EXHIBIT 10.1
EXECUTION COUNTERPART
AMENDMENT NO. 1, dated as of June 22, 2005, to the Credit Agreement
referred to below, between XL CAPITAL LTD, a Cayman Islands exempted limited
company, X.L. AMERICA, INC., a Delaware corporation, XL INSURANCE (BERMUDA) LTD,
a Bermuda limited liability company, and XL RE LTD, a Bermuda limited liability
company, each of the Lenders party to such Credit Agreement and JPMORGAN CHASE
BANK, N.A. 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
Three-Year Credit Agreement dated as of June 23, 2004 (the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for extensions of credit
to be made by or on behalf of said Lenders to the Account Parties in an
aggregate principal or face amount not exceeding $2,000,000,000. 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 of the date hereof as provided in
Section 4 of this Amendment No. 1, the Credit Agreement is hereby amended as
follows:
2.01. References in the Credit Agreement (a) 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 and (b) to
the "364-Day Credit Agreement" shall be deemed to be references to the Other
Credit Agreement.
2.02. Section 1.01 of the Credit Agreement is hereby amended by inserting
the following definitions (or, in the case of any of the following defined terms
that are already defined in the Credit Agreement, by amending and restating in
its entirety each such term to read as set forth below) in their proper
respective alphabetical locations:
"Applicable Additional Margin" means a rate per annum equal to 0.10%
for any period during which the sum of (a) the aggregate outstanding
principal amount of the Loans and (b) the aggregate outstanding principal
amount of the Loans under (and as defined in) the Other Credit Agreement
shall be greater than 50% of the RC Sublimit then in effect.
"Business Day" means any day (a) that is not a Saturday, Sunday or
other day on which commercial banks in New York City, London, the Cayman
Islands or Bermuda are authorized or required by law to remain closed and
(b) if such day relates to a borrowing of, a payment or prepayment of
principal of or interest on, a continuation or conversion of or into, or
the Interest Period for, a Eurodollar Loan, or to a notice by an Account
Party with respect to any such borrowing, payment, prepayment,
continuation, conversion, or
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Interest Period, that is also a day on which dealings in Dollar deposits
are carried out in the London interbank market.
"Consolidated Net Worth" means, at any time, the consolidated
stockholders' equity of XL Capital and its Subsidiaries, provided that the
calculation of such consolidated stockholders' equity shall exclude (a) the
effect thereon of any adjustments required under Statement of Financial
Accounting Standards No. 115 ("Accounting for Certain Investments in Debt
and Equity Securities") and (b) any Exempt Indebtedness (and the assets
relating thereto) in the event such Exempt Indebtedness is consolidated on
the consolidated balance sheet of XL Capital and its consolidated
Subsidiaries in accordance with GAAP.
"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, net profits or overall gross receipts
(including, without limitation, branch profits or similar taxes) by the
United States of America, or by any jurisdiction under the laws of which
such recipient is organized or resident, in which such recipient has an
office or with which such recipient has any other connection (other than a
connection that is deemed to arise solely by reason of both (I) the
transactions contemplated by this Agreement and (II) an Account Party being
organized in, maintaining an office in, conducting business in, or having a
connection with, such jurisdiction), (b) any Taxes not described in clause
(a) above (other than Other Taxes) that are imposed as a result of a
connection the Administrative Agent or any Lender, as the case may be, has
with the relevant jurisdiction (other than a connection that is deemed to
arise solely by reason of both (I) the transactions contemplated by this
Agreement and (II) an Account Party being organized or resident in,
maintaining an office in, conducting business in, or having a connection
with, such jurisdiction) and (c) any Tax imposed pursuant to a law in
effect at the time such Lender first becomes a party to this Agreement
except to the extent that such Lender's assignor, if any, was entitled at
the time of the assignment to receive additional amounts from the Account
Parties with respect to such Tax under Sections 2.19(a) or 2.19(c) and (d)
any Tax that is attributable to such Lender's failure or inability (other
than as a result of a Change in Law formally announced after such Lender
becomes a party to this Agreement) to comply with Section 2.19(e).
"Exempt Indebtedness" means, any Indebtedness of any Person (other
than XL Capital or any of its Affiliates) that is consolidated on the
balance sheet of XL Capital and its consolidated Subsidiaries in accordance
with GAAP (whether or not required to be so consolidated); provided that
(a) at the time of the incurrence of such Indebtedness by such Person, the
cash flows from the assets of such Person shall reasonably be expected by
such Person to liquidate such Indebtedness and all other liabilities
(contingent or otherwise) of such Person and (b) no portion of such
Indebtedness of such Person shall be Guaranteed (other than guarantees of
the type referred to in clause (a) or (b) of the definition of
Indebtedness) by, or shall be secured by a Lien on any assets owned by, XL
Capital or any of its Subsidiaries and neither such Person nor any of the
holders of such Indebtedness shall have any direct or indirect recourse to
XL Capital or
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any of its Subsidiaries (other than in respect of liabilities and
guarantees of the type referred to in clause (a) or (b) of the definition
of Indebtedness).
