Exhibit 10.61
EXECUTION COUNTERPART
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
AMENDMENT NO. 2, dated as of March 15, 2002, 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 (BERMUDA) LTD (formerly XL Insurance Ltd), a Bermuda
limited liability company ("XL Insurance"), XL EUROPE LTD, a company
incorporated under the laws of Ireland ("XL EUROPE"), and XL RE LTD, a Bermuda
limited liability company ("XL RE" 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 JPMORGAN CHASE BANK (formerly 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 Letter of Credit and Reimbursement Agreement dated as of June 29, 2001, as
amended as of September 26, 2001 (the "AGREEMENT"), providing, subject to the
terms and conditions thereof, for the issuance of letters of credit for the
account of the Account Parties in an aggregate face amount not exceeding
$1,000,000,000. The Obligors, the Lenders and the Administrative Agent wish to
amend the Agreement in certain respects and, accordingly, the parties hereto
hereby agree as follows:
Section 1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 2, terms defined in the Agreement are used herein as defined
therein.
Section 2. AMENDMENTS. Effective as provided in Section 4 below,
the Agreement is hereby amended as follows:
2.01. References in the Agreement (including references to the
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 Agreement as amended hereby.
2.02. Section 6.01 is hereby amended to read in its entirety as
follows:
"SECTION 6.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. Each
Account Party will furnish to the Administrative Agent and each Lender:
(a) within 135 days after the end of each fiscal year of each
Account Party
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
1
except for XL America (but in the case of XL Capital, within 100 days
after the end of each fiscal year of XL Capital), the audited
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows of such Account Party 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 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 Account Party and
its consolidated Subsidiaries on a consolidated basis in accordance with
GAAP or (in the case of XL Europe, XL Insurance and XL Re) SAP, as the
case may be, consistently applied;
(b) by June 15 of each year, (i) an unaudited consolidating
balance sheet and related statements of operations, stockholders' equity
and cash flows of XL America 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), all certified by a
Financial Officer of XL America as presenting fairly in all material
respects the financial condition and results of operations of XL America
and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes, and (ii) audited statutory
financial statements for each insurance subsidiary of XL America reported
on by 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 audited consolidated financial statements present fairly
in all material respects the financial condition and results of
operations of such insurance subsidiaries in accordance with SAP,
consistently applied;
(c) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of such Account Party, the
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows of such Account Party 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
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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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 Account Party as presenting fairly in all
material respects the financial condition and results of operations of
such Account Party and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP or (in the case of XL Europe, XL Insurance
and XL Re) 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 (c) 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 (c));
(d) concurrently with any delivery of financial statements
under clause (a), (b) or (c) of this Section, a certificate signed on
behalf of each Account Party 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, XL Re and any insurance subsidiary of XL America) 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;
(e) concurrently with any delivery of financial statements
under clauses (a) and (b)(ii) 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);
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by such Account Party 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 Account Party to its shareholders
generally, as the case may be;
(g) concurrently with any delivery of financial statements
under clause (a), (b) or (c) 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
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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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), (b) and (c) of this Section shall satisfy the
requirement of this clause (i) of this paragraph (g) 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
(h) 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."
2.03. Schedule V is hereby deleted and replaced with Schedule V
attached to this Amendment No. 2 and the reference to "as of the date hereof" in
the first sentence of Section 4.13 is amended to read "as of September 30,
2001".
Section 3. REPRESENTATIONS AND WARRANTIES. Each Account Party
hereby represents and warrants to the Administrative Agent and the Lenders that
(i) the representations and warranties set forth in Article IV of the Agreement
are, on the date hereof, true and complete as if made on the date hereof (and
after giving effect to this Amendment No. 2) and as if each reference in said
Article IV to "this Agreement" includes reference to this Amendment No. 2 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 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. 2 shall have
been executed and delivered by each of the Obligors and the Required Lenders.
4.02. OTHER DOCUMENTS. Receipt by the Administrative Agent of
such other documents as the Administrative Agent or special New York counsel to
JPMorgan Chase Bank may reasonably request.
Section 5. MISCELLANEOUS. Except as herein provided, the Agreement
shall remain unchanged and in full force and effect. Nothing in this Amendment
No. 2 shall constitute a waiver of any rights and/or remedies that the Lenders
and/or the Administrative Agent may have under the Agreement and nothing
contained herein shall obligate the Lenders to grant any future waiver of any
provision of the Agreement. XL Capital shall pay all
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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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 JPMorgan Chase Bank, in connection with the
preparation, negotiation, execution and delivery of this Amendment No. 2. This
Amendment No. 2 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. 2 by signing any such
counterpart. This Amendment No. 2 shall be governed by, and construed in
accordance with, the law of the State of New York.
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be duly executed and delivered as of the day and year first above
written.
X.L. AMERICA, INC.,
as an Account Party and a Guarantor
By:
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Name:
Title:
XL INSURANCE (BERMUDA) LTD,
as an Account Party and a Guarantor
By:
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Name:
Title:
XL EUROPE LTD,
as an Account Party and a Guarantor
By:
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Name:
Title:
XL RE LTD,
as an Account Party and a Guarantor
By:
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Name: John W. Hume
Title: EVP & Chief Financial Officer
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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IN WITNESS WHEREOF, XL Capital has caused this Amendment No. 2
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
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witness
By:
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Name: Brian M. O'Hara
Title: President & CEO
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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LENDERS
JPMORGAN CHASE BANK
Individually and as Administrative Agent
By:
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Name:
Title:
CITIBANK, N.A.
By:
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Name:
Title:
MELLON BANK, N.A.
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
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Name:
Title:
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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BANK ONE, NA
By:
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Name:
Title:
By:
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Name:
Title:
BARCLAYS BANK PLC
By:
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Name:
Title:
By:
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Name:
Title:
By:
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Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
DEUTSCHE BANK AG
New York and/or Cayman Islands Branch
By:
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Name:
Title:
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
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Name:
Title:
FLEET NATIONAL BANK
By:
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Name:
Title:
LLOYDS TSB BANK PLC
By:
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Name:
Title:
By:
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Name:
Title:
ABN AMRO BANK N.V., LONDON BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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BANCO SANTANDER CENTRAL HISPANO, S.A.
By:
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Name:
Title:
By:
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Name:
Title:
COMERICA BANK
By:
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Name:
Title:
FIRST UNION NATIONAL BANK
By:
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Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By:
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Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
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Name:
Title:
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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ING BANK N.V., LONDON BRANCH
By:
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Name:
Title:
AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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