as Account Party THE GUARANTORS (as defined herein) THE LENDERS PARTY HERETO (as defined herein) CITIBANK INTERNATIONAL PLC as Agent and Security Trustee CITIGROUP GLOBAL MARKETS LIMITED and BARCLAYS CAPITAL as Arrangers
EXHIBIT
10.1
14
MARCH 2006
as
Account
Party
THE
GUARANTORS
(as
defined herein)
THE
LENDERS PARTY HERETO
(as
defined herein)
CITIBANK
INTERNATIONAL PLC
as
Agent
and Security Trustee
CITIGROUP
GLOBAL MARKETS LIMITED and BARCLAYS CAPITAL
as
Arrangers
LETTER
OF CREDIT FACILITY AND
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT
CONTENTS
|
CLAUSE
|
PAGE
|
|
|
1.
|
DEFINITIONS
|
1
|
|
2.
|
THE
FACILITY
|
15
|
|
3.
|
UTILISATION
OF THE FACILITY
|
17
|
|
4.
|
TERMINATION
OF LETTERS OF CREDIT
|
18
|
|
5.
|
PAYMENT
OF DEMANDS
|
22
|
|
6.
|
THE
ACCOUNT PARTY’S LIABILITIES IN RELATION TO LETTERS OF
CREDIT
|
23
|
|
7.
|
DEFAULT
INTEREST
|
24
|
|
8.
|
TERMINATION
AND REDUCTION OF THE COMMITMENTS
|
24
|
|
9.
|
FEES
|
25
|
|
10.
|
TAXES
|
27
|
|
11.
|
TAX
RECEIPTS
|
28
|
|
12.
|
INCREASED
COSTS
|
29
|
|
13.
|
ILLEGALITY
|
30
|
|
14.
|
MITIGATION
OBLIGATIONS; REPLACEMENT OF LENDERS.
|
31
|
|
15.
|
PAYMENTS
GENERALLY; PRO RATA TREATMENT; SHARING OF SET-OFFS.
|
31
|
|
16.
|
GUARANTEE
AND INDEMNITY
|
34
|
|
17.
|
REPRESENTATIONS
AND WARRANTIES
|
37
|
|
18.
|
AFFIRMATIVE
COVENANTS
|
41
|
|
19.
|
NEGATIVE
COVENANTS
|
46
|
|
20.
|
EVENTS
OF XXXXXXX
|
00
|
|
00.
|
THE
AGENT, THE ARRANGERS AND THE LENDERS
|
53
|
|
22.
|
NOTICES
|
60
|
|
23.
|
WAIVERS
AND AMENDMENTS
|
60
|
|
24.
|
COSTS
AND EXPENSES
|
61
|
|
25.
|
INDEMNITIES
|
62
|
|
26.
|
ALTERATION
TO THE PARTIES
|
63
|
|
27.
|
SET
OFF
|
68
|
|
28.
|
MISCELLANEOUS
PROVISIONS
|
69
|
|
29.
|
GOVERNING
LAW AND JURISDICTION
|
70
|
|
30.
|
TREATMENT
OF CERTAIN INFORMATION; CONFIDENTIALITY
|
71
|
|
31.
|
THIRD
PARTY RIGHTS
|
72
|
|
SCHEDULE 1
COMMITMENTS
|
73
|
|
SCHEDULE 2
INDEBTEDNESS AND LIENS
|
74
|
|
Part A Indebtedness
|
74
|
|
Part B Liens
|
76
|
|
SCHEDULE 3
SUBSIDIARIES
|
78
|
|
SCHEDULE 4
MANDATORY COSTS RATE
|
82
|
|
SCHEDULE 5
CONDITIONS PRECEDENT
|
85
|
|
SCHEDULE 6
UTILISATION REQUEST
|
86
|
|
SCHEDULE 7
FORM OF LETTER OF CREDIT
|
87
|
|
SCHEDULE 8
FORM OF TRANSFER CERTIFICATE
|
92
|
|
SCHEDULE 9
FORM OF CHARGE AGREEMENT
|
94
|
LETTER
OF CREDIT FACILITY AND REIMBURSEMENT AGREEMENT
dated 14
March 2006
Between:
|
(1)
|
XL
CAPITAL LTD, a
company incorporated under the laws of the Cayman Islands (the Account
Party);
|
|
(2)
|
The
GUARANTORS
as
defined below;
|
|
(3)
|
The
LENDERS
as
defined below;
|
|
(4)
|
CITIBANK
INTERNATIONAL PLC,
as agent and trustee for the Lenders (and when acting in such capacities
the Agent
and Security
Trustee respectively);
and
|
|
(5)
|
BARCLAYS
CAPITAL and
CITIGROUP GLOBAL MARKETS LIMITED as
mandated lead arrangers (the
Arrangers).
|
1. Definitions
Defined
Terms
1.1 As
used
in this Agreement, the following terms have the meanings specified
below:
Acceleration
Event means
the
provision by the Agent to the Account Party of an Acceleration Notice and/or
the
occurrence of any event with respect to any Obligor described in Clause 20(e)
or
20(f);
Acceleration
Notice has
the
meaning assigned to such term in Clause 20;
Affiliate
means,
with respect to a specified Person, another Person that directly, or indirectly,
Controls or is Controlled by or is under common Control with the Person
specified;
AMB Cash
Collateral has
the
meaning assigned to such term in Clause 19.8;
AMB
Rating Undertaking has
the
meaning assigned to such term in Clause 19.8;
Applicable
Percentage
means,
with respect to any Lender, the percentage of the Total Commitments represented
by such Lender’s Commitment. If the Total Commitments or Commitment of a Lender
have terminated or expired, the Applicable Percentage shall be determined
based
upon the Total Commitments or Commitment of such Lender (as the case may
be)
most recently in effect, giving effect to any permitted assignments or
transfers;
Applicant
means
each of Mid Ocean, Stonebridge Underwriting, NAC Reinsurance, Dornoch, County
Down, XL London Market and XL Re and any other Affiliate of the Account Party
as
may be agreed by the Agent and the Account Party from time to time;
Approved
Credit Institution
means a
credit institution within the meaning of the First Council Directive on the
co-ordination of laws, regulations and administrative provisions relating
to the
taking up and pursuit of the business of credit institutions
(No 77/780/EEC) which has been approved by Lloyd’s for the purpose of
providing guarantees and issuing or confirming letters of credit comprising
a
member’s Funds at Lloyd’s;
Authorised
Signatory
means,
in relation to an Obligor, any person who is duly authorised (in such manner
as
may be reasonably acceptable to the Agent) and in respect of whom the Agent
has
received a certificate signed by a director or another Authorised Signatory
of
such Obligor setting out the name and signature of such person and confirming
such person’s authority to act;
Available
Commitment means
in
relation to a Lender at any time and save as otherwise provided herein its
Commitment less the amount of its participation in the LC Exposures at such
time
PROVIDED
THAT such
amount shall not be less than zero;
Available
Facility means,
at
any time, the aggregate of the Available Commitments adjusted, in the case
of a
proposed utilisation pursuant to a Utilisation Request, so as to take into
account:
|
(a)
|
any
reduction in the Commitment of a Lender pursuant to the terms hereof;
and
|
|
(b)
|
any
Letter of Credit which pursuant to any other Utilisation Request
is to be
issued;
|
on
or
before the proposed Utilisation Date relating to such utilisation;
Availability
Period
means
the period from (and including) the Closing Date to (and including) the
Commitment Termination Date;
Bilateral
Letter of Credit has
the
meaning given to it in Clause 4.5(b);
BIS
Qualifying Assets
means
fixed income securities issued or guaranteed by US Government Agencies or
by the
Central Governments of any OECD country having a financial strength rating
of at
least “A+” from Standard & Poor’s Rating Services (or its successor);
Board
means
the Board of Governors of the Federal Reserve System of the United States
of
America;
Business
Day
means
any day that is not a Saturday, Sunday or other day on which commercial banks
in
New York City, London or Bermuda are authorised or required by Law to remain
closed;
Capital
Lease Obligations of
any
Person means the obligations of such Person to pay rent or other amounts
under
any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person
under GAAP, and the amount of such obligations shall be the capitalised amount
thereof determined in accordance with GAAP;
Central
Government
means,
without limitation, government departments, ministries and central
banks;
Change
in Control
means
the occurrence of any of the following events or conditions:
|
(a)
|
any
Person, including any syndicate or group deemed to be a Person
under
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
acquires beneficial ownership, directly or indirectly, through
a purchase,
merger or other acquisition transaction or series of transactions,
of
shares of capital stock of the Account Party entitling such Person
to
exercise 40% or more of the total voting power of all shares
|
of
capital stock of the Account Party that is entitled to vote generally in
elections of directors, other than an acquisition by the Account Party, any
of
its subsidiaries or any employee benefit plans of the Account Party; or
|
(b)
|
the
Account Party merges or consolidates with or into any other Person
(other
than a Subsidiary), another person (other than a subsidiary) merges
into
the Account Party or the Account Party conveys, sells, transfers
or leases
all or substantially all of its assets to another Person (other
than a
Subsidiary), other than any transaction: (i) that does not result
in a
reclassification, conversion, exchange or cancellation of the outstanding
shares of capital stock of the Account Party (other than the cancellation
of any outstanding shares of capital stock of the Account Party
held by
the Person with whom it merges or consolidates) or (ii) which is
effected
solely to change the jurisdiction of incorporation of the Account
Party
and results in a reclassification, conversion or exchange of outstanding
shares of capital stock of the Account Party solely into shares
of capital
stock of the surviving entity; or
|
|
(c)
|
a
majority of the members of the Account Party’s board of directors are
persons who are then serving on the board of directors without
having been
elected by the board of directors or having been nominated for
election by
its shareholders.
|
Change
in Law
means
(a) the adoption of any Law, rule or regulation after the date of this
Agreement, (b) any change in any Law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after
the
date of this Agreement or (c) compliance by any Lender (or, for purposes
of
Clause 12.1 and 13, by any lending office of such Lender or by such
Lender’s holding company, if any) with any request, guideline or directive
(whether or not having the force of Law) of any Governmental Authority made
or
issued after the date of this Agreement;
Charge
Agreement
means
the charge agreement, in substantially the form set out in Schedule 9 that
may be required to be entered into by the Account Party as chargor pursuant
to
the terms hereof and pursuant to which the Account Party will grant cash
cover
in favour of the Security Trustee;
Closing
Date
means
the later of 3 Business Days from the date hereof and the date on which the
conditions set out in Schedule 5 (Conditions
Precedent)
have,
in the reasonable opinion of the Agent, been satisfied;
Code
means
the Internal Revenue Code of 1986 of the United States of America, as amended
from time to time;
Commencement
Date
means,
in respect of a Letter of Credit, the date upon which a Letter of Credit
shall
become effective being any date from (and including) the Closing Date to
(and
including) the Commitment Termination Date;
Commitment
means,
with respect to each Lender, the commitment of such Lender to participate
in the
issue of Letters of Credit hereunder. The initial amount of each Lender’s
Commitment is set forth on Schedule 1, or in the Transfer Certificate
pursuant to which such Lender shall have assumed its Commitment, as applicable,
but in each case as such Commitment may be:
|
(a)
|
reduced
from time to time pursuant to Clause 8 (Termination
and Reduction of the Commitments)
or Clause 4.5(b) (Replacement
Letters of Credit);
and
|
|
(b)
|
reduced
or increased from time to time pursuant to assignments by or to
such
Lender pursuant to Clause 26.3 (Transfers
by Lenders);
|
Commitment
Letter means
the
letters so titled from the Arrangers to the Account Party dated 27 January
2006;
Commitment
Termination Date
means 30
November 2007;
Consolidated
Net Worth means,
at
any time, the consolidated shareholders’ equity of the Account Party and its
Subsidiaries, provided that the calculation of such consolidated shareholders’
equity shall exclude (a) the effect thereon of any adjustments required under
Statement of Financial Accounting Standard No. 115 (Accounting for Certain
Investments in Debt and Equity Securities) and (b) any Exempt Indebtedness
(and
the assets relating thereto) in the event such Exempt Indebtedness is
consolidated on the balance sheet of the Account Party and its consolidated
Subsidiaries in accordance with GAAP;
Control
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability
to exercise voting power, by contract or otherwise. Controlling
and
Controlled
have
meanings correlative thereto;
County
Down means
County Down Limited, a company incorporated under the laws of England and
Wales;
Default
means
any event or condition which constitutes an Event of Default or a Potential
Event of Default;
Default
Period
means
the period from and including the date on which the Agent makes payment of
a
Demand Amount to but excluding the date on which the Account Party makes
a
corresponding reimbursement under Clause 6.1(a) and (b) (The
Account Party’s Indemnity to Lenders);
Demand
Amount
means a
principal amount to be paid by the Account Party pursuant to Clause 6.1(a)
and (b) (The
Account Party’s Indemnity to Lenders);
Dollars
or
$
refers
to
the lawful money of the United States of America from time to time;
Dornoch
means
Dornoch Limited, a company incorporated under the laws of England and
Wales;
Environmental
Laws
means
any Law, whether now existing or subsequently enacted or amended, relating
to
(a) pollution or protection of the environment, including natural resources,
(b)
exposure of Persons, including but not limited to employees, to Hazardous
Materials, (c) protection of the public health or welfare from the effects
of
products, by-products, wastes, emissions, discharges or releases of Hazardous
Materials or (d) regulation of the manufacture, use or introduction into
commerce of Hazardous Materials, including their manufacture, formulation,
packaging, labelling, distribution, transportation, handling, storage or
disposal;
Environmental
Liability
means
any liability, contingent or otherwise (including any liability for damages,
costs of environmental remediation, fines, penalties or indemnities), of
an
Obligor or any Subsidiary resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened
release
of any Hazardous Materials into the environment or (e) any contract or agreement
pursuant to which liability is assumed or imposed with respect to any of
the
foregoing;
Equity
Rights
means,
with respect to any Person, any subscriptions, options, warrants, commitments,
pre-emptive rights or agreements of any kind (including any shareholders’ or
voting trust agreements) for the issuance, sale, registration or voting of,
or
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such
Person;
ERISA
means
the Employee Retirement Income Security Act of 1974 of the United States
of
America, as amended from time to time;
ERISA
Affiliate
means
any trade or business (whether or not incorporated) that, together with the
Account Party, is treated as a single employer under Clause 414(b) or (c)
of the
Code, or, solely for purposes of Clause 302 of ERISA and Clause 412 of the
Code,
is treated as a single employer under Clause 414 of the Code;
ERISA
Event
means
(a) any reportable
event,
as
defined in Clause 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice period
is
waived); (b) the existence with respect to any Plan of an accumulated
funding deficiency
(as
defined in Clause 412 of the Code or Clause 302 of ERISA), whether or not
waived; (c) the filing pursuant to Clause 412(d) of the Code or Clause 303(d)
of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by any Obligor or any of such Obligor’s
ERISA Affiliates of any liability under Title IV of ERISA with respect to
the
termination of any Plan; (e) the receipt by an Obligor or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention
to
terminate any Plan or Plans or to appoint a trustee to administer any Plan;
(f)
the incurrence by any Obligor or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by any Obligor or any ERISA Affiliate
of
any notice, or the receipt by any Multiemployer Plan from any Obligor or
any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganisation, within the meaning of Title IV of ERISA;
Event
of Default
has the
meaning assigned to such term in Clause 20;
Exempt
Indebtedness means
any
Indebtedness of any Person (other than the Account Party or any of its
Affiliates) that is consolidated on the balance sheet of the Account Party
and
its consolidated Subsidiaries in accordance with GAAP (whether or not required
to be so consolidated); provided that (a) at the time of the incurrence of
such
Indebtedness by such Person, the cash flows from the assets of such Person
shall
reasonably be expected by such Person to liquidate such Indebtedness and
all
other liabilities (contingent or otherwise) of such Person and (b) no portion
of
such Indebtedness of such Person shall be Guaranteed (other than by guarantees
of the type referred to in clause (a) or (b) of the definition of the term
Indebtedness) by, or shall be secured by a Lien on any assets owned by, the
Account Party or any of its Subsidiaries and neither such Person nor any
of the
holders of such Indebtedness shall have any direct or indirect recourse to
the
Account Party or any of its Subsidiaries (other than in respect of liabilities
and guarantees of the type referred to in clause (a) or (b) of the definition
of
the term Indebtedness);
Facility
means
the letter of credit facility granted to the Account Party pursuant to this
Agreement;
Facility
Office
means
the office or offices notified by a Lender to the Agent in writing on or
before
the date it becomes a Lender (or, following that date, by not less than five
Business Days’ written notice) as the office or offices through which it will
perform its obligations under this Agreement;
Fee
Letter means
the
letter from the Arrangers to the Account Party dated 27 January 2006, relating
to the payment of certain fees;
Finance
Documents
means
this Agreement, the Charge Agreement, the Commitment Letter, the Fee Letter,
any
Letter of Credit and any other document or documents as may be agreed by
the
Agent and the Account Party;
Final
Expiration Date means
the
date on which a Letter of Credit terminates in accordance with its
terms;
Finance
Parties
means
the Lenders, the Agent, the Arrangers and the Security Trustee;
Financial
Officer
means,
with respect to any Obligor, a principal financial officer of such
Obligor;
Financial
Strength Rating
has the
meaning assigned to such term in Clause 9.3.
