AMENDMENT NO. 2 TO MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT
Exhibit 99.1
AMENDMENT NO. 2 TO MASTER COMMUTATION, RELEASE AND
RESTRUCTURING AGREEMENT
AMENDMENT NO. 2 effective as of October 15, 2008 (this “Amendment No. 2”) among XL CAPITAL LTD, an exempted limited company incorporated under the Laws of Cayman Islands, XL INSURANCE (BERMUDA) LTD (formerly known as X.L. Insurance Ltd), a Bermuda exempted company, XL REINSURANCE AMERICA INC., a New York insurance corporation, X.L. GLOBAL SERVICES, INC., a service company incorporated under the Laws of Delaware, XL SERVICES (BERMUDA) LTD, a service company incorporated under the Laws of Bermuda, X.L. AMERICA, INC., a company incorporated under the Laws of Delaware, SYNCORA HOLDINGS LTD (formerly known as Security Capital Assurance Ltd), a Bermuda exempted company, SYNCORA GUARANTEE INC. (formerly known as XL Capital Assurance Inc., and successor by merger to Syncora Guarantee Re Ltd. (formerly known as XL Financial Assurance Ltd) “SGI”), a New York insurance company, SYNCORA GUARANTEE SERVICES INC. (formerly known as XL Financial Administrative Services Inc.), a company incorporated under the Laws of Delaware, SYNCORA BERMUDA ADMINISTRATIVE LTD (formerly known as SCA Bermuda Administrative Ltd.), a company incorporated under the Laws of Bermuda, SYNCORA GUARANTEE (U.K.) LTD (formerly known as XL Capital Assurance (U.K.) Limited), an insurance company regulated by the Financial Services Authority and incorporated under the Laws of England and Wales, those portfolio trusts that are Affiliates of SGI that are a Party to the Master Agreement (as defined below) pursuant to the execution of a joinder agreement, and the CDS Counterparties.
WHEREAS, the parties hereto (the “Parties”) entered into a certain Master Commutation, Release and Restructuring Agreement dated as of July 28, 2008, and certain of the Parties amended such agreement as of August 1, 2008 (such agreement as amended, the “Master Agreement”);
WHEREAS, the Parties wish to change certain dates set forth in the Master Agreement; and
WHEREAS, the Parties wish to take such actions necessary to give effect to such changes;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein and in the Master Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
Section 1. Definitions. Capitalized terms not otherwise defined in this Amendment No. 2 shall have the meanings ascribed to them in the Master Agreement.
Section 2. Amendments. Sections 2.04(a), 6.10(b), 6.12, 6.13, 6.14, and 9.07 of the Master Agreement are hereby amended as follows:
2.1 Section 2.04(a) of the Master Agreement is hereby amended by replacing the date “October 15, 2008” with the date “October 31, 2008.”
2.2 Clause (i) of the first sentence of Section 6.10(b) of the Master Agreement is hereby amended by replacing the date “October 15, 2008” with the date “October 31, 2008.”
2.3 Clause (ii) of the first sentence of Section 6.12 of the Master Agreement is hereby amended by replacing the date “October 15, 2008” with the date “October 31, 2008.”
2.4 The last sentence of Section 6.12 of the Master Agreement is hereby amended by replacing the date “October 15, 2008” with the date “October 31, 2008.”
2.5 Section 6.13 of the Master Agreement is hereby amended by replacing the date “October 15, 2008”, in each instance in which it appears in such section, with the date “October 31, 2008.”
2.6 The last sentence of Section 6.14 of the Master Agreement is hereby amended by replacing the date “October 15, 2008” with the date “October 31, 2008.”
2.7 The Master Agreement is hereby amended by adding the following sentence to the end of Section 9.07:
“Notwithstanding anything herein to the contrary, in no event shall the consent of any of the XL Parties be necessary to extend or otherwise alter any of the dates referenced in Sections 2.04(a), 6.10(b), 6.12, 6.13, or 6.14.”
