SECOND AMENDMENT
Exhibit 10.2
EXECUTION VERSION
SECOND AMENDMENT
SECOND AMENDMENT, dated as of May 1, 2015 (this “Amendment”), to the Secured Credit Agreement, dated as of November 22, 2013 (as amended, modified, restated and supplemented from time to time, the “Credit Agreement”), among XL GROUP PLC, an Irish public limited company (“XL Group”), XLIT LTD., an exempted company incorporated in the Cayman Islands with limited liability (“XLIT”), X.L. AMERICA, INC., a Delaware corporation (“XL America”), XL INSURANCE (BERMUDA) LTD, a Bermuda limited liability company (“XL Insurance (Bermuda)”), XL RE LTD, a Bermuda limited liability company (“XL Re”), XL RE EUROPE SE (formerly known as XL RE EUROPE PLC), a European company organized under the laws of Ireland (“XL Re Europe”), XL INSURANCE COMPANY SE (formerly known as XL INSURANCE COMPANY PLC), a European company domiciled in the United Kingdom (“XL Insurance”), XL INSURANCE SWITZERLAND LTD, a company limited by shares organized under the laws of Switzerland (“XL Switzerland”), and XL LIFE LTD, a Bermuda company (“XL Life” and together with XL Group, XLIT, XL America, XL Insurance (Bermuda), XL Re, XL Re Europe, XL Insurance and XL Switzerland, each an “Account Party” and collectively, the “Account Parties”; XL Group, XLIT, XL America, XL Insurance (Bermuda), XL Re and XL Life, each a “Guarantor” and collectively the “Guarantors”; the Account Parties and the Guarantors being collectively referred to as the “Obligors”), the several lenders from time to time parties thereto (the “Lenders”), JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”), and THE BANK OF NEW YORK MELLON, as collateral agent (the “Collateral Agent”).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders agreed to make certain extensions of credit to the Account Parties;
WHEREAS, the Account Parties have requested that certain provisions of the Credit Agreement be amended as set forth herein; and
WHEREAS, the Required Lenders are willing to agree to such amendments on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms; Rules of Construction. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The rules of construction set forth in Section 1.02 of the Credit Agreement shall apply herein.
SECTION 2. Amendments to Credit Agreement.
2.1 References Generally. On and after the Second Amendment Effective Date, each reference in the Credit Agreement (including references to the Credit Agreement as amended hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”, “hereof” and words of similar import) shall be deemed to be references to the Credit Agreement as amended hereby.
2.2 Amendments to Section 1.01 (Defined Terms) of the Credit Agreement.
(a) The following defined terms shall be inserted in Section 1.01 of the Credit Agreement in appropriate alphabetical order:
“Implementation Agreement” means the Implementation Agreement dated as of January 9, 2015 by and among XL Group, Green Holdings Limited and Xxxxxx Group Limited.”
“Second Amendment” means the Second Amendment, dated as of May 1, 2015, to this Agreement among the Obligors, the Administrative Agent, the Collateral Agent and the Lenders party thereto.”
“Second Amendment Effective Date” has the meaning assigned to such term in the Second Amendment, which date is, for the avoidance of doubt, May 1, 2015.”
(b) The definition of “Federal Funds Effective Rate” is hereby amended by inserting the following at the end thereof: “; provided that if the Federal Funds Effective Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement”.
(c) The definition of “LIBO Rate” is hereby amended by inserting the following at the end of the first sentence thereof: “; provided that if such rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement”.
2.3 Amendment to Section 2.11 (Taxes) of the Credit Agreement. Section 2.11 of the Credit Agreement is hereby amended by inserting the following clause (h):
“(h) Solely for purposes of determining withholding Taxes imposed under FATCA, from and after the Second Amendment Effective Date, the Account Parties and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).”