Funds
at Lloyd’s
has the
meaning given to it in paragraph 4 of the Membership Bylaw (No. 17 of
1993);
Funds
at Lloyd’s Requirements means,
in
respect of any member, the amount required to be maintained by that member
as
Funds at Lloyd’s;
Funds
Date means
the
date notified by Lloyd’s each year as being the latest date in that year by
which Funds at Lloyd’s can be placed with Lloyd’s in order to satisfy Funds at
Lloyd’s Requirements in respect of the immediately succeeding calendar
year;
GAAP
means
generally accepted accounting principles in the United States of
America;
GIC
means a
guaranteed investment contract or funding agreement or other similar agreement
issued by an Obligor or any of its Subsidiaries that guarantees to a
counterparty a rate of return on the invested capital over the life of such
contract or agreement;
Governmental
Authority
means
the government of the United Kingdom, or of any other nation, or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or
functions of or pertaining to government;
Guarantee
means,
with respect to any Person, without duplication, any obligations of such
Person
(other than endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to guarantee
any
Indebtedness of any other Person in any manner, whether direct or indirect,
and
including without limitation any obligation, whether or not contingent, (i)
to
purchase any such Indebtedness or any property constituting security therefor
for the purpose of assuring the holder of such Indebtedness, (ii) to advance
or
provide funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance sheet
condition of such other Person (including without limitation keepwell
agreements, maintenance agreements, comfort letters or similar agreements
or
arrangements) for the benefit of any
holder
of
Indebtedness of such other Person, (iii) to lease or purchase property,
securities or services primarily for the purpose of assuring the holder of
such
Indebtedness, or (iv) to otherwise assure or hold harmless the holder of
such
Indebtedness against loss in respect thereof. The amount of any Guarantee
hereunder shall (subject to any limitations set forth therein) be deemed
to be
an amount equal to the outstanding principal amount of the Indebtedness in
respect of which such Guarantee is made. The terms Guarantee
and
Guaranteed
used as
a verb shall have a correlative meaning;
Guarantors
means
each of the Account Party, XL America, XL Bermuda, and XL Re;
Hazardous
Materials
means
all explosive or radioactive substances or wastes and all hazardous or toxic
substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances
or
wastes of any nature regulated pursuant to any Environmental Law;
Hedging
Agreement
means
any interest rate protection agreement, foreign currency exchange agreement,
commodity price protection agreement or other interest or currency exchange
rate
or commodity price hedging arrangement;
Indebtedness
means,
for any Person, without duplication: (i) all indebtedness or liability for
or on
account of money borrowed by, or for or on account of deposits with or advances
to (but not including accrued pension costs, deferred income taxes or accounts
payable of) such Person; (ii) all obligations (including contingent liabilities)
of such Person evidenced by bonds, debentures, notes, banker’s acceptances or
similar instruments; (iii) all indebtedness or liability for or on account
of
property or services purchased or acquired by such Person; (iv) any amount
secured by a Lien on property owned by such Person (whether or not assumed)
and
Capital Lease Obligations of such Person (without regard to any limitation
of
the rights and remedies of the holder of such Lien or the lessor under such
capital lease to repossession or sale of such property); (v) the maximum
available amount of all standby letters of credit issued for the account
of such
Person and, without duplication, all drafts drawn thereunder (to the extent
unreimbursed); and (vi) all Guarantees of such Person; provided that the
following shall be excluded from Indebtedness of the Account Party and any
of
its Subsidiaries for purposes of this Agreement: (a) all payment liabilities
of
any such Person under insurance and reinsurance policies from time to time
issued by such Person, including guarantees of any such payment liabilities;
(b)
all other liabilities (or guarantees thereof) arising in the ordinary course
of
any such Person’s business as an insurance or reinsurance company (including
GICs and Stable Value Instruments and any Specified Transaction Agreement
relating thereto), or as a corporate member of The Council of Lloyd’s, or as a
provider of financial or investment services or contracts (including GICs
and
Stable Value Instruments and any Specified Transaction Agreement relating
thereto); and (c) any Exempt Indebtedness;
Insurance
Subsidiary
means
any Subsidiary which is subject to the regulation of, and is required to
file
statutory financial statements with, any governmental body, agency or official
in any State or territory of the United States or the District of Columbia
which
regulates insurance companies or the doing of an insurance business
therein;
ISDA
has the
meaning assigned to such term in Clause 19.3(f);
Issuing
Lender
means
any Lender in its capacity as an issuer of one or more Letters of Credit
hereunder;
Law
means
any law (including common law), constitution, statute, treaty, regulation,
rule,
ordinance, order, injunction, writ, decree or award of any Governmental
Authority;
LC
Disbursement
means a
payment made by a Lender pursuant to a Letter of Credit;
LC
Exposure
means
the sum of (a) the aggregate undrawn amount of all outstanding Letters of
Credit
at such time plus (b) the aggregate amount of all Demand Amounts. The LC
Exposure of any Lender at any time shall be the sum of its participation
in the
outstanding Letters of Credit at such time and the Demand Amounts owed to
it at
such time;
LC
Proportion means,
in
relation to the Lender in respect of any Letter of Credit and save as otherwise
provided herein, the proportion (expressed as a percentage) of such Lender’s
Available Commitment to the Available Facility immediately prior to the issue
of
such Letter of Credit;
Lender
Affiliate
means
with respect to any Lender, (a) an Affiliate of such Lender or (b) any entity
(whether a corporation, partnership, trust or otherwise) that is engaged
in
making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
or managed by a Lender or an Affiliate of such Lender;
Lenders
means
any of the Persons listed in Schedule 1 (Commitments)
or any
other Person that shall have become a party hereto pursuant to Clause 26.3
(Transfers
by Lenders),
and
which has not ceased to be a party hereto in accordance with the terms
hereof;
Letters
of Credit
means
Letters of Credit issued pursuant to the terms of this Agreement (including,
for
the avoidance of doubt, any New Letter of Credit, Reduced Letter of Credit
or
Bilateral Letter of Credit referred to in Clause 4.5 (Replacement
Letters of Credit));
Letter
of Credit Fees
means
the fees payable by the Account Party pursuant to Clause 9.2 (Letter
of Credit Fees)
(as
adjusted from time to time in accordance with the provisions of Clause 9.3)
(Adjustment
of Letter of Credit Fee);
Lien
means,
with respect to any asset, any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as,
or
having the effect of, security;
LIBOR
means,
in relation to any unpaid sum:
|
(a)
|
the
display rate per annum of the offered quotation for overnight deposits
in
the currency of the relevant unpaid sum which appears on Telerate
Page
3750 or Telerate Page 3740 (as appropriate) at or about 11.00 a.m. on
any relevant day; or
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|
(b)
|
if
the display rate cannot be determined under paragraph (a) above, the
rate determined by the Agent to be the arithmetic mean (rounded,
if
necessary, to the nearest five decimal places with the midpoint
rounded
upwards) of the rates notified to the Agent by each of the Reference
Banks
quoting (provided that at least two Reference Banks are quoting)
as the
rate at which such Reference Bank is offering overnight deposits
in the
required currency in an amount comparable to that amount to prime
banks in
the London Interbank Market at or about 11.00 a.m. on any relevant
day; and
|
for
the
purposes of this definition: Telerate
Page 3750 means
the
display designated as Page 3750, and Telerate
Page 3740 means
the
display designated as Page 3740, in each case on the Telerate Service (or
such
other pages as may replace Page 3750 or Page 3740 on that service or such
other
service as may be nominated by the British Bankers’ Association (including the
Reuters
Screen) as the information vendor for the purposes of displaying British
Bankers’ Association Interest Settlement Rates for deposits in the currency
concerned);
Lloyd’s
means
the
society incorporated by Lloyd’s Xxx 0000 by the name of Lloyd’s;
Majority
Lenders means,
at
any time, Lenders having Commitments representing more than 50% of the sum
of
the total Commitments at such time; PROVIDED
THAT,
if the
Commitments have expired or been terminated, Majority
Lenders
means
Lenders having more than 50% of the aggregate LC Exposure of the
Lenders;
Mandatory
Costs
means,
in relation to any unpaid sum for any period, a rate per annum calculated
in
accordance with Schedule 4;
Margin
Stock
means
margin
stock
within
the meaning of Regulations T, U and X of the Board;
Material
Adverse Effect
means a
material adverse effect on: (a) the assets, business, financial condition
or
operations of an Obligor and its Subsidiaries taken as a whole; or (b) the
ability of an Obligor to perform any of its payment or other material
obligations under this Agreement;
Mid
Ocean means
Mid
Ocean Limited, a company incorporated under the laws of the Cayman
Islands;
Multiemployer
Plan
means a
multiemployer plan as defined in Clause 4001(a)(3) of ERISA;
NAC
Reinsurance
means
NAC Reinsurance International Ltd, a company incorporated under the laws
of
England and Wales;
Non-U.S.
Benefit Plan
means
any plan, fund (including any superannuation fund) or other similar program
established or maintained outside the United States by any Obligor or any
of its
Subsidiaries, with respect to which such Obligor or the Subsidiary has an
obligation to contribute, for the benefit of employees of such Obligor or
such
Subsidiary, which plan, fund or other similar program provides, or results
in,
the type of benefits described in Clause 3(1) or 3(2) of ERISA, and which
plan
is not subject to ERISA or the Code;
Obligor
Jurisdiction means
(a)
Bermuda, (b) the Cayman Islands, (c) United States, and (d) any other country
(i) where any Obligor is licensed or qualified to do business or (ii) from
or
through which payments hereunder are made by any Obligor;
Obligors
means
each of the Account Party and the Guarantors;
OECD
Country
means
any member of the Organisation for Economic Co-operation and
Development;
Original
Agreement means
the
letter of credit and reimbursement agreement dated 17 November 2004 between,
inter alios, the Account Party, the Agent and the lenders thereto;
Original
Letters of Credit means
the
letters of credit issued under the Original Agreement;
Original
Parties
means
the parties to the Original Agreement;
Participating
Member State
means
any member state of the European Communities that adopts or has adopted the
euro
as its lawful currency in accordance with legislation of the European Union
relating to European Monetary Union;
Party
means
any party to this Agreement;
PBGC
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and
any successor entity performing similar functions;
Person
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity;
Plan
means
any employee pension benefit plan (other than a Multiemployer Plan) subject
to
the provisions of Title IV of ERISA or Clause 412 of the Code or Clause 302
of
ERISA, and in respect of which any Obligor or any ERISA Affiliate is (or,
if
such plan were terminated, would under Clause 4069 of ERISA be deemed to
be) an
employer
as
defined in Clause 3(5) of ERISA;
Potential
Event of Default means
an
event or condition which upon notice, lapse of time or both would, unless
cured
or waived, become an Event of Default;
Private
Act
means
separate legislation enacted in Bermuda with the intention that such legislation
apply specifically to an Obligor, in whole or in part;
Process
Agent
has the
meaning assigned to such term in Clause 29.3.
Quarterly
Dates
means
the last Business Day of March, June, September and December in each year,
the
first of which shall be the first such day after the date hereof;
Reference
Banks
means,
subject to Clause 26.6 (Reference
Banks),
the
principal London offices of Citibank, N.A., ING Bank N.V., London Branch,
Lloyds
TSB Bank plc and Barclays Bank PLC;
Register
has the
meaning given to it in Clause 26.11 (Maintenance
of Register by Agent);
Related
Parties
means,
with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates;
Representations
means
each of the representations and warranties set out in Clause 17
(Representations
and Warranties);
SAP
means,
as to each Obligor and each Subsidiary that offers insurance products, the
statutory accounting practices prescribed or permitted by the relevant
Governmental Authority for such Obligor’s or such Subsidiary’s domicile for the
preparation of its financial statements and other reports by insurance
corporations of the same type as such Obligor or such Subsidiary in effect
on
the date such statements or reports are to be prepared, except if otherwise
notified by the Account Party as provided in Clause 1.3;
SEC
means
the Securities and Exchange Commission of the United States of America or
any
successor entity;
Significant
Subsidiary
means,
at any time, each Subsidiary of the Account Party that, as of such time,
meets
the definition of a “significant subsidiary” under Regulation S-X of the
SEC;
Specified
Transaction Agreement
means
any agreement, contract or documentation with respect to the following types
of
transactions: rate swap transaction, swap option, basis swap, asset swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, current swap transaction, cross-currency rate swap transaction,
currency option, credit protection transaction, credit swap, credit default
swap, credit default option, total return swap, credit spread transaction,
repurchase transaction, reverse repurchase transaction, buy/sell-back
transaction, securities lending or borrowing transaction, weather index
transaction or forward purchase or sale of a security, commodity or other
financial instrument or interest, and transactions on any commodity futures
or
other exchanges, markets and their associated clearing houses (including
any
option with respect to any of these transactions);
Stable
Value Instrument
means
any insurance, derivative or similar financial contract or instrument designed
to mitigate the volatility of returns during a given period on a specified
portfolio of securities held by one party (the Customer)
through
the commitment of the other party (the SVI
Provider)
to
provide the Customer with a credited rate of return on the portfolio, typically
determined through an interest-crediting mechanism; in exchange, the SVI
Provider typically receives a fee;
Sterling
or
£
refers
to
the lawful currency of the United Kingdom from time to time;
Stonebridge
Underwriting
means
Stonebridge Underwriting Limited, a company incorporated under the laws of
England and Wales;
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. Unless
otherwise specified, Subsidiary
means a
Subsidiary of an Obligor;
Substitute
Lender has
the
meaning give to it in Clause 4.4(a);
Taxes
means
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority. Taxation
and
Tax
shall be
construed accordingly;
Total
Commitments means,
at
any time, the aggregate of the Lenders’ Commitments (being on the date hereof
£500,000,000);
Total
Funded Debt means,
at
any time, all Indebtedness of the Account Party and its Subsidiaries and
any
other Person which would at such time be classified in whole or in part as
a
liability on the consolidated balance sheet of the Account Party and its
consolidated Subsidiaries in accordance with GAAP (it being understood for
avoidance of doubt that any liability or obligation excluded from the definition
of Indebtedness shall not constitute Indebtedness for purposes of this
definition);
Total
LC Exposures
means,
at any time, the aggregate of the Lenders’ LC Exposures;
Transactions
means
the execution, delivery and performance by the Obligors of this Agreement
and
the other Finance Documents to which any Obligor is intended to be a party
and
the issuance of Letters of Credit hereunder;
Transfer
Certificate
means a
certificate in the form of Schedule 8 (Form
of Transfer Certificate)
delivered pursuant to Clause 26.4 (Transfer
Procedure);
Transferee
means a
Person to which a Lender seeks to transfer by novation all or part of such
Lender’s rights, benefits and obligations under the Finance
Documents;
USA
Patriot Act has
the
meaning given to such term as set out in Clause 28.6;
US
Government Agencies
means US
government agencies whose debt obligations are fully and explicitly guaranteed
as to the timely repayment of principal and interest by the full faith and
credit of the US federal government;
Utilisation
Date means
the
date on which a Letter of Credit is to be issued;
Utilisation
Request means
a
notice substantially in the form set out in Schedule 6 (Form
of Utilisation Request);
Withdrawal
Liability
means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of
Subtitle E of Title IV of ERISA;
XL
America means
X.L. America, Inc., a company incorporated under the laws of Delaware,
USA;
XL
Bermuda
means XL
Insurance (Bermuda) Ltd, a company organised under the laws of
Bermuda;
XL
Capital Group means
the
XL Capital Group as determined from time to time by A.M. Best &
Co;
XL
London Market means
XL
London Market Ltd (formerly known as Xxxxxxxxx), a company incorporated under
the laws of England and Wales;
XL
Re
means XL
Re Ltd, a company organised under the laws of Bermuda.
