Contract
Exhibit
10.1
THIS
THIRD AMENDMENT AGREEMENT, dated
as
of December 19, 2006 (this “Third
Amendment”)
is by
and between, National Australia Bank Limited, New York Branch (the “Bank”),
XL
Capital Ltd, a company incorporated under the laws of the Cayman Islands, X,L.
America, Inc., a Delaware corporation, XL Insurance (Bermuda) Ltd, a Bermuda
limited company, and XL Re Ltd, a Bermuda limited liability company
(collectively, the “Account
Parties”
and
each
an “ Account
Party”)
WITNESSETH,
WHEREAS,
the
Account Parties each have requested that the Bank amend that certain Master
Standby Letter of Credit and Reimbursement Agreement dated as of September
30,
2005 (as amended by that certain amendment agreement dated as of December 30,
2005 and that certain Second Amendment Agreement dated as of May 26, 2006,
the
“Agreement”),
effective as of the date hereof (the “Amendment
Effective Date”)
in
order to extend the Termination Date and to make such other changes as set
forth
herein; and
WHEREAS,
the Bank is willing, on the terms and conditions set forth below, to amend
the
Agreement as set forth below;
NOW,
THEREFORE, in
consideration of the premises and mutual covenants herein contained, the parties
hereto hereby agree as follows:
SECTION
1. Defined
Terms.
Capitalized
terms used herein and not defined herein shall have the meanings specified
in
the Agreement.
SECTION
2. Amendments
to the Agreement.
A. As
set
forth in Section 1 of the Agreement, the Termination Date, as amended hereby,
shall be December 31, 2007;
B. Section
4
of the Agreement shall be deleted in its entirety and replaced with the
following:
4.
The
Account Parties agree, jointly and severally, to pay to the Bank, quarterly
in
arrears on the last business day of each March, June, September and December
and
commencing December 30, 2006, (i) a facility fee which shall accrue at a rate
per annum equal to 0.05% on the Commitment amount (whether used or unused);
and
(ii) letter of credit fees which shall accrue at a rate per annum equal to
0.25%
of the amount available to be drawn under each Letter of Credit. All fees
payable hereunder shall be computed on the basis of a 360-day year and paid
for
the actual number of days elapsed (including the first day but excluding the
last).
SECTION
3. Conditions
to Effectiveness.
This
Third
Amendment shall become effective as of the Amendment Effective Date upon the
due
execution and delivery thereof by the parties hereto.
SECTION
4. Representations
and Warranties.
In
order
to induce the Bank to enter into this Third Amendment, each Account Party hereby
represents and warrants to the Bank on behalf of itself: (i) the representations
and warranties contained in the Agreement are true and correct on and as of
the
Amendment Effective Date as though made on and as of such date, except for
changes which have occurred and which were not prohibited by the terms of the
Agreement; (ii) no Event of Default or other event or condition which, with
notice or the lapse of time or both, would give rise to an Event of Default
has
occurred and is continuing, or would result from the execution, delivery and
performance by such
Account
Party of this Third Amendment or the Agreement (as amended by this Third
Amendment); (iii) that such Account Party has full power, right and legal
authority to execute, deliver and perform its obligations under this Third
Amendment; and (iv) that each of this Third Amendment and the Agreement as
amended hereby constitutes a legal, valid and binding obligation of such Account
Party enforceable against such Account Party in accordance with its terms,
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or moratorium, or similar laws affecting the enforcement of rights of creditors
generally, and by general equitable principles (whether enforcement is sought
by
proceedings in equity or at law).
SECTION
5. Reference
to and Effect on the Documents.
Each
reference in the Agreement to “this Agreement”, “hereunder”, “hereof’, “herein”
or words of like import, and each reference to the Agreement in documents
related to the Agreement, shall mean and be a reference to the Agreement as
amended hereby. Except as specifically amended hereby, the Agreement and all
such related documents, and all other documents, agreements, instruments or
writings entered into in connection therewith, shall remain in full force and
effect and are hereby ratified, confirmed and acknowledged by each Account
Party, severally on behalf of itself.
SECTION
6. Governing
Law.
This
Third Amendment and the rights and obligations of the parties hereunder shall
be
governed by and construed and interpreted in accordance with the substantive
laws of the State of New York, without regard to its conflict of laws
principles.
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IN
WITNESS WHEREOF, the
parties hereto have caused this Third Amendment to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
NATIONAL
AUSTRALIA BANK LIMITED
(ABN
12
004 044 937), New York Branch
By:
/s/
Xxxxxxx Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: Senior
Vice President
By:
/s/
Xxxxx Xxxx
Name: Xxxxx
Xxxx
Title: Senior
Vice President and
Controller
|
XL
INSURANCE (BERMUDA) LTD
By:
/s/
C. Xxxxxxx Xxx
Name: C.
Xxxxxxx Xxx
Title: Senior
Vice President,
Chief Financial Officer
|
X.L.
AMERICA, INC.
By:
/s/
Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title:
Vice
President and Assistant
Secretary
|
XL
RE LTD
By:
/s/
Xxxxxx Xxxxxxxx
Name: Xxxxxx
Xxxxxxxx
Title: Senior
Vice President
|
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