable Law, and such decree or order shall have continued
undischarged or unstayed for a period of 60 days; or a decree or order
of a court having jurisdiction in the premises for the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of such Borrower or a substantial part of its property, or
for the winding up or liquidation of its affairs, shall have been
entered, and such decree or order shall have continued undischarged and
unstayed for a period of 60 days;
(h) any Borrower shall institute proceedings to be adjudicated
a voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the Bermuda Companies Law or the Cayman
Islands Companies Law (2000 Revision) or any other similar applicable
Law, or shall consent to the filing of any such petition, or shall
consent to the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of it or a substantial part of its
property, or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they
become due, or corporate or other action shall be taken by such
Borrower in furtherance of any of the aforesaid purposes;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $100,000,000 shall be rendered against
any Borrower or any of its Subsidiaries or any combination thereof and
the same shall not have been vacated, discharged, stayed (whether by
appeal or otherwise) or bonded pending appeal within 45 days from the
entry thereof;
(j) an ERISA Event (or similar event with respect to any
Non-U. S. Benefit Plan) shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events and
such similar events that have occurred, could reasonably be expected to
result in liability of the Borrowers and their Subsidiaries in an
aggregate amount exceeding $100,000,000;
(k) a Change in Control shall occur;
(1) XL Capital shall cease to own, beneficially and of record,
directly or indirectly all of the outstanding voting shares of capital
stock of XL Insurance, XL Mid Ocean, XL America or XL Europe (except,
in the case of any company organized under the laws of Bermuda, for a
nominal number of shares owned by nominee shareholders required by the
Bermuda Companies Law); or
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(m) the guarantee contained in Article III shall terminate or
cease, in whole or material part, to be a legally valid and binding
obligation of each Guarantor or any Guarantor or any Person acting for
or on behalf of any of such parties shall contest such validity or
binding nature of such guarantee itself or the Transactions, or any
other Person shall assert any of the foregoing;
then, and in every such event (other than an event with respect to any Borrower
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrowers, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrowers accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrowers;
and in case of any event with respect to any Borrower described in clause (g) or
(h) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrowers accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrowers.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth
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herein, the Administrative Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to any
Borrower or any of their Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders or in the
absence of its own gross negligence or willful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by a Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article V or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for any Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying
the Lenders and the Borrowers. Upon any such resignation, the Required Lenders
shall have the right, in consultation with XL Capital, to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent's
resignation shall nonetheless become effective and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and (2) the Required Lenders shall perform the duties of the
Administrative Agent (and all payments and communications provided to be made
by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor
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agent as provided for above in this paragraph. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by XI, Capital to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between XL Capital and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Notwithstanding anything herein to the contrary, the Lead
Arranger, Book Manager, Syndication Agent and Co-Documentation Agents named on
the cover page of this Agreement shall not have any duties or liabilities under
this Agreement, except in their capacity, if any, as Lenders.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. NOTICES. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to XL Capital at Cumberland House, One
Victoria Street, Hamilton HM11 Bermuda, Attention of William Robbie
(Telecopy No. (441) 292-8618); WITH A COPY to Paul Giordano, Esq. at
the same address and telecopy number;
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, 1 Chase Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention of Loan and Agency Services Group, Attention of Laura Rebecca
(Telecopy No. (212) 552-7490; Telephone No. (212) 552-7253), WITH A
COPY to The Chase Manhattan Bank, 270 Park Avenue, New York, New York
10017, Attention of Donald Rands (Telecopy No. (212) 270-0670;
Telephone No. (212) 270-5528); and
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(c) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such change by a Lender, by notice to the Borrowers and the
Administrative Agent). All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to
have been given on the date of receipt.
SECTION 10.02. WAIVERS; AMENDMENTS.
(a) NO DEEMED WAIVERS; REMEDIES CUMULATIVE. No failure or
delay by the Administrative Agent or any Lender in exercising any right or power
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. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrowers
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) AMENDMENTS. Neither this Agreement nor any provision
hereof may be waived, amended or modified except pursuant to an agreement or
agreements in writing entered into by the Obligors and the Required Lenders or
by the Obligors and the Administrative Agent with the consent of the Required
Lenders; PROVIDED that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or reduce the
rate of interest thereon, or reduce any fees payable hereunder, without
the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal
amount of any Loan, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment,
or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby,
(iv) change Section 2.15(c) or 2.15(d) without the consent of
each Lender affected thereby,
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(v) release any of the Guarantors from any of their guarantee
obligations under Article III without the written consent of each
Lender, and
(vi) change any of the provisions of this Section or the
percentage in the definition of the term "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written
consent of each Lender;
and PROVIDED FURTHER that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
SECTION 10.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) COSTS AND EXPENSES. The Borrowers shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement or any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of one legal
counsel for the Administrative Agent and one legal counsel for the Lenders, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof and (iii) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement or any other
document referred to herein.
(b) INDEMNIFICATION BY THE BORROWERS. The Borrowers shall
indemnify the Administrative Agent and each Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an "INDEMNITEE")
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee (but not including Excluded
Taxes) incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the use of the proceeds therefrom, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by any
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to any Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on
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contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; PROVIDED that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses result from or arise out of the gross negligence or willful
misconduct of such Indemnitee.
(c) REIMBURSEMENT BY LENDERS. To the extent that the Borrowers
fail to pay any amount required to be paid by them to the Administrative Agent
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay
to the Administrative Agent such Lender's Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; PROVIDED that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent in its capacity
as such.
(d) WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the extent
permitted by applicable law, no Borrower shall assert, and each Borrower hereby
waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or the use of the proceeds thereof.
(e) PAYMENTS. All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 10.04. SUCCESSORS AND ASSIGNS.
(a) ASSIGNMENTS GENERALLY. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower
shall assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by a Borrower without such consent shall be null and void). Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) ASSIGNMENTS BY LENDERS. Any Lender may assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it); PROVIDED that
(i) except in the case of an assignment to a Lender or a
Lender Affiliate, each of the Borrowers and the Administrative Agent
must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld),
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(ii) except in the case of an assignment to a Lender or a
Lender Affiliate or an assignment of the entire remaining amount of the
assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrowers and the Administrative Agent
otherwise consent,
(iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement,
(iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver
an Administrative Questionnaire to the Administrative Agent (with a
copy to XL Capital);
PROVIDED FURTHER that any consent of the Borrowers otherwise required under this
paragraph shall not be required if an Event of Default under clause (a), (b),
(g) or (h) of Article VIII has occurred and is continuing. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 10.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
Notwithstanding anything to the contrary contained herein, any
Lender (a "GRANTING LENDER") may grant to a special purpose vehicle (an "SPV")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrowers, the option to
provide to the Borrowers all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrowers pursuant to Section 2.01,
PROVIDED that (i) nothing herein shall constitute a commitment by any SPV to
make any Loan, (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof and (iii) the Borrowers
may bring any proceeding against either or both the Granting Lender or the SPV
in order to enforce any rights of the Borrowers hereunder. The making of a Loan
by an SPV hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by the Granting Lender. Each party
hereto hereby agrees that no SPV shall be liable for any payment under this
Agreement for which
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a Lender would otherwise be liable, for so long as, and to the extent, the
related Granting Lender makes such payment. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the termination
of this Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPV, it will not institute against, or join any other person
in instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof arising out of any claim against such SPV
under this Agreement. In addition, notwithstanding anything to the contrary
contained in this Section, any SPV may with notice to, but without the prior
written consent of, the Borrowers or the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its interests in any
Loans to its Granting Lender or to any financial institutions (consented to by
the Borrowers and the Administrative Agent) providing liquidity and/or credit
support (if any) with respect to commercial paper issued by such SPV to fund
such Loans and such SPV may disclose, on a confidential basis, confidential
information with respect to any Borrower and its Subsidiaries to any rating
agency, commercial paper dealer or provider of a surety, guarantee or credit
liquidity enhancement to such SPV. This paragraph may not be amended without the
consent of any SPV at the time holding Loans under this Agreement.
(c) MAINTENANCE OF REGISTER BATHE ADMINISTRATIVE AGENT. The
Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at one of its offices in New York City a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
"REGISTER"). The entries in the Register shall be conclusive, and the Borrowers,
the Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by any Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) EFFECTIVENESS OF ASSIGNMENTS. Upon its receipt of a duly
completed Assignment and Acceptance executed by an assigning Lender and an
assignee, the assignee's completed Administrative Questionnaire (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) PARTICIPATIONS. Any Lender may, without the consent of the
Borrowers or the Administrative Agent, sell participations to one or more banks
or other entities (a "PARTICIPANT") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); PROVIDED that (i) any such participation
sold to a Participant which is not a Lender, a Lender Affiliate or a Federal
Reserve Bank shall be made only with the consent (which in each case shall not
be
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- 47 -
unreasonably withheld) of XL Capital and the Administrative Agent, unless a
Default has occurred and is continuing, in which case the consent of XL Capital
shall not be required, (ii) such Lender's obligations under this Agreement shall
remain unchanged, (iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iv) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; PROVIDED that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrowers agree that
each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and
2.14 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) LIMITATIONS ON RIGHTS OF ASSIGNEES AND PARTICIPANTS. A
Participant or Assignee shall not be entitled to receive any greater payment
under Section 2.12 or 2.14 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant or the
Lender interest assigned, unless the sale of the participation to such
Participant or the assignment is made with the Borrowers' prior written consent.
(g) CERTAIN PLEDGES. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any such pledge or
assignment to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party
hereto.
(h) NO ASSIGNMENTS TO ANY BORROWER OR AFFILIATES. Anything in
this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan held by it hereunder to any Borrower or any
of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 10.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.12, 2.13, 2.14 and 10.03 and
Article IX shall survive and remain in full
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force and effect regardless of the consummation of the transactions contemplated
hereby, the repayment of the Loans, the expiration or termination of the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. SEVERABILITY. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of any Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. GOVERNING LAW; Jurisdiction; Etc.
(a) GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) SUBMISSION TO JURISDICTION. Each Obligor hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and
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unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Obligor or its properties in
the courts of any jurisdiction.
(c) WAIVER OF VENUE. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) SERVICE OF PROCESS. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 10.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
(e) WAIVER OF IMMUNITIES. To the extent that any Borrower has
or hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution or execution, on the ground of sovereignty or
otherwise) with respect to itself or its property, it hereby irrevocably waives,
to the fullest extent permitted by applicable law, such immunity in respect of
its obligations under this Agreement.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-50-
SECTION 10.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. TREATMENT OF CERTAIN INFORMATION;
CONFIDENTIALITY.