Section 3. Substitution of Xxxxxx Entity. (a) Xxxxxx Brothers Special Financing Inc. (“LBSF”) has provided to the SCA Parties a written list (reflecting the best belief of an authorized signatory of LBSF) of (A) those credit default swap agreements with SGI or Affiliates of SGI to which LBSF was party, and of which LBSF was a beneficial owner, as of July 28, 2008 and (B) the notional amount of each such credit default swap agreement. For an abundance of clarity, the foregoing representations and warranties contained in this Section 3 only reflect the best belief of the authorized signatory of LBSF. LBSF is not making any representation or warranty that is not qualified by the best belief of such authorized signatory, and it will not be bound by or subject to liability based on any inaccuracy contained in any such list that ultimately results from such authorized signatory’s best belief being inadvertently inaccurate.
(b) LBSF hereby agrees to be bound by the terms and conditions of the Master Agreement and this Amendment No. 2. Each Party hereto hereby agrees that, effective as of July 28, 0000, XXXX is substituted for Xxxxxx Brothers Inc. (“LBI”) as a Party to the Master Agreement for all purposes and is hereby substituted for LBI as the Party executing that certain
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joinder agreement to the Master Agreement dated as of July 28, 2008. LBSF has executed a joinder agreement to the Master Agreement pursuant to Section 9.04 thereof, effective as of July 28, 2008.
(c) Each Party hereby agrees that, for purposes of Section 2 of the joinder agreement to the Master Agreement executed and delivered by LBSF in connection herewith, the representations and warranties made by LBSF pursuant to Section 5.08 of the Master Agreement shall be deemed to be, and shall be replaced by, the representations and warranties set forth above in Section 3(a) hereof and, notwithstanding the provisions, and the date of effectiveness, of the joinder agreement, such representations and warranties are made by LBSF on the date hereof with respect to factual matters as existing on July 28, 2008.
Section 4. Miscellaneous.
4.1 Except as specifically set forth herein, the terms of this Amendment No. 2 shall not be deemed to be a consent, waiver or modification with respect to any term, condition or obligation of any of the Parties in the Master Agreement and shall not obligate any of the Parties to agree to any other amendment to the Master Agreement, including a further extension or alteration of the dates referenced in the Master Agreement.
4.2 This Amendment No. 2 may be executed and delivered in multiple counterparts, each of which, when so executed and delivered, shall be an original, but such counterparts shall together constitute but one and the same instrument and agreement. A facsimile or Portable Document Format copy of a signature shall have the same force and effect as an original signature.
4.3 This Amendment No. 2 is to be interpreted under and governed by the Laws of the State of New York without giving effect to conflicts of law provisions thereof. In the event that there is a dispute between or among the Parties arising under this Amendment No. 2, the Parties (i) agree that the exclusive forum to seek remedy shall be to institute a legal proceeding in the courts of the State of New York located in the City and County of New York, (ii) hereby expressly submit to the personal jurisdiction and venue of such courts for the purposes thereof and expressly waive any claim of lack of personal jurisdiction and improper venue and any claim that such courts are an inconvenient forum and (iii) agree that the prevailing Parties shall be entitled to recover their reasonable attorneys’ fees, costs and disbursements from the other Parties (in addition to any other relief to which the prevailing Parties may be entitled). Each Party hereby irrevocably consents to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to the address provided to the Parties in accordance with Section 9.02, of the Master Agreement, such service to become effective ten (10) days after such mailing.
4.4 Each of the Parties hereby waives to the fullest extent permitted by applicable Law any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under, or in connection with this Amendment No. 2. Each of the Parties hereby (i) 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
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the foregoing waiver and (ii) acknowledges that it has been induced to enter into this Amendment No. 2 by, among other things, the mutual waivers and certifications in this Section 4.4.
4.5 Each Party has had the opportunity to negotiate the terms, consult with counsel, and modify the provisions of this Amendment No. 2. Therefore, the terms of this Amendment No. 2 will be considered and interpreted without any presumption, inference or rule requiring construction or interpretation of any provision of this Amendment No. 2 against the interests of the drafter of this Amendment No. 2.
