EXHIBIT 10.35
THIS AGREEMENT (the "AGREEMENT") is made as of 31 December 2005 among:
(1) ALLIED WORLD ASSURANCE COMPANY, LTD, a corporation organized under the
laws of Bermuda, as Borrower (the "BORROWER"); and
(2) BARCLAYS BANK PLC, as Issuer (the "ISSUER").
(A) WHEREAS, pursuant to a letter of credit issuance facility agreement dated
as of 31 December 2003 as amended by a Global Amendment Agreement dated as
of January 11, 2005, each between the Borrower and the Issuer (as amended,
increased or otherwise modified from time to time, the "ORIGINAL CREDIT
AGREEMENT"), the Issuer issued certain letters of credit in accordance
with the terms of the Original Credit Agreement.
(B) WHEREAS, pursuant to a Security Agreement dated as of 31 December 2003 (as
amended or otherwise modified from time to time, the "SECURITY AGREEMENT")
executed by the Borrower in favor of the Issuer, the Borrower granted a
security interest in the Collateral (as defined therein) to the Issuer.
(C) WHEREAS the parties desire to extend the tenure of the Credit Agreement
and make certain other amendments to the documents described above, all as
set out below.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AMENDED AGREEMENT" means the Original Credit Agreement as amended by this
Agreement.
"EFFECTIVE DATE" shall have the meaning given to it in Clause 5.1.
1.2 INCORPORATION OF DEFINED TERMS
Terms not otherwise defined in this Agreement shall have the same meaning
as set forth in the Original Credit Agreement.
1.3 CLAUSES
(a) In this Agreement any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause or
Schedule of this Agreement.
(b) Clause and Schedule headings are for ease of reference only.
2. REPRESENTATIONS
The Borrower repeats the representations set out in Clause 5
(Representations and Warranties) of the Original Credit Agreement as
amended by Clause 3 below as if
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each reference in those representations to "this Agreement" includes a
reference to (a) this Agreement and (b) the Amended Agreement.
3. AMENDMENTS
3.1 AMENDMENT OF THE ORIGINAL CREDIT AGREEMENT
With effect from the Effective Date the Original Credit Agreement shall be
amended as follows:
3.1.1 In clause (A) of the Recitals the term "$125,000,000" shall be
deleted and replaced with the term "$250,000,000."
3.1.2 In the definition of "AGGREGATE FACILITY LC COMMITMENT" the term
"$125,000,000" shall be deleted and replaced with the term
"$250,000,000."
3.1.3 The definition of "COLLATERAL" shall be deleted in its entirety and
replaced with:
"COLLATERAL" means at any time US Government Securities.
3.1.4 The definition of "US GOVERNMENT SECURITIES" shall be deleted in its
entirety and replaced with:
"US GOVERNMENT SECURITIES" means at any time treasury bills,
notes and bonds issued by the US Government (but excluding
securities issued by any agency of the US Government) and
which are rated at least AAA by S&P and which have a remaining
modified duration of less than eight years.
3.1.5 The definition of "LC FACILITY TERMINATION DATE" shall be deleted in
its entirety and replaced with:
"LC FACILITY TERMINATION DATE" means December 31, 2008 (as
such date may be extended by amendment hereto) or any earlier
date on which the Aggregate Facility LC Commitment is reduced
to zero or otherwise terminated and/or the Facility LC
Obligations shall become due and payable in accordance with
the provisions of this Agreement.
3.1.6 The following definitions shall be added to Clause 1 (Definitions):
(a) "AWAH FACILITY" means (i) the Credit Agreement dated as of
March 30, 2005 among the Parent, Bank of America N.A.,
Wachovia Bank, National Association and the other lenders
party thereto, as amended, modified or supplemented from time
to time and (ii) any loan agreement, credit agreement or
similar agreement entered into in replacement or refinancing
thereof.
(b) "PARENT" means Allied World Assurance Holdings, Ltd, an
exempted Bermuda company.
