AMENDMENT NO. 2 TO CREDIT AGREEMENT
EXECUTION
COPY
AMENDMENT
NO. 2 TO CREDIT AGREEMENT
AMENDMENT
NO. 2, dated as of May 5, 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, each
of
the Lenders party to the 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 (as amended by Amendment No. 1 dated
as of June 22, 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 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. 2, 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. 2, 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.
-2-
“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 of the SCA
IPO,
neither SCA nor any of its Subsidiaries shall be a “Subsidiary” of any Account
Party.
Unless
otherwise specified, “Subsidiary” means a Subsidiary of an Account
Party.
“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 Account
Party will issue any Letter of Credit, or renew or permit to renew any Letter
of
Credit existing as of the SCA IPO, or use the proceeds of any Loan, to support
the obligations of, or otherwise primarily for 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”.
2.05.
Section 10.04(c) of the Credit Agreement is hereby amended by inserting a new
clause (iii) at the end thereof to read as follows:
“(iii) In
the
event that any Lender sells participations in a Loan or Commitment, such Lender,
acting solely for this purpose as a non-fiduciary agent of the Borrower, shall
maintain a register on which it enters the name of all participants in the
Loans
and Commitments held by it (the “Participant
Register”).
The
entries in the Participant Register shall be conclusive in the absence of
manifest error, and the participating Lender shall treat each Person whose
name
is recorded in the Participant Register as the Participant for all purposes
of
this Agreement and the other Loan Documents, notwithstanding any notice to
the
contrary.”
Section
3.
Waiver.
Effective as of the date hereof as provided in Section 5 of this Amendment
No. 2, 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
Account Party hereby represents and warrants to the Administrative Agent and
the
Lenders that (i) the representations
-3-
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. 2) and as if each
reference in said Article IV to “this Agreement” includes reference to this
Amendment No. 2 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. 2 and the waiver under Section 3 of this Amendment No. 2 shall become
effective, as of the date hereof, upon receipt by the Administrative Agent
of
one or more counterparts of this Amendment No. 2 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. 2 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. 2 by
signing any such counterpart. This Amendment No. 2 shall be governed by,
and construed in accordance with, the laws of the State of New
York.
-4-
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be
duly
executed and delivered as of the day and year first above written.
as
an
Account Party and a Guarantor
By:
/s/
Xxxx
Xxxxxx
Name:
Xxxx
Xxxxxx
Title: Senior
Vice President and Chief Risk
Officer
X.L.
AMERICA, INC.,
as
an
Account Party and a Guarantor
By_____/s/
Xxxxxxx X. Carino____________
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
XL
INSURANCE (BERMUDA) LTD,
as
an
Account Party and a Guarantor
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Name:
Xxxxxxxxxxx X. Xxxxxx
Title:
Senior
Vice President and Chief
Financial
Officer
XL
RE
LTD,
as
an
Account Party and a Guarantor
By: /s/
Xxxxxx
Xxxxxxxx
Name: Xxxxxx
Xxxxxxxx
Title: Senior
Vice President
-5-
LENDERS
JPMORGAN
CHASE BANK, N.A.,
|
individually
and as Administrative Agent
|
By: /s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Managing Director
CITIBANK,
N.A.
By: /s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Managing Director
BARCLAYS
BANK PLC
By: /s/
Des Potter
Name:
Des
Potter
Title:
Director
DEUTSCHE
BANK AG NEW YORK BRANCH
By: /s/
Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
Director
By: /s/
Xxxxxxx Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title:
Managing Director
-6-
KEYBANK
NATIONAL ASSOCIATION
By: /s/
Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Senior Vice President
WACHOVIA
BANK, NATIONAL ASSOCIATION
By: /s/
Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Director
HSBC
BANK
USA
By: /s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Senior Vice President
XXXXXXX
XXXXX BANK USA
By: /s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
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/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Senior Vice President
-7-
BNP
PARIBAS
By: /s/
Xxxxxxxxxx X. Xxxxx
Name:
Xxxxxxxxxx X. Xxxxx
Title:
Vice President
By: /s/
Laurent Vanderzyppe
Name:
Laurent Vanderzyppe
Title:
Managing Director
CREDIT
SUISSE NEW YORK BRANCH (f/k/a
Credit Suisse First Boston New York Branch)
Credit Suisse First Boston New York Branch)
By: /s/
Xxx Xxxxx
Name:
Xxx
Xxxxx
Title:
Director
By: /s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Associate
ING
BANK
N.V., LONDON BRANCH
By: /s/
M
E R Sharman
Name:
M E
R Sharman
Title:
Managing Director
By: /s/
N
J Xxxxxxxx
Name:
N J
Xxxxxxxx
Title:
Director
LLOYDS
TSB BANK PLC, NEW YORK BRANCH
By: /s/
Xxxxx Eperon
Name:
Xxxxx Eperon
Title:
Assistant Vice President
-8-
By: /s/
Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
Assistant Vice President
THE
ROYAL
BANK OF SCOTLAND PLC
By: /s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Vice President
THE
BANK
OF NEW YORK
By: /s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
COMERICA
BANK
By: /s/
Chatphet Saipetch
Name:
Chatphet Saipetch
Title:
Vice President
THE
BANK
OF NOVA SCOTIA
By: /s/
Xxxx X. Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Managing Director