Section 5. Effectiveness. Notwithstanding any provision to the contrary contained in this Amendment No. 2 or the Master Agreement, including, without limitation, the failure of the amendments thereto contained herein to become effective pursuant to Sections 9.07 and 9.08 of the Master Agreement, in the event such amendments fail to become effective solely as a result of the fact that LBI has not executed this Amendment No. 2, the Parties hereto agree that they shall be bound by all of the terms and conditions set forth in the Master Agreement as though the amendments thereto contained herein were in full force and effect.
[Signature Page Follows]
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IN WITNESS HEREOF, the Parties have caused this Amendment No. 2 to be duly executed and delivered as of the day and year first written above.
XL CAPITAL LTD | |||
By: | /s/ Xxxxx X. Xxxxx | ||
Name: Xxxxx
Xxxxx Title: EVP & CFO |
XL SERVICES (BERMUDA) LTD | |||
By: | /s/ Xxxxx X. Xxxxx | ||
Name: Xxxxx
Xxxxx Title: |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
X.L. AMERICA, INC. | |||
By: | /s/ Xxxxxxx X. XxXxxxx | ||
Name: Xxxxxxx
X. XxXxxxx Title: Senior Vice President, General Counsel and Secretary |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
X.L. GLOBAL SERVICES, INC. | |||
By: | /s/ Xxxx X. Xxxxxxx | ||
Name: Xxxx
X. Xxxxxxx Title: Assistant Secretary |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
XL REINSURANCE AMERICA INC. | |||
By: | /s/ Xxxxxxx X. XxXxxxx | ||
Name: Xxxxxxx
X. XxXxxxx Title: Vice President |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
SYNCORA
HOLDINGS LTD (formerly known as Security Capital Assurance Ltd) |
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By: | /s/ Xxx Xxxxxx | ||
Name: Xxx
Xxxxxx Title: SVP |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
SYNCORA
GUARANTEE INC. (formerly known as XL Capital Assurance Inc.) |
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By: | /s/ Xxxxx Xxxxxxxxx | ||
Name: Xxxxx
Xxxxxxxxx Title: SVP, GC & Sec |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
SYNCORA
GUARANTEE INC., as successor |
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By: | /s/ Xxxxx Xxxxxxxxx | ||
Name: Xxxxx
Xxxxxxxxx Title: SVP, GC & Secretary |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
SYNCORA
GUARANTEE SERVICES INC. (formerly known as XL Financial Administrative Services Inc.) |
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By: | /s/ Xxxxx Xxxxxxxxx | ||
Name: Xxxxx
Xxxxxxxxx Title: MD & Secretary |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
SYNCORA
BERMUDA ADMINISTRATIVE LTD (formerly known as SCA Bermuda Administrative Ltd) |
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By: | /s/ Xxx Xxxxxx | ||
Name: Xxx
Xxxxxx Title: SVP |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
SYNCORA
GUARANTEE (U.K.) LTD (formerly known as XL Capital Assurance (U.K.) Limited) |
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By: | /s/ Xxxxx Xxxxxxxxx | ||
Name: Xxxxx
Xxxxxxxxx Title: Acting CEO & GC |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
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By: Syncora Admin LLC (formerly known as XLCA Admin, LLC) acting through Syncora Admin LLC (formerly known as XLCA Admin, LLC), as Trustee
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title: Managing
Director & Secretary
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
AUSTRALIA AND NEW ZEALAND | |||
BANKING GROUP LIMITED | |||
By: | /s/ Xxxxx Xxxxxxxx | ||
Name: X. Xxxxxxxx | |||
Title: Director |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
BANK OF AMERICA, N.A. | |||
By: | /s/ Xxxx X. Xxxxxxx III | ||
Name:Xxxx X. Xxxxxxx III | |||
Title: Senior Vice President |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
BARCLAYS BANK PLC | |||
By: | /s/ Xxxxx Xxxxx | ||
Name: Xxxxx Xxxxx | |||
Title: Director |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
CALYON | |||