Interpretation
1.2 Any
reference in this Agreement to:
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(a)
|
the
Agent,
Security
Trustee, Arrangers, Lender
or
any other Person shall be construed so as to include its and any
subsequent successors and permitted transferees in accordance with
their
respective interests;
|
|
(b)
|
Barclays
Capital
is
a reference to Barclays Capital, the investment banking division
of
Barclays Bank PLC (and any references shall include Barclays Bank
PLC);
|
|
(c)
|
continuing,
in the context of an Event of Default shall be construed as a reference
to
an Event of Default which has not been remedied or waived in accordance
with the terms hereof and in relation to a Potential
Event of Default,
one which has not been
|
remedied
within the relevant grace period or waived in accordance with the terms
hereof;
|
(d)
|
a
holding
company
of
a company or corporation shall be construed as a reference to any
company
or corporation of which the first-mentioned company or corporation
is a
subsidiary;
|
|
(e)
|
the
equivalent
on
any date in one currency (the first
currency)
of an amount denominated in another currency (the second
currency)
is a reference to the amount of the first currency which could
be
purchased with the amount of the second currency at the spot rate
quoted
by the Agent at or about 11.00 a.m. on such date for the purchase
of the
first currency with the second
currency;
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|
(f)
|
a
member
shall be construed (as the context may require) as a reference
to an
underwriting member of Lloyd’s;
|
|
(g)
|
a
month
is
a reference to a period starting on one day in a calendar month
and ending
on the numerically corresponding day in the next succeeding calendar
month
save that, where any such period would otherwise end on a day which
is not
a Business Day, it shall end on the next succeeding Business Day,
unless
that day falls in the calendar month succeeding that in which it
would
otherwise have ended, in which case it shall end on the immediately
preceding Business Day, PROVIDED
THAT,
if a period starts on the last Business Day in a calendar month
or if
there is no numerically corresponding day in the month in which
that
period ends, that period shall end on the last Business Day in
that later
month (and references to months
shall be construed accordingly);
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|
(h)
|
a
Lender’s participation,
in relation to a Letter of Credit, shall be construed as a reference
to
the rights and obligations of such Lender in relation to such Letter
of
Credit as are expressly set out in this
Agreement;
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(i)
|
a
successor
shall be construed so as to include an assignee or successor in
title of
such party and any person who under the laws of its jurisdiction
of
incorporation or domicile has assumed the rights and obligations
of such
party under this Agreement or to which, under such laws, such rights
and
obligations have been transferred;
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|
(j)
|
an
asset
or
property
shall be construed to have the same meaning and effect and to refer
to any
and all tangible and intangible assets and properties, including
cash,
securities, accounts and contract rights;
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(k)
|
tax
shall be construed so as to include any and all present or future
stamp or
documentary taxes or any other excise or property taxes, charges,
interest, penalties or similar levies arising from any payment
made
hereunder or from the execution, delivery or enforcement of, or
otherwise
with respect to, this Agreement;
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|
(l)
|
VAT
shall be construed as a reference to value added tax including
any similar
tax which may be imposed in place thereof from time to time;
|
|
(m)
|
the
winding-up,
dissolution
or
administration
of
a company or corporation shall be construed so as to include any
equivalent or analogous proceedings under the Law of the jurisdiction
in
which such company or corporation is incorporated or any jurisdiction
in
which such company or corporation carries on business including
the
seeking of liquidation, winding-up, reorganisation, dissolution,
administration, arrangement, adjustment, protection or relief of
debtors;
and
|
|
(n)
|
unless
the contrary intention appears:
|
|
(i)
|
a
Letter of Credit is cancelled,
repaid
or
prepaid
by:
|
|
(A)
|
providing
the Issuing Lender(s) with cash cover (as defined below);
or
|
|
(B)
|
reducing
(in accordance with the terms of this Agreement and the Letter
of Credit)
the amount that may be demanded under the Letter of Credit (or
by that
amount automatically reducing in accordance with the terms of the
Letter
of Credit); or
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(C)
|
cancelling
the Letter of Credit by (x) providing written confirmation (in form
and substance satisfactory to the Agent or the Issuing Lender)
from
Lloyd’s that the Issuing Lender(s) has no further liability under the
Letter of Credit (including by way of a notice specifying that
Lloyd’s
does not accept or unconditionally rejects a Letter of Credit (unless
the
Agent or the Issuing Lender as the case may be, acting reasonably,
considers that Lloyd’s remains entitled to make a claim under such Letter
of Credit)), and (y) if Lloyd’s agrees, by procuring the return of
the original to the Agent;
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|
(ii)
|
cash
cover
is
provided, pursuant to the terms of the Charge Agreement, in respect
of a
Lender’s participation in a Letter of Credit at any time by paying an
amount in Sterling equal to the outstanding amount of that participation
at that time to such account or accounts as the Agent may specify
and
creating effective security over such amount in favour of the Security
Trustee on behalf of the Finance Parties in form and substance
satisfactory to the Security Trustee (together with legal opinions,
evidence of corporate authorisation, and similar documentation
reasonably
required by the Security Trustee), in the name of the Account Party
from
which the only withdrawals which may be made are withdrawals made
with the
prior written consent of the Security Trustee in accordance with
the terms
of the Charge Agreement; and
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|
(iii)
|
a
reference to principal
amount
in
respect of a Letter of Credit means the maximum amount which is
expressed
to be capable of being demanded under a Letter of Credit ignoring
the
aggregate amount of any cash cover held in relation to that Letter
of
Credit.
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Accounting
Terms; GAAP and SAP
1.3 Except
as
otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP or SAP, as the context
requires, each as in effect from time to time; provided that, if the Account
Party notifies the Agent that the Obligors request an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof
in
GAAP or SAP, as the case may be, or in the application thereof on the operation
of such provision (or if the Agent notifies the Obligors that the Majority
Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change
in
GAAP or SAP, as the case may be, or in the application thereof, then such
provision shall be interpreted on the basis of GAAP or SAP, as the case may
be,
as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
Agreements
and Statutes
1.4 Any
reference in this Agreement to:
|
(a)
|
this
Agreement or any other agreement or document shall be construed
as a
reference to this Agreement or, as the case may be, such other
agreement
or document as the same may have been, or may from time to time
be,
amended, varied, novated or
supplemented;
|
|
(b)
|
a
statute or treaty shall be construed as a reference to such statute
or
treaty as the same may have been, or may from time to time be,
amended or,
in the case of a statute, re-enacted;
and
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|
(c)
|
a
bylaw shall be construed as a reference to a bylaw made under Lloyd’s Acts
1871 to 1982 as the same may have been, or may from time to time
be,
amended or replaced.
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Headings
1.5 Clause
and Schedule headings are for ease of reference only.
Time
1.6 Any
reference in this Agreement to a time of day shall, unless a contrary indication
appears, be a reference to London time.
2. The
Facility
Grant
of the Facility
2.1 The
Lenders, upon the terms and subject to other conditions hereof, grant to
the
Account Party a letter of credit facility in an aggregate amount of
£500,000,000.
Purpose
and Application
|
2.2
|
(a)
|
The
Facility is intended to support Funds at Lloyd’s for the underwriting
business of the Applicants, and, accordingly, the Account Party
shall
apply all Letters of Credit issued hereunder in or towards satisfaction
of
such purpose.
|
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(b)
|
Without
prejudice to the Account Party’s obligations under Clause 2.2(a) and
the remaining provisions of this Agreement, none of the Finance
Parties
shall be bound to enquire as to, nor shall any of them be responsible
for,
the purpose of, or application of the proceeds of any Letter of
Credit
issued hereunder.
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Conditions
Precedent
2.3 Save
as
the Lenders may otherwise agree, the Account Party may not deliver any
Utilisation Request unless the Agent has confirmed to the Account Party and
the
Lenders that it has waived and/or received all of the documents and other
evidence listed in Schedule 5 (Conditions
Precedent)
and
that each is, in form and substance, reasonably satisfactory to the
Agent.
Several
Obligations
2.4 The
obligations of each Lender are several and the failure by a Lender to perform
its obligations hereunder and/or under any Letter of Credit issued hereunder
shall not affect the obligations of either Obligor towards any other party
hereto nor shall any other party be liable for the failure by such Lender
to
perform its obligations hereunder and/or under such Letter of
Credit.
Several
Rights
2.5 The
rights of each Finance Party are several and any debt arising hereunder at
any
time from an Obligor to any Finance Party shall be a separate and independent
debt. Each such party shall be entitled to protect and enforce its individual
rights arising out of this Agreement independently of any other party (so
that
it shall not be necessary for any party hereto to be joined as an additional
party in any proceedings for this purpose).
Change
of Currency
|
2.6
|
(a)
|
If,
after the date of this Agreement, more than one currency or currency
unit
denomination are at the same time recognised by the central bank
of any
country as the lawful currency of that country,
then:
|
(i)
any
reference in the Finance Documents to, and any obligations arising under
the
Finance Documents in, the currency of that country shall be translated into,
or
paid in, the currency or currency unit of that country designated by the
Agent;
and
(ii)
any
translation from one currency or currency unit to another shall be at the
official rate of exchange or conversion rate recognised by the central bank
for
the conversion of that currency or currency unit into the other, rounded
up or
down by the Agent acting reasonably.
|
(b)
|
If
a change in any currency of a country occurs, this Agreement will
be
amended in the manner determined by the Agent (acting reasonably)
so as to
reflect the change in currency and to place the parties in the
same
position, so far as possible, that they would have been in if no
change in
currency had occurred.
|
Cancellation
of Original Agreement
|
2.7
|
(a)
|
From
the date of this Agreement the Account Party shall not deliver
any
Utilisation Request (as defined in the Original Agreement) under
the
Original Agreement.
|
|
(b)
|
The
Original Parties hereby agree that the Original Agreement shall
be
automatically terminated and the Total Commitments thereunder cancelled
upon cancellation of all the Original Letters of Credit in accordance
with
the terms of the Original
Agreement.
|
|
(c)
|
The
letter of credit fees payable by the Account Party in respect of
any
Original Letter of Credit shall, from the date hereof until any
such
Original Letter of Credit is cancelled, accrue at the rate set
out in
clause 9.2(a) (Letter
of Credit Fee).
|
3. Utilisation
of the Facility
Utilisation
Conditions for the Facility
3.1 Save
as
otherwise provided herein, a Letter of Credit will be issued at the request
of
the Account Party on behalf of an Applicant if:
|
(a)
|
no
later than 10.00 a.m. two Business Days before the proposed Utilisation
Date, the Agent has received a duly completed Utilisation Request
from the
Account Party;
|
|
(b)
|
the
proposed Utilisation Date is a Business Day falling within the
Availability Period;
|
|
(c)
|
the
proposed amount of such Letter of Credit is less than or equal
to the
Available Facility;
|
|
(d)
|
the
Letter of Credit is substantially in the form set out in Schedule 7
(Form
of Letter of Credit)
or in such other form requested by the Account Party which is approved
by
Lloyd’s and the Lenders (such approval by the Lenders not to be
unreasonably withheld or delayed and shall not be required unless
the
other form requested differs materially from the form set out in
Schedule 7);
|
|
(e)
|
the
beneficiary of such Letter of Credit is Lloyd’s;
and
|
|
(f)
|
on
and as of the proposed Utilisation Date (a) no Default has occurred
and is
continuing and (b) the Representations are true in all material
respects.
|
Request
for Letters of Credit
3.2 The
Account Party may request the issue by the Lenders hereunder of a total of
up to
thirty Letters of Credit in respect of the Applicants. A single Utilisation
Request may be issued in respect of more than one Letter of Credit.
Completion
of Letters of Credit
3.3 The
Agent
is authorised to arrange for the issue of any Letter of Credit pursuant to
Clause 3.1 (Utilisation
Conditions for the Facility)
by:
|
(a)
|
completing
the Commencement Date of such Letter of
Credit;
|
|
(b)
|
completing
the schedule to such Letter of Credit with the percentage participation
of
each Lender as allocated pursuant to the terms hereof;
and
|
|
(c)
|
executing
such Letter of Credit on behalf of each Lender and following such
execution delivering such Letter of Credit to Lloyd’s on the Utilisation
Date.
|
Final
Expiration Date
3.4 Each
Letter of Credit shall expire on its Final Expiration Date.
Each
Lender’s Participation in Letters of Credit
|
3.5
|
(a)
|
Save
as otherwise provided herein, each Lender will participate in each
Letter
of Credit issued pursuant to this Clause 3 in the proportion borne
by its
Available
|
Commitment
to the Available Facility immediately prior to the issue of such Letter of
Credit.
|
(b)
|
No
Lender shall participate in or issue any Letter of Credit to the
extent
that its LC Exposure would exceed its Commitment following the
issue of
that Letter of Credit.
|
Notification
to Lenders
3.6 On
or
before each Utilisation Date the Agent shall notify each Lender of the Letter
of
Credit that is to be issued by the Agent on behalf of the Lenders, the name
of
the Applicant in respect of whom the Letter of Credit is being issued and
the
aggregate principal amount of the relevant Letter of Credit allocated to
such
Lender pursuant to this Agreement.
Cancellation
of Available Commitments
3.7 On
the
expiry of the Availability Period, the Available Facility and each Lender’s
Available Commitment shall be reduced to zero and accordingly the remaining
Commitments of each Lender shall be equal to their respective LC Exposure
under
any issued Letters of Credit.
4. Termination
of Letters of Credit
Continuation
until Lloyd’s Termination Date
4.1 Each
Party acknowledges that, subject to the terms of this Agreement:
|
(a)
|
each
issued Letter of Credit shall continue in force unless Lloyd’s receives a
notice from the Agent (or any Finance Party, if pursuant to Clause
4.6(b))
giving Lloyd’s not less than four years’ notice in writing, terminating
such Letter of Credit pursuant to Clause 3 of the Letter of Credit
(a
Lloyd’s
Termination Notice):
|
(i)
on
the
later of (x) 31 December 2011 and (y) any subsequent date as specified in
such
notice (a Lloyd’s Termination
Date);
or
(ii)
at
any
time after the occurrence of an Acceleration Event or whilst any Continuation
CP
Event (as defined in Clause 4.6(b)) is continuing;
|
(b)
|
no
Party, other than the Agent (or any Lender, if pursuant to Clause
4.6(b)),
may deliver a Lloyd’s Termination Notice (and the Agent may only deliver a
Lloyd’s Termination Notice pursuant to Clause 3 of the Letter of Credit
and this Clause 4);
|
|
(c)
|
if
the Account Party or any Lender (a Relevant
Party)
so requests (a Termination
Request),
the Agent shall deliver a Lloyd’s Termination Notice as required by this
Clause 4, on the later of:
|
(i)
the
expiration of the period ending on the day three weeks after the corresponding
Termination Request Receipt Date, as defined in Clause 4.2(b); and
(ii)
the
expiration of any Declining Lender Notice Period, as defined in
Clause 4.3(a);
|
(d)
|
the
Agent shall, promptly after delivery by the Agent of a Lloyd’s Termination
Notice, provide a copy of such Lloyd’s Termination Notice to each Lender
(and shall inform the Account Party of the Lloyd’s Termination Date);
and
|
|
(e)
|
a
Letter of Credit will terminate on the Lloyd’s Termination
Date.
|
Delivery
by a Relevant Party of a Termination Request
4.2 A
Termination Request may be delivered by a Relevant Party to the Agent in
accordance with the following:
|
(a)
|
no
Termination Request may be delivered before 1 January
2007;
|
|
(b)
|
any
Termination Request delivered on a date (a Termination
Request Delivery Date)
from 1 January 2007 to and including 30 November 2007 will be deemed
to
have been received by the Agent on (a Termination
Request Receipt Date)
30 November 2007 and the corresponding Lloyd’s Termination Date shall be
31 December 2011; and
|
|
(c)
|
from
1 December 2007, any Termination Request Receipt Date will be the
later of
(i) 1 January 2008 and (ii) the corresponding Termination Request
Delivery
Date.
|
Declining
Lender Mechanics (on Delivery by a Lender of a Termination
Request)
|
4.3
|
(a)
|
If
a Lender (a Declining
Lender)
delivers a Termination Request to the
Agent:
|
(i)
the
Agent
shall notify the Account Party accordingly within two Business Days thereafter;
and
(ii)
during
the period ending on the day three weeks after the corresponding Termination
Request Receipt Date (a Declining
Lender Notice Period)
the
Account Party may designate a Substitute Lender as contemplated in Clause
4.4.
|
(b)
|
Unless
a Substitute Lender has been designated pursuant to Clause 4.4
(in which
case the provisions of Clause 4.5(a) shall apply) upon expiry of
the
Declining Lender Notice Period the Agent shall issue
a Lloyd’s Termination Notice (in accordance with Clause 3 of the
Letter of Credit) specifying a Lloyd’s Termination Date of the later of
(i) 31 December 2011 and (ii) the fourth anniversary of the date of
that notice, whereupon the Letter of Credit will terminate on such
Lloyd’s
Termination Date.
|
|
(c)
|
Unless
notice is given to the Agent as aforesaid each Lender will be deemed
automatically to have agreed to continue its participation in each
Letter
of Credit.
|
Substitute
Lender
|
4.4
|
(a)
|
If
any Declining Lender delivers a Termination Request, the Account
Party may
designate by the date which falls no later than two Business Days
before
the end of the corresponding Declining Lender Notice Period an
Approved
Credit Institution (which may be an existing Lender or Lenders)
(the
Substitute
Lender)
which is willing to assume all of the rights and obligations of
the
Declining Lender in respect of its participation in the relevant
Letter of
Credit (the Old
Letter of Credit).
|
|
(b)
|
If
the Account Party has found a Substitute Lender it shall promptly
notify
the Agent and the Declining Lender thereof and shall use its best
efforts
to procure the release by Lloyd’s of the Old Letter of Credit (an
Old
Letter of Credit Release)
from the Funds at Lloyd’s of the relevant
Applicant.
|
|
(c)
|
The
Declining Lender shall as soon as reasonably practicable after
receipt of
notice from the Account Party transfer its rights and obligations
hereunder to the Substitute Lender in accordance with the provisions
of
Clause 26.3 (Transfers
by Lenders).
|
|
(d)
|
The
Substitute Lender shall pay to the Declining Lender all amounts
then due
and owing (and all fees accrued to but excluding the date of such
transfer) to the Declining Lender in respect of its participation
in the
Old Letter of Credit.