(a) TREATMENT OF CERTAIN INFORMATION. Each of the Account
Parties acknowledge that from time to time financial advisory, investment
banking and other services may be offered or provided to any Account Party or
one or more of their Subsidiaries (in connection with this Ageement or
otherwise) by any Lender or by one or more subsidiaries or affiliates of such
Lender and each of the Account Parties hereby authorizes each Lender to share
any information delivered to such Lender by such Account Party and its
Subsidiaries pursuant to this Agreement, or in connection with the decision of
such Lender to enter into this Ageement, to any such subsidiary or affiliate, it
being understood that (i) any such information shall be used only for the
purpose of advising the Account Parties or preparing presentation materials for
the benefit of the Account Parties and (ii) any such subsidiary or affliate
receiving such information shall be bound by the provisions of paragraph (b) of
this Section as if it were a Lender hereunder. Such authorization shall survive
the expiration or termination of the Letters of Credit and the Commitments or
the termination of this Agreement or any provision hereof.
(b) CONFIDENTIALITY. Each of the Administrative Agent and the
Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority having jurisdiction over the Administrative Agent or
any Lender, (iii) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (vi) subject to an agreement in writing containing provisions
substantially the same as those of this paragraph and for the benefit of the
Account Parties, to (a) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (b) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to any Account Party and its
obligations, (vii) with the consent of the Account Parties or (viii) to the
extent such Information (A) becomes publicly available other than as a result of
a breach of this paragraph or (B) becomes available to the Administrative Agent
or any Lender on a nonconfidential basis from a source other than an Account
Party. For the purposes of this paragraph, "INFORMATION" means all information
received from an Account Party relating to an Account Party or its business,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by such Account Party;
PROVIDED that, in the case of information received from an Account Party after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-51-
Person would accord to its own confidential information. Notwithstanding the
foregoing, each of the Administrative Agent and the Lenders agree that they will
not trade the securities of any of the Account Parties based upon non-public
Information that is received by them.
SECTION 10.13. JUDGMENT CURRENCY. This is an international
loan transaction in which the specification of Dollars and payment in New York
City is of the essence, and the obligations of each Account Party under this
Agreement to make payment to (or for account of) a Lender in Dollars shall not
be discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any other currency or in another place except to
the extent that such tender or recovery results in the effective receipt by such
Lender in New York City of the full amount of Dollars payable to such Lender
under this Agreement. If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due hereunder in Dollars into another currency (in
this Section called the "JUDGMENT CURRENCY"), the rate of exchange that shall be
applied shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase such Dollars at the principal office of the
Administrative Agent in New York City with the judgment currency on the Business
Day next preceding the day on which such judgment is rendered. The obligation of
each Account Party in respect of any such sum due from it to the Administrative
Agent or any Lender hereunder (in this Section called an "ENTITLED PERSON")
shall, notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following
receipt by such Entitled Person of any sum adjudged to be due hereunder in the
judgment currency such Entitled Person may in accordance with normal banking
procedures purchase and transfer Dollars to New York City with the amount of the
judgment currency so adjudged to be due; and each Account Party hereby, as a
separate obligation and notwithstanding any such judgment, agrees to indemnify
such Entitled Person against, and to pay such Entitled Person on demand, in
Dollars, the amount (if any) by which the sum originally due to such Entitled
Person in Dollars hereunder exceeds the amount of the Dollars so purchased and
transferred.
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
X.L. AMERICA, INC.,
as an Account Party and a Guarantor
By: /s/ Martha G. Bannerman
------------------------------
Name: Martha G. Bannerman
Title:
XL INSURANCE LTD.,
as an Account Party and a Guarantor
By:
------------------------------
Name:
Title:
XL EUROPE LTD,
as an Account Party and a Guarantor
By:
------------------------------
Name:
Title:
XL MID OCEAN REINSURANCE LTD.,
as an Account Party and a Guarantor
By:
------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
X.L. AMERICA, INC.,
as an Account Party and a Guarantor
By:
------------------------------
Name:
Title:
XL INSURANCE LTD.,
as an Account Party and a Guarantor
By:
------------------------------
Name:
Title:
XL EUROPE LTD,
as an Account Party and a Guarantor
By: /s/ Walker Rainey
------------------------------
Name: WALKER RAINEY
Title: Executive Vice President
and Chief Financial Officer
XL MID OCEAN REINSURANCE LTD.,
as an Account Party and a Guarantor
By:
------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
X.L. AMERICA, INC.,
as an Account Party and a Guarantor
By:
------------------------------
Name:
Title:
XL INSURANCE LTD.,
as an Account Party and a Guarantor
By: /s/ C. Greetham
------------------------------
Name: CHRISTOPHER V. GREETHAM
Title: EVP and Chief Investment
Officer
XL EUROPE LTD,
as an Account Party and a Guarantor
By:
------------------------------
Name:
Title:
XL MID OCEAN REINSURANCE LTD.,
as an Account Party and a Guarantor
By:/s/ C. Greetham
------------------------------
Name: CHRISTOPHER V. GREETHAM
Title: EVP and Chief Investment
Officer
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
IN WITNESS WHEREOF, XL Capital has caused this Agreement to be
duly executed as a Deed by an authorized officer as of the day and year first
above written.
EXECUTED AS A DEED by XL CAPITAL
LTD,
as an Account Party and a Guarantor
/s/ Michael Siese
---------------------------------
witness
By /s/ Paul S. Giordano
------------------------------
Name: PAUL S. GIORDANO
Title: Secretary
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-54-
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: /s/ Donald Rands
-------------------------------------
Name: DONALD RANDS
Title: Vice President
CITIBANK, N.A.
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
-------------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-54-
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By:
-------------------------------------
Name:
Title:
CITIBANK, N.A.
By: /s/ Alan Chalmers
-------------------------------------
Name: ALAN CHALMERS
Title: Managing Director
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
-------------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-54-
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By:
-------------------------------------
Name:
Title:
CITIBANK, N.A.
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By: /s/ John S. McGill
-------------------------------------
Name: JOHN S. MCGILL
Title: Director
By: /s/ Ruth Leung
-------------------------------------
Name: RUTH LEUNG
Title: Director
MELLON BANK, N.A.
By:
-------------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-54-
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By:
-------------------------------------
Name:
Title:
CITIBANK, N.A.
By:
-------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
MELLON BANK, N.A.
By: /s/ Susan M. Whitehood
-------------------------------------
Name: Susan M. Whitehood
Title: Vice President
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-55-
FLEET NATIONAL BANK
By: /s/ Lisa A. Pile
--------------------------
Name: LISA A. PILE
Title: Assistant Vice President
BANK ONE, NA (MAIN OFFICE CHICAGO)
By:
--------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-55-
FLEET NATIONAL BANK
By:
--------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO)
By: /s/ S. W. Bridges
--------------------------
Name: SAMUEL W. BRIDGES
Title: Senior Vice President
ABN AMRO BANK N.V.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
BARCLAYS BANK PLC
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-55-
FLEET NATIONAL BANK
By:
--------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO)
By:
--------------------------
Name:
Title:
ABN AMRO BANK N.V.
By: /s/ Ray Catt
--------------------------
Name: RAY CATT
Title: Head of Insurance Banking
By: /s/ Martyn Taplin
--------------------------
Name: Martyn Taplin
Title:
BARCLAYS BANK PLC
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-55-
FLEET NATIONAL BANK
By:
--------------------------
Name:
Title:
BANK ONE, NA (MAIN OFFICE CHICAGO)
By:
--------------------------
Name:
Title:
ABN AMRO BANK N.V.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
BARCLAYS BANK PLC
By: /s/ J.V. French
--------------------------
Name: J.V. French
Title: Relationship Director
By:
--------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-56-
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Sebastian Rocco
----------------------------------
Name: SEBASTIAN ROCCO
Title: Senior Vice President
BANK OF AMERICA, N.A.
By:
----------------------------------
Name:
Title:
ING BANK, N.V., LONDON BRANCH
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
----------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-56-
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By: /s/ Debra Basler
----------------------------------
Name: DEBRA BASLER
Title: Vice President
ING BANK, N.V., LONDON BRANCH
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
----------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-56-
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By:
----------------------------------
Name:
Title:
ING BANK, N.V., LONDON BRANCH
By: /s/ Mike Sharman
----------------------------------
Name: MIKE SHARMAN
Title: Director
By: /s/ James Longden
----------------------------------
Name: JAMES LONGDEN
Title: Director
FIRST UNION NATIONAL BANK
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
----------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-56-
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By:
----------------------------------
Name:
Title:
ING BANK, N.V., LONDON BRANCH
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/ D. J. Norton
----------------------------------
Name: DANIEL J. NORTON
Title: Director
STATE STREET BANK AND TRUST COMPANY
By:
----------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-56-
CREDIT LYONNAIS NEW YORK BRANCH
By:
----------------------------------
Name:
Title:
BANK OF AMERICA, N.A.
By:
----------------------------------
Name:
Title:
ING BANK, N.V., LONDON BRANCH
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By: /s/ Edward M. Anderson
----------------------------------
Name: EDWARD M. ANDERSON
Title: Vice President
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
-57-
THE BANK OF BERMUDA LIMITED
By: /s/ Michael Collins
-------------------------------
Name: MR. MICHAEL COLLINS
Title: Sr. Vice President
COMERICA BANK
By:
-------------------------------
Name:
Title:
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
THE BANK OF BERMUDA LIMITED
By:
-------------------------------
Name:
Title:
COMERICA BANK
By: /s/ Carlyle E. Justus
-------------------------------
Name: CARLYLE E. JUSTUS
Title: First Vice President
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
SCHEDULE I
COMMITMENTS
NAME OF LENDER COMMITMENT ($)
- --------------- --------------
The Chase Manhattan Bank 103,750,000
Citibank, N.A. 100,420,000
Deutsche Bank AG, New York and/or Cayman Islands Branches 100,420,000
Mellon Bank, N.A. 100,420,000
ING Bank, N.V., London Branch 75,000,000
Fleet National Bank 66,670,000
Bank One, NA (Main Office Chicago) 66,670,000
ABN AMRO Bank N.V. 66,670,000
Barclays Bank PLC 66,670,000
Credit Lyonnais New York Branch 66,670,000
Bank of America, N.A. 66,670,000
First Union National Bank 33,330,000
State Street Bank and Trust Company 33,330,000
Comerica Bank 33,330,000
The Bank of Bermuda, Limited 20,000,000
TOTAL: $1,000,000,000
SCHEDULE I TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
SCHEDULE II
INDEBTEDNESS AND LIENS
Part A - INDEBTEDNESS
SCHEDULE II-A
INDEBTEDNESS
1. Credit Agreement (5-Year) between Mid Ocean Limited and The Chase Manhattan
Bank, incorporated by reference to Exhibit 10.14.1 to the Company's Annual
Report on Form 10-K (No. 1-10804) for the year ended November 30, 1998.