By: | /s/ Xxxx Xxxxxxx | ||
Name: Xxxx Xxxxxxx |
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Title: Managing Director | |||
By: | /s/ Xxxx-Xxxxxxx van Essche | ||
Name: Xxxx-Xxxxxxx van Essche |
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Title: Managing Director | |||
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
CANADIAN
IMPERIAL BANK OF COMMERCE |
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By: | /s/ Xxxxx XxXxxxxxx | ||
Name: X. X. XxXxxxxxx |
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Title: Executive Vice-President |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
DEUTSCHE BANK AG, LONDON BRANCH | |||
By: | /s/ Xxxxxx Xxxxxxx | ||
Name: Xxxxxx Xxxxxxx |
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Title: Director | |||
By: | /s/ Xxxxx X. Xxxxxxx | ||
Name: Xxxxx X. Xxxxxxx |
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Title: Vice President |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
DEXIA BANK BELGIUM SA | |||
By: | /s/ Bernhard Ardaen | ||
Name: Bernhard Ardaen |
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Title: Proxyholder | |||
By: | /s/ Xxxxx Xxxxxx | ||
Name: Xxxxx Xxxxxx |
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Title: Head of Dealing Room |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
DRESDNER BANK AG, LONDON BRANCH | |||
By: | /s/ Xxxxxx X. Xxxxxx | ||
Name: Xxxxxx X. Xxxxxx |
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Title: Authorised Signatory | |||
By: | /s/ Xxxxxxxxxxx Xxxxx | ||
Name: Xxxxxxxxxxx Xxxxx |
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Title: Authorised Signatory |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
HYPO PUBLIC FINANCE BANK | |||
By: | /s/ Xxx Xxxxx /s/ Xxxxxx Xxxxxx | ||
Name: Xxx Xxxxx Xxxxxx Xxxxxx |
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Title: Authorised Signatories | |||
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
XXXXXX
BROTHERS SPECIAL FINANCING INC. |
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By: | /s/ Xxxxx X. Xxxxx | ||
Name: Xxxxx X. Xxxxx |
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Title: Director |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
NATIXIS | |||
By: | /s/ Xxxxxx Xxxxxxxx | ||
Name: Xxxxxx Xxxxxxxx |
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Title: |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
NOMURA INTERNATIONAL PLC | |||
By: | /s/ Xxxxx Xxxxxxx | ||
Name: Xxxxx Xxxxxxx |
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Title: Head Transaction Legal |
ROYAL BANK OF CANADA | |||
By: | /s/ Xxxxxxx Xxxxxxxxx | ||
Name: Xxxxxxx Xxxxxxxxx |
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Title: Authorized Signatory |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
THE
ROYAL BANK OF SCOTLAND PLC By: Greenwich Capital Markets, Inc., its agent |
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By: | /s/ Xxxxx-Xxxxxx Elhied | ||
Name: Xxxxx-Xxxxxx Elhied |
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Title: SVP |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
SOCIÉTÉ GÉNÉRALE | |||
By: | /s/ Xxxxx X. Xxxxxxx | ||
Name: Xxxxx X. Xxxxxxx |
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Title: Managing Director |
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
UBS AG, LONDON BRANCH | |||
By: | /s/ Xxxxx X. Xxxxxxx | ||
Name: Xxxxx X. Xxxxxxx |
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Title: Attorney-in-Fact | |||
By: | /s/ Xxxxxx X. Xxxxxxxx | ||
Name: Xxxxxx X. Xxxxxxxx |
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Title: Attorney in Fact | |||
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]
WACHOVIA
BANK, NATIONAL ASSOCIATION |
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By: | /s/ Xxxxx X. Xxxxxxxx | ||
Name: Xxxxx X. Xxxxxxxx |
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Title: Managing Director | |||
[AMENDMENT NO. 2 TO THE MASTER COMMUTATION, RELEASE AND RESTRUCTURING AGREEMENT]