|
Replacement
Letters of Credit
|
4.5
|
(a)
|
If
a Substitute Lender has become party hereto pursuant to Clause
4.4
(Substitute
Lender),
then subject to the provisions of Clause 4.6 (Continuation
Conditions Precedent)
the Lenders who are deemed to have agreed to the continuation of
the Old
Letter of Credit (the Extending
Lenders)
shall, together with the Substitute Lender, participate in, and
issue as
soon as reasonably practicable (on or immediately after the Old
Letter of
Credit Release), a new Letter of Credit (the New
Letter of Credit)
which shall (i) replace the Old Letter of Credit and (ii) be in
an amount
equal to the Old Letter of Credit. If the New Letter of Credit
has not
been issued by the end of the Declining Lender Notice Period, Clause
4.5(b) shall apply (on the assumption, if not the case, that a
Substitute
Lender has not been found by the time specified in Clause 4.4(a)) and
the Agent shall promptly deliver a Lloyd’s Termination Notice (in
accordance with Clause 4.3 (Declining
Lender Mechanics)).
|
|
(b)
|
If
a Substitute Lender has not been found by the time specified in
Clause 4.4(a), then the Account Party shall use its best efforts to
procure an Old Letter of Credit Release, and on or immediately
after such
Old Letter of Credit Release (i) subject to the provisions of Clause
4.6
(Continuation
Conditions Precedent),
the Extending Lenders shall participate in, and issue as soon as
reasonably practicable, a new Letter of Credit (the Reduced
Letter of Credit)
which shall (x) replace their participation in the Old Letter of
Credit
and (y) be in an amount equal to the Old Letter of Credit less
the amount of the Declining Lender’s participation and (ii) the Declining
Lender shall participate in a separate Letter of Credit (a Bilateral
Letter of Credit)
which shall (x) replace its participation in the Old Letter of
Credit, (y)
be in an amount equal to the Declining Lender’s participation in the Old
Letter of Credit and (z) have a Final Expiration Date which is
the Lloyd’s
Termination Date designated pursuant to Clause 4.3 (Declining
Lender Mechanics).
|
Continuation
Conditions Precedent
|
4.6
|
(a)
|
On
or prior to close of business on 1 September of each year (each,
a
Continuation
CP Date),
the Account Party shall promptly notify the Agent if (as of such
Continuation CP Date):
|
(i) an
Event
of Default or Potential Event of Default occurs which is
continuing;
(ii) any
of
the Representations cease to be correct in all material respects, or become
misleading in any material respect; or
(iii)
any
Letter of Credit ceases solely to be used to support the relevant Applicant’s
underwriting business at Lloyd’s which has been provided in accordance with the
requirements of Lloyd’s applicable to it.
|
(b)
|
If
on any Continuation CP Date any of the events specified in
Clause 4.6(a) (each, a Continuation
CP Event)
has occurred and is continuing, then at any time thereafter (so
long as
any Continuation CP Event is continuing):
|
(i) the
Agent
may, and at the request of the Majority Lenders shall, issue a Lloyd’s
Termination Notice (containing the earliest possible Lloyd’s Termination Date);
and
(ii)
any
Lender shall be entitled to issue a Lloyd’s Termination Notice (containing the
earliest possible Lloyd’s Termination Date) and such Lender shall promptly
provide a copy of such Lloyd’s Termination Notice to the Agent,
and
the
Agent shall, in each case, provide a copy of the Lloyd’s Termination Notice to
the Account Party (and each other Lender) within two Business Days of the
Agent
(x) issuing a Lloyd’s Termination Notice (in the case of paragraph (i) above) or
(y) receiving a copy of a Lloyd’s Termination Notice from a Lender (in the case
of paragraph (ii) above).
Cancellation
of Bilateral Letters of Credit
4.7 At
any
time after the issue of a Bilateral Letter of Credit by a Declining Lender
the
Account Party may give the Agent and the Declining Lender not less than fourteen
days’ prior written notice of its intention to procure that the liability of the
Declining Lender under such Letter of Credit is reduced to zero (whereupon
it
shall do so).
Revised
Letters of Credit
4.8 In
the
event that the Funds at Lloyd’s Requirements of an Applicant changes at or
around the time of any given Funds Date in terms of amount and/or the identity
of the Applicant, subject to the approval of Lloyd’s and subject to each
Lender’s LC Exposures under the Letters of Credit issued hereunder not being
increased, the Lenders shall co-operate with the Account Party to ensure
to the
extent reasonably possible that the Letters of Credit provide for the revised
Funds at Lloyd’s Requirements of the Applicants.
Increase
to Facility
4.9 If
at any
time a Bilateral Letter of Credit is outstanding, the Account Party shall
have
the right to increase the size of the Facility by up to the principal amount
of
the Bilateral Letter of Credit(s) outstanding by introducing a new lender
(which
may be an existing Lender) and on terms that one or more outstanding Bilateral
Letters of Credit having an aggregate principal amount at least equal to
the
increase are cancelled at the time the increase takes effect. Each Lender
agrees
to execute any documentation giving effect to this increase and new lender
provided that no such documentation may increase the Commitment of any Lender
without the express consent of that Lender at the time such documentation
is
executed.
5. Payment
of Demands
Disbursement
Procedures
|
5.1
|
(a)
|
The
Agent shall, within a reasonable time following its receipt thereof,
examine all documents purporting to represent a demand for payment
under
any Letter of Credit. The Agent shall promptly after such examination
(and
in any event by 12 noon on the Business Day immediately following
receipt
of such demand) (i) notify each of the Lenders and the Account
Party by
facsimile of such demand for payment and (ii) deliver to each Lender
and
the Account Party a copy of each document purporting to represent
a demand
for payment under such Letter of Credit.
|
|
(b)
|
With
respect to any drawing properly made under a Letter of Credit,
each Lender
will make an LC Disbursement in respect of such Letter of Credit
in
accordance with its liability under such Letter of Credit and this
Agreement, such LC Disbursement to be made to the account of the
Agent
most recently designated by it for such purpose by notice to the
Lenders
within two Business Days of receipt of a demand for payment under
such
Letter of Credit by the Agent;
|
|
(c)
|
The
Agent will and undertakes to each Lender that it
will:
|
(i)
make
any
such LC Disbursement available to Lloyd’s as the beneficiary of such Letter of
Credit by promptly crediting the amounts so received from the Lenders, in
like
funds, to the account identified by Lloyd’s in connection with such demand for
payment on the date following two Business Days after the receipt by the
Agent
of such demand; and
(ii)
notify
each Lender on the third Business Day after the receipt by the Agent of such
demand for payment that it has credited such amounts to the account identified
by Lloyd’s.
|
(d)
|
Promptly
following any LC Disbursement by any Lender in respect of any Letter
of
Credit, the Agent will notify the Account Party of such LC Disbursement
provided that any failure to give or delay in giving such notice
shall not
relieve the Account Party of their obligation to reimburse the
Lenders
with respect to any such LC
Disbursement.
|
Right
to make Payments under Letters of Credit
5.2 Each
Lender shall be entitled to make any payment in accordance with the terms
of the
relevant Letter of Credit without any reference to or further authority from
the
Account Party or any other investigation or enquiry.
Liability
of Lenders
5.3 Neither
the Agent, nor any Lender nor any of their Related Parties shall have any
liability or responsibility by reason of or in connection with the issuance
or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay
in
transmission or delivery of any draft, notice or other communication under
or
relating to any Letter of Credit (including any document required to make
a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond their control; provided that the
foregoing shall not be construed to excuse the Agent or a Lender from liability
to any Obligor to the extent of any direct damages
(as
opposed to consequential damages, claims in respect of which are hereby waived
by the Obligors to the extent permitted by applicable Law) suffered by any
Obligor that are caused by the gross negligence or wilful misconduct of the
Agent or a Lender. The parties hereto expressly agree that:
|
(a)
|
the
Agent may accept documents that appear on their face to be in substantial
compliance with the terms of a Letter of Credit without responsibility
for
further investigation, regardless of any notice or information
to the
contrary, and may make payment upon presentation of documents that
appear
on their face to be in substantial compliance with the terms of
such
Letter of Credit;
|
|
(b)
|
the
Agent shall have the right, in its sole discretion, to decline
to accept
such documents and to make such payment if such documents are not
in
strict compliance with the terms of such Letter of Credit;
and
|
|
(c)
|
this
Clause shall establish the standard of care to be exercised by
the Agent
when determining whether drafts and other documents presented under
a
Letter of Credit comply with the terms thereof (and the parties
hereto
hereby waive, to the extent permitted by applicable Law, any standard
of
care inconsistent with the
foregoing).
|
6. The
Account Party’s Liabilities in Relation to Letters of
Credit
The
Account Party’s Indemnity to Lenders
6.1 The
Account Party shall irrevocably and unconditionally as a primary obligation
indemnify (on demand by the Agent (and any Lender may require the Agent to
make
such demand)) each Lender against:
|
(a)
|
any
LC Disbursement paid or payable by such Lender in accordance with
the
terms of any Letter of Credit requested by the Account Party;
and
|
|
(b)
|
all
liabilities, reasonable costs (including, without limitation, any
costs
incurred in funding any amount which falls due from such Lender
in
connection with such Letter of Credit), claims, losses and reasonable
expenses which such Lender may at any time properly incur or sustain
in
connection with any Letter of
Credit.
|
Preservation
of Rights
6.2 Neither
the obligations of the Account Party set out in this Clause 6 nor the
rights, powers and remedies conferred on any Lender by this Agreement or
by Law
shall be discharged, impaired or otherwise affected by:
|
(a)
|
the
winding-up, dissolution, administration or re-organisation of any
Lender
or any other person or any change in its status, function, control
or
ownership;
|
|
(b)
|
any
of the obligations of any Lender or any other person hereunder
or under
any Letter of Credit or under any other security taken in respect
of the
Account Party’s obligations hereunder or otherwise in connection with any
Letter of Credit being or becoming illegal, invalid, unenforceable
or
ineffective in any respect;
|
|
(c)
|
time
or other indulgence being granted or agreed to be granted to any
Lender or
any other person in respect of its obligations hereunder or under
or in
connection with any Letter of Credit or under any such other
security;
|
|
(d)
|
any
amendment to, or any variation, waiver or release of, any obligation
of
any Lender or any other person under any Letter of Credit or this
Agreement;
|
|
(e)
|
any
other act, event or omission which, but for this Clause 6 might
operate to discharge, impair or otherwise affect any of the obligations
of
the Account Party set out in this Clause 6 or any of the rights,
powers or remedies conferred upon any Lender by this Agreement
or by
Law.
|
The
obligations of the Account Party set out in this Clause 6 shall be in
addition to and independent of every other security which any Lender may
at any
time hold in respect of the Account Party’s obligations hereunder.
Settlement
Conditional
6.3 Any
settlement or discharge between the Account Party and a Lender shall be
conditional upon no security or payment to such Lender by the Account Party
or
any other person on behalf of the Account Party, being avoided or reduced
by
virtue of any Laws relating to bankruptcy, insolvency, liquidation or similar
Laws of general application and, if any such security or payment is so avoided
or reduced, such Lender shall be entitled to recover the value or amount
of such
security or payment from the Account Party subsequently as if such settlement
or
discharge had not occurred.
7. Default
Interest
A
Demand
Amount shall bear interest during each Default Period in respect thereof,
and
any other amount unpaid when due hereunder shall bear interest for so long
as it
remains outstanding at rate of the sum of (i) two per cent. per annum
(ii) the Mandatory Costs in respect thereof at such time, and
(iii) LIBOR on each day whilst such amount remains outstanding. Such
interest shall be payable by the Account Party on the date on which it
reimburses the Lenders under Clause 6.1(a) and (b) (The
Account Party’s Indemnity to Lenders).
8. Termination
and Reduction of the Commitments
Scheduled
Termination
8.1 Unless
previously terminated, the unutilised Commitments shall terminate at the
close
of business on the Commitment Termination Date.
Voluntary
Cancellation or Reduction
8.2 The
Account Party may at any time cancel, or from time to time reduce, the Total
Commitments; provided that (a) each reduction of the Total Commitments shall
be
in an amount of £5,000,000 or a larger multiple of £1,000,000 and (b) the
Account Party shall not cancel or reduce the Commitments if the Total LC
Exposures would exceed the Total Commitments.
Notice
of Voluntary Cancellation or Reduction
8.3 The
Account Party shall notify the Agent of any election to cancel or reduce
the
Total Commitments under Clause 8.2 at least three Business Days prior to
the effective date of such cancellation or reduction, specifying such election
and the effective date thereof. Promptly following receipt of any notice,
the
Agent shall advise the Lenders of the contents thereof. Each notice delivered
by
the Account Party pursuant to this Clause shall be irrevocable;
provided
that a notice of cancellation of the Commitments delivered by the Account
Party
may state that such notice is conditioned upon the effectiveness of other
credit
facilities, in which case such notice may be revoked by the Account Party
(by
notice to the Agent on or prior to the specified effective date) if such
condition is not satisfied.
No
Other Repayments or Cancellation
8.4 The
Account Party shall not repay or cancel all or any part of the LC Exposures
except at the times and in the manner expressly provided for in this
Agreement.
Effect
of Cancellation or Reduction
8.5 Any
cancellation or reduction of the Commitments shall be permanent. Each reduction
of the Commitments shall be made rateably among the Lenders in accordance
with
their respective Commitments.
9. Fees
Participation
Fee
9.1 The
Account Party shall pay to the Agent for the account of the Lenders the
participation fees specified in the Fee Letter.
Letter
of Credit Fee
|
9.2
|
(a)
|
The
Account Party shall pay to the Agent for the account of each Lender
pro
rata according to their respective LC Exposures hereunder a letter
of
credit fee computed at the rate of 0.50 per cent. per annum (as
such rate
may be adjusted from time to time in accordance with the provisions
of
Clause 9.3) on the principal amount of each issued Letter of Credit
payable from the Utilisation Date until the Final Expiration Date
(as
extended) of that Letter of Credit or any earlier cancellation,
repayment
or prepayment of the Letter of Credit in accordance with Clause 8
(Termination
and Reduction of the Commitments)
of this Agreement;
|
|
(b)
|
the
Letter of Credit Fees shall be payable quarterly in arrears on
each
Quarterly Date and on the date on which the Lenders cease to have
any LC
Exposure. Letter of Credit Fees accrued through and including each
Quarterly Date shall be payable on the fifth Business Day following
such
Quarterly Date, commencing on the first such date to occur after
the
Commencement Date; and
|
|
(c)
|
the
Agent shall notify the Account Party in writing at least ten Business
Days
prior to each Quarterly Date of (i) the letter of credit fee payable
in respect of each Letter of Credit issued and (ii) the aggregate
letter of credit fee payable in respect of all Letters of Credit
issued.
|
Adjustment
of Letter of Credit Fee
|
9.3
|
(a)
|
Notwithstanding
Clause 9.2(a) above, when the Financial Strength Rating (as defined
below)
corresponds to a rating set out in Column 1 or Column 2 below of
the fee
chart (the Fee
Chart),
the Letter of Credit Fee payable in accordance with Clause 9.2
shall be
the amount set out in the corresponding row in Column 3 of the
Fee Chart;
provided however, that whilst AMB Cash Collateral is posted in
compliance
with the provisions of Clause 19.8 (Ratings
Downgrade)
the Letter of Credit Fee shall be 0.30 per cent. per annum. Upon
any AMB
Cash Collateral which has been posted being
|
fully
released, in each case in compliance with Clause 19.8 (Ratings
Downgrade),
then
the Letter of Credit Fee shall once again be payable in accordance with the
Fee
Chart.
|
(b)
|
Any
change to the Letter of Credit Fee described above shall take effect
on
the day on which the Financial Strength Rating change is publicly
announced by the applicable rating agency; or, in the event either
of the
conditions set forth in Clause 19.8(a) or (b) are not satisfied,
the day
on which the provisions of Clause 19.8 (Ratings
Downgrade)
have been complied with.
|
Fee
Chart
|
A.M.
Best & Co.
Financial-Strength
Rating
Column
1
|
Standard
& Poor’s
Rating
Services
Financial-Strength
Rating
Column
2
|
Letter
of Credit Fee
Column
3
|
|
A++
|
Greater than or equal to AA+
|
0.30
per cent. per annum
|
|
A+
|
AA
|
0.40
per cent. per annum
|
|
A
|
AA-
|
0.45
per cent. per annum
|
|
A-
|
A+
|
0.50
per cent. per annum
|
|
B++
and below
|
A and below
|
0.65
per cent. per annum
|
|
(c)
|
In
this Clause 9.3 and in Clause 19.8, Financial
Strength Rating
means the lower of:
|
|
(i)
|
the
financial-strength rating of the XL Capital Group from A.M. Best
& Co.
(or its successor); and
|
|
(ii)
|
the
lower of the financial-strength rating from Standard & Poor’s Rating
Services (or its successor) of XL Bermuda and XL
Re.
|
In
the
event that either A.M. Best & Co. or Standard & Poor's Ratings Services
changes the designation of its ratings (including without limitation by
increasing the number of ratings available or notches within ratings), then
the
Agent and all the Lenders shall negotiate in good faith such amendments
to this Clause 9.3 as are necessary to ensure that (in the
opinion of the Lenders, acting reasonably) the Letter of Credit Fees payable
relative to the strength of the relevant rating are the same as they are
on the
date hereof.