2. Amendment No. 1 to Credit Agreement (5-Year) between Mid Ocean Limited and
The Chase Manhattan Bank, incorporated by reference to Exhibit 10.14.2 to the
Company's Annual Report on Form 10-K (No. 1-10804) for the year ended November
30, 1998.
3. Amendment No. 2 to Credit Agreement (5-Year) between Mid Ocean Limited and
The Chase Manhattan Bank.
4. Amendment No. 3 to Credit Agreement (5-Year) between Mid Ocean Limited and
The Chase Manhattan Bank.
5. Revolving Credit Agreement Between XL Insurance Company, Ltd. and Mellon
Bank, N.A., incorporated by reference to Exhibit (b)(2) of the GCR Schedule
14D-1, incorporated by reference to Exhibit 10.14.14 to the Company's Annual
Report on Form 10-K (No. 1-10804) for the year ended November 30, 1998.
6. First Amendment to Revolving Credit Agreement between XL Insurance Company,
Ltd. and Mellon Bank, N.A., incorporated by reference to Exhibit 10.14.15 to the
Company's Annual Report on Form 10-K for the year ended November 30, 1998.
7. Second Amendment to Revolving Credit Agreement between XL Insurance Company,
Ltd. and Mellon Bank, N.A., incorporated by reference to Exhibit 10.14.16 to the
Company's Annual Report on Form 10-K for the year ended November 30, 1998.
8. Third Amendment to Revolving Credit Agreement between XL Insurance Company,
Ltd. and Mellon Bank, N.A.
9. Fourth Amendment to Revolving Credit Agreement between XL Insurance Company,
Ltd. and Mellon Bank, N.A.
10. Fifth Amendment to Revolving Credit Agreement between XL Insurance Company,
Ltd. and Mellon Bank, N.A.
11. Short Term Revolving Credit Agreement between XL Capital Ltd et al and
Mellon Bank, N.A., dated as of June 30, 1999.
-2-
12. First Amendment to Short Term Revolving Credit Agreement between XL Capital
Ltd et al. and Mellon Bank, N.A.
13. Letter of Credit Facility and Reimbursement Agreement dated as of June 30,
1999 by and among XL Insurance Ltd et al. and Mellon Bank, N.A.
14. First Amendment to Letter of Credit Facility and Reimbursement Agreement
dated as of June 30, 1999 by and among XL Insurance Ltd et al. and Mellon Bank,
N.A.
15. Letter of Credit Facility and Reimbursement Agreement dated as of December
30, 1999 by and among XL Insurance Ltd et al. and Mellon Bank, N.A.
16. First Amendment to Letter of Credit Facility and Reimbursement Agreement
dated as of December 30, 1999 by and among XL Insurance Ltd et al. and Mellon
Bank, N.A.
17. Letter of Credit Agreement dated as of December 17, 1999 by and among XL
Insurance Ltd, XL Mid Ocean Reinsurance Ltd and The Chase Manhattan Bank.
18. First Amendment to Letter of Credit Agreement dated as of December 17, 1999
by and among XL Insurance Ltd, XL Mid Ocean Reinsurance Ltd and The Chase
Manhattan Bank.
19. Letter of Credit Facility Agreement dated as of December 17, 1999 by and
among XL Capital Ltd et al. and ING Bank, N.V. (London Branch).
20. Amendment No. 1 to Letter of Credit Facility Agreement dated as of December
17, 1999 by and among XL Capital Ltd et al. and ING Bank, N.V. (London Branch).
21. Letter of Credit Agreement (Secured) between Citibank and XL Mid Ocean
Reinsurance Ltd, dated as of 19th May, 1993 (as amended).
22. $11 million Term Loan Agreement between Exel Cumberland and the Bank of
Bermuda (Luxembourg) S.A.
23. Semi-secured Letter of Credit Facility between Barclays Bank plc and NAC
Reinsurance International Limited, dated November 16, 1999.
24. 7.15% Senior Notes due 2005 issued by NAC Reinsurance.
-3-
25. Arrangements for Letters of Credit issued for NAC Reinsurance Corp. for U.S.
facility by Fleet Boston.
26. Arrangements for Letters of Credit issued for Latin America Reinsurance by
Fleet Boston.
Part B - LIENS
SCHEDULE II TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
SCHEDULE II-B
LIENS
1. Liens existing pursuant to the agreement referred to in paragraphs 13 and 14
of Schedule II-A.
2. Liens existing pursuant to the agreement referred to in paragraph 21 of
Schedule II-A.
3. Liens existing pursuant to the agreement referred to in paragraph 23 of
schedule II-A.
4. Collateral held as blocked deposits at Barclays for Letters of Credit between
Lloyd (Denham) and NAC Reinsurance International Ltd.
SCHEDULE III
LITIGATION
None.
SCHEDULE III TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
SCHEDULE IV
ENVIRONMENTAL MATTERS
None.
SCHEDULE IV TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
SCHEDULE V
SUBSIDIARIES
SCHEDULE V TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
XL CAPITAL LTD - CAYMAN
- -----------------------
EXEL HOLDINGS LIMITED - CAYMAN(1)
XL INSURANCE LTD - BERMUDA
XL FINANCIAL ASSURANCE LTD. (85%) - BERMUDA
XL CAPITAL PRODUCTS LTD - BERMUDA
XL INVESTMENTS LTD - BERMUDA
X.L. Investment Private Trustee Ltd. - BERMUDA
XL Investments (Barbados) Inc. - BARBADOS
First Cumberland Bank, Inc. - BARBADOS
Garrison Investments Inc. - BARBADOS
Kensington Investments Inc. - BARBADOS
XLB Partners Inc. - BARBADOS IBC
Cumberland Holdings, Inc. - DE
Cumberland California, Inc. - DE
Cumberland New York, Inc. - DE
InQuisLogic Ltd. - BARBADOS
InQuisLogic Inc. - DE
RiskConnect Ltd. - BARBADOS
RiskConnect Inc. - DE
FINANCIAL SECURITY ASSURANCE INTERNATIONAL LTD. (80%) - BERMUDA
XL GLOBAL SERVICES (BERMUDA) LTD. - BERMUDA
XL HOLDINGS BARBADOS LTD. - BARBADOS
X.L. America Inc. - DE
Brockbank Insurance Services Inc. - CA
Global Credit Analytics, Inc. - DE
XL Global Services, Inc. - DE
NAC RE CORPORATION - DE
NAC Re International Holdings Ltd - UK
NAC Reinsurance International Limited - UK
Denham Syndicate Management Ltd - UK
Stonebridge Underwriting Ltd - UK
NAC Re International Services Co., Ltd - UK
NAC REINSURANCE CORPORATION (A - 76%) - NY
NAC Re Investment Holdings, Inc. - DE XL Capital
Assurance, Inc. - NY Intercargo Corporation - DE
Intercargo International Limited - BVI
ECS INC. - PA (70%)
ECS ALTERNATIVE MARKET SERVICES, INC. - PA
ECS HOLDINGS, INC. - DE
ECS International, Inc. - DE
ECS Asesores en Seguros Medioambientales,
S.A.R.L. - SPAIN
The ECS Group, Ltd - UK
ECS Underwriting Ltd. - UK
Environmental Compliance Svcs Ltd. - UK
Consulting Services International Ltd. - UK
ECS Asesores en Aseguramiento de Riesgos
Ambientales S.A. de C.V. - MEXICO
Risk & Insurance Services, Inc. - BARBADOS
ECS UNDERWRITING, INC. - PA
ECS CLAIMS ADMINISTRATORS, INC. - PA
ECS RISK CONTROL, INC. - PA
ECS CHILD CARE CENTER, INC. - PA
X.L. ONE LTD. - BERMUDA
XL Europe (50%) - REPUBLIC OF IRELAND
X.L. TWO LTD. - BERMUDA
XL Europe (50%) - REPUBLIC OF IRELAND
XL Australia Pty Ltd - AUSTRALIA
XL Prevent Ltd - UK
IPT COMPLIANCE LIMITED - UK
EXEL CUMBERLAND LIMITED - UK
INQUISCAPITAL HOLDINGS (BERMUDA) LIMITED - BERMUDA
InQuisLogic (Bermuda) Limited - BERMUDA
RiskConnect Limited - BERMUDA
EXEL ACQUISITION LTD. - CAYMAN
GCR HOLDINGS LIMITED - CAYMAN (IN LIQUIDATION)
X.L. PROPERTY HOLDINGS LTD. - BERMUDA
MID OCEAN LIMITED - CAYMAN
MID OCEAN HOLDINGS LIMITED - BERMUDA
XL Mid Ocean Reinsurance Ltd - BERMUDA
ECS Reinsurance Ltd - BERMUDA
Global Capital Underwriting Ltd. - UK
LARC Holdings Ltd. - BERMUDA
Latin America Reinsurance Company Ltd. - BERMUDA
Ridgewood Holdings Company - BERMUDA
The Brockbank Group Plc - UK
Brockbank Holdings Limited - UK
Baltusrol Holdings Ltd - BERMUDA
County Down Limited - CORPORATE MEMBER SYNDICATE 2253
Dornoch Limited - CORPORATE MEMBER SYNDICATE 1209
Brockbank Underwriting Limited - UK
Brockbank Personal Lines Limited - SYNDICATES 253/2253
Cassidy Brockbank Limited (DORMANT)
Brockbank Syndicate Management Limited - SYNDICATES 588/861/1209
Brockbank Syndicate Services Limited
(1) 100% ownership unless otherwise indicated
SCHEDULE VI
Letters of Credit
SCHEDULE VI TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
XL CAPITAL LTD
LETTERS OF CREDIT IN ISSUE AT JUNE 27, 2000
BANK SCHEME BENEFICIARY NUMBER AMOUNT CCY RATE USD
Bank One Mini-syndicate NAC Reinsurance TBA 30,000,000.00 USD 1.00 30,000,000.00
BANK ONE TOTAL 30,000,000.00
Barclays NAC International The Council Of Lloyd's 99234 1,200,000.00 GBP 1.50 1,800,000.00
Barclays NAC International The Council Of Lloyd's 98239 25,000,000.00 GBP 1.50 37,500,000.00
BARCLAYS TOTAL 39,300,000.00
Chase Bilateral NAC Reinsurance TBA 100,000,000.00 USD 1.00 100,000,000.00
CHASE TOTAL 100,000,000.00
Citibank Non-London Scheme American International Underwriters 300385 529,768.64 USD 1.00 529,768.64
Citibank Non-London Scheme American International Underwriters 600585 3,751,538.60 USD 1.00 3,751,538.60