2.4 Amendment to Section 7.03 (Liens) of the Credit Agreement. Clause (c) of Section 7.03 of the Credit Agreement is hereby amended and restated as follows:
“(c) Liens existing (i) on the date hereof listed in Part B of Schedule II, (ii) Liens existing on the First Amendment Effective Date or, as expressly specified therein, incurred after the First Amendment Effective Date and, in each case, listed in Part D of Schedule II and (iii) Liens existing on the Second Amendment Effective Date listed in Part F of Schedule II, and, in each case, extension, renewal and replacement Liens upon the same property, provided that the principal amount secured by each Lien constituting such an extension, renewal or replacement Lien shall not exceed the amount secured by the Lien theretofore existing;”
2.5 Amendments to Section 7.07 (Indebtedness) of the Credit Agreement. Clause (c) of Section 7.07 of the Credit Agreement is hereby amended and restated as follows:
“(c) other Indebtedness existing (i) on the date hereof described in Part A of Schedule II, (ii) other Indebtedness existing on the First Amendment Effective Date described in Part C of Schedule II and (iii) other Indebtedness existing on the Second Amendment Effective Date described in Part E of Schedule II, and, in each case, extensions, renewals and replacements of, or amendments, modifications, or supplements to, any such Indebtedness that, in each case, do not increase the outstanding principal amount thereof;”
2.6 Amendments to Schedules to the Credit Agreement. Schedule II to the Credit Agreement is hereby amended by inserting Exhibit A hereto as Part E and Part F of Schedule II, respectively.
SECTION 3. Conditions to Effectiveness. This Amendment shall become effective on the date (the “Second Amendment Effective Date”) on which:
(a) Amendment. The Administrative Agent shall have received a counterpart of this Amendment, in each case executed and delivered by a duly authorized officer of each of the Obligors, the Administrative Agent and Lenders constituting the Required Lenders.
(b) Payment of Fees, Expenses. XL Group shall have paid all fees and expenses as required pursuant to Section 4 of this Amendment or otherwise in connection with this Amendment to the extent invoiced at least one Business Day prior to the Second Amendment Effective Date.
(c) Representations and Warranties. The representations and warranties set forth in Section 5 of this Amendment shall be true and correct.
(d) No Defaults. No Default or Event of Default shall have occurred and be continuing on the Second Amendment Effective Date, after giving effect to this Amendment.
(e) Xxxxxx Acquisition. XL Group’s acquisition of Xxxxxx Group Limited shall have been consummated in accordance with the terms of the Implementation Agreement.
SECTION 4. Payment of Fees and Expenses. The Obligors agree to pay or reimburse the Administrative Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with this Amendment, any other documents prepared in connection herewith and the transactions contemplated hereby, including, without limitation, the documented reasonable fees, charges and disbursements of counsel to the Administrative Agent.
SECTION 5. Representations and Warranties. The Obligors hereby represent and warrant that (a) each of the representations and warranties set forth in Article IV of the Credit Agreement and in the other Credit Documents shall be, both immediately before and after giving effect to this Amendment, true and correct in all material respects as if made on and as of the Second Amendment Effective Date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), (b) both immediately before and after giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing and (c) this Amendment has been duly executed and delivered by each Obligor and constitutes a legal, valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by (x) bankruptcy, insolvency, reorganization, moratorium, examination or similar laws of general applicability affecting the enforcement of creditors’ rights and (y) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
SECTION 6. GOVERNING LAW; WAIVER OF JURY TRIAL; CONSENT TO SERVICE OF PROCESS. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.01 OF THE CREDIT AGREEMENT. NOTHING IN THIS AMENDMENT SHALL EFFECT THE RIGHT OF ANY PARTY TO THIS AMENDMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 7. Amendments; Execution in Counterparts. (a) This Amendment shall not constitute an amendment of any other provision of the Credit Agreement not referred to herein and shall not be construed as a waiver or consent to any further or future action on the part of the Obligors that would require a waiver or consent of the Lenders or the Administrative Agent. Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect and each of the Obligors agrees, with respect to each Credit Document to which it is a party, that all of its obligations, liabilities and indebtedness under such Credit Document, as amended hereby, including guarantees and grants of security interests, shall remain in full force and effect. This Amendment shall constitute a Credit Document for the purposes of the Credit Agreement and the other Credit Documents. This Amendment may not be amended nor may any provision hereof be waived, amended or modified except in writing signed by the Obligors, the Administrative Agent and the Required Lenders.