Commitment
fee
|
9.4
|
(a)
|
The
Account Party shall pay to the Agent for the account of each Lender
a fee
computed at the rate of 33 per cent. per annum of the applicable
Letter of
Credit Fee from time to time on that Lender’s Available Commitment for the
Availability Period.
|
|
(b)
|
The
accrued commitment fee is payable quarterly in arrears on each
Quarterly
Date during the Availability Period, on the last day of the Availability
Period and, if
|
cancelled
in full, on the cancelled amount of the relevant Lender’s Commitment at the time
the cancellation is effective.
Agent
Fees
9.5 The
Account Party agrees to pay to the Agent, for its own account, the agency
fees
payable in the amounts and at the times specified in the Fee
Letter.
Payment
of Fees
9.6 All
fees
payable hereunder shall be paid on the dates due, in immediately available
funds, to the Agent for distribution, in the case of the Letter of Credit
Fees
referred to in Clause 9.2 and the commitment fee referred in Clause 9.4, to
the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances absent manifest error in the calculation or payment of fees
due
and payable.
Basis
of Calculation
9.7 The
fees
payable pursuant to Clauses 9.1, 9.2 and 9.4 shall be calculated on the
basis of actual days elapsed and a 365 day year.
10. Taxes
Tax
Gross-up
10.1 All
payments to be made by an Obligor to any Finance Party hereunder, whether
in
respect of principal, interest, fees or any other item, shall be made free
and
clear of and without deduction for or on account of tax unless such Obligor
is
required to make such a payment subject to the deduction or withholding of
tax,
in which case the sum payable by such Obligor (in respect of which such
deduction or withholding is required to be made) shall be increased to the
extent necessary to ensure that such Finance Party receives a sum net of
any
deduction or withholding equal to the sum which it would have received had
no
such deduction or withholding been made or required to be made.
Tax
Indemnity
10.2 Without
prejudice to Clause 10.1 (Tax
Gross-up),
if any
Finance Party is required to make any payment of or on account of tax on
or in
relation to any sum received or receivable hereunder (including any sum deemed
for purposes of tax to be received or receivable by such Finance Party whether
or not actually received or receivable) or if any liability in respect of
any
such payment is asserted, imposed, levied or assessed against any Finance
Party,
the Account Party shall, upon demand of the Agent, promptly indemnify the
Finance Party which suffers a loss or liability as a result against such
payment
or liability, together with any interest, penalties, costs and expenses payable
or incurred in connection therewith, PROVIDED
THAT this
Clause 10.2 shall not apply to:
|
(a)
|
any
tax imposed on and calculated by reference to the net income actually
received or receivable by such Finance Party by the jurisdiction
in which
such Finance Party is incorporated;
or
|
|
(b)
|
any
tax imposed on and calculated by reference to the net income of
the
Facility Office of such Finance Party actually received or receivable
by
such Finance Party by the jurisdiction in which its Facility Office
is
located; or
|
|
(c)
|
the
extent a loss, liability or cost is compensated for by an increased
payment under Clause 10.1 (Tax
Gross-up).
|
Claims
by Lenders
10.3 A
Lender
intending to make a claim pursuant to Clause 10.2 (Tax
Indemnity)
shall
promptly notify the Agent of the event giving rise to the claim, whereupon
the
Agent shall promptly notify the Account Party thereof.
11. Tax
Receipts
Notification
of Requirement to Deduct Tax
11.1 If,
at
any time, an Obligor is required by Law to make any deduction or withholding
from any sum payable by it hereunder (or if thereafter there is any change
in
the rates at which or the manner in which such deductions or withholdings
are
calculated), such Obligor shall promptly, upon becoming aware of the same,
notify the Agent.
Evidence
of Payment of Tax
11.2 If
an
Obligor makes any payment hereunder in respect of which it is required to
make
any deduction or withholding, it shall pay the full amount required to be
deducted or withheld to the relevant taxation or other authority within the
time
allowed for such payment under applicable Law and shall deliver to the Agent
for
each Lender, within thirty days after it has made such payment to the applicable
authority, an original receipt (or a certified copy thereof) issued by such
authority evidencing the payment to such authority of all amounts so required
to
be deducted or withheld in respect of that Lender’s share of such
payment.
Tax
Credit Payment
11.3 If
an
additional payment is made under Clause 10 (Taxes)
by an
Obligor for the benefit of any Finance Party and such Finance Party, in its
sole
discretion, determines that it has obtained (and has derived full use and
benefit from) a credit against, a relief or remission for, or repayment of,
any
tax, then, if and to the extent that such Finance Party, in its sole opinion,
determines that:
|
(a)
|
such
credit, relief, remission or repayment is in respect of or calculated
with
reference to the additional payment made pursuant to Clause 10
(Taxes);
and
|
|
(b)
|
its
tax affairs for its tax year in respect of which such credit, relief,
remission or repayment was obtained have been finally
settled,
|
such
Finance Party shall, to the extent that it can do so without prejudice to
the
retention of the amount of such credit, relief, remission or repayment, pay
to
such Obligor such amount as such Finance Party shall, in its sole opinion,
determine to be the amount which will leave such Finance Party (after such
payment) in no worse after-tax position than it would have been in had the
additional payment in question not been required to be made by such
Obligor.
Tax
Credit Clawback
11.4 If
any
Finance Party makes any payment to an Obligor pursuant to Clause 11.3
(Tax
Credit Payment)
and
such Finance Party subsequently determines, in its sole opinion, that the
credit, relief, remission or repayment in respect of which such payment was
made
was not available or has been withdrawn or that it was unable to use such
credit, relief, remission or
repayment
in full, the Obligor shall reimburse such Finance Party such amount as such
Finance Party determines, in its sole opinion, is necessary to place it in
the
same after-tax position as it would have been in if such credit, relief,
remission or repayment had been obtained and fully used and retained by such
Finance Party.
Tax
and Other Affairs
11.5 No
provision of this Agreement shall interfere with the right of any Finance
Party
to arrange its tax or any other affairs in whatever manner it thinks fit,
oblige
any Finance Party to claim any credit, relief, remission or repayment in
respect
of any payment under Clause 10.1 (Tax
Gross-up)
in
priority to any other credit, relief, remission or repayment available to
it nor
oblige any Finance Party to disclose any information relating to its tax
or
other affairs or any computations in respect thereof.
12. Increased
Costs
Increased
Costs
12.1 Subject
to Clause 12.2 (Exceptions),
if
after the date of this Agreement, the result of:
|
(a)
|
the
introduction of or any change in the official or judicial interpretation
or application of any Law (having the force of law or if not having
the
force of law, generally complied with by a Lender in relation to
any
relevant jurisdiction); and/or
|
|
(b)
|
compliance
(without adopting materially less prudent policies or standards
than those
previously adopted by it) by any Lender or by the holding company
of any
Lender with any of the matters mentioned in paragraph (a)
above,
|
including
in each case, without limitation, those Laws relating to Taxation, any change
in
currency, any reserve, special deposit, cash ratio, liquidity or capital
adequacy requirement or any other form of banking or monetary controls, is
that:
(i)
a
Lender
or its holding company incurs an additional cost as a result of that Finance
Party having entered into, or performing, maintaining or funding its obligations
under this Agreement; or
(ii)
a
Lender
or its holding company incurs an additional cost in making, funding or
maintaining any Letters of Credit made or to be made by it under this Agreement;
or
(iii)
any
amount payable to a Lender or the effective return to a Lender under this
Agreement or the effective return to a Lender or its holding company on its
capital is reduced as a result of any change in the amount or nature of the
capital resources required to be allocated in respect of a Lender’s
participation under this Agreement; or
(iv)
a
Lender
makes any payment or foregoes any interest or other return on or calculated
by
reference to any amount received or receivable by it from the Account Party
or
the Agent under this Agreement;
then
and
in each such case:
|
(A)
|
the
Lender shall notify the Account Party through the Agent of the
relevant
event promptly upon becoming aware of the event giving
|
details
of any costs or amount likely to be demanded under paragraph (B);
|
(B)
|
promptly
following any demand from time to time by that Lender through the
Agent,
the Account Party shall pay to the Agent for the account of that
Finance
Party (or, as the case may be, its holding company) such amount
as shall
compensate such Finance Party or its holding company for the additional
cost, reduction, payment or foregone interest or other
return.
|
Exceptions
12.2 Clause 12.1
shall not apply to or in respect of:
|
(a)
|
any
circumstances referred to in Clause 10.2 (Tax
Indemnity);
|
|
(b)
|
any
circumstances for which a relevant Lender has been compensated
for under
Clause 11.3 (Tax
Credit Payment).
|
13. Illegality
If,
after
the date of this Agreement, any Change in Law or in the official or judicial
interpretation or application thereof shall make it unlawful or contrary
to an
official directive in any jurisdiction for any Lender to make available or
fund
or maintain or to give effect to its obligations as contemplated by this
Agreement or the Letters of Credit (or, by reason only of a Change of Law,
the
Lender ceases to be an Approved Credit Institution), the Lender shall promptly
on becoming aware of the same give notice thereof to the Account Party through
the Agent, whereupon:
|
(a)
|
where
such change makes it unlawful or contrary to an official directive
to
maintain or give effect to its obligations under this Agreement,
if the
Agent on behalf of such Lender so requires, the Account Party shall
by no
later than the last day of any applicable grace period specified
by the
applicable Law ensure that the liabilities of such Lender under
or in
respect of each Letter of Credit are cancelled within the meaning
of
Clause 1.2(n)(i)(A) (or use its best efforts to ensure that such
liabilities are cancelled within the meaning of Clause 1.2(n)(i)(C)),
the Commitment of that Lender shall forthwith be cancelled and
the Account
Party shall prepay forthwith fees, costs and expenses due to that
Lender
hereunder;
|
|
(b)
|
where
such change only makes it unlawful or contrary to an official directive
to
participate in further Letters of Credit under this Agreement,
then upon
receipt by the Agent of that notice, the Available Commitment of
that
Lender shall be reduced to zero, and upon the expiry of each Letter
of
Credit in which it is participating at such time, its resulting
Available
Commitment shall also be cancelled, provided that if the Lender
subsequently transfers or assigns its rights and obligations under
this
Agreement to a new lender pursuant to Clause 26.5 (Rights
to substitute a single Bank),
the Account Party may by notice to the Agent increase the Commitment
of
such new lender by the amount of the Available Commitment that
was
previously cancelled.
|
14. Mitigation
Obligations; Replacement of Lenders.
Designation
of a Different Lending Office
14.1 If
any
Lender requests compensation under Clause 12 (Increased
Costs),
or if
the Account Party is required to pay any additional amount to any Lender
or any
Governmental Authority for account of any Lender pursuant to Clause 10
(Taxes),
then
such Lender shall use reasonable efforts to designate a different lending
office
for funding or booking its Letters of Credit hereunder or to transfer its
rights
and obligations hereunder to another of its offices, branches or Affiliates,
if,
in the reasonable judgment of such Lender, such designation or assignment
(a)
would eliminate or reduce amounts payable pursuant to Clause 12 (Increased
Costs)
or 10
(Taxes),
as the
case may be, in the future and (b) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender. The Account Party hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or
assignment.
Replacement
of Lenders
14.2 If
any
Lender requests compensation under Clause 12 (Increased
Costs),
or if
any Account Party is required to pay any additional amount to any Lender
or any
Governmental Authority for account of any Lender pursuant to Clause 10
(Taxes), or
if any
Lender defaults in its obligation to make LC Disbursements hereunder, or
if any
Lender ceases to be an Approved Credit Institution, then the Account Party
may,
at its sole expense and effort, upon notice to such Lender and the Agent,
require such Lender to assign and delegate, without recourse (in accordance
with
and subject to the restrictions contained in Clause 26.5 (Right
to substitute single Lender)),
all
its interests, rights and obligations under this Agreement to an Approved
Credit
Institution that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that:
|
(a)
|
the
Account Party shall have received the prior written consent of
the Agent,
which consent shall not unreasonably be withheld;
|
|
(b)
|
such
Lender shall have received payment of an amount equal to the outstanding
amount of its LC Disbursements, accrued interest thereon, accrued
fees and
all other amounts payable to it hereunder, from the assignee (to
the
extent of such outstanding principal and accrued interest and fees)
or the
relevant Account Party (in the case of all other amounts); and
|
|
(c)
|
in
the case of any such assignment resulting from a claim for compensation
under Clause 12 (Increased
Costs)
or payments required to be made pursuant to Clause 10 (Taxes),
such assignment will result in a reduction in such compensation
or
payments.
|
A
Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the relevant Account Party to require such assignment and delegation
cease to apply.
15. Payments
Generally; Pro Rata Treatment; Sharing of Set-offs.
Payments
by the Account Party
15.1 (a) The
Account Party shall make each payment required to be made by them hereunder
or
under any other Finance Document (except to the extent otherwise provided
therein) in Sterling on the date when due, in immediately available cleared
funds, without set-off or counterclaim (and in the case of payments required
pursuant to
Clause 6,
by 11.00 a.m. on the due date). Any amounts received after such time on any
date
may, in the discretion of the Agent, be deemed to have been received on the
next
succeeding Business Day for the purposes of calculating interest thereon.
All
such payments shall be made to the Agent at the account most recently notified
by it, except payments pursuant to Clauses 12 (Increased
Costs),
10 (Taxes),
24 (Costs
and Expenses)
and 25
(Indemnities),
which
shall be made directly to the Persons entitled thereto. The Agent shall
distribute any such payments received by it for account of any other Person
to
the appropriate recipient promptly following receipt thereof.
|
(b)
|
If
any payment hereunder shall be due on a day that is not a Business
Day,
the date for payment shall be extended to the next succeeding Business
Day
and, in the case of any payment accruing interest, interest thereon
shall
be payable for the period of such
extension.
|
Currency
15.2 All
amounts payable under this Agreement in respect of any Letter of Credit shall
be
payable in Sterling.
Application
of Insufficient Payments
15.3 If
at any
time insufficient funds are received by and available to the Agent to pay
fully
all Demand Amounts, interest, fees and expenses then due hereunder, such
funds
shall be applied:
|
(a)
|
first,
in or towards payment pro rata of any unpaid fees, costs, expenses,
indemnity payments and other amounts due to the Agent and the Security
Trustee under the Finance
Documents;
|
|
(b)
|
secondly,
in or towards payment pro rata of any unpaid costs and expenses
of the
Lenders under the Finance
Documents;
|
|
(c)
|
thirdly,
in or towards payment pro rata of any outstanding fees (other than
Letter
of Credit Fees) payable to the Lenders under the Finance
Documents;
|
|
(d)
|
fourthly,
in or towards payment pro rata of all accrued Letter of Credit
Fees due to
Issuing Lenders but unsatisfied under this
Agreement;
|
|
(e)
|
fifthly,
in or towards payment pro rata of any interest on Demand
Amounts;
|
|
(f)
|
sixthly,
in
or towards payment pro rata of Demand
Amounts;
|
|
(g)
|
seventhly,
in or towards payment pro rata of any principal (other than a Demand
Amount) due but unsatisfied under this Agreement (including, for
the
avoidance of doubt, any cash cover to be provided under a Letter
of
Credit); and
|
|
(h)
|
eighthly,
in or towards payment pro rata of any other sum due but unsatisfied
under
this Agreement.
|
Pro
Rata Treatment
15.4 Except
to
the extent otherwise provided herein:
|
(a)
|
each
reimbursement of LC Disbursements shall be made to the Lenders,
each
payment of fees under Clause 9 (Fees)
shall be made for account of the Lenders, and each termination
or
reduction of the Commitments under Clause 8 (Termination
and Reduction of the Commitments)
shall be applied to the respective Commitments of the Lenders,
pro rata
according to their respective Commitments; and
|
|
(b)
|
each
payment of interest shall be made for account of the Lenders pro
rata in
accordance with the amounts of interest then due and payable to
the
respective Lenders.
|
Sharing
of Payments by Lenders
15.5 If
any
Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any LC Exposures resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its LC Exposures
and
accrued interest thereon then due than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase
(for
cash at face value) participations in the LC Exposures of other Lenders to
the
extent necessary so that the benefit of all such payments shall be shared
by the
Lenders rateably in accordance with the aggregate amount of LC Exposures;
provided that:
|
(a)
|
if
any such participations are purchased and all or any portion of
the
payment giving rise thereto is recovered, such participations shall
be
rescinded and the purchase price restored to the extent of such
recovery,
without interest; and
|
|
(b)
|
the
provisions of this Clause shall not be construed to apply to any
payment
made by any Obligor pursuant to and in accordance with the express
terms
of this Agreement or any payment obtained by a Lender as consideration
for
the assignment of or sale of a participation in LC Disbursements
to any
assignee or participant, other than to the Account Party or any
Subsidiary
or Affiliate thereof (as to which the provisions of this paragraph
shall
apply).
|
Each
Obligor consents to the foregoing and agrees, to the extent it may effectively
do so under applicable Law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against the Account Party rights
of
set-off and counterclaim with respect to such participation as fully as if
such
Lender were a direct creditor of the Account Party in the amount of such
participation and the Obligors authorise the Lenders to exchange Transfer
Certificates and any other documentation to give effect to those purchases
of
participations.
