Exhibit 10.45
EXECUTION COUNTERPART
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
AMENDMENT NO. 1 dated as of September 26, 2001, 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 RE LTD, a Bermuda limited liability corporation ("XL RE"
and, together with XL Capital, XL America, XL Insurance and XL Europe, each a
"BORROWER" and each a "GUARANTOR" and, collectively, the "BORROWERS" and the
"GUARANTORS"; the Borrowers and the Guarantors being collectively referred to as
the "OBLIGORS"), each of the lenders that is a signatory hereto (individually, a
"LENDER" and, collectively, the "LENDERS"), and THE CHASE MANHATTAN BANK, as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, the "ADMINISTRATIVE AGENT").
The Obligors, the Lenders and the Administrative Agent are
parties to a 364-Day Credit Agreement dated as of June 29, 2001 (the "CREDIT
AGREEMENT"), providing, subject to the terms and conditions thereof, for loans
to be made by said Lenders to the Borrowers in an aggregate principal amount not
exceeding $500,000,000. The Obligors, the Lenders and the Administrative Agent
wish to amend the Credit Agreement in certain respects and accordingly the
parties hereto hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in the Credit Agreement are used herein as
defined therein.
Section 2. AMENDMENTS. Effective as provided in Section 4
below, the Credit Agreement is hereby amended as follows:
2.01. References in the Credit Agreement (including references
to the Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be deemed
to be references to the Credit Agreement as amended hereby.
2.02. Clause (b) of Section 4.04 is hereby amended to read in
its entirety as follows:
"(b) NO MATERIAL ADVERSE CHANGE. Since December 31, 2000,
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, except for losses caused by or relating
to or arising out of the terrorist events of September 11, 2001;
PROVIDED, HOWEVER, that XL Capital remains in compliance with Section
7.06."
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
2.03. Section 7.06 of the Credit Agreement is hereby amended
to read in its entirety as follows:
"SECTION 7.06. CONSOLIDATED NET WORTH. XL Capital will not
permit its Consolidated Net Worth to be less than $4,250,000,000."
Section 3. REPRESENTATIONS AND WARRANTIES. Each Obligor hereby
represents and warrants to the Administrative Agent and the Lenders that (i) the
representations and warranties set forth in Article IV of the Credit Agreement
are, on the date hereof, true and complete as if made on the date hereof (and
after giving effect to this Amendment No. 1) and as if each reference in said
Article IV to "this Agreement" includes reference to this Amendment No. 1 and
(ii) both immediately prior to and as of the date hereof, no Default has
occurred and is continuing.
Section 4. CONDITIONS PRECEDENT. The amendments to the Credit
Agreement set forth in Section 2 above shall become effective, as of the date
hereof, upon the satisfaction of the following conditions precedent:
4.01. EXECUTION BY ALL PARTIES. This Amendment No. 1 shall
have been executed and delivered by each of the Obligors and the Required
Lenders.
4.02. AMENDMENT FEE. The Administrative Agent shall have
received for the account of each Lender that consents to this Amendment No. 1
(evidenced by receipt by the Administrative Agent of an executed counterpart of
this Amendment No. 1) an amendment fee in an amount equal to 0.03% of the sum of
Revolving Credit Exposures and unused Commitments of each such Lender.
4.03. OTHER DOCUMENTS. Receipt by the Administrative Agent of
such other documents as the Administrative Agent or special New York counsel to
Chase may reasonably request.
Section 5. MISCELLANEOUS. Except as herein provided, the
Credit Agreement shall remain unchanged and in full force and effect. Nothing in
this Amendment No. 1 shall constitute a waiver of any rights and/or remedies
that the Lenders and/or the Administrative Agent may have under the Credit
Agreement and nothing contained herein shall obligate the Lenders to grant any
future waiver of any provision of the Credit Agreement. XL Capital shall pay all
reasonable expenses incurred by the Administrative Agent, including the
reasonable fees, charges and disbursements of Milbank, Tweed, Hadley & McCloy
LLP, special New York counsel to Chase, in connection with the preparation,
negotiation, execution and delivery of this Amendment No. 1. This Amendment No.
1 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Amendment No. 1 by signing any such counterpart. This
Amendment No. 1 shall be governed by, and construed in accordance with, the law
of the State of New York.
