AMENDMENT NO. 1 TO CREDIT AGREEMENT
EXECUTION
COPY
AMENDMENT
NO. 1 TO CREDIT AGREEMENT
AMENDMENT
NO. 1, dated as of May 9, 2006, to the Credit Agreement (as defined 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, the
Lenders party thereto, and BEAR XXXXXXX CORPORATE LENDING INC., as
“Administrative Agent”.
The
Borrowers, the Lenders and the Administrative Agent are parties to a Five-Year
Credit Agreement dated as of August 3, 2005 (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 Borrowers in an aggregate
principal amount not exceeding $100,000,000. The Borrowers, 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 5 of this Amendment
No. 1, the Credit Agreement is hereby amended as follows:
2.01.
References in the Credit Agreement 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.
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:
“SCA”
means
Security Capital Assurance Ltd, a Bermuda limited liability
company.
“SCA
IPO”
means
the issuance or sale of common shares of SCA to the public pursuant to an
effective registration statement filed under the Securities Act of 1933, as
amended, in connection with an underwritten offering.
“Significant
Subsidiary”
means,
at any time, each Subsidiary of XL Capital that, as of such time, meets the
definition of a “significant subsidiary” under Regulation S-X of the SEC;
provided,
however,
that
for purposes of this Agreement, from and after the consummation of the SCA
IPO,
neither SCA nor any of its Subsidiaries shall be a “Significant Subsidiary” of
XL Capital.
“Subsidiary”
means,
with respect to any Person (the “parent”),
at
any date, any corporation (or similar entity) of which a majority of the shares
of outstanding capital stock normally entitled to vote for the election of
directors (regardless of any contingency which does or may suspend or dilute
the
voting rights of such capital stock) is at such time owned directly or
indirectly by the parent or one or more subsidiaries of the parent;
provided,
however,
that
for purposes of this Agreement, from and after the consummation
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of
the
SCA IPO, neither SCA nor any of its Subsidiaries shall be a “Subsidiary” of any
Borrower.
Unless
otherwise specified, “Subsidiary” means a Subsidiary of a Borrower.
“XL
Capital Group”
means
XL Capital Group as determined from time to time by A.M. Best & Co. (or its
successor).
2.03.
Section 6.09 of the Credit Agreement is hereby amended by inserting a new
sentence at the end thereof to read as follows:
“Notwithstanding
anything in this Section to the contrary, from and after the SCA IPO, no
Borrower will use the proceeds of any Loan, to support the obligations of,
or
otherwise for primarily the general corporate purposes of, SCA and its
Subsidiaries”.
2.04.
Section 7.08 of the Credit Agreement is hereby amended by inserting the
word “Group” immediately after the reference in the first line thereof to “XL
Capital”.
Section
3.
Waiver.
Effective as of the date hereof as provided in Section 5 of this Amendment
No. 1, the Lenders hereby agree that, notwithstanding anything in
Section 7.02 of the Credit Agreement to the contrary, the issuance or sale
of shares of SCA pursuant to the SCA IPO shall be permitted and shall not reduce
the basket under Section 7.02(b) of the Credit Agreement available to the
Account Parties and their respective Subsidiaries for the calendar year ending
December 31, 2006.
Section
4.
Representations
and Warranties.
Each
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders that (i) the representations and warranties of such Borrower 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
5.
Conditions
Precedent.
The
amendments to the Credit Agreement set forth in Section 2 of this Amendment
No. 1 and the waiver under Section 3 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
6.
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.
as
a
Borrower and a Guarantor
By: /s/
Xxxx Xxxxxx
Name: Xxxx
Xxxxxx
Title: Senior
Vice President &
Chief Risk Officer
X.L.
AMERICA, INC.,
as
a
Borrower and a Guarantor
By: /s/
Xxxxxxx Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Senior
Vice President &
Treasurer (XLGS)
XL
INSURANCE (BERMUDA) LTD,
as
a
Borrower and a Guarantor
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxxxx
X. Xxxxxx
Title: Senior
Vice-President &
Chief Financial Officer
XL
RE
LTD,
as
a
Borrower and a Guarantor
By: /s/
Xxxxxx X. Xxxxxxxx
Name: Xxxxxx
X.
Xxxxxxxx
Title: Senior
Vice President
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LENDERS
BEAR
XXXXXXX CORPORATE LENDING, INC.,
|
individually
and as Administrative Agent
|
By: /s/
Xxxxxx Bulzachelli
Name: Xxxxxx Bulzachelli
