Exhibit 10.60
EXECUTION COUNTERPART
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
AMENDMENT NO. 2, dated as of March 15, 2002, between XL CAPITAL
LTD, a company incorporated under the laws of the Cayman Islands, British West
Indies ("XL CAPITAL"), X.L. AMERICA, INC., a Delaware corporation ("XL
AMERICA"), XL INSURANCE (BERMUDA) LTD (formerly XL Insurance Ltd), a Bermuda
limited liability company ("XL Insurance"), XL EUROPE LTD, a company
incorporated under the laws of Ireland ("XL EUROPE"), and XL RE LTD, a Bermuda
limited liability company ("XL RE" and, together with XL Capital, XL America, XL
Insurance and XL Europe, each a "BORROWER" and each a "GUARANTOR" and,
collectively, the "BORROWERS" and the "GUARANTORS"; the Borrowers and the
Guarantors being collectively referred to as the "OBLIGORS"), each of the
lenders that is a signatory hereto (individually, a "LENDER" and, collectively,
the "LENDERS") and JPMORGAN CHASE BANK (formerly The Chase Manhattan Bank), 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 an Agreement dated as of June 29, 2001, as amended as of September 26, 2001
(the "AGREEMENT"), providing, subject to the terms and conditions thereof, for
loans to be made by said Lenders to the Borrowers in an aggregate principal
amount not exceeding $500,000,000. The Obligors, the Lenders and the
Administrative Agent wish to amend the 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 Agreement are used herein as defined
therein.
Section 2. AMENDMENTS. Effective as provided in Section 4 below,
the Agreement is hereby amended as follows:
2.01. References in the Agreement (including references to the
Agreement as amended hereby) to "this Agreement" (and indirect references such
as "hereunder", "hereby", "herein" and "hereof") shall be deemed to be
references to the Agreement as amended hereby.
2.02. Section 6.01 is hereby amended to read in its entirety as
follows:
"SECTION 6.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. Each
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 135 days after the end of each fiscal year of each
such Borrower except
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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for XL America (but in the case of XL Capital, within 100 days after the
end of each fiscal year of XL Capital), the audited consolidated balance
sheet and related statements of operations, stockholders' equity and cash
flows of such Borrower and its consolidated Subsidiaries as of the end of
and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year (if such figures were already
produced for such corresponding period or periods) (it being understood
that delivery to the Lenders of XL Capital's Report on Form 10-K filed
with the SEC shall satisfy the financial statement delivery requirements
of this paragraph (a) to deliver the annual financial statements of XL
Capital so long as the financial information required to be contained in
such Report is substantially the same as the financial information
required under this paragraph (a)), all reported on by independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects
the financial condition and results of operations of such Borrower and
its consolidated Subsidiaries on a consolidated basis in accordance with
GAAP or (in the case of XL Europe, XL Insurance and XL Re) SAP, as the
case may be, consistently applied;
(b) by June 15 of each year, (i) an unaudited consolidating
balance sheet and related statements of operations, stockholders' equity
and cash flows of XL America and its consolidated Subsidiaries as of the
end of and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year (if such figures were already
produced for such corresponding period or periods), all certified by a
Financial Officer of XL America as presenting fairly in all material
respects the financial condition and results of operations of XL America
and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes, and (ii) audited statutory
financial statements for each insurance subsidiary of XL America reported
on by independent public accountants of recognized national standing
(without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the
effect that such audited consolidated financial statements present fairly
in all material respects the financial condition and results of
operations of such insurance subsidiaries in accordance with SAP,
consistently applied;
(c) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of such Borrower, the consolidated
balance sheet and related statements of
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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operations, stockholders' equity and cash flows of such Borrower and its
consolidated Subsidiaries as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in each
case in comparative form the figures for (or, in the case of the balance
sheet, as of the end of) the corresponding period or periods of the
previous fiscal year (if such figures were already produced for such
corresponding period or periods), all certified by a Financial Officer of
such Borrower as presenting fairly in all material respects the financial
condition and results of operations of such Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP or (in the
case of XL Europe, XL Insurance and XL Re) SAP, as the case may be,
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes (it being understood that delivery to the
Lenders of XL Capital's Report on Form 10-Q filed with the SEC shall
satisfy the financial statement delivery requirements of this paragraph
(c) to deliver the quarterly financial statements of XL Capital so long
as the financial information required to be contained in such Report is
substantially the same as the financial information required under this
paragraph (c));
(d) concurrently with any delivery of financial statements
under clause (a), (b) or (c) of this Section, a certificate signed on
behalf of each Borrower by a Financial Officer (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying
the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 7.03, 7.05, 7.06 and 7.07 and
(iii) stating whether any change in GAAP or (in the case of XL Europe, XL
Insurance, XL Re and any insurance subsidiary of XL America) SAP or in
the application thereof has occurred since the date of the audited
financial statements referred to in Section 4.04 and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(e) concurrently with any delivery of financial statements
under clauses (a) and (b)(ii) of this Section, a certificate of the
accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of
such financial statements of any Default (which certificate may be
limited to the extent required by accounting rules or guidelines);
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by such Borrower or any of its respective Subsidiaries with the
SEC, or any Governmental Authority succeeding to any
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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or all of the functions of said Commission, or with any U.S. or other
securities exchange, or distributed by such Borrower to its shareholders
generally, as the case may be;
(g) concurrently with any delivery of financial statements
under clause (a), (b) or (c) of this Section, a certificate of a
Financial Officer of XL Capital, setting forth on a consolidated basis
for XL Capital and its consolidated Subsidiaries as of the end of the
fiscal year or quarter to which such certificate relates (i) the
aggregate book value of assets which are subject to Liens permitted under
Section 7.03(g) and the aggregate book value of liabilities which are
subject to Liens permitted under Section 7.03(g) (it being understood
that the reports required by paragraphs (a), (b) and (c) of this Section
shall satisfy the requirement of this clause (i) of this paragraph (g) if
such reports set forth separately, in accordance with GAAP, line items
corresponding to such aggregate book values) and (ii) a calculation
showing the portion of each of such aggregate amounts which portion is
attributable to transactions among wholly-owned Subsidiaries of XL
Capital; and
(h) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of XL Capital or any of its Subsidiaries, or compliance with
the terms of this Agreement, as the Administrative Agent or any Lender
may reasonably request."
2.03. Schedule V is hereby deleted and replaced with Schedule V
attached to this Amendment No. 2 and the reference to "as of the date hereof" in
the first sentence of Section 4.13 is amended to read "as of September 30,
2001."
Section 3. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that (i) the
representations and warranties set forth in Article IV of the 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 prior to and as of the date hereof, no Default has occurred and is
continuing.
Section 4. CONDITIONS PRECEDENT. The amendments to the Agreement
set forth in Section 2 above shall become effective, as of the date hereof, upon
the satisfaction of the following conditions precedent:
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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4.01. EXECUTION BY ALL PARTIES. This Amendment No. 2 shall have
been executed and delivered by each of the Obligors and the Required Lenders.
4.02. OTHER DOCUMENTS. Receipt by the Administrative Agent of
such other documents as the Administrative Agent or special New York counsel to
JPMorgan Chase Bank reasonably request.
Section 5. MISCELLANEOUS. Except as herein provided, the Agreement
shall remain unchanged and in full force and effect. Nothing in this Amendment
No. 2 shall constitute a waiver of any rights and/or remedies that the Lenders
and/or the Administrative Agent may have under the Agreement and nothing
contained herein shall obligate the Lenders to grant any future waiver of any
provision of the Agreement. XL Capital shall pay all reasonable expenses
incurred by the Administrative Agent, including the reasonable fees, charges and
disbursements of Milbank, Tweed, Xxxxxx & XxXxxx LLP, special New York counsel
to JPMorgan Chase Bank, in connection with the preparation, negotiation,
execution and delivery of this Amendment No. 2. This Amendment No. 2 may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same amendatory instrument 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 law of the
State of New York.
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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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.
X.L. AMERICA, INC.,
as a Borrower and a Guarantor
By:
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Name:
Title:
XL INSURANCE (BERMUDA) LTD,
as a Borrower and a Guarantor
By:
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Name: Xxxxxxxxxxx Xxxxxx
Title: SVP, Chief Financial Officer
XL EUROPE LTD,
as a Borrower and a Guarantor
By:
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Name:
Title:
XL RE LTD,
as a Borrower and a Guarantor
By:
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Name: Xxxx X. Xxxx
Title: EVP & Chief Financial Officer
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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IN WITNESS WHEREOF, XL Capital has caused this Amendment No. 2 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 a Borrower and a Guarantor
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witness
By:
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Name: Xxxxx X. X'Xxxx
Title: President & CEO
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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LENDERS
JPMORGAN CHASE BANK
Individually and as Administrative Agent
By:
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Name:
Title:
CITIBANK, N.A.
By:
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Name:
Title:
MELLON BANK, N.A.
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
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Name:
Title:
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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BANK ONE, NA
By:
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Name:
Title:
By:
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Name:
Title:
BARCLAYS BANK PLC
By:
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Name:
Title:
By:
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Name:
Title:
By:
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Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
Title:
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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DEUTSCHE BANK AG
New York and/or Cayman Islands Branches
By:
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Name:
Title:
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
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Name:
Title:
By:
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Name:
Title:
FLEET NATIONAL BANK
By:
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Name:
Title:
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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LLOYDS TSB BANK PLC
By:
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Name:
Title:
By:
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Name:
Title:
THE BANK OF BERMUDA LIMITED
By:
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Name:
Title:
By:
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Name:
Title:
ABN AMRO BANK N.V., LONDON BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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BANCO SANTANDER CENTRAL HISPANO, S.A.
By:
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Name:
Title:
By:
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Name:
Title:
COMERICA BANK
By:
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Name:
Title:
FIRST UNION NATIONAL BANK
By:
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Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By:
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Name:
Title:
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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XXXXX XXXXXX BANK AND TRUST COMPANY
By:
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Name:
Title:
AMENDMENT NO. 2 TO 364-DAY CREDIT AGREEMENT
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