(b) This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Amendment by telecopy or email shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8. Integration. This Amendment and the other Credit Documents constitute the entire contract between and among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
SECTION 9. Severability. To the fullest extent permitted by law, any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
[Signature Pages Follow]
as an Account Party and a Guarantor |
By /s/ Xxxxx Xxxxxxx |
Name: Xxxxx Xxxxxxx |
Title: EVP + CFO |
U.S. Federal Tax Identification No.: 00-0000000 |
XLIT LTD., |
as an Account Party and a Guarantor |
By /s/ Xxxxx Xxxxxxx |
Name: Xxxxx Xxxxxxx |
Title: Director |
U.S. Federal Tax Identification No.: 00-0000000 |
X.L. AMERICA, INC., |
as an Account Party and a Guarantor |
By /s/ Xxxxxxx X. XxXxxxx |
Name: Xxxxxxx X. XxXxxxx |
Title: Senior Vice President and Secretary |
U.S. Federal Tax Identification No.: 00-0000000 |
[Second Amendment to Secured Credit Agreement – Signature Page]
XL INSURANCE COMPANY SE, |
as an Account Party |
By /s/ Xxxxxx Xxxxx |
Name: Xxxxxx Xxxxx |
Title: Company Secretary |
U.S. Federal Tax Identification No.: 00-0000000 |
XL INSURANCE SWITZERLAND LTD, |
as an Account Party |
By /s/ Xxxxxx Xxxxxx |
Name: Xxxxxx Xxxxxx |
Title: Chairman |
By /s/ Xxxxxx Xxxxxx |
Name: Xxxxxx Xxxxxx |
Title: Director |
U.S. Federal Tax Identification No.: 00-0000000 |
XL LIFE LTD, |
as an Account Party and a Guarantor |
By /s/ Xxxx Xxxxx |
Name: Xxxx Xxxxx |
Title: Director |
U.S. Federal Tax Identification No.: 00-0000000 |
XL INSURANCE (BERMUDA) LTD, |
as an Account Party and a Guarantor |
By /s/ C. Xxxxxxx Xxx |
Name: C. Xxxxxxx Xxx |
Title: Director |
U.S. Federal Tax Identification No.: 00-0000000 |
XL RE LTD, |
as an Account Party and a Guarantor |
By /s/ Xxxx Xxxxx |
Name: Xxxx Xxxxx |
Title: Director |
U.S. Federal Tax Identification No.: 00-0000000 |
XL RE EUROPE SE, |
as an Account Party |
By /s/ Alexandre Barrage |
Name: Alexandre Barrage |
Title: Chief Financial Officer |
U.S. Federal Tax Identification No.: 00-0000000 |
[Second Amendment to Secured Credit Agreement – Signature Page]
LENDERS |
JPMORGAN CHASE BANK, N.A., |
individually and as Administrative Agent |
By /s/ Xxxxxxx X. Xxxxxx |
Name: Xxxxxxx X. Xxxxxx |
Title: Vice President |
[Second Amendment to Secured Credit Agreement – Signature Page]
DEUTSCHE BANK AG NEW YORK BRANCH |
By /s/ Xxxx X. XxXxxx |
Name: Xxxx X. XxXxxx |
Title: Director |
By /s/ Xxxxxxxx Xxxxxxx |
Name: Xxxxxxxx Xxxxxxx |
Title: Vice President |
THE ROYAL BANK OF SCOTLAND PLC |
By /s/ Xxxxx Xxxxxx |
Name: Xxxxx Xxxxxx |
Title: Director |
Barclays Bank PLC |
By /s/ Xxxxxx Xxxxx |
Name: Xxxxxx Xxxxx |
Title: Vice President |
CREDIT AGRICOLE CORPORATE & |
INVESTMENT BANK |
By /s/ Xxxxx Xxxxx |
Name: Xxxxx Xxxxx |
Title: Managing Director |
By /s/ Xxxxxxxx Xxxxx |
Name: Xxxxxxxx Xxxxx |
Title: Managing Director |
XXXXXXX XXXXX BANK USA |
By /s/ Xxxxx Xxxxxxx |
Name: Xxxxx Xxxxxxx |