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 1 to be duly executed and delivered as of the day and year first
above written.
X.L. AMERICA, INC.,
as a Borrower and a Guarantor
By /s/ MARTHA BANNERMAN
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Name: Martha Bannerman
Title: Executive Vice President & General
Counsel
XL INSURANCE LTD,
as a Borrower and a Guarantor
By /s/ CHRIS COELHO
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Name: Chris Coehlo
Title: Chief Financial Officer
XL EUROPE LTD,
as a Borrower and a Guarantor
By /s/ FIONA MULDOON
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Name: Fiona Muldoon
Title: Chief Financial Officer
and Company Secretary
XL RE LTD,
as a Borrower and a Guarantor
By /s/ HENRY C. V. KEELING
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Name: Henry C. V. Keeling
Title: President & Chief Executive Officer
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
IN WITNESS WHEREOF, XL Capital has caused this Amendment No. 1
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 a Borrower and a Guarantor
/s/ PAUL GIORDANO
---------------------------------------------
witness
By /s/ MICHAEL SIESE
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Name: Michael Siese
Title: Senior Vice President & Controller
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
LENDERS
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By /s/ HELEN L. NEWCOMB
-----------------------------------------
Name: Helen L. Newcomb
Title: Vice President
CITIBANK, N.A.
By: /s/ MICHAEL A. TAYLOR
-----------------------------------------
Name: Michael A. Taylor
Title: Vice President
MELLON BANK, N.A.
By: /s/ KARLA K. MALOOF
-----------------------------------------
Name: Karla K. Maloof
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ DEBRA BASLER
-----------------------------------------
Name: Debra Basler
Title: Vice President
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
BANK ONE, NA
By: /s/ GRETCHEN ROETZER
---------------------------------
Name: Gretchen Roetzer
Title: Assistant Vice President
BARCLAYS BANK PLC
By: /s/ RP JOHNSON
--------------------------------
Name: RP Johnson
Title: Relationship Director
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ KEN RICCIARDI
--------------------------------
Name: Ken Ricciardi
Title: VP
DEUTSCHE BANK AG
By: /s/ RUTH LEUNG
--------------------------------
Name: Ruth Leung
Title: Director
By: /s/ CLINTON JOHNSON
--------------------------------
Name: Clinton Johnson
Title: Managing Director
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
By: /s/ JONATHAN WALLIN
--------------------------------
Name: Jonathan Wallin
Title: Vice President
By: /s/ ERIKA WALTEB-ENGEMANN
--------------------------------
Name: Erika Walteb-Engemann
Title: Director
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
FLEET NATIONAL BANK
By: /s/ LAWRENCE DOWNS
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Name: Lawrence Downs
Title: Associate
LLOYDS TSB BANK PLC
By: /s/ MICHAEL GILLIGAN
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Name: Michael Gilligan
Title: Director, Financial Institutions, USA
By: /s/ PAUL D. BRIAMONTE
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Name: Paul D. Briamonte
Title: Director
THE BANK OF BERMUDA LIMITED
By: /s/ A. KERRY DAVISON
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Name: A. Kerry Davidson
Title: VP - Credit Manager,
Corporate Cash Management
By: /s/ MICHAEL COLLINS
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Name: Michael Collins
Title: Head of Corporate Cash Management
ABN AMRO BANK N.V., LONDON BRANCH
By: /s/ DW MILLS
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Name: DW Mills
Title:
By: /s/ MARTYN TAPLIN
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Name: Martyn Taplin
Title:
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
BANCO SANTANDER CENTRAL HISPANO, S.A.
By: /s/ PHIL PERRY
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Name: Phil Perry
Title: Senior Vice President
By: /s/ SEN LOUIE
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Name: Sen Louie
Title: Assistant Vice President
COMERICA BANK
By: /s/ MARTIN G. ELLIS
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Name: Martin G. Ellis
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ DANIEL J. NORTON
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Name: Daniel J. Norton
Title: Director
NATIONAL WESTMINSTER BANK PLC
By: /s/
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Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By: /s/ EDWARD M. ANDERSON
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Name: Edward M. Anderson
Title: Vice President
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT