Exhibit 10.58
AMENDED AND RESTATED
STANDBY LETTER OF CREDIT AGREEMENT
This AMENDED AND RESTATED STANDBY LETTER OF CREDIT AGREEMENT is dated as
of June 30, 2004 (the "Agreement") and is by and among National Australia Bank
Limited, New York Branch (the "Bank"), XL Capital Ltd, a company incorporated
under the laws of the Cayman Islands, XL America, Inc., a Delaware corporation,
XL Insurance (Bermuda) Ltd, a Bermuda limited liability company, and XL Re Ltd,
a Bermuda limited liability company (collectively, the "Account Parties" and
each an "Account Party").
WHEREAS, the Account Parties, the Bank and XL Europe Ltd ("XL Europe")
have entered into two Standby Letter of Credit Agreements, one dated as of
January 31, 2003 and the other dated as of July 25, 2003 (the "Existing
Agreements") pursuant to which the Bank issued to the benefit of XL Capital
Assurance Inc. as Beneficiary, respectively, that certain US $100 Million
Standby Letter of Credit No. SB-0406 and that certain US $100 Million Standby
Letter of Credit No. SB-0429 (collectively, the "Credits" and each a "Credit");
WHEREAS, the parties hereto desire to amend the Existing Agreements by
combining them into one agreement to govern the rights and obligations of the
parties with respect to the Credits and to make such other amendments as the
parties shall agree;
WHEREAS, the parties hereto and XL Europe have agreed that XL Europe will
not be a party to this Agreement and that upon execution of this Agreement XL
Europe will not have any rights or obligations hereunder or under the Existing
Agreements;
NOW, THEREFORE, the parties hereto agree that, as of the date hereof, the
Existing Agreements are hereby amended and restated in their entirety to
constitute this one Amended and Restated Standby Letter of Credit Agreement
which shall read as follows:
1. The Account Parties unconditionally agree, jointly and severally and
regardless of the identity of the Account Party of the Credit, to pay to the
Bank, on demand in immediately available funds (in United States Dollars), on
each date on which a disbursement is made by the Bank pursuant to a Credit, an
amount equal to such disbursement. If payment is not made on the date of
disbursement, such amount shall bear interest (based on a 360-day year and
actual days
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elapsed) from the date of disbursement until paid in full, but excluding the
date paid, at a rate per annum equal to the rate of interest from time to time
announced by the Bank as its prime rate plus 2%.
2. The Account Parties agree to pay to the Bank, quarterly in arrears and
on the date on which a Credit expires, letter of credit fees (based on a 360-day
year and actual days elapsed) in an amount equal to 0.40% per annum of the
amount available to be drawn under such Credit from time to time.
3. The Account Parties' joint and several obligations to reimburse Credit
disbursements as provided in Paragraph 1 above shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with terms of
this Agreement, irrespective of any of the following circumstances: (a) any lack
of validity or enforceability of a Credit or any document or instrument relating
thereto; (b) the existence of any claim, setoff, defense or other rights which
any of the Account Parties may have at any time against the Bank, the
Beneficiary or any other person or entity, whether in connection with this
Agreement or any unrelated transaction; (c) any document presented under a
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect whatsoever;
(d) payment by the Bank under a Credit against presentation of a draft or
certificate which does not strictly comply with the terms of a Credit, provided
such payment shall have been made by the Bank in good faith and without gross
negligence and payment is made against presentation of a draft or other document
that at least substantially complies with the terms of the relevant Credit; (e)
any agreement by the Bank and the Beneficiary extending or shortening the Bank's
time after presentation to examine documents or to honor or give notice of
discrepancies; (f) at any time or from time to time, without notice to any
Account Party, the time for any performance of or compliance with any of such
reimbursement obligations of any other Account Party being waived, extended or
renewed; (g) any of such reimbursement obligations of any other Account Party
being amended or otherwise modified in any respect, or any guarantee of any of
such reimbursement obligations being released, substituted or exchanged in whole
or in part or otherwise dealt with; (h) the occurrence of any Event of Default;
(i) the existence of any proceedings of the type described in clause (g) or (h)
of Article VIII of that certain 364-Day Credit Agreement dated as of June 23,
2004 among the Account Parties hereunder, as account
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parties and guarantors thereunder, various lenders parties thereto and JPMorgan
Chase Bank, as administrative agent (the "Syndicated Credit Agreement") with
respect to any other Account Party or any guarantor of any of such reimbursement
obligations; (j) any lack of validity or enforceability of any of such
reimbursement obligations against any other Account Party or any guarantor of
any of such reimbursement obligations; or (k) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Paragraph 3, constitute a legal or equitable discharge of
the obligations of any Account Party hereunder, other than performance by an
Account Party hereunder. Without limiting any other provision of this Agreement,
the Bank: (i) may rely upon any oral, telephonic, facsimile, electronic, written
or other communication believed by it in good faith to have been authorized by
any Account Party, the Beneficiary or anyone acting for any of them; (ii) shall
not be responsible for errors, omissions, interruptions or delays in
transmission or delivery of any message, advice or document in connection with a
Credit, whether transmitted by courier, mail, telecommunication or otherwise, or
for errors in interpretation of technical terms or in translation; (iii) shall
not be responsible for the identity or authority of any signer or the form,
accuracy, genuineness or legal effect of any draft, certificate or other
document presented under a Credit; and (iv) may accept as a draft any written or
electronic demand or other request for payment under a Credit, even if such
demand or other request is not in the form of a negotiable draft.