"Indebtedness" means, for any Person, without duplication: (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 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; provided that the following shall be excluded from Indebtedness of
XL Capital and any of its Subsidiaries for purposes of this Agreement: (a)
all payment liabilities of any such Person under insurance and reinsurance
policies from time to time issued by such Person, including guarantees of
any such payment liabilities; (b) all other liabilities (or guarantees
thereof) arising in the ordinary course of any such Person's business as an
insurance or reinsurance company (including GICs and Stable Value
Instruments and any Specified Transaction Agreement relating thereto), or
as a corporate member of The Council of Lloyd's, or as a provider of
financial or investment services or contracts (including GICs and Stable
Value Instruments and any Specified Transaction Agreement relating
thereto); and (c) any Exempt Indebtedness.
"JPMCB" means JPMorgan Chase Bank, N.A (f/k/a JPMorgan Chase Bank).
"Other Credit Agreement" shall mean the Credit Agreement dated as of
June 22, 2005 among the Account Parties, the lenders party thereto and
JPMCB, as Administrative Agent (as amended and in effect from time to time,
including any renewals, extensions, restatements or replacements thereof).
"RC Sublimit" means $1,000,000,000, as such amount may be reduced from
time to time pursuant to Section 2.11.
"Total Funded Debt" means, at any time, all Indebtedness of XL Capital
and its Subsidiaries and any other Person which would at such time be
classified in whole or in part as a liability on the consolidated balance
sheet of XL Capital and its consolidated Subsidiaries in accordance with
GAAP (it being understood for avoidance of doubt that any liability or
obligation excluded from the definition of Indebtedness shall not
constitute Indebtedness for purposes of this definition).
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2.03. Taxes.
(a) Section 2.19(e) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
"(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. Upon the reasonable
request of XL Capital in writing, 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. In addition, each Lender agrees
from time to time when a lapse in time or change in circumstances renders
the previous documentation obsolete or inaccurate in any material respect,
it will deliver to the Account Parties such properly completed and executed
documentation as will permit such payments to continue to be made without
withholding or at a reduced rate, or notify the Account Parties that it is
unable to do so."
(b) Section 2.19(f) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
"(f) If the Administrative Agent or a Lender determines, in its
reasonable discretion, that it has received a refund from the relevant
Governmental Authority (in cash or as an offset against another tax
liability owing to such Governmental Authority) of any Taxes or Other Taxes
as to which it has been indemnified by an Account Party or with respect to
which an Account Party has paid additional amounts pursuant to this
Section, it shall pay over such refund to such Account Party (but only to
the extent of indemnity payments made, or additional amounts paid, by such
Account Party under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided that such Account Party, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over
to such Account Party (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent
or such Lender in the event the Administrative Agent or such
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Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require the Administrative Agent or
any Lender to make available its tax returns (or any other information
relating to its taxes not expressly required to be made available hereunder
which it reasonably deems confidential) to any Account Party or any other
Person."
(c) Section 2.19 of the Credit Agreement is hereby amended by deleting
clause (g) thereof in its entirety.
2.04. Section 7.02 of the Credit Agreement is hereby amended by (i)
deleting the word "or" at the end of clause (b) thereof, (ii) replacing the
period at the end of clause (c) thereof with a semicolon followed by the word
"or" and (iii) inserting, immediately after such clause (c), a new clause (d) to
read as follows:
"(d) Dispositions from an Account Party or a wholly-owned Subsidiary
to any other Account Party or wholly-owned Subsidiary."
2.05. Section 7.03(h) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"(h) Liens on (i) assets received, and on actual or imputed investment
income on such assets received incurred as part of its business including
activities utilizing ISDA documentation or any Specified Transaction
Agreement relating and identified to specific insurance payment liabilities
or to liabilities arising in the ordinary course of any Account Parties' or
any of their Subsidiary's business as an insurance or reinsurance company
(including GICs and Stable Value Instruments) or corporate member of The
Council of Lloyd's or as a provider of financial or investment services or
contracts, or the proceeds thereof (including GICs and Stable Value
Instruments), in each case held in a segregated trust, trust or other
account and securing such liabilities, (ii) assets securing Exempt
Indebtedness of any Person (other than XL Capital or any of its Affiliates)
in the event such Exempt Indebtedness is consolidated on the consolidated
balance sheet of XL Capital and its consolidated Subsidiaries in accordance
with GAAP or (iii) 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 (h);".
2.06. Section 7.06 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
"Consolidated Net Worth. XL Capital will not permit its Consolidated
Net Worth to be less than the sum of (a) $5,000,000,000 plus (b) 25% of
consolidated net income (if positive) of XL Capital and its Subsidiaries
for each fiscal quarter ending on or after June 30, 2005."
2.07. Section 10.04(b)(v) of the Credit Agreement is hereby amended by
deleting
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the word "may" in the seventh line thereof and replacing it with the word
"shall".