Presumptions
of Payment
15.6 Unless
the Agent shall have received notice from any party prior to the date on
which
any payment is due to the Agent hereunder that the payor will not make such
payment, the Agent may assume that the payor has made such payment on such
date
in accordance herewith and may, in reliance upon such assumption, distribute
to
the relevant payee the amount due. In such event, if the payor has not in
fact
made such payment, then each of the payees severally agrees to repay to the
Agent forthwith on demand the amount so distributed to that payee with interest
thereon, for each day from and including the date such amount is distributed
to
it to but excluding the date of payment to the Agent, at the Agent’s cost of
funds from such sources as the Agent may reasonably select.
Certain
Deductions by the Agent
15.7 If
any
Lender shall fail to make any payment required to be made by it pursuant
to
Clause 15.5 (Sharing
of Payments by Lenders),
then
the Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Agent for account of
such
Lender to satisfy such Lender’s obligations under such Clauses until all such
unsatisfied obligations are fully paid.
16. Guarantee
and Indemnity
Guarantee
and Indemnity
16.1 The
Guarantors, jointly and severally, irrevocably and unconditionally:
|
(a)
|
guarantee
to each Finance Party the due and punctual payment from time to
time on
demand any and every sum or sums of money which the Account Party
is at
any time liable to pay to any Finance Party under or pursuant to
the
Finance Documents and which has become due and payable but has
not been
paid at the time such demand is made (the Guaranteed
Obligations);
and
|
|
(b)
|
agree
as a primary obligation to indemnify each Finance Party from time
to time
on demand from and against any loss incurred by any Finance Party
as a
result of any of the obligations of the Account Party under or
pursuant to
the Finance Documents being or becoming void, voidable, unenforceable
or
ineffective as against the Account Party for any reason whatsoever,
whether or not known to any Finance Party or any other person,
the amount
of such loss being the amount which the person or persons suffering
it
would otherwise have been entitled to recover from the Account
Party.
|
Additional
Security
16.2 The
obligations of each Guarantor herein contained shall be in addition to and
independent of every other security which any Finance Party may at any time
hold
in respect of any of the Account Party’s obligations under the Finance
Documents.
Continuing
Obligations
16.3 The
obligations of each Guarantor herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other
matter
or thing whatsoever and shall not be considered satisfied by any intermediate
payment or satisfaction of all or any of the obligations of the Account Party
under the Finance Documents and shall continue in full force and effect until
final payment in full of all amounts owing by the Account Party under this
Agreement and total satisfaction of all the Account Party’s actual and
contingent obligations under the Finance Documents.
Obligations
not Discharged
16.4 Neither
the obligations of the Guarantors herein contained nor the rights, powers
and
remedies conferred in respect of the Guarantors upon any Finance Party by
the
Finance Documents or by Law shall be discharged, impaired or otherwise affected
by:
|
(a)
|
the
winding-up, dissolution, administration or re-organisation of the
Account
Party or any other person or any change in its status, function,
control
or ownership;
|
|
(b)
|
any
of the obligations of the Account Party or any other person under
the
Finance Documents or under any other security taken in respect
of any of
its obligations under the Finance Documents being or becoming illegal,
invalid, unenforceable or ineffective in any
respect;
|
|
(c)
|
time
or other indulgence being granted or agreed to be granted to any
Obligor
in respect of its obligations under the Finance Documents or under
any
such other security;
|
|
(d)
|
any
amendment to, or any variation, waiver or release of, any obligation
of
any Obligor under the Finance Documents or under any such other
security;
|
|
(e)
|
any
failure to take, or fully to take, any security contemplated hereby
or
otherwise agreed to be taken in respect of the Obligors’ obligations under
the Finance Documents;
|
|
(f)
|
any
failure to realise or fully to realise the value of, or any release,
discharge, exchange or substitution of, any security taken in respect
of
the Obligors’ obligations under the Finance Documents;
or
|
|
(g)
|
any
other act, event or omission which, but for this Clause 16.4, might
operate to discharge, impair or otherwise affect any of the obligations
of
any Guarantor herein contained or any of the rights, powers or
remedies
conferred upon any of the Finance Parties by the Finance
Documents or
by Law.
|
Settlement
Conditional
16.5 Any
settlement or discharge between any Obligor and any of the Finance Parties
shall
be conditional upon no security or payment to any Finance Party by the Account
Party or any other person on behalf of the Account Party being avoided or
reduced by virtue of any Laws relating to bankruptcy, insolvency, liquidation
or
similar Laws of general application and, if any such security or payment
is so
avoided or reduced, each Finance Party shall be entitled to recover the value
or
amount of such security or payment from the Account Party subsequently as
if
such settlement or discharge had not occurred.
Exercise
of Rights
16.6 No
Finance Party shall be obliged before exercising any of the rights, powers
or
remedies conferred upon them in respect of any Guarantor by the Finance
Documents or by Law to:
|
(a)
|
make
any demand of the Account Party or any other
Obligor;
|
|
(b)
|
take
any action or obtain judgment in any court against the Account
Party or
any other Obligor;
|
|
(c)
|
make
or file any claim or proof in a winding-up or dissolution of the
Account
Party or any other Obligor; or
|
|
(d)
|
enforce
or seek to enforce any other security taken in respect of any of
the
obligations of the Account Party or any other Obligor under the
Finance
Documents.
|
Deferral
of Guarantor’s Rights
16.7 Each
Guarantor agrees that, so long as any amounts are or may be owed by the Account
Party under the Finance Documents or the Account Party is under any actual
or
contingent obligations under the Finance Documents, it shall not exercise
any
rights which it may at any time have by reason of performance by it of its
obligations under the Finance Documents:
|
(a)
|
to
be indemnified by the Account Party;
and/or
|
|
(b)
|
to
claim any contribution from any other Guarantor of the Account
Party’s
obligations under the Finance Documents;
and/or
|
|
(c)
|
to
take the benefit (in whole or in part and whether by way of subrogation
or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other security taken pursuant to, or in connection
with, this Agreement by all or any of the Finance
Documents.
|
Rights
of Contribution
16.8 The
Guarantors (other than the Account Party) hereby agree, as between themselves,
that if any such Guarantor shall become an Excess Funding Guarantor (as defined
below) by reason of the payment by such Guarantor of any Guaranteed Obligations,
each other Guarantor (other than the Account Party) shall, on demand of such
Excess Funding Guarantor (but subject to the next sentence), pay to such
Excess
Funding Guarantor an amount equal to such Guarantor’s Pro Rata Share (as defined
below and determined, for this purpose, without reference to the properties,
debts and liabilities of such Excess Funding Guarantor) of the Excess Payment
(as defined below) in respect of such Guaranteed Obligations. The payment
obligation of a Guarantor to any Excess Funding Guarantor under this Clause
shall be subordinate and subject in right of payment to the prior payment
in
full of the obligations of such Guarantor under the other provisions of this
Clause 16 and such Excess Funding Guarantor shall not exercise any right
or
remedy with respect to such excess until payment and satisfaction in full
of all
of such obligations.
For
purposes of this Clause, (i) Excess
Funding Guarantor
means,
in respect of any Guaranteed Obligations, a Guarantor that has paid an amount
in
excess of its Pro Rata Share of such Guaranteed Obligations, (ii) Excess
Payment
means,
in respect of any Guaranteed Obligations, the amount paid by an Excess Funding
Guarantor in excess of its Pro Rata Share of such Guaranteed Obligations
and
(iii) Pro
Rata Share
means,
for any Guarantor, the ratio (expressed as a percentage) of (x) the amount
by
which the aggregate present fair saleable value of all properties of such
Guarantor (excluding any shares of stock of any other Guarantor) exceeds
the
amount of all the debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder and any obligations of any other
Guarantor that have been Guaranteed by such Guarantor) to (y) the amount
by
which the aggregate fair saleable value of all properties of all of the
Guarantors (other than the Account Party) exceeds the amount of all the debts
and liabilities (including contingent, subordinated, unmatured and unliquidated
liabilities, but excluding the obligations of the Guarantors under this Clause
16) of all of the Guarantors (other than the Account Party), determined (A)
with
respect to any Guarantor that is a party hereto on the date hereof, as of
the
date hereof, and (B) with respect to any other Guarantor, as of the date
such
Guarantor becomes a Guarantor hereunder.
General
Limitation on Guarantee Obligations
16.9 In
any
action or proceeding involving any state corporate Law, or any state or Federal
bankruptcy, insolvency, reorganisation or other Law in any other jurisdiction
affecting the rights of creditors generally, if the obligations of any Guarantor
under Clause 16.1 (Guarantee
and Indemnity)
would
otherwise, taking into account the provisions of Clause 16.8, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under
Clause 16.1 (Guarantee
and Indemnity),
then,
notwithstanding any other provision hereof to the contrary, the amount of
such
liability shall, without any further action by such Guarantor, any Lender,
the
Agent or any other Person, be automatically limited and reduced to the highest
amount that is valid and enforceable and not subordinated to the claims of
other
creditors as determined in such action or proceeding.
17. Representations
and Warranties
17.1 Each
Obligor represents and warrants to the Lenders on the date of this Agreement,
the Closing Date and on 1 September of each year unless all of the Letters
of
Credit will terminate on or before the fourth anniversary of such date (with
reference to the facts and circumstances subsisting on each such date) as
follows.
Organisation;
Powers
17.2 It
and
each of its Significant Subsidiaries is duly organised, validly existing
and in
good standing under the Laws of the jurisdiction of its organisation, has
all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could
not
reasonably be expected to result in a Material Adverse Effect, is qualified
to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
Authorisation;
Enforceability
17.3 The
Transactions are within such Obligor’s corporate powers and have been duly
authorised by all necessary corporate and, if required, by all necessary
shareholder action. Each Finance Document to which such Obligor is party
has
been duly executed and delivered by such 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
(a)
bankruptcy, insolvency, reorganisation, moratorium or similar Laws of general
applicability affecting the enforcement of creditors’ rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Governmental
Approvals; No Conflicts
17.4 The
Transactions (a) do not require any consent or approval of (including any
exchange control approval), registration or filing with, or any other action
by,
any Governmental Authority, except such as have been obtained or made and
are in
full force and effect, (b) will not violate any applicable Law or regulation
or
the charter, by-laws or other organisational documents of such Obligor or
any of
its Significant Subsidiaries or any order of any Governmental Authority,
(c)
will not violate or result in a default under any material indenture, agreement
or other instrument binding upon such Obligor or any of its Significant
Subsidiaries or assets, or give rise to a right thereunder to require any
payment to be made by any such Person, and (d) will not result in the creation
or imposition of any Lien on any asset of such Obligor or any of its Significant
Subsidiaries.
Financial
Condition; No Material Adverse Change
17.5 (a) Financial
Condition.
The
Account Party has heretofore furnished to the Lenders the consolidated balance
sheet and statements of income, stockholders' equity and cash flows of the
Account Party and its consolidated Subsidiaries (A) as of and for the fiscal
year ended December 31, 2005, reported on by PricewaterhouseCoopers LLP,
independent public accountants (as provided in the Account Party's Report
on
Form 10-K filed with the SEC for the fiscal year ended December 31, 2005,
and
(B) as of and for the fiscal quarter ended September 30, 2005, as provided
in
the Account Party's Report on Form 10-Q filed with the SEC for the fiscal
quarter ended September 30, 2005. Such financial statements present fairly,
in
all material respects, the financial position and results of operations and
cash
flows of the Account Party and its respective consolidated Subsidiaries as
of
such dates and for such periods in accordance with GAAP or (in the case of
XL
Bermuda or XL Re) SAP, subject to year-end audit adjustments and the absence
of
footnotes in the case of the statements referred to in Clause (B) of the
first
sentence of this paragraph.
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(b)
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No
Material Adverse Change.
Since December 31, 2005, there has been no material adverse change
in the
assets, business, financial condition or operations of such Obligor
and
its Subsidiaries, taken as a whole, except as disclosed in the
Account
Party's filings with the SEC.
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Properties
17.6 (a) Property
Generally.
Such
Obligor and each of its Significant Subsidiaries has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, subject only to Liens permitted by Clause 19.3 (Liens)
and
except for minor defects in title that do not interfere with its ability
to
conduct its business as currently conducted or to utilise such properties
for
their intended purposes.
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(b)
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Intellectual
Property.
Such Obligor and each of its Significant Subsidiaries owns, or
is licensed
to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof
by
such Obligor and its Significant Subsidiaries does not infringe
upon the
rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected
to
result in a Material Adverse
Effect.
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Litigation
and Environmental Matters
17.7 (a) Actions,
Suits and Proceedings.
Except
as disclosed in Schedule 2 or as disclosed in the Account Party's filings
with the SEC, or as routinely encountered in claims activity, there are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of such Obligor, threatened
against or affecting such Obligor or any of its Subsidiaries (x) as to which
there is a reasonable possibility of an adverse determination and that could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect or (y) that involve the Finance Documents or the
Transactions.
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(b)
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Environmental
Matters.
Except as disclosed in Schedule 2 and except with respect to any
other matters that, individually or in the aggregate, could not
reasonably
be expected to result in a Material Adverse Effect, neither such
Obligor
nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required for its business under any
Environmental Law, (ii) has incurred any Environmental
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Liability,
(iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental
Liability.
Compliance
with Laws and Agreements
17.8 Such
Obligor and each of its Subsidiaries is in compliance with all Laws, regulations
and orders of any Governmental Authority applicable to it or its property
and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
No
Default has occurred and is continuing.
Investment
and Holding Company Status
17.9 Such
Obligor is not (a) an investment
company as
defined in, or subject to regulation under, the Investment Company Act of
1940
or (b) a holding
company as
defined in, or subject to regulation under, the Public Utility Holding Company
Act of 1935.
Taxes
17.10 Such
Obligor and each of its Subsidiaries has timely filed or caused to be filed
all
Tax returns and reports required to have been filed and has paid or caused
to be
paid all Taxes required to have been paid by it, except (a) Taxes that are
being
contested in good faith by appropriate proceedings and for which such Person
has
set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.
ERISA
17.11 No
ERISA
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected
to
occur, could reasonably be expected to result in a Material Adverse Effect.
The
present value of all accumulated benefit obligations under each Plan (based
on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of such
Plan
by an amount that could reasonably be expected to result in a Material Adverse
Effect.
Except
as
could not reasonably be expected to result in a Material Adverse Effect,
(i) all
contributions required to be made by any Obligor or any of their Subsidiaries
with respect to a Non-U.S. Benefit Plan have been timely made, (ii) each
Non-U.S. Benefit Plan has been maintained in compliance with its terms and
with
the requirements of any and all applicable Laws and has been maintained,
where
required, in good standing with the applicable Governmental Authority and
(iii)
neither any Obligor nor any of their Subsidiaries has incurred any obligation
in
connection with the termination or withdrawal from any Non-U.S. Benefit
Plan.
Disclosure
17.12 The
reports, financial statements, certificates or other information furnished
by
such Obligor to the Lenders in connection with the negotiation of this Agreement
or any other Finance Document or delivered hereunder (taken as a whole) do
not
contain any material misstatement of fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, such Obligor represents only
that
such
information was prepared in good faith based upon assumptions believed to
be
reasonable at the time.
Use
of Credit
17.13 Neither
such Obligor nor any of its Subsidiaries is engaged principally, or as one
of
its important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying Margin Stock,
and no Letter of Credit will be used in connection with buying or carrying
any
Margin Stock.
Subsidiaries
17.14 Set
forth
in Schedule 3 is a complete and correct list of all of the Subsidiaries of
the Account Party as of 31 December, 2005, together with, for each such
Subsidiary, (i) the jurisdiction of organisation of such Subsidiary, (ii)
each
Person holding ownership interests in such Subsidiary and (iii) the percentage
of ownership of such Subsidiary represented by such ownership interests.
Except
as disclosed in Schedule 3, (x) each of the Account Party and its
Subsidiaries owns, free and clear of Liens, and has the unencumbered right
to
vote, all outstanding ownership interests in each Person shown to be held
by it
in Schedule 3, (y) all of the issued and outstanding capital stock of each
such Person organised as a corporation is validly issued, fully paid and
nonassessable and (z) except as disclosed in filings of the Account Party
with
the SEC prior to the date hereof, there are no outstanding Equity Rights
with
respect to any Obligor.
Withholding
Taxes
17.15 Based
upon information with respect to each Lender provided by each Lender to the
Agent, as of the date hereof, the payment of the LC Disbursements and interest
thereon, the fees under Clause 9 (Fees)
and all
other amounts payable hereunder will not be subject, by withholding or
deduction, to any Taxes imposed by any Obligor Jurisdiction.
Stamp
Taxes
17.16 To
ensure
the legality, validity, enforceability or admissibility in evidence of the
Finance Documents, it is not necessary that the Finance Documents or any
other
document be filed or recorded with any Governmental Authority or that any
stamp
or similar tax be paid on or in respect of any of the Finance Documents,
or any
other document other than such filings and recordations that have already
been
made and such stamp or similar taxes that have already been paid.
Legal
Form
17.17 The
Finance Documents are in proper legal form under the Laws of any Obligor
Jurisdiction for the admissibility thereof in the courts of such Obligor
Jurisdiction.