Citibank Non-London Scheme American International Underwriters 600887 1,679,462.27 USD 1.00 1,679,462.27
Citibank Non-London Scheme American International Underwriters 600895 29,497.00 USD 1.00 29,497.00
Citibank Non-London Scheme American States Insurance 600274 12,065.00 USD 1.00 12,065.00
Citibank Non-London Scheme Amerisure Companies 600440 44,945.00 USD 1.00 44,945.00
Citibank Non-London Scheme Arkwright Mutual Insurance Co 600337 13,621.73 USD 1.00 13,621.73
Citibank Non-London Scheme Arkwright Mutual Insurance Company 600474 243,635.15 USD 1.00 243,635.15
Citibank Non-London Scheme Arkwright Mutual Insurance Company 600487 264,692.00 USD 1.00 264,692.00
Citibank Non-London Scheme Arkwright Mutual Insurance Company 600592 750,000.00 USD 1.00 750,000.00
Citibank Non-London Scheme Atlantic Mutual Company 600460 6,412.45 USD 1.00 6,412.45
Citibank Non-London Scheme Atlantic Mutual Company 600471 20,590.97 USD 1.00 20,590.97
Citibank Non-London Scheme Atlantic Mutual Insurance Company 600593 209,241.70 USD 1.00 209,241.70
Citibank Non-London Scheme Axa Reinsurance Company 300918 9,227.19 USD 1.00 9,227.19
Citibank Non-London Scheme Axa Reinsurance Company 300919 12,184.33 USD 1.00 12,184.33
Citibank Non-London Scheme Barclays Bank Plc 400094 65,498.04 USD 1.00 65,498.04
Citibank Non-London Scheme Century Indemnity Company 600899 36,162,350.00 USD 1.00 36,162,350.00
Citibank Non-London Scheme Century National Insurance Company 600340 859,339.75 USD 1.00 859,339.75
Citibank Non-London Scheme Chubb And Son Inc For And On Behalf 159779 411,161.39 USD 1.00 411,161.39
Citibank Non-London Scheme Chubb And Son Inc For And On Behalf 600296 671.88 USD 1.00 671.88
Citibank Non-London Scheme Chubb And Son Inc. 159782 764,080.29 USD 1.00 764,080.29
Citibank Non-London Scheme Chubb And Son Incorporated For And 600473 79,253.45 USD 1.00 79,253.45
Citibank Non-London Scheme Church Insurance Company 600326 5,040.85 USD 1.00 5,040.85
Citibank Non-London Scheme Church Insurance Company 600327 37,914.90 USD 1.00 37,914.90
Citibank Non-London Scheme Church Insurance Company 600583 45,400.00 USD 1.00 45,400.00
Citibank Non-London Scheme Church Mutual Insurance Company 600412 3,316.35 USD 1.00 3,316.35
Citibank Non-London Scheme Cigna Reinsurnace Company 81324 15,123.99 USD 1.00 15,123.99
Citibank Non-London Scheme Citibank Na As Trustee Surplus Line 600654 34,240.00 USD 1.00 34,240.00
Citibank Non-London Scheme Citibank Na As Trustee Surplus Line 600655 1,227,942.00 USD 1.00 1,227,942.00
Citibank Non-London Scheme Colonia Insurance Company 600618 36,000.00 USD 1.00 36,000.00
Citibank Non-London Scheme Colonial Penn Insurance Company 600135 17,059.25 USD 1.00 17,059.25
Citibank Non-London Scheme Commercial Union Insurance Company 600289 20,444.45 USD 1.00 20,444.45
Citibank Non-London Scheme Commercial Union Insurance Company 600486 91,233.10 USD 1.00 91,233.10
Citibank Non-London Scheme Commercial Union Insurance Company 600594 164,808.14 USD 1.00 164,808.14
Citibank Non-London Scheme Continental Casualty Company 600584 268,012.57 USD 1.00 268,012.57
Citibank Non-London Scheme Employers Mutual Casualty Company 600449 26,702.11 USD 1.00 26,702.11
Citibank Non-London Scheme Employers Mutual Casualty Company 600622 130,500.00 USD 1.00 130,500.00
Citibank Non-London Scheme Everest Reinsurance Company 600572 105,371.85 USD 1.00 105,371.85
Citibank Non-London Scheme Everest Reinsurance Company 600880 18,641.00 USD 1.00 18,641.00
Citibank Non-London Scheme Farmers Mutual Hail Ins Co Of Iowa 600617 12,150.00 USD 1.00 12,150.00
Citibank Non-London Scheme Fire Insurance Exchange 600422 15,600.00 USD 1.00 15,600.00
Citibank Non-London Scheme Fire Insurance Exchange 600862 5,883,074.20 USD 1.00 5,883,074.20
Citibank Non-London Scheme Firemans Fund Insurance Companies 600574 51,864.67 USD 1.00 51,864.67
Citibank Non-London Scheme First Allmerica Financial Life 600480 35,402.83 USD 1.00 35,402.83
Citibank Non-London Scheme Folksamerica Re 600619 72,000.00 USD 1.00 72,000.00
Citibank Non-London Scheme Folksamerica Re Co 600143 142,462.44 USD 1.00 142,462.44
Citibank Non-London Scheme G.E Reinsurance Corporation 600130 52,673.70 USD 1.00 52,673.70
Citibank Non-London Scheme G.Lloyd-Roberts Synd 55 400067 62,388.93 USD 1.00 62,388.93
Citibank Non-London Scheme General Accident Insurance Company 600295 7,376.30 USD 1.00 7,376.30
Citibank Non-London Scheme General Accident Insurance Company 600446 54,525.86 USD 1.00 54,525.86
Citibank Non-London Scheme General Accident Insurance Company 600485 220,972.70 USD 1.00 220,972.70
Citibank Non-London Scheme General American Life Insurance 600483 25,464.56 USD 1.00 25,464.56
Citibank Non-London Scheme Gerling America Insurance Company 600577 114,618.82 USD 1.00 114,618.82
Citibank Non-London Scheme Great American Insurance Company 600433 47,627.14 USD 1.00 47,627.14
Citibank Non-London Scheme Gryphon Insurance Group For And On 600410 767,955.76 USD 1.00 767,955.76
Citibank Non-London Scheme Harleysville Insurance Company 600621 18,000.00 USD 1.00 18,000.00
Citibank Non-London Scheme Hartford Fire Insurance Company 600197 77,165.63 USD 1.00 77,165.63
Citibank Non-London Scheme Hartford Fire Insurance Company 600416 3,343.20 USD 1.00 3,343.20
Citibank Non-London Scheme Hartford Fire Insurance Company 600451 235,022.34 USD 1.00 235,022.34
Citibank Non-London Scheme Hartford Fire Insurance Company 600579 22,576.77 USD 1.00 22,576.77
Citibank Non-London Scheme Hartford Fire Insurance Company 600587 262,903.70 USD 1.00 262,903.70
Citibank Non-London Scheme Hartford Steam Boiler 600455 625,366.78 USD 1.00 625,366.78
Citibank Non-London Scheme Hartford Steam Boiler 600589 8,464,787.17 USD 1.00 8,464,787.17
Citibank Non-London Scheme Hartford Steam Boiler Inspection 600287 98,310.29 USD 1.00 98,310.29
Citibank Non-London Scheme Hartford Steam Boiler Inspection 600865 1,785,523.16 USD 1.00 1,785,523.16
Citibank Non-London Scheme Home Ins. Company 63966 93,510.63 USD 1.00 93,510.63
Citibank Non-London Scheme Home Insurance Companies 159781 123,236.00 USD 1.00 123,236.00
Citibank Non-London Scheme Home Insurance Company 300378 315,215.27 USD 1.00 315,215.27
Citibank Non-London Scheme Home Insurance Company Inc 600085 181,146.00 USD 1.00 181,146.00
Citibank Non-London Scheme Insurance Company Of North America 600578 405,086.00 USD 1.00 405,086.00
Citibank Non-London Scheme Insurance Corp Of New York 600616 36,000.00 USD 1.00 36,000.00
Citibank Non-London Scheme Kemper Insurance Group 600292 36,764.10 USD 1.00 36,764.10
Citibank Non-London Scheme Liberty Mutual Insurance Co 600565 195,320.00 USD 1.00 195,320.00
Citibank Non-London Scheme Lloyds Of London 81556 3,051,607.00 GBP 1.50 4,577,410.50
Citibank Non-London Scheme Lloyds Syndicate 1209 Premium 400123 3,848,797.00 GBP 1.50 5,773,195.50
Citibank Non-London Scheme Lloyds Syndicate 1209 Premium Trust 400077 295,064.00 GBP 1.50 442,596.00
Citibank Non-London Scheme Lloyds Syndicate 1209 Premium Trust 400089 153,770.00 GBP 1.50 230,655.00
Citibank Non-London Scheme Lloyds Syndicate 1209 Premium Trust 400111 599,003.00 GBP 1.50 898,504.50
Citibank Non-London Scheme Lloyds Syndicate 861 Premium 400110 1,215,059.00 GBP 1.50 1,822,588.50
Citibank Non-London Scheme Lloyds Syndicate 861 Premium 400122 5,101,893.00 GBP 1.50 7,652,839.50
Citibank Non-London Scheme Lloyds Syndicate 861 Premium Trust 400076 911,249.00 GBP 1.50 1,366,873.50
Citibank Non-London Scheme Lloyds Syndicate 861 Premium Trust 400090 406,821.00 GBP 1.50 610,231.50
Citibank Non-London Scheme Lmi Insurance Company 600268 75,644.41 USD 1.00 75,644.41
Citibank Non-London Scheme Maryland Casualty Company 600086 29,196.25 USD 1.00 29,196.25
Citibank Non-London Scheme Michigan Millers Mutual Insurance 600136 11,835.00 USD 1.00 11,835.00
Citibank Non-London Scheme Mt. Hawley Insurance Company 600317 25,362.00 USD 1.00 25,362.00
Citibank Non-London Scheme Mt.Hawley Insurance Co 600549 97,811.00 USD 1.00 97,811.00
Citibank Non-London Scheme Mutual Marine Office 600290 10,319.60 USD 1.00 10,319.60
Citibank Non-London Scheme Mutual Marine Office 600573 4,563.44 USD 1.00 4,563.44
Citibank Non-London Scheme Nac Reinsurance Corporation 601050 150,000,000.00 USD 1.00 150,000,000.00
Citibank Non-London Scheme National Reinsurance Corp. 600310 350,000.00 USD 1.00 350,000.00