Title: Authorized Signatory |
HSBC Bank, USA, National Association |
By /s/ Xxxxxxx Xxxxxx |
Name: Xxxxxxx Xxxxxx |
Title: Managing Director |
[Second Amendment to Secured Credit Agreement – Signature Page]
ING BANK N.V., LONDON BRANCH |
By /s/ M Xxxxx |
Name: M Xxxxx |
Title: Director |
By /s/ M E R Sharman |
Name: M E R Sharman |
Title: Managing Director |
[Second Amendment to Secured Credit Agreement – Signature Page]
Lloyds Bank plc |
By /s/ Xxxxx X. Xxxxxxxx |
Name: Xxxxx X. Xxxxxxxx - F014 |
Title: Vice President |
By /s/ Xxxxx Xxxxx |
Name: Xxxxx Xxxxx - P003 |
Title: Senior Vice President |
[Second Amendment to Secured Credit Agreement – Signature Page]
THE BANK OF NEW YORK MELLON |
By /s/ Xxxxxxx Xxxxxxx |
Name: Xxxxxxx Xxxxxxx |
Title: Managing Director |
[Second Amendment to Secured Credit Agreement – Signature Page]
The Bank of Tokyo Mitsubishi UFJ, LTD |
By /s/ X Xxxxxx |
Name: X. Xxxxxx |
Title: Vice President |
[Second Amendment to Secured Credit Agreement – Signature Page]
BNP Paribas |
By /s/ Nair P. Raghu |
Name: Nair P. Raghu |
Title: Vice President |
By /s/ Xxxx Xxxxxxx |
Name: Xxxx Xxxxxxx |
Title: Vice President |
[Second Amendment to Secured Credit Agreement – Signature Page]
COMMERZBANK AG, NEW YORK BRANCH |
By /s/ Xxxxx X. Xxxxxxxxxx |
Name: Xxxxx X. Xxxxxxxxxx |
Title: Managing Director |
By /s/ Xxxxxxxxx Xxxxxxxxxx |
Name: Xxxxxxxxx Xxxxxxxxxx |
Title: Vice President |
[Second Amendment to Secured Credit Agreement – Signature Page]
XXXXXX XXXXXXX BANK, N.A. |
By /s/ Xxxxx Xxxxxxxxxxx |
Name: Xxxxx Xxxxxxxxxxx |
Title: Authorized Signatory |
[Second Amendment to Secured Credit Agreement – Signature Page]
XXXXX FARGO BANK, NATIONAL ASSOCIATION |
By /s/ Xxxxxxx Xxxxxxxxx |
Name: Xxxxxxx Xxxxxxxxx |
Title: Managing Director |
[Second Amendment to Secured Credit Agreement – Signature Page]
EXHIBIT A
SCHEDULE II
Part E
1. | Letter of Credit Facility Agreement dated 4 April 2013 between Xxxxxx Group Limited and Xxxxxx Insurance Company Ltd. (as Original Guarantors) and Xxxxxx Insurance Company Ltd, Xxxxxx Insurance Company (UK) Limited, Xxxxxx Re Schweiz AG and Xxxxxx Underwriting Agencies Limited (as Original Borrowers) and Barclays Bank Plc, Credit Suisse AG, JPMorgan Chase Bank, N.A., London Branch and Citibank Europe Plc (as Agent) in the sum of U.S.$450,000,000. |
2. | An unsecured Facilities Agreement dated 22 January 2014 between Xxxxxx Group Limited and Xxxxxx Insurance Company Ltd. (as Original Guarantors) and Xxxxxx Underwriting Agencies Limited, Xxxxxx Insurance Company Ltd. and Xxxxxx Re Schweiz AG (as Original Borrowers) and Commonwealth Bank of Australia, London Branch in the sum of U.S.$75,000,000. |
3. | An unsecured Facilities Agreement (as Amended and Restated) dated 15 January 2014 between Xxxxxx Group Limited and Xxxxxx Insurance Company Ltd. (as Original Guarantors) and Xxxxxx Underwriting Agencies Limited, Xxxxxx Insurance Company Ltd. and Xxxxxx Re Schweiz AG (as Original Borrowers) and Xxxxx Fargo Bank, N.A. in the sum of U.S.$75,000,000. |
4. | An unsecured Facility Agreement dated 18 December 2013 between Xxxxxx Group Limited and Xxxxxx Insurance Company Ltd. (as Original Guarantors) and Xxxxxx Insurance Company Ltd. (as Original Borrower) and National Australia Bank Limited in the sum of U.S.$100,000,000. |
5. | An unsecured Facility Agreement dated 21 November 2013 between Xxxxxx Group Limited and Xxxxxx Insurance Company Ltd. (as Original Guarantors) and Xxxxxx Insurance Company Ltd. (as Original Borrower) and ING Bank N.V., London Branch (as the Bank) in the sum of U.S.$100,000,000. |
6. | An unsecured Facility Agreement dated 21 November 2013 between Xxxxxx Group Limited and Xxxxxx Insurance Company Ltd. (as Original Guarantors) and Xxxxxx Insurance Company Ltd. (as Original Borrower) and Standard Chartered Bank in the sum of U.S.$100,000,000. |
7. | An unsecured Facility Agreement dated 26 November 2013 between Xxxxxx Group Limited and Xxxxxx Insurance Company Ltd. (as Original Guarantors) and Xxxxxx Insurance Company Ltd. (as Original Borrower) and The Royal Bank of Scotland Plc in the sum of U.S.$75,000,000. |
8. | An unsecured Facility Agreement dated 30 June 2014 between Xxxxxx Group Limited and Xxxxxx Insurance Company Ltd. (as Original Guarantors) and Xxxxxx Insurance Company Ltd. and Xxxxxx Underwriting Agencies Limited (as Original Borrowers) and the National Australia Bank Limited in the sum of A$50,000,000. |
9. | A secured Facility Agreement dated 28 July 2011 between Xxxxxx Re Switzerland Ltd and Citibank, N.A. and Citibank Europe Plc in the sum of U.S.$50,000,000. |
10. | A secured Facility Agreement dated 9 November 2010 between Xxxxxx Insurance Company Ltd. and Citibank Europe Plc in the sum of U.S.$230,000,000. |
11. | XLIT Ltd’s $500 million aggregate principal amount of 4.450% subordinated notes due 2025 and $500 million aggregate principal amount of 5.500% subordinated notes due 2045. |
12. | Wellington Underwriting PLC’s (A) US$27,000,000 Floating Rate Subordinated Notes due 2036; (B) €7,000,000 Floating Rate Subordinated Notes due 2035; (C) US$31,300,000 Floating Rate Subordinated Notes due 2036; (D) US$9,800,000 Floating Rate Subordinated Notes due 2036 and (E) €11,000,000 Floating Rate Subordinated Notes due 2036. |
13. | Xxxxxx Finance (UK) Limited’s US$475,000,000 Long-Dated Subordinated Guaranteed Loan Notes subject to and with the benefit of a loan note deed made by way of deed poll by Xxxxxx Finance (UK) Limited, dated June 27, 2007, and an irrevocable guarantee agreement made by way of deed poll by Xxxxxx (North American) Holdings Limited dated June 27, 2007. |
Part F
1. | Reinsurance Deposit and Securities Portfolio Security Agreement by and between Xxxxxx Re Switzerland Ltd, as Chargor, Citibank, N.A., as Custodian, and Citibank Europe Plc, as Bank, dated July 28, 2011. |
2. | Reinsurance Deposit and Securities Portfolio Security Agreement by and between Xxxxxx Insurance Company Ltd., as Chargor, Citibank, N.A., as Custodian, and Citibank Europe Plc, as Bank, dated November 9, 2010. |