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3.1.7 Clause 5.6 shall be deleted in its entirety and replaced with the
following:
Since 31 December 2003, there has been no change in the business,
Property, condition (financial or otherwise), prospects or results
of operations of the Borrower and its Subsidiaries taken as a whole
which could reasonably be expected to have a Material Adverse Effect
except (i) for the cumulative effects of hurricanes Xxxxxxx, Xxxx
and Xxxxx during the 2005 hurricane season of the United States of
America, (ii) as described in Clause 5.8 (Litigation and Contingent
Obligations) and (iii) the Permitted Terminations.
3.1.8 Clause 5.8 shall be deleted in its entirety and replaced with the
following:
There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their
officers, threatened against or affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to (a) have a
Material Adverse Effect except for the investigation by the Attorney
General of the State of Texas into price fixing and/or bid-rigging
by the Borrower and anti-competitive behaviour involving the
Borrower or (b) prevent, enjoin or unduly delay the issuance of
Facility LCs under this Agreement. As of the date hereof, the
Borrower has no material Contingent Obligations not provided for or
disclosed in the Financial Statements.
3.1.9 A new Clause 7.12 shall be added as follows:
7.12 The occurrence of an Event of Default (as defined in the AWAH
Facility) under the AWAH Facility.
4. CONTINUITY AND FURTHER ASSURANCE
4.1 CONTINUING OBLIGATIONS
The provisions of the Original Credit Agreement and the Security Agreement
shall, save as amended in this Agreement, continue in full force and
effect.
4.2 FURTHER ASSURANCE
The Borrower shall, at the reasonable request of the Issuer and at its own
expense, do all such acts and such things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this
Agreement.
5. EFFECTIVENESS AND CONFIRMATION
5.1 EFFECTIVENESS
This Agreement shall become effective as of 31 December 2005 upon
confirmation by the Issuer to the Borrower that the Issuer has received,
in form and substance satisfactory to it, each of the documents set out in
Schedule 1 (Conditions Precedent) (the "EFFECTIVE DATE").
5.2 SECURITY INTEREST CONFIRMATION
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The Borrower hereby confirms that the security interest granted to the
Issuer under the Security Agreement shall continue to apply to the Amended
Agreement.
6. FEES, COSTS AND EXPENSES
6.1 EXTENSION FEE
The Borrower shall pay to the Issuer an extension fee of $85,000 (the
"EXTENSION FEE"), to be paid on signing of this Agreement.
6.2 TRANSACTION EXPENSES
The Borrower shall promptly on demand pay the Issuer the amount of all
costs and expenses (including legal fees) reasonably incurred by the
Issuer in connection with the negotiation, preparation, printing and
execution of this Agreement and any other documents referred to in this
Agreement.
6.3 ENFORCEMENT COSTS
The Borrower shall, within three Business Days of demand, pay to the
Issuer the amount of all costs and expenses (including legal fees)
reasonably incurred by the Issuer in connection with the enforcement of,
or the preservation of any rights under this Agreement.
6.4 STAMP TAXES
The Borrower shall pay and, within three Business Days of demand,
indemnify the Issuer against any cost, loss or liability that the Issuer
incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of this Agreement.
7. MISCELLANEOUS
7.1 INCORPORATION OF TERMS
Clauses 9.4 (Entire Agreement), 9.7 (Severability of Provisions), 9.9
(Choice of Law), 9.10 (Consent to Jurisdiction), 9.11 (Waiver of Jury
Trial) and 9.12 (Counterparts) of the Original Credit Agreement shall be
incorporated into this Agreement as if set out in full in this Agreement
and as if references in those clauses to "this Agreement" are references
to this Agreement.
7.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single
copy of this Agreement.
THIS AGREEMENT is effective as of the Effective Date.
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SIGNATURES
ALLIED WORLD ASSURANCE COMPANY, LTD
AS BORROWER
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President & Chief Financial Officer
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Vice President & Treasurer
BARCLAYS BANK PLC
AS ISSUER
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Corporate Credit Analyst
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