Citibank Non-London Scheme National Reinsurance Corporation 400056 174,929.85 USD 1.00 174,929.85
Citibank Non-London Scheme National Reinsurance Corporation 600271 87,639.00 USD 1.00 87,639.00
Citibank Non-London Scheme National Union Fire Ins. Co. 159158 2,535,464.56 USD 1.00 2,535,464.56
Citibank Non-London Scheme National Union Fire Insurance 600291 38,685.56 USD 1.00 38,685.56
Citibank Non-London Scheme National Union Fire Insurance 600463 193,654.01 USD 1.00 193,654.01
Citibank Non-London Scheme National Union Fire Insurance Co 600466 318,570.00 USD 1.00 318,570.00
Citibank Non-London Scheme National Union Fire Insurance Co Of 159784 420,121.36 USD 1.00 420,121.36
Citibank Non-London Scheme National Union Fire Insurance Co. 600170 1,383,915.26 USD 1.00 1,383,915.26
Citibank Non-London Scheme Nat'L Liability 600624 70,500.00 USD 1.00 70,500.00
Citibank Non-London Scheme Navigators Insurance Company 600623 15,000.00 USD 1.00 15,000.00
Citibank Non-London Scheme North River Insurance Company 600861 36,223.00 USD 1.00 36,223.00
Citibank Non-London Scheme Ohio Casualty Group 600411 27,937.50 USD 1.00 27,937.50
Citibank Non-London Scheme Ohio Casualty Insurance Group 600571 50,730.00 USD 1.00 50,730.00
Citibank Non-London Scheme Pan American Insurance 160379 1,035,392.00 USD 1.00 1,035,392.00
Citibank Non-London Scheme Pawtucket Mutual Insurance Co 159783 64,333.86 USD 1.00 64,333.86
Citibank Non-London Scheme Pennsylvania Lumbermens Mutual 600615 23,850.00 USD 1.00 23,850.00
Citibank Non-London Scheme Phoenix Home Life Mutual Insurance 600479 30,992.49 USD 1.00 30,992.49
Citibank Non-London Scheme Preferred Risk Insurance 160378 1,035,392.00 USD 1.00 1,035,392.00
Citibank Non-London Scheme Protection Mutual Insurance Company 600180 8,781.68 USD 1.00 8,781.68
Citibank Non-London Scheme Protection Mutual Insurance Company 600417 48,563.78 USD 1.00 48,563.78
Citibank Non-London Scheme Protection Mutual Insurance Company 600564 348,496.84 USD 1.00 348,496.84
Citibank Non-London Scheme Prudential Property And Casualty 600575 149,106.23 USD 1.00 149,106.23
Citibank Non-London Scheme Puerto Rican American Insurance 160377 753,381.31 USD 1.00 753,381.31
Citibank Non-London Scheme R.A. Edwards Syndicate 219 400091 419,552.98 GBP 1.50 629,329.47
Citibank Non-London Scheme R.L.I. Insurance Company 600548 16,092.00 USD 1.00 16,092.00
Citibank Non-London Scheme Reliance Insurance Company 600164 243,946.21 USD 1.00 243,946.21
Citibank Non-London Scheme Reliance Insurance Company 600270 555,781.00 USD 1.00 555,781.00
Citibank Non-London Scheme Reliance Insurance Company 600464 316,191.50 USD 1.00 316,191.50
Citibank Non-London Scheme Reliance Insurance Company 600489 146,143.43 USD 1.00 146,143.43
Citibank Non-London Scheme Republic Insurance Company 601044 43,710.45 USD 1.00 43,710.45
Citibank Non-London Scheme Royal Indemnity Company 159309 4,275.06 USD 1.00 4,275.06
Citibank Non-London Scheme Royal Indemnity Company 159310 74,646.20 USD 1.00 74,646.20
Citibank Non-London Scheme Royal Speciality Underwriting Inc 600630 1,821,284.00 USD 1.00 1,821,284.00
Citibank Non-London Scheme Royal Specialty Underwriters 600423 681,571.00 USD 1.00 681,571.00
Citibank Non-London Scheme Royal Specialty Underwriters 600424 246,653.00 USD 1.00 246,653.00
Citibank Non-London Scheme Royal Specialty Underwriters Inc 600331 33,699.00 USD 1.00 33,699.00
Citibank Non-London Scheme Royal Specialty Underwriters Inc. 600330 98,774.00 USD 1.00 98,774.00
Citibank Non-London Scheme Royal Specialty Underwriting Inc 600631 706,150.00 USD 1.00 706,150.00
Citibank Non-London Scheme S.A. Holmes Esq & Others 81447 178,500.00 USD 1.00 178,500.00
Citibank Non-London Scheme S.A. Holmes Esq & Others Synd 81448 178,500.00 USD 1.00 178,500.00
Citibank Non-London Scheme Scottsdale Insurance Co 600439 281,759.79 USD 1.00 281,759.79
Citibank Non-London Scheme Scottsdale Insurance Company 600562 11,489.00 USD 1.00 11,489.00
Citibank Non-London Scheme Scottsdale Insurance Company 600563 7,948.00 USD 1.00 7,948.00
Citibank Non-London Scheme Shelter Mutual Insurance Company 600457 1,658.50 USD 1.00 1,658.50
Citibank Non-London Scheme St Paul Fire And Marine Insurance 600468 16,215.26 USD 1.00 16,215.26
Citibank Non-London Scheme St.Paul Fire And Marine Insurance 600595 65,277.10 USD 1.00 65,277.10
Citibank Non-London Scheme St.Paul Fire And Marine Insurance 600613 98,435.16 USD 1.00 98,435.16
Citibank Non-London Scheme The Equitable Life Assurance 600478 103,622.39 USD 1.00 103,622.39
Citibank Non-London Scheme The Guardian Life Insurance Company 600475 32,110.10 USD 1.00 32,110.10
Citibank Non-London Scheme The Hawaiian Insurance And Guaranty 300386 5,169.00 USD 1.00 5,169.00
Citibank Non-London Scheme The Mutual Life Insurance Company 600476 48,956.80 USD 1.00 48,956.80
Citibank Non-London Scheme The Netherlands Insurance Companies 600461 55,772.24 USD 1.00 55,772.24
Citibank Non-London Scheme The Prudential Insurance Company Of 600477 24,158.14 USD 1.00 24,158.14
Citibank Non-London Scheme The Trustees Of Syndicate 588 400132 1,839,453.00 GBP 1.50 2,759,179.50
Citibank Non-London Scheme The Trustes Of Syndicate 1209 400133 947,597.00 GBP 1.50 1,421,395.50
Citibank Non-London Scheme Tig Insurance Company 600419 94,440.00 USD 1.00 94,440.00
Citibank Non-London Scheme Transatlantic Reinsurance Company 600420 93,941.50 USD 1.00 93,941.50
Citibank Non-London Scheme Travelers Casualty And Surety Co 600328 12,981.72 USD 1.00 12,981.72
Citibank Non-London Scheme Travelers Casualty And Surety Co 600472 10,534.37 USD 1.00 10,534.37
Citibank Non-London Scheme Travelers Insurance Company 600336 146,181.04 USD 1.00 146,181.04
Citibank Non-London Scheme Travlers Casualty And Surety Co 600459 288,906.44 USD 1.00 288,906.44
Citibank Non-London Scheme United Service Auto Association 600090 56,662.33 USD 1.00 56,662.33
Citibank Non-London Scheme United States Fidelity And 600448 64,350.00 USD 1.00 64,350.00
Citibank Non-London Scheme United States Fire Insurance Co 600860 159,979.00 USD 1.00 159,979.00
Citibank Non-London Scheme Unum Life Insurance Co Of America 600482 51,467.71 USD 1.00 51,467.71
Citibank Non-London Scheme Vesta Fire Insurance 81327 8,442.75 USD 1.00 8,442.75
Citibank Non-London Scheme Vesta Fire Insurance Company 600275 7,062.00 USD 1.00 7,062.00
Citibank Non-London Scheme Vesta Fire Insurance Company 600430 16,619.00 USD 1.00 16,619.00
Citibank Non-London Scheme Vesta Fire Insurance Corporation 400046 135,545.25 USD 1.00 135,545.25
Citibank Non-London Scheme Vesta Fire Insurance Corporation 600580 408,851.00 USD 1.00 408,851.00
Citibank Non-London Scheme Vesta Fire Insurance Corporation 600581 6,797.95 USD 1.00 6,797.95
Citibank Non-London Scheme Vesta Fire Insurance Corporation 600867 19,478.00 USD 1.00 19,478.00
Citibank Non-London Scheme Westchester Fire Insurance Company 600272 135,075.00 USD 1.00 135,075.00
Citibank Non-London Scheme Westchester Fire Insurance Company 600470 36,525.00 USD 1.00 36,525.00
Citibank Non-London Scheme Worcester Insurance Company 600620 36,000.00 USD 1.00 36,000.00
Citibank Non-London Scheme Zurich American Insurance Co 600863 602,275.00 USD 1.00 602,275.00
Citibank Non-London Scheme Zurich American Insurance Company 600467 46,493.98 USD 1.00 46,493.98
Citibank Non-London Scheme Zurich American Insurance Company 600590 270,586.18 USD 1.00 270,586.18
Citibank Non-London Scheme Zurich American Insurance Company 600591 134,518.74 USD 1.00 134,518.74
Citibank Non-London Scheme Zurich American Insurance Us Branch 600586 203,000.00 USD 1.00 203,000.00
Citibank Non-London Scheme Zurich Insurance Company 600864 2,042,040.00 USD 1.00 2,042,040.00
Citibank Non-London Scheme Zurich Insurance Company Us Branch 600442 314,844.00 USD 1.00 314,844.00
Citibank Non-London Scheme Zurich Insurance Company Us Branch 600443 14,250.66 USD 1.00 14,250.66
Citibank London Scheme A.A.U. 2252 653,874.46 USD 1.00 653,874.46
Citibank Non-London Scheme A.I.G. Global Trade And Political 159780 389,898.69 USD 1.00 389,898.69
Citibank Non-London Scheme Aetna Casualty And Surety Company 600329 929,099.93 USD 1.00 929,099.93
Citibank Non-London Scheme Aig Global Trade And Politcal 601047 1,124,996.62 USD 1.00 1,124,996.62
Citibank Non-London Scheme Aig Global Trade And Political Risk 600438 205,368.91 USD 1.00 205,368.91