Claims
Pari Passu
17.18 Under
the
Laws of its jurisdiction of incorporation in force at the date hereof, the
claims of the Finance Parties against it under this Agreement or any other
Finance Document will rank at least pari passu with the claims of all its
other
unsecured and unsubordinated creditors save (i) those whose claims are preferred
solely by any bankruptcy, insolvency, liquidation or other similar Laws of
general application; and (ii) with respect to XL Re only, those claims required
to be preferred by and under the Bermuda Insurance Xxx 0000.
18. Affirmative
Covenants
Until
the
Commitments have expired or been terminated and all fees payable hereunder
shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the Obligors
covenant and agree with the Lenders that:
Financial
Statements and Other Information
18.1 Each
Obligor will furnish to the Agent and each Lender:
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(a)
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within
135 days after the end of each fiscal year of such Obligor except
for XL
America (but in the case of the Account Party, within 100 days
after the
end of each fiscal year of the Account Party), the audited consolidated
balance sheet and related statements of operations, stockholders’ equity
and cash flows of such Obligor 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 the Account Party’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 the Account Party 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 recognised 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
Obligor
and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP or (in the case of XL Bermuda and XL Re) SAP, as the
case may
be, consistently applied;
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(b)
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by
June 15 of each year, (1) an unaudited consolidated 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 the
immediately preceding fiscal 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 (2) 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;
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(c)
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within
60 days after the end of each of the first three fiscal quarters
of each
fiscal year of such Obligor, the consolidated balance sheet and
related
statements of operations, stockholders’ equity and cash flows of such
Obligor 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
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previous
fiscal year (if such figures were already produced for such corresponding
period
or periods), all certified by a Financial Officer of such Obligor as presenting
fairly in all material respects the financial condition and results of
operations of such Obligor and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP or (in the case of XL Bermuda 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 the Account Party’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 the Account Party 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));
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(d)
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concurrently
with any delivery of financial statements under Clause 18.1(a),
(b) or
(c), a certificate signed on behalf of each Obligor 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 Clauses 19.3 (Liens),
19.5 (Ratio
of Total Funded Debt to Total Capitalisation),
19.6 (Consolidated
Net Worth)
and 19.7 (Indebtedness)
and (iii) stating whether any change in GAAP or (in the case of
XL
Bermuda, 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 Clause 17.5(a) and, if any such change
has
occurred, specifying any material effect of such change on the
financial
statements accompanying such certificate;
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(e)
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concurrently
with any delivery of financial statements under Clause 18.1(a)
and
(b)(ii), 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);
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(f)
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promptly
after the same become publicly available, copies of all periodic
and other
reports, proxy statements and other materials filed by such Obligor
or any
of its respective Subsidiaries with the SEC, or any Governmental
Authority
succeeding to any or all of the functions of said Commission, or
with any
U.S. or other securities exchange, or distributed by such Obligor
to its
shareholders generally, as the case may be;
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(g)
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concurrently
with any delivery of financial statements under Clause 18.1(a),
(b) or (c)
a certificate of a Financial Officer of the Account Party, setting
forth
on a consolidated basis for the Account Party 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 Clause 19.3(g) (Liens)
and the aggregate book value of liabilities which are subject to
Liens
permitted under Clause 19.3(g) (it being understood that the reports
required by paragraphs (a), (b) and (c) of this Clause shall satisfy
the
requirement of this Clause (i) of this Clause 18.1(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 the Account Party;
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(h)
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within
90 days after the end of each of the first three fiscal quarters
of each
fiscal year and within 135 days after the end of each fiscal year
of the
Account Party, a
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statement
of a Financial Officer of the Account Party listing, as of the end of the
immediately preceding fiscal quarter of the Account Party, the amount of
cash
and the securities of the Obligors and their Subsidiaries that have been
posted
as collateral under Clause 19.3(f); and
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(i)
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promptly
following any request therefor, such other information regarding
the
operations, business affairs and financial condition of the Account
Party
or any of its Subsidiaries, or compliance with the terms of this
Agreement, as the Agent or any Lender may reasonably
request.
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“Know
your customer” checks
18.2 (a) If:
(i)
the
introduction of or any change in (or in the interpretation, administration
or
application of) any law or regulation made after the date of this
Agreement;
(ii)
any
change in the status of an Obligor after the date of this Agreement;
or
(iii)
a
proposed assignment or transfer by a Lender of any of its rights and obligations
under this Agreement to a party that is not a Lender prior to such assignment
or
transfer,
obliges
the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information
is
not already available to it, each Obligor shall promptly upon the request
of the
Agent or any Lender supply, or procure the supply of, such documentation
and
other evidence as is reasonably requested by the Agent (for itself or on
behalf
of any Lender) or any Lender (for itself or, in the case of the event described
in paragraph (iii) above, on behalf of any prospective new Lender) in order
for
the Agent, such Lender or, in the case of the event described in paragraph
(iii)
above, any prospective new Lender to carry out and be satisfied it has complied
with all necessary "know your customer" or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated
in the
Finance Documents.
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(b)
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Each
Lender shall promptly upon the request of the Agent supply, or
procure the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry
out
and be satisfied it has complied with all necessary "know your
customer"
or other similar checks under all applicable laws and regulations
pursuant
to the transactions contemplated in the Finance
Documents.
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Notices
of Material Events
18.3 Each
Obligor will furnish to the Agent and each Lender prompt written notice of
the
following:
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(a)
|
the
occurrence of any Default; and
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(b)
|
any
event or condition constituting, or which could reasonably be expected
to
have a Material Adverse Effect.
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Each
notice delivered under this Clause shall be accompanied by a statement of
a
Financial Officer or other executive officer of the relevant Obligor setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken by such Obligor with respect
thereto.
Preservation
of Existence and Franchises
18.4 Each
Obligor will, and will cause each of its Significant Subsidiaries to, maintain
its corporate existence and its material rights and franchises in full force
and
effect in its jurisdiction of incorporation except where the failure to maintain
such corporate existence and material rights and franchises would not reasonably
be expected to have, either individually or in the aggregate, a Material
Adverse
Effect; provided that the foregoing shall not prohibit any merger or
consolidation permitted under Clause 19.1 (Mergers)
or 19.2
(Dispositions).
Each
Obligor will, and will cause each of its Significant Subsidiaries to, qualify
and remain qualified as a foreign corporation in each jurisdiction in which
failure to receive or retain such qualification would have a Material Adverse
Effect.
Insurance
18.5 Each
Obligor will, and will cause each of its Significant Subsidiaries to, maintain
with financially sound and reputable insurers, insurance with respect to
its
properties in such amounts as is customary in the case of corporations engaged
in the same or similar businesses having similar properties similarly
situated.
Maintenance
of Properties
18.6 Each
Obligor will, and will cause each of its Significant Subsidiaries to, maintain
or cause to be maintained in good repair, working order and condition the
properties now or hereafter owned, leased or otherwise possessed by and used
or
useful in its business and will make or cause to be made all needful and
proper
repairs, renewals, replacements and improvements thereto so that the business
carried on in connection therewith may be properly conducted at all times
except
if the failure to do so would not have a Material Adverse Effect, provided,
however, that the foregoing shall not impose on such Obligor or any Subsidiary
of such Obligor any obligation in respect of any property leased by such
Obligor
or such Subsidiary in addition to such Obligor’s obligations under the
applicable document creating such Obligor’s or such Subsidiary’s lease or
tenancy.
Payment
of Taxes and Other Potential Charges and Priority Claims Payment of Other
Current Liabilities
18.7 Each
Obligor will, and will cause each of its Subsidiaries to, pay or
discharge:
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(a)
|
on
or prior to the date on which penalties attach thereto, all taxes,
assessments and other governmental charges or levies imposed upon
it or
any of its properties or income;
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(b)
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on
or prior to the date when due, all lawful claims of materialmen,
mechanics, carriers, warehousemen, landlords and other like Persons
which,
if unpaid, might result in the creation of a Lien upon any such
property;
and
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(c)
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on
or prior to the date when due, all other lawful claims which, if
unpaid,
might result in the creation of a Lien upon any such property (other
than
Liens not forbidden by Clause 19.3 (Liens))
or which, if unpaid, might give rise to a claim entitled to priority
over
general creditors of such Obligor or such Subsidiary in any proceeding
under the
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Bermuda
Companies Law or Bermuda Insurance Law, or any insolvency proceeding,
liquidation, receivership, rehabilitation, dissolution or winding-up involving
such Obligor or such Subsidiary;
provided that,
unless and until foreclosure, distraint, levy, sale or similar proceedings
shall
have been commenced, such Obligor or such Subsidiary need not pay or discharge
any such tax, assessment, charge, levy or claim so long as (i) the validity
thereof is contested in good faith and by appropriate proceedings diligently
conducted or (ii) such reserves or other appropriate provisions as may be
required by GAAP or SAP, as the case may be, shall have been made therefor
and
so long as such failure to pay or discharge would not have a Material Adverse
Effect.
Financial
Accounting Practices
18.8 Such
Obligor will, and will cause each of its consolidated Subsidiaries to, make
and
keep books, records and accounts which, in reasonable detail, accurately
and
fairly reflect its transactions and dispositions of its assets and maintain
a
system of internal accounting controls sufficient to provide reasonable
assurances that transactions are recorded as necessary to permit preparation
of
financial statements required under Clause 18.1 (Financial
Statements and Other Information)
in
conformity with GAAP and SAP, as applicable, and to maintain accountability
for
assets.
Compliance
with Applicable Laws
18.9 Each
Obligor will, and will cause each of its Subsidiaries to, comply with all
applicable Laws (including but not limited to the Bermuda Companies Law and
Bermuda Insurance Laws) in all respects; provided that such Obligor or any
Subsidiary of such Obligor will not be deemed to be in violation of this
Clause
as a result of any failure to comply with any such Law which would not (i)
result in fines, penalties, injunctive relief or other civil or criminal
liabilities which, in the aggregate, would have a Material Adverse Effect
or
(ii) otherwise impair the ability of such Obligor to perform its obligations
under this Agreement.
Use
of Letters of Credit
and Proceeds
18.10 No
Letter
of Credit will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations U and X. Each Applicant will use the Letters of Credit issued
for
its account hereunder in the ordinary course of business of such Applicant
and
its Affiliates. For the avoidance of doubt, the Parties agree that the Account
Party may apply for a Letter of Credit hereunder to support the obligations
of
any Affiliate of an Applicant, it being understood that the Account Party
shall
nonetheless remain the Obligor and as such be liable with respect to such
Letter
of Credit.
Continuation
of and Change in Businesses
18.11 Each
Obligor and its Significant Subsidiaries will continue to engage in
substantially the same business or businesses it engaged in (or proposes
to
engage in) on the date of this Agreement and businesses related or incidental
thereto.
Visitation
18.12 Each
Obligor will permit such Persons as any Lender may reasonably designate to
visit
and inspect any of the properties of such Obligor, to discuss its affairs
with
its financial management, and provide such other information relating to
the
business and financial condition of such Obligor at such times as such Lender
may reasonably request. Each Obligor
hereby
authorises its financial management to discuss with any Lender the affairs
of
such Obligor.
19. Negative
covenants
Until
the
Total Commitments have expired or terminated and all fees payable hereunder
have
been paid in full and all Letters of Credit have expired or terminated and
all
LC Disbursements have been reimbursed, each of the Obligors covenants and
agrees
with the Lenders that:
Mergers
19.1 No
Obligor will merge with or into or consolidate with any other Person, except
that if no Default shall occur and be continuing or shall exist at the time
of
such merger or consolidation or immediately thereafter and after giving effect
thereto:
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(a)
|
any
Obligor may merge or consolidate with any other corporation, including
a
Subsidiary, if such Obligor shall be the surviving
corporation;
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(b)
|
the
Account Party may merge with or into or consolidate with any other
Person
in a transaction that does not result in a reclassification, conversion,
exchange or cancellation of the outstanding shares of capital stock
of the
Account Party (other than the cancellation of any outstanding shares
of
capital stock of the Account Party held by the Person with whom
it merges
or consolidates); and
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(c)
|
any
Obligor may enter into a merger or consolidation which is effected
solely
to change the jurisdiction of incorporation of such Obligor and
results in
a reclassification, conversion or exchange of outstanding shares
of
capital stock of such Obligor solely into shares of capital stock
of the
surviving entity.
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Dispositions
19.2 No
Obligor will, nor will it permit any of its Significant Subsidiaries to,
sell,
convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily
or involuntarily (any of the foregoing being referred to in this Clause as
a
Disposition
and any
series of related Dispositions constituting but a single Disposition), any
of
its properties or assets, tangible or intangible (including but not limited
to
sale, assignment, discount or other disposition of accounts, contract rights,
chattel paper or general intangibles with or without recourse),
except:
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(a)
|
Dispositions
in the ordinary course of business involving current assets or
other
invested assets classified on such Obligor’s or its respective
Subsidiaries balance sheet as available for sale or as a trading
account;
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(b)
|
sales,
conveyances, assignments or other transfers or dispositions in
immediate
exchange for cash or tangible assets, provided that any such sales,
conveyances or transfers shall not individually, or in the aggregate
for
the Obligor and their respective Subsidiaries, exceed $500,000,000
in any
calendar year;
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(c)
|
Dispositions
of equipment or other property which is obsolete or no longer used
or
useful in the conduct of the business of such Obligor or its
Subsidiaries;
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(d)
|
Dispositions
between or among the Obligors and their wholly owned Subsidiaries;
or
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(e)
|
Dispositions
with Affiliates in accordance with Clause 19.4(c) (Transactions
with Affiliates).
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Liens
19.3 No
Obligor will, nor will it permit any of its Subsidiaries to, create, incur,
assume or permit to exist any Lien on any property or assets, tangible or
intangible, now owned or hereafter acquired by it, except:
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(a)
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Liens
listed in Part B of Schedule 2 (and extension, renewal and replacement
Liens upon the same property, provided that the amount secured
by each
Lien constituting such an extension, renewal or replacement Lien
shall not
exceed the amount secured by the Liens listed in Part B of
Schedule 2);
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(b)
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Liens
arising from taxes, assessments, charges, levies or claims described
in
Clause 18.7 (Payment
of Taxes and other potential charges and priority claims, payments
of
other current liabilities)
that are not yet due or that remain payable without penalty or
to the
extent permitted to remain unpaid under the provision of Clause
18.7;
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(c)
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Liens
on property securing all or part of the purchase price thereof
to such
Obligor and Liens (whether or not assumed) existing on property
at the
time of purchase thereof by such Obligor (and extension, renewal
and
replacement Liens upon the same property); provided (i) each such
Lien is
confined solely to the property so purchased, improvements thereto
and
proceeds thereof, and (ii) the aggregate amount of the obligations
secured
by all such Liens on any particular property at any time purchased
by such
Obligor, as applicable, shall not exceed 100% of the lesser of
the fair
market value of such property at such time or the actual purchase
price of
such property;
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(d)
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zoning
restrictions, easements, minor restrictions on the use of real
property,
minor irregularities in title thereto and other minor Liens that
do not in
the aggregate materially detract from the value of a property or
asset to,
or materially impair its use in the business of, such Obligor or
any such
Subsidiary;
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(e)
|
Liens
securing Indebtedness permitted by Clause 19.7(b) (Indebtedness)
covering assets whose market value is not materially greater than
the
amount of the Indebtedness secured thereby plus a commercially
reasonable
margin;
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(f)
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Liens
on cash and securities of an Obligor or any of its Subsidiaries
incurred
as part of the management of its investment portfolio including,
but not
limited to, pursuant to any International Swaps and Derivatives
Association, Inc. (ISDA)
documentation or any Specified Transaction Agreement in accordance
with
the Account Party’s Statement of Investment Policy Objectives and
Guidelines as in effect on the date hereof or as it may be changed
from
time to time by resolution duly adopted by the board of directors
of the
Account Party (or any committee thereof);
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(g)
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Liens
on cash and securities not to exceed $500,000,000 in the aggregate
securing obligations of an Obligor or any of its Subsidiaries arising
under any ISDA documentation or any other Specified Transaction
Agreement
(it being understood that in no event shall this paragraph (g)
preclude
any Person (other than any Subsidiary of the Account Party) in
which the
Account Party or any of its Subsidiaries shall invest (each an
investee)
from granting Liens on such Person’s assets to secure hedging obligations
of such Person, so long as such obligations are non-recourse to
the
Account Party or any of its Subsidiaries (other than any
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investees)),
provided that, for purposes of determining the aggregate amount of cash and/or
securities subject to such Liens under this paragraph (g) the
aggregate amount of cash and/or securities on which any Obligor or any
Subsidiary shall have granted a Lien in favour of a counterparty at any time
shall be netted against the aggregate amount of cash and/or securities on
which
such counterparty shall have granted a Lien in favour of such Obligor or
Subsidiary, as the case may be, at such time, so long as the relevant agreement
between such Obligor or such Subsidiary, as the case may be, provides for
the
netting of their respective obligations thereunder;
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(h)
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Liens
on (i) assets received, and on actual or imputed investment income
on such
assets received incurred as part of its business including activities
utilizing ISDA documentation or any Specified Transaction Agreement
relating and identified to specific insurance payment liabilities
or to
liabilities arising in the ordinary course of any Obligors’ or any of
their Subsidiary’s business as an insurance or reinsurance company
(including GICs and Stable Value Instruments) or corporate member
of
Lloyd’s or as a provider of financial or investment services or contracts,
or the proceeds thereof (including GICs and Stable Value Instruments),
in
each case held in a segregated trust, trust or other account and
securing
such liabilities, (ii) assets securing Exempt Indebtedness of any
Person
(other than the Account Party or any of its Affiliates) in the
event such
Exempt Indebtedness is consolidated on the consolidated balance
sheet of
the Account Party and its consolidated Subsidiaries in accordance
with
GAAP or (iii) any other assets subject to any trust or other account
arising out of or as a result of contractual, regulatory or any
other
requirements; provided that in no case shall any such Lien secure
Indebtedness and any Lien which secures Indebtedness shall not
be
permitted under this clause (h);
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(i)
|
statutory
and common law Liens of materialmen, mechanics, carriers, warehousemen
and
landlords and other similar Liens arising in the ordinary course
of
business; and
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|
(j)
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Liens
existing on property of a Person immediately prior to its being
consolidated with or merged into any Obligor or any of their Subsidiaries
or its becoming a Subsidiary, and Liens existing on any property
acquired
by any Obligor or any of their Subsidiaries at the time such property
is
so acquired (whether or not the Indebtedness secured thereby shall
have
been assumed) (and extension, renewal and replacement Liens upon
the same
property, provided that the amount secured by each Lien constituting
such
an extension, renewal or replacement Lien shall not exceed the
amount
secured by the Lien theretofore existing), provided that (i) no
such Lien
shall have been created or assumed in contemplation of such consolidation
or merger or such Person’s becoming a Subsidiary or such acquisition of
property and (ii) each such Lien shall extend solely to the item
or items
of property so acquired and, if required by terms of the instrument
originally creating such Lien, other property which is an improvement
to
or is acquired for specific use in connection with such acquired
property.
