Exhibit 10.1
AGREEMENT OF AMENDMENT
Dated as of May 10, 2004
Reference is made to (i) that certain Revolving Credit and
Security Agreement dated as of February 25, 2003 (as from time to time amended,
the "Credit Agreement") among XL Re Ltd (the "Borrower"), CAFCO, LLC ("CAFCO"),
CRC Funding, LLC ("CRC"), CHARTA, LLC ("CHARTA"), CIESCO, LLC ("CIESCO"),
Citibank, N.A. ("Citibank") and Citicorp North America, Inc., as agent (the
"Agent"), and (ii) that certain Control Agreement (as from time to time amended,
the "Control Agreement") dated as of February 25, 2003 (the "Original Effective
Date") among the Borrower, the Agent and Mellon Bank, N.A. (the "Securities
Intermediary"). Capitalized terms used and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
WHEREAS, the Borrower, the Agent and the Securities
Intermediary have discovered several errors in the Control Agreement and have
agreed that such errors should be corrected, effective as of the Original
Effective Date; and
WHEREAS, the parties desire to amend the Control Agreement in
certain other respects, as more particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereto agree
as follows
1. Effective retroactively as of the Original Effective
Date, clause (b) of Section 2 of the Control Agreement is amended in its
entirety to read as follows:
"(b) All financial assets credited to a Collateral
Account shall be registered in the name of the
Securities Intermediary, endorsed to the Securities
Intermediary or in blank or credited to another
securities account maintained in the name of the
Securities Intermediary and in no case will any
financial asset credited to any Collateral Account be
registered in the name of XLReB, payable to the order
of XLReB or specially endorsed to XLReB except to the
extent the foregoing have been specially endorsed to
the Securities Intermediary or in blank."
2. Effective as of the Original Effective Date, clause
(a) of Section 3 of the Control Agreement is amended by adding the following at
the end thereof:
"Notwithstanding the foregoing, the parties agree
that Control Collateral shall not include assets
pledged as collateral for futures contracts entered
into by XLReB,
which assets are custodied elsewhere but are
reflected in the Collateral Account for recordkeeping
purposes only (the "Subject Assets"). The Securities
Intermediary's records with respect to the Collateral
Account shall identify the Subject Assets as being
reflected in the account for recordkeeping purposes
only."
3. Effective as of the date hereof, Section 4 of the
Control Agreement is amended by adding the following sentence after the first
sentence thereof:
"Without limiting the foregoing, if requested in
writing by the Agent and at all times following the
Securities Intermediary's receipt of a Notice of
Exclusive Control, the Securities Intermediary shall
promptly deliver to the Agent copies of each of the
"custom reports" which are prepared by the Securities
Intermediary for purposes of assisting the Borrower
in determining if the assets in the Collateral
Accounts constitute Borrowing Base Eligible Assets.
4. Effective as of the date hereof, Section 5 of the
Control Agreement is amended by adding the following sentence at the end
thereof:
"For the avoidance of doubt, each of the parties
acknowledges and agrees that nothing in this
Agreement (i) shall be deemed to impose upon the
Securities Intermediary any obligation to determine
if any asset of the Borrower constitutes a Borrowing
Base Eligible Asset, or (ii) shall impose upon the
Securities Intermediary any liability for the failure
of any asset of the Borrower which has been
designated by the Borrower as a Borrowing Base
Eligible Asset in any report prepared by the Borrower
failing to, at any time, constitute a Borrowing Base
Eligible Asset."
5. The Borrower represents and warrants to the Agent,
Citibank, CAFCO, CRC, CHARTA and CIESCO that immediately after giving effect to
this Agreement of Amendment (except to the extent that any such representations
or warranties expressly relate to an earlier date), (i) the representations and
warranties of the Borrower set forth in the Credit Agreement are true and
correct in all material respects, and (ii) no Default or Event of Default shall
be continuing.
6. This Agreement of Amendment may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.
2
7. THIS AGREEMENT OF AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8. All references in any Program Document to the Control
Agreement on and after the date hereof shall be deemed to refer to the Control
Agreement as amended hereby, and the parties hereto agree that on and after the
date hereof, the Control Agreement, as amended hereby, is in full force and
effect.
3
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
MELLON BANK, N.A.,
as Securities Intermediary
By: /s/ Donna F. Moses
-----------------------------
Name: Donna F. Moses
Title: First Vice President
XL RE LTD,
as Borrower
By: /s/ James O'Shaughnessy
-----------------------------
Name: James O'Shaughnessy
Title: Senior Vice President &
Chief Financial Officer
CITICORP NORTH AMERICA, INC.,
as Agent
By: /s/ Arthur Bovino
----------------------------
Name: Arthur Bovino
Title: Vice President
4