Citibank Non-London Scheme Alec Sharp 1207 400112 598,043.00 GBP 1.50 897,064.50
Citibank Non-London Scheme Allendale Appalachian Affiliated Fm 600441 737,321.71 USD 1.00 737,321.71
Citibank Non-London Scheme Allendale Mutual Insurance Company 158957 54,232.74 USD 1.00 54,232.74
Citibank Non-London Scheme Allianz Life Insurance Company Of 600484 5,287.70 USD 1.00 5,287.70
Citibank Non-London Scheme Allied Dealers Ins Svcs For And On 600167 2,446.00 USD 1.00 2,446.00
Citibank Non-London Scheme Allied Dealers Ins Svcs For And On 600168 31,388.00 USD 1.00 31,388.00
Citibank Non-London Scheme Allied Group Inc. 600866 347,999.05 USD 1.00 347,999.05
Citibank London Scheme Allstate Insurance Company 7292 31,278.11 USD 1.00 31,278.11
Citibank Non-London Scheme Allstate Insurance Company 600481 86,442.91 USD 1.00 86,442.91
Citibank Non-London Scheme Allstate Insurance Company 600567 520,834.00 USD 1.00 520,834.00
Citibank Non-London Scheme American Home Assurance Co 600570 678,282.97 USD 1.00 678,282.97
Citibank London Scheme American Home Assurance Company 202451 113,877.66 USD 1.00 113,877.66
Citibank London Scheme American Home Assurance Company 202767 3,552.62 USD 1.00 3,552.62
Citibank London Scheme American Home Assurance Company 202768 525.01 USD 1.00 525.01
Citibank London Scheme American Home Assurance Company 202920 81,894.87 USD 1.00 81,894.87
Citibank London Scheme American Home Assurance Company 203664 195,674.21 USD 1.00 195,674.21
Citibank London Scheme American Home Assurance Company 203667 6,531.99 USD 1.00 6,531.99
Citibank London Scheme American Home Assurance Company 203691 3,817.06 USD 1.00 3,817.06
Citibank London Scheme American Home Assurance Company 204531 22,396.91 USD 1.00 22,396.91
Citibank London Scheme American Home Assurance Company 204532 76,081.98 USD 1.00 76,081.98
Citibank Non-London Scheme American Home Assurance Company 600432 73,489.35 USD 1.00 73,489.35
Citibank London Scheme American Steamship Owners 204715 148,540.88 USD 1.00 148,540.88
Citibank London Scheme Century Indemnity Company 204622 28,394.39 USD 1.00 28,394.39
Citibank London Scheme Chatham Reinsurance Corp 204614 49,118.82 USD 1.00 49,118.82
Citibank London Scheme Chubb & Son A Division Of Federa 204825 15,268.62 USD 1.00 15,268.62
Citibank London Scheme Chubb & Son Inc. 204117 155,508.86 USD 1.00 155,508.86
Citibank London Scheme Chubb & Son Inc. 204118 3,600.00 USD 1.00 3,600.00
Citibank London Scheme Chubb & Son, A Division Of Feder 204820 125,000.00 USD 1.00 125,000.00
Citibank London Scheme Cigna International 202580 24,244.97 USD 1.00 24,244.97
Citibank London Scheme Cigna Property & Casualty 204453 150,555.40 USD 1.00 150,555.40
Citibank London Scheme Commercial Union Ins Co 505 76,366.82 USD 1.00 76,366.82
Citibank London Scheme Commonwealth Insurance Company 204229 76,125.97 USD 1.00 76,125.97
Citibank London Scheme Everest Reinsurance Company 202794 144,726.40 USD 1.00 144,726.40
Citibank London Scheme Factory Mutual Insurance Company 204678 191,100.00 USD 1.00 191,100.00
Citibank London Scheme Farm Bureau Mutual Insurance 204808 4,694.00 USD 1.00 4,694.00
Citibank London Scheme Fireman'S Fund Insurance Co 203857 46,508.80 USD 1.00 46,508.80
Citibank London Scheme Fireman'S Fund Insurance Co 203858 46,546.78 USD 1.00 46,546.78
Citibank London Scheme General American Life Insurance 10279 33,550.59 USD 1.00 33,550.59
Citibank London Scheme Generali (U.S.Branch) 202398 3,256.21 USD 1.00 3,256.21
Citibank London Scheme Great American Ins Co 914 104,231.70 USD 1.00 104,231.70
Citibank London Scheme Gulf Insurance Company 11748 44,667.26 USD 1.00 44,667.26
Citibank London Scheme Hartford Fire Insurance Company 201719 11,626.51 USD 1.00 11,626.51
Citibank London Scheme Highlands Insurance Company 203787 17,321.59 USD 1.00 17,321.59
Citibank London Scheme Highlands Insurance Company 203795 43,758.59 USD 1.00 43,758.59
Citibank London Scheme Houston Casualty Company 204802 420,008.00 USD 1.00 420,008.00
Citibank London Scheme Liberty International Underwrite 204680 50,000.00 USD 1.00 50,000.00
Citibank London Scheme Liberty International Underwrite 204681 286.87 USD 1.00 286.87
Citibank London Scheme Liberty International Underwrite 204691 26,453.13 USD 1.00 26,453.13
Citibank London Scheme Liberty International Underwrite 204775 50,000.00 USD 1.00 50,000.00
Citibank London Scheme Marine Office Of America Corp. 204754 26,780.80 USD 1.00 26,780.80
Citibank London Scheme Marine Office Of America Corp. 204785 64,505.73 USD 1.00 64,505.73
Citibank London Scheme Marine Office Of America Corp. 204810 146,760.00 USD 1.00 146,760.00
Citibank London Scheme Mutual Marine Office Incoporated 202443 1,198,914.97 USD 1.00 1,198,914.97
Citibank London Scheme Mutual Marine Office, Inc. 202888 1,904.61 USD 1.00 1,904.61
Citibank London Scheme Mutual Marine Office,Inc 204717 44,107.95 USD 1.00 44,107.95
Citibank London Scheme Mutual Marine Office,Inc. 203920 660,380.70 USD 1.00 660,380.70
Citibank London Scheme Mutual Marine Office,Inc. 203921 1,019,663.66 USD 1.00 1,019,663.66
Citibank London Scheme Mutual Marine Ofice, Inc. 203533 12,700.00 USD 1.00 12,700.00
Citibank Non-London Scheme NAC TBA 40,000,000.00 USD 1.00 40,000,000.00
Citibank London Scheme New York Marine And General 203532 6,250.00 USD 1.00 6,250.00
Citibank London Scheme Phoenix Home Life Mutual Insuran 6803 43,492.91 USD 1.00 43,492.91
Citibank London Scheme Rca Syndicate #1, Ltd 203303 2,995.63 USD 1.00 2,995.63
Citibank London Scheme Reliance Insurance Company 201569 331,501.34 USD 1.00 331,501.34
Citibank London Scheme Reliance Insurance Company 202383 7,950.00 USD 1.00 7,950.00
Citibank London Scheme Reliance Insurance Company 202537 6,588.90 USD 1.00 6,588.90
Citibank London Scheme Reliance Insurance Company 203812 22,651.64 USD 1.00 22,651.64
Citibank London Scheme Reliance Insurance Company 204024 68,478.38 USD 1.00 68,478.38
Citibank London Scheme Reliance Insurance Company 204025 38,929.65 USD 1.00 38,929.65
Citibank London Scheme Reliance Insurance Company 204637 78,251.09 USD 1.00 78,251.09
Citibank London Scheme Reliance Insurance Company 301200 33,219.54 USD 1.00 33,219.54
Citibank London Scheme Reliance National Insurance Comp 204641 5,714.40 USD 1.00 5,714.40
Citibank London Scheme Relianceinsurance Company 204078 3,194.91 USD 1.00 3,194.91
Citibank London Scheme Royal Indemnity Company 203693 15,274.75 USD 1.00 15,274.75
Citibank London Scheme Royal Indemnity Company 203731 21,785.35 USD 1.00 21,785.35
Citibank London Scheme Somerset Marine Inc. 202813 20,671.09 USD 1.00 20,671.09
Citibank London Scheme Somerset Marine Inc. 202814 39,002.04 USD 1.00 39,002.04
Citibank London Scheme Somerset Marine Inc.For&On Behal 203909 37,052.40 USD 1.00 37,052.40
Citibank London Scheme Somerset Marine, Inc. 202816 31,201.62 USD 1.00 31,201.62
Citibank London Scheme Somerset Marine, Inc. 202817 62,403.24 USD 1.00 62,403.24
Citibank London Scheme Somerset Marine, Inc. 202818 31,201.62 USD 1.00 31,201.62
Citibank London Scheme Somerset Marine, Inc. 202820 15,600.82 USD 1.00 15,600.82
Citibank London Scheme Somerset Marine, Inc. 202821 131,436.82 USD 1.00 131,436.82
Citibank London Scheme Somerset Marine, Inc. 202822 15,600.82 USD 1.00 15,600.82
Citibank London Scheme Somerset Marine, Inc. 202823 42,902.23 USD 1.00 42,902.23
Citibank London Scheme Somerset Marine, Inc. 204120 13,395.80 USD 1.00 13,395.80
Citibank London Scheme Somerset Marine, Inc. 204121 26,791.60 USD 1.00 26,791.60
Citibank London Scheme Somerset Marine, Inc. 204122 13,395.80 USD 1.00 13,395.80
Citibank London Scheme Somerset Marine, Inc. 204123 26,791.59 USD 1.00 26,791.59
Citibank London Scheme Somerset Marine, Inc. 204124 13,395.80 USD 1.00 13,395.80
Citibank London Scheme Somerset Marine, Inc. 204125 359,833.86 USD 1.00 359,833.86
Citibank London Scheme Somerset Marine, Inc. 204126 13,395.80 USD 1.00 13,395.80
Citibank London Scheme Somerset Marine, Inc. 204794 5,781.25 USD 1.00 5,781.25
Citibank London Scheme Somerset Marine, Inc. 204795 11,562.50 USD 1.00 11,562.50
Citibank London Scheme Somerset Marine, Inc. 204796 5,781.25 USD 1.00 5,781.25
Citibank London Scheme Somerset Marine, Inc. 204797 5,781.25 USD 1.00 5,781.25
Citibank London Scheme Somerset Marine, Inc. 204798 86,718.75 USD 1.00 86,718.75
Citibank London Scheme St Paul Fire & Marine 912 79,167.26 USD 1.00 79,167.26
Citibank London Scheme St Paul Fire & Marine Ins 11843 5,128.16 USD 1.00 5,128.16