4. If after the date hereof, the adoption of or any change in any law or
regulation or in the interpretation thereof by, or compliance by the Bank with
any guideline or request from any central bank or other authority charged with
the administration thereof (whether or not having the force of law) shall
impose, modify or deem applicable any (a) reserve, special deposit or similar
requirement against letters of credit issued by the Bank or (b) capital adequacy
or similar requirement (including without limitation a requirement which affects
the manner in which the Bank allocates capital to letters of credit), and the
result thereof shall be to increase the cost to the Bank of issuing or
maintaining a Credit (which increase in cost shall be calculated in accordance
with the Bank's reasonable averaging and attribution methods) or to reduce the
rate of return on the Bank's capital as a consequence of its obligations under a
Credit to a level below that which the Bank could have achieved but for such
circumstances, then the Account Parties shall pay to the Bank within 10 days of
demand such additional amount or amounts as shall compen-
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sate the Bank for such increase in cost or reduction in rate of return; provided
that this Paragraph 4 shall not apply to Taxes, which shall be governed
exclusively by Paragraph 5. A certificate of the Bank as to such additional
amount or amounts shall be conclusive, absent manifest error.
5. (a) Any and all payments made to the Bank by any Account Party
hereunder shall be made free and clear of and without deduction for any Covered
Taxes unless an Account Party is required to withhold Covered Taxes. If an
Account Party shall be required by law to deduct any Covered Taxes from or in
respect of any sum payable hereunder to the Bank, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions of
Covered Taxes (including deductions applicable to additional sums payable under
this Paragraph 5) the Bank receives an amount equal to the sum it would have
received had no such deductions been required and (ii) such Account Party shall
pay the full amount deducted to the relevant taxing authority in accordance with
applicable law and shall provide the Bank with the original or a certified copy
of the receipt evidencing such payment. If the Bank determines in good faith
that it has received a refund in respect of any Covered Taxes with respect to
which any Account Party has paid additional amounts pursuant to this Paragraph
5, the Bank shall promptly after the date of such receipt pay over the amount of
such refund to such Account Party (but only to the extent of additional amounts
paid by the Account Party under this Paragraph 5 with respect to the Covered
Taxes giving rise to such refund), net of all reasonable expenses of the Bank
(including additional Taxes attributable to such refund, as determined in good
faith by the Bank) and without interest (other than interest, if any, paid by
the relevant taxing authority with respect to such refund). Any Account Party
shall, upon demand, repay to the Bank any amount paid over to such Account Party
by the Bank in the event the Bank is required to repay any portion of such
refund to such taxing authority. If any Account Party reasonably believes that
any Covered Taxes were not correctly or legally asserted, the Bank will use
reasonable efforts to cooperate with such Account Party (at Account Party's
expense) to obtain a refund of such Covered Taxes, which refund shall be
returned to the Account Party to the extent provided in this Paragraph 5(a).
Nothing in this Paragraph 5 shall entitle any Account Party to have access to
the records of the Bank, including, without limitation, tax returns.
(b) To the extent it is legally entitled to do so, the Bank shall from
time to time, at the written request of any Account Party, provide to such
Account Party such form, certification or
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similar documentation, if any (each duly completed, accurate and signed) as is
required by any jurisdiction, in order to obtain an exemption from, or reduced
rate of, deduction, payment or withholding of Covered Taxes to which the Bank is
entitled pursuant to an applicable tax treaty or other applicable law.
(c) An assignee of the Bank or subsequent assignee shall not be entitled
to any greater gross-up payments under this Paragraph 5 than such assignee's
assignor was entitled to immediately prior to such assignment (determined taking
into account the provisions of this Paragraph 5) except to the extent that the
entitlement to greater payments resulted solely from a change in law formally
announced after the date on which such assignee became an assignee hereunder.