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 of such Account Party 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 before and after giving effect to
the amendments under Section 2 hereof, no Default has occurred and is
continuing.
Section 4. Conditions Precedent. The amendments to the Credit Agreement set
forth in Section 2 of this Amendment No. 1 shall become effective, as of the
date hereof, upon receipt by the Administrative Agent of one or more
counterparts of this Amendment No. 1 duly executed and delivered by each of the
Obligors and the Required Lenders.
Section 5. Miscellaneous. Except as herein provided, the Credit Agreement
shall remain unchanged and in full force and effect. This Amendment No. 1 may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same agreement 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 laws of the State of New
York.
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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 an
Account Party and a
Guarantor
By: /s/ Gabe Carino
----------------------------------------
Name: Gabe Carino
Title: Vice President
XL INSURANCE (BERMUDA) LTD,
as an Account Party and a Guarantor
By: /s/ Christopher A. Coelho
----------------------------------------
Name: Christopher A. Coelho
Title: Senior Vice-President &
Chief Financial Officer
XL RE LTD,
as an Account Party and a Guarantor
By: /s/ Gregory S. Hendrick
----------------------------------------
Name: Gregory S. Hendrick
Title: President & Chief
Underwriting Officer
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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 an Account Party and a Guarantor
/s/ Georgette D. Barit
-----------------------------------------------
witness
By: /s/ Kirstin Romann Gould
----------------------------------------
Name: Kirstin Romann Gould
Title: Senior Vice President, Chief
Corporate Legal Officer &
Secretary
[SEAL]
Amendment No. 1 to Three-Year Credit Agreement
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LENDERS
JPMORGAN CHASE BANK, N.A.
individually and as Administrative Agent
By: /s/ Helen L. Newcomb
----------------------------------------
Name: Helen L. Newcomb
Title: Vice President
BARCLAYS BANK PLC
By: /s/ Clinton Murr
----------------------------------------
Name: Clinton Murr
Title: Manager
CITIBANK, N.A.
By: /s/ Michael A. Taylor
----------------------------------------
Name: Michael A. Taylor
Title: Managing Director
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Mary K. Young
----------------------------------------
Name: Mary K. Young
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Joan Anderson
----------------------------------------
Name: Joan Anderson
Title: Director
ABN AMRO BANK N.V.
By: /s/ Neil R. Stein
----------------------------------------
Name: Neil R. Stein
Title: Director
By: /s/ Michael De Marco
----------------------------------------
Name: Michael De Marco
Title: Asst. Vice President
CALYON NEW YORK BRANCH
By: /s/ Sebastian Rocco
----------------------------------------
Name: Sebastian Rocco
Title: Managing Director
By: /s/ Peter Rasmussen
----------------------------------------
Name: Peter Rasmussen
Title: Managing Director
Amendment No. 1 to Three-Year Credit Agreement
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MERRILL LYNCH BANK USA
By: /s/ Louis Alder
----------------------------------------
Name: Louis Alder
Title: Director
MELLON BANK, N.A.
By: /s/ Jeffrey R. Dickson
----------------------------------------
Name: Jeffrey R. Dickson
Title: First Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By: /s/ Chimie T. Pemba
----------------------------------------
Name: Chimie T. Pemba
Title: Authorized Signatory
BANK OF AMERICA, N.A.
By: /s/ Timothy Cassidy
----------------------------------------
Name: Timothy Cassidy
Title: Vice President
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CREDIT SUISSE NEW YORK BRANCH (f/k/a Credit
Suisse First Boston New York Branch)
By: /s/ Jay Chall
-------------------------------------------
Name: Jay Chall
Title: Director
By: /s/ Mikhail Faybusovich
-------------------------------------------
Name: Mikhail Faybusovich
Title: Associate
LLOYDS TSB BANK PLC, NEW YORK BRANCH
By: /s/ Matthew S.R. Tuck
-------------------------------------------
Name: Matthew S.R. Tuck
Title: Vice President
Financial Institutions, USA
By: /s/ Paul D. Briamonte
-------------------------------------------
Name: Paul D. Briamonte
Title: Director-Project Finance (USA)
Amendment No. 1 to Three-Year Credit Agreement
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THE ROYAL BANK OF SCOTLAND PLC
By: /s/ John Mallett
-------------------------------------------
Name: John Mallett
Title: Relationship Director
THE BANK OF NEW YORK
By: /s/ Sreecaran Ganesan
-------------------------------------------
Name: Sreecaran Ganesan
Title: Vice President
UBS AG, STAMFORD BRANCH
By: /s/ Wilfred V. Saint
-------------------------------------------
Name: Wilfred V. Saint
Title: Director
Banking Products Services, US
By: /s/ Marie A. Haddad
-------------------------------------------
Name: Marie A. Haddad
Title: Associate Director
Banking Products Services, US
COMERICA BANK
By: /s/ Chatphet Saipetch
-------------------------------------------
Name: Chatphet Saipetch
Title: Assistant Vice President
Amendment No. 1 to Three-Year Credit Agreement