Citibank London Scheme St. Paul Reinsurance Management 204833 100,194.21 USD 1.00 100,194.21
Citibank London Scheme St.Paul Fire & Marine Ins. Co. 64415 25,750.34 USD 1.00 25,750.34
Citibank London Scheme State Mutual Life Assurance Comp 6805 20,330.77 USD 1.00 20,330.77
Citibank London Scheme Swiss Re America Corp 204734 301,250.00 USD 1.00 301,250.00
Citibank London Scheme The Equitable Life Assurance 6802 129,981.26 USD 1.00 129,981.26
Citibank London Scheme The Guardian Life Insurance Comp 6799 43,758.39 USD 1.00 43,758.39
Citibank London Scheme The Mutual Life Insurance Compan 6800 38,030.22 USD 1.00 38,030.22
Citibank London Scheme The Reliance Insurance Company 203265 31,032.02 USD 1.00 31,032.02
Citibank London Scheme The Reliance Insurance Company 204216 54,599.23 USD 1.00 54,599.23
Citibank London Scheme The Reliance Insurance Company 204235 55,243.60 USD 1.00 55,243.60
Citibank London Scheme The Reliance Insurance Company 204236 51,089.10 USD 1.00 51,089.10
Citibank London Scheme Underwriters Reinsurance Company 204799 30,000.00 USD 1.00 30,000.00
Citibank London Scheme Underwriters Reinsurance Company 204809 25,471.57 USD 1.00 25,471.57
Citibank London Scheme Underwriters Reinsurance Company 204823 19,218.75 USD 1.00 19,218.75
Citibank London Scheme Underwriters Reinsurance Company 301225 20,392.34 USD 1.00 20,392.34
Citibank London Scheme Unum Life Insurance Company Of 9195 93,756.89 USD 1.00 93,756.89
Citibank London Scheme W.Q.I.S 202277 117,355.19 USD 1.00 117,355.19
Citibank London Scheme Wm. H. Mcgee & Co., Inc. 204739 15,832.55 USD 1.00 15,832.55
CITIBANK TOTAL 323,364,346.08
Deutsche Mini-syndicate Nac Reinsurance TBA 30,000,000.00 USD 1.00 30,000,000.00
DEUTSCHE TOTAL 30,000,000.00
First Union Mini-syndicate Nac Reinsurance TBA 30,000,000.00 USD 1.00 30,000,000.00
FIRST UNION TOTAL 30,000,000.00
Fleet Mini-syndicate Nac Reinsurance TBA 30,000,000.00 USD 1.00 30,000,000.00
FLEET TOTAL 30,000,000.00
Fleet (LAR) LAR Edifrent Sa TBA 234,000.00 USD 1.00 234,000.00
Fleet (LAR) LAR Escala Internacional TBA 102,213.17 USD 1.00 102,213.17
FLEET (LAR) TOTAL 336,213.17
Fleet (NAC) NAC US ALAS TBA 6,060,530.00 USD 1.00 6,060,530.00
Fleet (NAC) NAC US NAC Landlord TBA 500,000.00 USD 1.00 500,000.00
FLEET (NAC) TOTAL 6,560,530.00
ING Barings Bilateral The Council Of Lloyds 101642 92,500,000.00 GBP 1.50 138,750,000.00
ING BARINGS TOTAL 138,750,000.00
Mellon Mellon 250 Park Ave S864527 1,500,000.00 USD 1.00 1,500,000.00
Mellon Mellon Aig Global Trade & Political Risk Ins. Co. S861894 1,462,954.14 USD 1.00 1,462,954.14
Mellon Mellon Allendale Mutual Insurance Co. S850355 32,640.31 USD 1.00 32,640.31
Mellon Mellon Allendale/Appalachian/Affiliated F.M. S844674 814,552.96 USD 1.00 814,552.96
Mellon Mellon Alliance Insurance Company S866310 958,472.00 USD 1.00 958,472.00
Mellon Mellon Allianz Insurance Company S860632 104,216.00 USD 1.00 104,216.00
Mellon Mellon Allied Group Inc. S861383 75,652.00 USD 1.00 75,652.00
Mellon Mellon Altus Holdings Ltd. Or Alternative Re Ltd. S857727 1,666,667.00 USD 1.00 1,666,667.00
Mellon Mellon American Agricultural Insurance Company S850356 38,837.45 USD 1.00 38,837.45
Mellon Mellon American Family Mutual Insurance Co. S861429 910,996.88 USD 1.00 910,996.88
Mellon Mellon American Home Assurance Co. S850386 121,110.90 USD 1.00 121,110.90
Mellon Mellon American Int'L Underwriters Overseas Assoc. S861455 32,271.00 USD 1.00 32,271.00
Mellon Mellon American Int'L Underwriters Overseas Assoc. S861456 1,857,374.12 USD 1.00 1,857,374.12
Mellon Mellon American Int'L Underwriters Overseas Assoc. S861473 709,814.09 USD 1.00 709,814.09
Mellon Mellon American States Insurance Co. S844677 17,277.00 USD 1.00 17,277.00
Mellon Mellon American Strategic Insurance Company S859057 5,900,000.00 USD 1.00 5,900,000.00
Mellon Mellon Arkwright Mutual Insurance Co. S850280 4,050.00 USD 1.00 4,050.00
Mellon Mellon Arkwright Mutual Insurance Co. S862692 5,584,521.10 USD 1.00 5,584,521.10
Mellon Mellon Armed Forces Insurance Exchange S866374 127,709.79 USD 1.00 127,709.79
Mellon Mellon Attorney'S Liability Assurance Society 1349 12,106,985.91 USD 1.00 12,106,985.91
Mellon Mellon Axa Global S861936 25,851.51 USD 1.00 25,851.51
Mellon Mellon Axa Reinsurance Co S861430 305,655.12 USD 1.00 305,655.12
Mellon Mellon California Insurance Group S844678 3,352.00 USD 1.00 3,352.00
Mellon Mellon Century Indemnity Company S857288 11,530,000.00 USD 1.00 11,530,000.00
Mellon Mellon Cgu Insurance Co. S844669 1,101,658.88 USD 1.00 1,101,658.88
Mellon Mellon Cgu Insurance Co. S844671 13,735.97 USD 1.00 13,735.97
Mellon Mellon Chubb & Son Inc. S861330 4,000,000.00 USD 1.00 4,000,000.00
Mellon Mellon Chubb & Son Inc. S861731 4,820,965.51 USD 1.00 4,820,965.51
Mellon Mellon Chubb & Son Inc. S866688 501,853.00 USD 1.00 501,853.00
Mellon Mellon Cincinnati Insurance Co. S861529 36,849.12 USD 1.00 36,849.12
Mellon Mellon Colonial Penn Insurance Co. S844679 21,130.84 USD 1.00 21,130.84
Mellon Mellon Commercial Union Insurance Co. S844681 5,591.00 USD 1.00 5,591.00
Mellon Mellon Continental Casualty Company S866982 1,026,247.00 USD 1.00 1,026,247.00
Mellon Mellon Employer'S Insurance Co. Of Wausau,
A Mutual Co. S844713 4,650.00 USD 1.00 4,650.00
Mellon Mellon Employer'S Mutual Casualty Co S861405 64,930.47 USD 1.00 64,930.47
Mellon Mellon Employers Mutual Casualty Co. S861932 12,925.76 USD 1.00 12,925.76
Mellon Mellon Financial Security Assurance Inc. S861505 17,031,794.80 USD 1.00 17,031,794.80
Mellon Mellon Financial Security Assurance Inc. S866732 233,600.42 USD 1.00 233,600.42
Mellon Mellon Fire Insurance Exchange S861492 11,102.44 USD 1.00 11,102.44
Mellon Mellon Fire Insurance Exchange S861530 413,415.96 USD 1.00 413,415.96
Mellon Mellon Fireman'S Fund S866375 705,155.00 USD 1.00 705,155.00
Mellon Mellon Florida Family Mutual Insurance Company S861332 20,166.00 USD 1.00 20,166.00
Mellon Mellon Florida Select Insurance Company S862293 68,250.00 USD 1.00 68,250.00
Mellon Mellon Folksamerica Re S861928 51,703.03 USD 1.00 51,703.03
Mellon Mellon General Accident Ins. Co Of America S861506 843,617.70 USD 1.00 843,617.70
Mellon Mellon General Accident Insurance Company S861384 1,350,396.53 USD 1.00 1,350,396.53
Mellon Mellon General Mutual Reinsurance Co. S861514 232,075.72 USD 1.00 232,075.72
Mellon Mellon Grange Mutual Casualty Company S861331 6,526.44 USD 1.00 6,526.44
Mellon Mellon Great American Insurance Co. S850354 34,859.94 USD 1.00 34,859.94
Mellon Mellon Guideone Mutual Insurance Co. S866561 41,831.51 USD 1.00 41,831.51
Mellon Mellon Harleysville Insurance Co. S861931 25,851.51 USD 1.00 25,851.51
Mellon Mellon Hartford Fire Insurance Co. S844682 651,791.00 USD 1.00 651,791.00
Mellon Mellon Hartford Fire Insurance Company S866417 21,403.90 USD 1.00 21,403.90
Mellon Mellon Hastings Mutual Inaurance Co S861406 1,403.25 USD 1.00 1,403.25
Mellon Mellon Hsb Industrial Risk Insureres S861335 556,213.00 USD 1.00 556,213.00
Mellon Mellon Industrial Risk Insurance S844323 50,555.80 USD 1.00 50,555.80
Mellon Mellon Industrial Risk Insurance S861753 365,000.00 USD 1.00 365,000.00
Mellon Mellon Industrial Risk Insurers S866240 80,000.00 USD 1.00 80,000.00
Mellon Mellon Industrial Risk Insurers S866372 374,436.07 USD 1.00 374,436.07
Mellon Mellon Industrial Risk Insurers S866602 143,367.00 USD 1.00 143,367.00
Mellon Mellon Insurance Corp Of Ny S861929 77,554.54 USD 1.00 77,554.54
Mellon Mellon Kemper Insurance Company S862337 1,619,052.22 USD 1.00 1,619,052.22
Mellon Mellon Lexington Insurance Co. S850300 120,463.26 USD 1.00 120,463.26
Mellon Mellon Maine Mutual Fire Insurance Co S861404 6,795.04 USD 1.00 6,795.04
Mellon Mellon Mbia Inaurance Corp. S861472 2,491,000.00 USD 1.00 2,491,000.00
Mellon Mellon Meridian Mutual Insurance Co. S850308 6,392.00 USD 1.00 6,392.00
Mellon Mellon Michigan Millers Mutual Insurance Co. S844683 10,741.50 USD 1.00 10,741.50
Mellon Mellon Millers Mutual Insurance Association S850292 2,256.04 USD 1.00 2,256.04
Mellon Mellon Mutual Marine Office, Inc. S844706 10,030.14 USD 1.00 10,030.14
Mellon Mellon Nac Reinsurance S866718 70,000,000.00 USD 1.00 70,000,000.00
Mellon Mini-syndicate Nac Reinsurance TBA 30,000,000.00 USD 1.00 30,000,000.00
Mellon Mellon National Grange Mutual Insurance Co. S861333 28,875.71 USD 1.00 28,875.71
Mellon Mellon National Union Fire Insurance Co.