(d) For purposes of this Agreement the following terms shall have the
following meanings, respectively:
"Excluded Taxes" means, with respect to the Bank or any other recipient of
a payment from any Account Party hereunder, (a) any Taxes that are imposed as a
result of a connection the recipient of the payment 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, maintaining an office or conducting business
in such jurisdiction), including without limitation any such Taxes imposed on
(or measured by) net income, net profits, branch profits or overall gross
receipts, (b) any Tax that is not imposed solely as a result of a change in law
formally announced after the date hereof and (c) any Tax that is attributable to
the recipient's failure to comply with Paragraph 5(b) above.
"Covered Taxes" means all Taxes, other than Excluded Taxes, that are
imposed on the Bank with respect to any payment made by any Account Party
hereunder.
"Tax" or "Taxes" means any present or future income, stamp or other tax,
levy, impost, duty, charge or withholding imposed, levied, collected, withheld
or assessed by any taxing authority (including any interest or penalties
attributable thereto).
6. Should any of the following events (each an "Event of Default") occur
and be continuing: (a) the Account Parties fail to make payment when due of any
amount payable under
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this Agreement and such failure continues unremedied for at least 3 days; (b)
any representation made in any financial statement or in any certificate or
other writing delivered to the Bank by or on behalf of any Account Party in
connection with this Agreement or a Credit is in any material respect false or
misleading when made; (c) an Account Party shall default in the due performance
or observance by it of any term, covenant or agreement contained herein and such
default shall continue unremedied for a period of more than 20 days; or (d) an
event of default under and as defined in the Syndicated Credit Agreement; then
in each such event, the Bank may declare the obligations of the Account Parties
hereunder to be due and payable immediately and thereupon such obligations shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Account Parties;
and in case of any event with respect to any Account Party described in clause
(g) or (h) of Article VIII of the Syndicated Credit Agreement, the obligations
of the Account Parties hereunder shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Account Party. The Account Parties shall pay to the
Bank, on demand, for application to drawings under each Credit the entire amount
thereof which has not been drawn. Any amount so paid which has not been drawn at
the expiration of a Credit shall be repaid to the Account Parties, without
interest, upon the payment in full of all other amounts owing hereunder.
7. Promptly after the occurrence of an Event of Default or an event which
with the giving of notice or the passage of time, or both, would constitute an
Event of Default, the Account Parties shall notify the Bank of such event,
together with a statement setting forth the actions being taken by the Account
Parties to remedy the same.
8. Each Account Party hereby represents and warrants as to itself that (a)
it is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, has all requisite power and authority to
carry on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect (as such term is defined in the Syndicated Credit
Agreement), is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required; (b) this Agreement has been
duly executed and delivered by such Account Party and constitutes a legal, valid
and binding obligation of such Account Party, enforceable against
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such Account Party in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium,
examination or similar laws of general applicability affecting the enforcement
of creditors' rights and the application of general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and (c) the execution, delivery, and performance of this
Agreement will not violate any provision of any existing law or regulation
binding on such Account Party, the violation of which would have a Material
Adverse Effect (as such term is defined in the Syndicated Credit Agreement) on
the business, operations, assets, or financial condition of such Account Party.
9. The Account Parties jointly and severally agree to pay all reasonable
out-of-pocket expenses incurred by the Bank, including the fees, charges and
disbursements of legal counsel, in connection with the enforcement or protection
of its rights in connection with this Agreement, including its rights under this
Paragraph 9, or in connection with the Credits issued hereunder, including in
connection with any workout, restructuring or negotiations in respect thereof.
10. The Account Parties jointly and severally agree to indemnify the Bank,
its affiliates and each of their respective directors, officers, employees,
agents and advisors (each an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of any counsel for any
Indemnitee (but not including Excluded Taxes), incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (a) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of any transactions contemplated
hereby, (b) any Credit or the use thereof (including any refusal by the Bank to
honor a demand for payment under a Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Credit), (c) any actual or alleged presence or release of Hazardous Materials
(as such term is defined in the Syndicated Credit Agreement) on or from any
property owned or operated by any Account Party or any of its Subsidiaries (as
such term is defined in the Syndicated Credit Agreement), or any Environmental
Liability (as such term is defined in the Syndicated Credit Agreement) related
in any way to any Account Party or any of its Subsidiaries (as such term is
defined in the Syndicated Credit Agreement), or
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(d) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses result from
or arise out of the gross negligence or willful misconduct of such Indemnitee.
To the extent permitted by applicable law, no Account Party shall assert,
and each Account Party hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, any transaction effected in connection herewith and any Credit or the
use of the proceeds thereof.
11. Each Account Party hereby consents to the non-exclusive jurisdiction
of any court of record in the City of New York or of the United States District
Court for the Southern District of New York for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Agreement or a Credit,
and service of process by the Bank in any such suit, action, proceeding or
judgment may be made by mailing a copy thereof to such Account Party at its
address set forth in Paragraph 17 below. The Account Party also waives any claim
that New York County or the Southern District of New York is an inconvenient
forum.
12. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
NEW YORK LAW.
13. If an Event of Default shall have occurred and be continuing, the Bank
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Bank to or for the credit or the account of any Account
Party against any of and all the obligations of such Account Party now or
hereafter existing under this Agreement held by the Bank, irrespective of
whether or not the Bank shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of the Bank under this
Paragraph 13 are in addition to other rights and remedies (including other
rights of setoff) which the Bank may have.
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14. Any articles, sections, clauses, provisions, terms and conditions of
the Syndicated Credit Agreement that are referenced herein (including any
related definitions, schedules and ancillary provisions) and any capitalized
terms used herein with reference to the Syndicated Credit Agreement (the
"Incorporated Terms"), shall be incorporated herein with the same meaning, force
and effect as if such Incorporated Terms were set forth in full as of the date
hereof without amendment (except for those changes or modifications to such
Incorporated Terms as may be necessary or appropriate in the Bank's reasonable
discretion to conform the Incorporated Terms to this Agreement). Each Account
Party agrees to notify the Bank promptly of any amendment or modification of or
change or waiver granted with respect to any Incorporated Term and, if the Bank
so requests by a written instrument, to execute and deliver an amendment to this
Agreement which incorporates such amendment, modification, change or waiver.
15. No failure on the part of the Bank to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the Bank of any right,
remedy or power hereunder preclude any other or future exercise of any other
right, remedy or power. Each and every right, remedy and power hereby granted to
the Bank or allowed it by law or other agreement shall be cumulative and not
exclusive the one of any other and may be exercised by the Bank from time to
time.
16. The Bank shall provide the Account Parties with not less than 60 days
prior written notice of its intent not to renew the term of a Credit.
17. All demands for payment, notices or other communications hereunder
shall be in writing (including communications by facsimile transmission) and
shall be addressed, if to the Bank, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Letter of Credit Department, Fax No. (000) 000-0000, and if to
the Account Parties, c/o XL Capital, Ltd., at XX Xxxxx, Xxx Xxxxxxxxxx Xxxx,
Xxxxxxxx, XX 00 Xxxxxxx, Xxxxxxxxx: Xx. Xxxxxxxx Xxxx, Fax No. (000) 000-0000,
or to such other address as such party may designate by notice to the other
parties.
18. This Agreement shall be binding upon the Account Parties and their
successors, assigns, and legal representatives, and shall inure to the benefit
of, and be enforceable by, the Bank, its successors and assigns. Neither the
Bank nor the Account Parties may assign any of its
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rights or obligations under this Agreement without the prior written consent of
the other, such consent not to be unreasonably withheld.
19. EACH ACCOUNT PARTY AND THE BANK IRREVOCABLY WAIVES ITS RIGHT TO A JURY
TRIAL IN ANY ACTION OR PROCEEDING BASED UPON OR ARISING OUT OF THIS AGREEMENT, A
CREDIT OR ANY DEALINGS WITH ONE ANOTHER RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
20. This Agreement may be executed in any number of counterparts and by
the several parties hereto on separate counterparts, each of which when so
executed shall be an original, but all such separate counterparts shall together
constitute but one and the same agreement. The parties agree that all telecopied
or telefaxed execution copies and signatures thereto shall be duplicate
originals.
21. The Account Parties and the Bank agree that upon the execution and
delivery of this Agreement by each of the parties hereto, the terms and
conditions of the Existing Agreements shall be and hereby are amended,
superseded and restated in their entirety by the terms and provisions of this
Agreement. This Agreement is not intended to and shall not constitute a novation
of the Existing Agreements or the obligations or indebtedness created
thereunder.
22. The Bank hereby notifies each Account Party that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)), the Bank is required to obtain, verify and record
information that identifies each Account Party, which information includes the
name and address of such Account Party and other information that will allow the
Bank to identify each Account Party in accordance with said Act.
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IN WITNESS WHEREOF, the Bank and the Account Parties have entered into
this Amended and Restated Standby Letter of Credit Agreement as of the date
first written above.
NATIONAL AUSTRALIA BANK LIMITED
(ABN 12 004 044 937), New York Branch
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Director & Head, Insurance Americas
XL CAPITAL LTD XL INSURANCE (BERMUDA) LTD
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxx Name: Xxxxxxxxxxx Xxxxxx
Title: SVP, Controller Title: SVP, CFO, COO
XL AMERICA, INC. XL RE LTD
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X'Xxxxxxxxxxx
--------------------- --------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxx X'Xxxxxxxxxxx
Title: EVP & CFO & Treasurer Title: SVP & CFO
Acknowledged as of the date first written above:
XL EUROPE LTD
By: /s/ Xxxxxxx Xxxxx
---------------------
Name: Xxxxxxx Xxxxx
Title: CFO
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