Of Pittsburgh S844707 95,207.02 USD 1.00 95,207.02
Mellon Mellon Nat'L Liability S861934 6,462.88 USD 1.00 6,462.88
Mellon Mellon Nat'L Union Fire Insurance Co. Of Pgh Pa S861491 42,865.37 USD 1.00 42,865.37
Mellon Mellon Navigators Insurance Company S861933 89,510.97 USD 1.00 89,510.97
Mellon Mellon New Castle Mutual Insurance Co. S844708 3,904.50 USD 1.00 3,904.50
Mellon Mellon New York Marine & General Ins. Co. S861528 729,461.25 USD 1.00 729,461.25
Mellon Mellon Ohio Casualty Insurance Co. S850290 306,982.76 USD 1.00 306,982.76
Mellon Mellon Pa National Mutual Casualty Insurance Co. S848880 15,603.83 USD 1.00 15,603.83
Mellon Mellon Penn. National Mutual Casualty
Insurance Co. S866601 23,892.54 USD 1.00 23,892.54
Mellon Mellon Pennsylvania Lumbermans Mutual S861930 17,126.53 USD 1.00 17,126.53
Mellon Mellon Protection Mututal Insurance Company S862336 455,160.00 USD 1.00 455,160.00
Mellon Mellon Ranger Insurance Company S861470 260,607.00 USD 1.00 260,607.00
Mellon Mellon Republic Insurance Company S866813 43,710.45 USD 1.00 43,710.45
Mellon Mellon Royal Specialty Underwriting S866571 697,756.00 USD 1.00 697,756.00
Mellon Mellon Royal Specialty Underwriting S866572 1,365,148.00 USD 1.00 1,365,148.00
Mellon Mellon Shelter Mutual Insurance Company S850353 11,174.00 USD 1.00 11,174.00
Mellon Mellon Sorema North American Reinsurance Co. S861935 16,157.20 USD 1.00 16,157.20
Mellon Mellon St. Paul Fire & Marine S866416 232,976.52 USD 1.00 232,976.52
Mellon Mellon St. Paul Fire & Marine Insurance Co. S850304 19,337.78 USD 1.00 19,337.78
Mellon Mellon St. Paul Fire & Marine Insurance Co. S861336 408,561.50 USD 1.00 408,561.50
Mellon Mellon St. Paul Fire & Marine Insurance Co. S861407 104,588.85 USD 1.00 104,588.85
Mellon Mellon St. Paul Fire & Marine Insurance Co. S861408 128,142.00 USD 1.00 128,142.00
Mellon Mellon St. Paul Reinsurance S861334 360,615.68 USD 1.00 360,615.68
Mellon Mellon St. Paul'S Fire & Marine S861400 1,506,658.27 USD 1.00 1,506,658.27
Mellon Mellon Sunshine State Insurance S857359 3,500,000.00 USD 1.00 3,500,000.00
Mellon Mellon Swiss Re Financial Corp S857725 3,000,000.00 USD 1.00 3,000,000.00
Mellon Mellon The Council Of Lloyds 1345 4,750,700.00 GBP 1.50 7,126,050.00
Mellon Mellon The Council Of Lloyds 1348 1,000,000.00 GBP 1.50 1,500,000.00
Mellon Mellon The Council Of Lloyds 1365 35,850,000.00 GBP 1.50 53,775,000.00
Mellon Mellon The Fire & Casualty Ins. Co. Of Conn. S866239 1,103,760.00 USD 1.00 1,103,760.00
Mellon Mellon The Netherlands Insurance Cos. S850299 1,736.60 USD 1.00 1,736.60
Mellon Mellon The Shelby Insurance Co. S850297 6,368.69 USD 1.00 6,368.69
Mellon Mellon Tig Insurance Co. S844712 56,541.80 USD 1.00 56,541.80
Mellon Mellon Traveler'S Casualty And Surety Co. S844672 14,213.27 USD 1.00 14,213.27
Mellon Mellon U.S. District Judge For The District
Of Wyoming 1350 9,800,000.00 USD 1.00 9,800,000.00
Mellon Mellon United States Fidelity & Guarranty S861401 47,143.90 USD 1.00 47,143.90
Mellon Mellon United States Fire Ins. Co S861561 41,323.17 USD 1.00 41,323.17
Mellon Mellon Usf & G S866707 107,690.00 USD 1.00 107,690.00
Mellon Mellon Westchester Fire Insurance Company S866570 360,979.00 USD 1.00 360,979.00
Mellon Mellon Westchester Surplus Lines Insurance Co. S844714 45,303.56 USD 1.00 45,303.56
Mellon Mellon X L America S864236 1,000,000.00 USD 1.00 1,000,000.00
Mellon Mellon X.L. Europe Insurance - Trust For Alien
Surplus Lines 1343 5,400,000.00 USD 1.00 5,400,000.00
Mellon Mellon Xl Insurance Company Of New York, Inc. S861471 19,100,000.00 USD 1.00 19,100,000.00
Mellon Mellon Yusada Fire & Marine Insurance Co S866706 243,727.64 USD 1.00 243,727.64
Mellon Mellon Zurich Ins. Co. / American Guarantee
Liability Ins. Co. S861560 6,664,337.00 USD 1.00 6,664,337.00
MELLON TOTAL 305,024,961.83
GRAND TOTAL 1,033,336,051.08
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Letter of Credit and Reimbursement
Agreement dated as of July 5, 2000 (as amended and in effect on the date hereof,
the "Letter of Credit Agreement"), between XL Capital Ltd, X.L. America, Inc.,
XL Insurance Ltd, XL Europe Ltd and XL Mid Ocean Reinsurance Ltd, the Lenders
named therein and The Chase Manhattan Bank, as Administrative Agent for the
Lenders. Terms defined in the Letter of Credit Agreement are used herein with
the same meanings.
The Assignor named below hereby sells and assigns, without
recourse, to the Assignee named below, and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Assignment
Date set forth below, the interests set forth below (the "ASSIGNED INTEREST") in
the Assignor's rights and obligations under the Letter of Credit Agreement,
including the interests set forth below in the Commitment of the Assignor on the
Assignment Date, together with the participations in Letters of Credit and LC
Disbursements held by the Assignor on the Assignment Date, and the amount, if
any, set forth below of the fees accrued to the Assignment Date for the account
of the Assignor. The Assignee hereby acknowledges receipt of a copy of the
Letter of Credit Agreement. From and after the Assignment Date (i) the Assignee
shall be a party to and be bound by the provisions of the Letter of Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Letter of Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) any documentation required to be
delivered by the Assignee pursuant to Section 2.07(e) of the Letter of Credit
Agreement, duly completed and executed by the Assignee, and (ii) if the Assignee
is not already a Lender under the Letter of Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 10.04(b) of the Letter of Credit
Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
ASSIGNMENT AND ACCEPTANCE
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("ASSIGNMENT DATE")(1):
Principal Amount
Assigned
--------
Commitment Assigned: $
Fees Assigned (if any): $
- -------------------------
(1) Must be at least five Business Days after execution hereof by all required
parties.
ASSIGNMENT AND ACCEPTANCE
-2-
The terms set forth above are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By:
---------------------------------
Name:
Title:
[NAME OF AS SIGNEE], as Assignee
By:
---------------------------------
Name:
Title:
The undersigned hereby consent to the within assignment:(2)
XL CAPITAL LTD
By:
--------------------------
Name:
Title:
X.L. AMERICA, INC.
By:
--------------------------
Name:
Title:
- -------------------------------------
(2) Consents to be included to the extent required by Section 9.04(b) of the
Letter of Credit Agreement.
ASSIGNMENT AND ACCEPTANCE
XL INSURANCE LTD
By:
-------------------------------------
Name:
Title:
XL EUROPE LTD
By:
-------------------------------------
Name:
Title:
XL MID OCEAN REINSURANCE LTD
By:
-------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
ASSIGNMENT AND ACCEPTANCE
EXHIBIT C
[Form of Opinion of Special New York Counsel to Chase]
[_________], 2000
To the Lenders party to the Letter of Credit
Agreement referred to below and The Chase
Manhattan Bank, as Administrative Agent
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank ("CHASE") in connection with the Letter of Credit and
Reimbursement Agreement (the "LETTER OF CREDIT AGREEMENT") dated as of July 5,
2000, between XL Capital Ltd, ("XL CAPITAL"), X.L. America, Inc., ("XL
AMERICA"), XL Insurance Ltd, ("XL INSURANCE"), XL Europe Ltd, ("XL EUROPE") and
XL Mid Ocean Reinsurance Ltd, ("XL MID OCEAN" and, together with XL Capital, XL
America, XL Insurance and XL Europe, each an "ACCOUNT PARTY" and each a
"GUARANTOR" and collectively, the "ACCOUNT PARTIES" and the "GUARANTORS"), the
lenders party thereto and Chase, as Administrative Agent, providing for letters
of credit to be issued by said lenders to the Account Parties in an aggregate
principal amount not exceeding $1,000,000,000. Terms defined in the Letter of
Credit Agreement are used herein as defined therein. This opinion letter is
being delivered pursuant to Section 5.01(c) of the Letter of Credit Agreement.
In rendering the opinions expressed below, we have examined
the Letter of Credit Agreement.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity with authentic original documents of all documents submitted to
us as copies. When relevant facts were not independently established, we have
relied upon representations made in or pursuant to the Letter of Credit
Agreement.
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and (except to
the extent set forth in the opinions expressed below
as to the Obligors) constitute legal, valid, binding
and enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly
authorized; and
OPINION OF SPECIAL NEW Y0RK COUNSEL TO CHASE
-2-
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that the Letter of Credit Agreement
constitutes the legal, valid and binding obligation of each Obligor party
thereto, enforceable against such Obligor in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or other similar laws relating to or
affecting the rights of creditors generally and except as the enforceability of
the Letter of Credit Agreement is subject to the application of general
principles of equity (regardless of whether considered in a proceeding in equity
or at law), including (a) the possible unavailability of specific performance,
injunctive relief or any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 10.03 of the Letter of
Credit Agreement may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws and (ii) laws limiting the
enforceability of provisions exculpating or exempting a party, or
requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) The enforceability of provisions in the Letter of Credit
Agreement to the effect that terms may not be waived or modified except
in writing may be limited under certain circumstances.
(C) Clause (iii) of the second sentence of Section 3.02 of the
Letter of Credit Agreement may not be enforceable to the extent that
the Guaranteed Obligations are materially modified.
(D) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such Lender
may impose, (ii) the last sentence of Section 2.08(d), (iii) the first
sentence of Section 10.09(b) of the Letter of Credit Agreement, insofar
as such sentence relates to the subject matter jurisdiction of the
United States District Court for the Southern District of New York to
adjudicate any controversy related to the Letter of Credit Agreement
and (iv) the waiver of inconvenient forum set forth in Section 10.09(c)
of the Letter of Credit Agreement with respect to proceedings in the
United States District Court for the Southern District of New York.
OPINION OF SPECIAL NEW Y0RK COUNSEL TO CHASE
-3-
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
At the request of our client, this opinion letter is, pursuant
to Section 5.01(c) of the Letter of Credit Agreement, provided to you by us in
our capacity as special New York counsel to Chase and may not be relied upon by
any Person for any purpose other than in connection with the transactions
contemplated by the Letter of Credit Agreement (other than your successors and
assigns as Lenders and Persons that acquire participations in your extensions of
credit under the Letter of Credit Agreement) without, in each instance, our
prior written consent.
Very truly yours,
WJM/RJW
OPINION OF SPECIAL NEW Y0RK COUNSEL TO CHASE