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Transactions
with Affiliates
19.4 No
Obligor will, nor will it permit any of its Significant Subsidiaries to,
enter
into or carry out any transaction with (including, without limitation, purchase
or lease property or services to, loan or advance to or enter into, suffer
to
remain in existence or amend any contract, agreement or arrangement with)
any
Affiliate of such Obligor, or directly or indirectly agree to do any of the
foregoing, except:
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(a)
|
transactions
involving guarantees or co-obligors with respect to any Indebtedness
described in Part A of
Schedule 2;
|
|
(b)
|
transactions
between any Obligor and its wholly-owned Subsidiaries;
and
|
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(c)
|
transactions
with Affiliates in good faith in the ordinary course of such Obligor’s
business consistent with past practice and on terms no less favourable
to
such Obligor or any Subsidiary than those that could have been
obtained in
a comparable transaction on an arm’s length basis from an unrelated
Person.
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Ratio
of Total Funded Debt to Total Capitalisation
19.5 The
Account Party will not permit its ratio of (a) Total Funded Debt to (b) the
sum
of Total Funded Debt plus Consolidated Net Worth to be greater than 0.35:1.00
at
any time.
Consolidated
Net Worth
19.6 The
Account Party will not permit its Consolidated Net Worth to be less than
the sum
of (a) $5,000,000,000 plus (b) 25% of consolidated net income (if positive)
of
the Account Party and its Subsidiaries for each fiscal quarter ending on
or
after March 31, 2006.
Indebtedness
19.7 No
Obligor will, nor will it permit any of its Subsidiaries to, at any time
create,
incur, assume or permit to exist any Indebtedness, or agree, become or remain
liable (contingent or otherwise) to do any of the foregoing,
except:
|
(a)
|
Indebtedness
created hereunder and under any other Finance
Document;
|
|
(b)
|
secured
Indebtedness (including secured reimbursement obligations with
respect to
letters of credit) of any Obligor or any Subsidiary in an aggregate
principal amount (for all Obligors and their respective Subsidiaries)
not
exceeding at any time outstanding 15% of Consolidated Net
Worth;
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|
(c)
|
other
unsecured Indebtedness, so long as upon the incurrence thereof
no Default
would occur or exist;
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|
(d)
|
Indebtedness
consisting of accounts or claims payable and accrued and deferred
compensation (including options) incurred in the ordinary course
of
business by any Obligor or any
Subsidiary;
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(e)
|
Indebtedness
incurred in transactions described in Clauses 19.3(f) and 19.3(g);
and
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|
(f)
|
Indebtedness
described in Part A of Schedule 2 and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding
principal amount thereof.
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Ratings
Downgrade
19.8 The
Account Party will not permit the financial-strength rating from A.M. Best
&
Co. or its successor (such rating, an AMB
Rating)
each of
the XL Capital Group, XL Bermuda and XL Re to fall below “A-”
(the
AMB
Rating Undertaking).
The
Agent may (and if so instructed by the Majority Lenders shall) require the
Account Party within 5 Business Days of a failure to comply with the AMB
Rating
Undertaking, either:
|
(a)
|
to
provide cash cover in an amount equal to the aggregate LC Exposures
for
the time being; or
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|
(b)
|
to
deposit BIS Qualifying Assets with a custodian acceptable to the
Agent,
and enter into custodian and other relevant documentation, together
with
documentation required by the Security Trustee to give the Security
Trustee (for the benefit of itself and the other Finance Parties)
an
effective and perfected security interest in respect of those BIS
Qualifying Assets, in an aggregate amount equal to 105% of the
aggregate
LC Exposures for the time being.
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(each
of
(a) and (b), AMB Cash
Collateral)
Notwithstanding
any of the foregoing provisions of this Clause 19.8, if at any time subsequent
to the Account Party posting AMB Cash Collateral, any of the XL Capital Group,
XL Bermuda and XL Re has an AMB Rating of at least “A”, the Security Trustee
will instruct a bank holding any cash cover or otherwise take all necessary
actions to release and return any AMB Cash Collateral to the Account Party
and
the Letter of Credit Fee shall be determined by reference to
Clause 9.3.
Private
Act
19.9 No
Obligor will become subject to a Private Act other than the X.L. Insurance
Company, Ltd. Xxx, 0000.
20. Events
of default
If
any of
the following events (Events
of Default)
shall
occur:
|
(a)
|
Failure
to Pay:
|
(i)
any
Obligor shall fail to pay any Demand Amount when and as the same shall become
due and payable; or
(ii)
any
Obligor shall fail to pay any interest or any fee payable under this Agreement
or any other Finance Document or any other amount (other than an amount referred
to in Clause 20(a)(i)) payable under this Agreement or any other Finance
Document, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of 3 or more days;
|
(b)
|
Misrepresentation:
any representation or warranty made or deemed made by any Obligor
in or in
connection with this Agreement or any other Finance Document or
any
amendment or modification hereof, or in any certificate or financial
statement furnished pursuant to the provisions hereof, shall prove
to have
been false or misleading in any material respect as of the time
made (or
deemed made) or furnished;
|
|
(c)
|
Breach
of Obligations:
|
(i)
any
Obligor shall fail to observe or perform any covenant, condition or agreement
contained in Clause 19 (Negative
Covenants)
provided that any failure by the Account Party to comply with the AMB Rating
Undertaking shall not constitute an Event of Default unless the Agent requires
the Account Party to post and maintain AMB Cash Collateral in accordance
with
Clause 19.8 (Ratings
Downgrade)
and the
Account Party fails to do so within 5 Business Days of such failure to comply
with such AMB Rating Undertaking; or
(ii)
any
Obligor shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement or any other Finance Document (other than those
specified in Clause 20(a) or (c)(i)) and such failure shall continue unremedied
for a period of 20 or more days after notice thereof from the Agent (given
at
the request of any Lender) to such Obligor;
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(d)
|
Cross
Default:
any Obligor or any of its Subsidiaries shall default (i) in any
payment of
principal of or interest on any other obligation for borrowed money
in
principal amount of $50,000,000 or more, or any payment of any
principal
amount of $50,000,000 or more under Hedging Agreements, in each
case
beyond any period of grace provided with respect thereto, or (ii)
in the
performance of any other agreement, term or condition contained
in any
such agreement (other than Hedging Agreements) under which any
such
obligation in principal amount of $50,000,000 or more is created,
if the
effect of such default is to cause or permit the holder or holders
of such
obligation (or trustee on behalf of such holder or holders) to
cause such
obligation to become due prior to its stated maturity or to terminate
its
commitment under such agreement, provided that this Clause 20(d)
shall not
apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
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(e)
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Winding-up:
a
decree or order by a court having jurisdiction in the premises
shall have
been entered adjudging any Obligor a bankrupt or insolvent, or
approving
as properly filed a petition seeking reorganisation of such Obligor
under
the Bermuda Companies Law or the Cayman Islands Companies Law (2002
Revision) or any other similar applicable Law, and such decree
or order
shall have continued undischarged or unstayed for a period of 60
days; or
a decree or order of a court having jurisdiction in the premises
for the
appointment of a receiver or liquidator or trustee or assignee
in
bankruptcy or insolvency of such Obligor or a substantial part
of its
property, or for the winding up or liquidation of its affairs,
shall have
been entered, and such decree or order shall have continued undischarged
and unstayed for a period of 60
days;
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|
(f)
|
Insolvency
and Rescheduling:
any Obligor shall institute proceedings to be adjudicated a voluntary
bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking
reorganisation under the Bermuda Companies Law or the Cayman Islands
Companies Law (2002 Revision) or any other similar applicable Law,
or
shall consent to the filing of any such petition, or shall consent
to the
appointment of a receiver or liquidator or trustee or assignee
in
bankruptcy or insolvency of it or a substantial part of its property,
or
shall make an assignment for the benefit of creditors, or shall
admit in
writing its inability to pay its debts generally as they become
due, or
corporate or other action shall be taken by such Obligor in furtherance
of
any of the aforesaid purposes;
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|
(g)
|
Material
unsatisfied judgment or order:
one or more judgments for the payment of money in an aggregate
amount in
excess of $100,000,000 shall be rendered against any Obligor or
any of its
Subsidiaries or any combination thereof and the same shall not
have been
vacated, discharged, stayed (whether by appeal or otherwise) or
bonded
pending appeal within 45 days from the entry
thereof;
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|
(h)
|
ERISA
Event:
an ERISA Event (or similar event with respect to any Non-U.S. Benefit
Plan) shall have occurred that, in the opinion of the Majority
Lenders,
when taken together with all other ERISA Events and such similar
events
that have occurred, could reasonably be expected to result in liability
of
the Obligors and their Subsidiaries in an aggregate amount exceeding
$100,000,000;
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(i)
|
Change
of Control:
a
Change in Control shall occur;
|
|
(j)
|
Change
in Ownership:
the Account Party shall cease to own, beneficially and of record,
directly
or indirectly all of the outstanding voting shares of capital stock
of XL
Bermuda, XL Re or XL America; or
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|
(k)
|
Illegality:
at any time it is or becomes unlawful for any Obligor to perform
or comply
with any or all of its obligations hereunder or any court or arbitrator
or
any governmental body, agency or official which has jurisdiction
in the
matter shall decide, rule or order that any provision of the Finance
Documents is invalid or unenforceable in any material respect,
or any
Obligor shall so assert in writing;
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|
(l)
|
Default
under Guarantee:
the guarantee contained in Clause 16 (Guarantee
and Indemnity)
shall terminate or cease, in whole or material part, to be a legally
valid
and binding obligation of each Guarantor or any Guarantor or any
Person
acting for or on behalf of any of such parties shall contest such
validity
or binding nature of such guarantee itself or the Transactions,
or any
other Person shall assert any of the
foregoing,
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then,
and
in every such event (other than an event with respect to any Obligor described
in Clause 20(e) or 20(f)), and at any time thereafter during the continuance
of
such event, the Agent may, and at the request of the Majority Lenders shall,
by
notice to the Account Party (an Acceleration
Notice),
take
any of the following actions, at the same or different times:
(i)
terminate
the Total Commitments, and thereupon the Total Commitments shall terminate
immediately;
(ii)
require
the Account Party forthwith to provide cash cover in respect of any LC Exposure
pursuant to a Letter of Credit; and
(iii) declare
all fees and other obligations of the Account Party accrued hereunder to
be due
and payable in whole (or in part, in which case any fees and other obligations
not so declared to be due and payable may thereafter be declared to be due
and
payable) and thereupon such fees and other obligations, shall become due
and
payable immediately, without presentment, demand, protest or other notice
of any
kind, all of which are hereby waived by the Account Party,
and
in
case of any event with respect to any Obligor described in Clause 20(e) or
20(f):
|
(A)
|
the
Commitments shall automatically terminate; and
|
|
(B)
|
the
Account Party shall automatically be required to provide cash cover
in
respect of any LC Exposure pursuant to a Letter of Credit;
and
|
|
(C)
|
all
fees and other obligations of the Account Party accrued hereunder,
shall
automatically become due and payable, without presentment, demand,
protest
or other notice of any kind, all of which are hereby waived by
the Account
Party.
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21. The
Agent, the Arrangers and the Lenders
Appointment
of the Agent
21.1 The
Arrangers and each of the Lenders hereby appoints the Agent to act as its
agent
in connection herewith and authorises the Agent to exercise such rights,
powers,
authorities and discretions as are specifically delegated to the Agent by
the
terms hereof together with all such rights, powers, authorities and discretions
as are reasonably incidental thereto.
Agent’s
Discretions
21.2 The
Agent
may:
|
(a)
|
assume,
unless it has, in its capacity as agent for the Lenders, received
notice
to the contrary from any other party hereto, that (a) any representation
made or deemed to be made by an Obligor in connection with the
Finance
Documents is true, (b) no Event of Default or Potential Event of
Default
has occurred, (c) no Obligor is in breach of or default under its
obligations under the Finance Documents and (d) any right, power,
authority or discretion vested therein upon the Majority Lenders,
the
Lenders or any other person or group of persons has not been
exercised;
|
|
(b)
|
assume
that the Facility Office of each Lender is that notified to it
by such
Lender in writing prior to the date hereof (or, in the case of
a
Transferee, at the end of the Transfer Certificate to which it
is a party
as Transferee) until it has received from such Lender a notice
designating
some other office of such Lender to replace its Facility Office
and act
upon any such notice until the same is superseded by a further
such
notice;
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|
(c)
|
engage
and pay for the advice or services of any lawyers, accountants,
surveyors
or other experts whose advice or services may to it seem necessary,
expedient or desirable and rely upon any advice so
obtained;
|
|
(d)
|
rely
as to any matters of fact which might reasonably be expected to
be within
the knowledge of an Obligor upon a certificate signed by or on
behalf of
such Obligor;
|
|
(e)
|
rely
upon any communication or document believed by it to be
genuine;
|
|
(f)
|
refrain
from exercising any right, power or discretion vested in it as
agent
hereunder unless and until instructed by the Majority Lenders as
to
whether or not such right, power or discretion is to be exercised
and, if
it is to be exercised, as to the manner in which it should be
exercised;
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|
(g)
|
refrain
from acting in accordance with any instructions of the Majority
Lenders to
begin any legal action or proceeding arising out of or in connection
with
the Finance Documents until it shall have received such security
as it may
require (whether by way of payment in advance or otherwise) for
all costs,
claims, losses, expenses (including legal fees) and liabilities
together
with any VAT thereon which it will or may expend or incur in complying
with such instructions; and
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|
(h)
|
assume
(unless it has specific notice to the contrary) that any notice
or request
made by the Account Party is made on behalf of the
Obligors.
|
Agent’s
Obligations
21.3 The
Agent
shall:
|
(a)
|
promptly
inform each Lender of the contents of any notice or document received
by
it in its capacity as Agent from an Obligor under the Finance Documents
and shall promptly deliver to each Lender a copy of each Letter
of Credit
delivered to Lloyd’s pursuant to Clause 3.3 (Completion
of Letters of Credit);
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|
(b)
|
promptly
notify each Lender of the occurrence of any Event of Default or
any
default by an Obligor in the due performance of or compliance with
its
obligations under the Finance Documents of which the Agent has
notice from
any other party hereto;
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|
(c)
|
save
as otherwise provided herein, act as agent under the Finance Documents
in
accordance with any instructions given to it by an Majority Lenders,
which
instructions shall be binding on the Arrangers and the
Lenders; and
|
|
(d)
|
if
so instructed by the Majority Lenders, refrain from exercising
any right,
power or discretion vested in it as agent under the Finance
Documents.
|
The
Agent’s duties under the Finance Documents are solely mechanical and
administrative in nature.
Excluded
Obligations
21.4 Notwithstanding
anything to the contrary expressed or implied herein, neither the Agent nor
the
Arrangers shall:
|
(a)
|
be
bound to enquire as to (i) whether or not any representation made
or
deemed to be made by an Obligor in connection with the Finance
Documents
is true, (ii) the occurrence of any Default, (iii) the performance
by an
Obligor of its obligations under the Finance Documents or (iv)
any breach
of or default by an Obligor of or under its obligations under the
Finance
Documents;
|
|
(b)
|
be
bound to account to any Lender for any sum or the profit element
of any
sum received by it for its own
account;
|
|
(c)
|
be
bound to disclose to any other person any information relating
to any
Obligor or any Related Party if (i) such person, on providing such
information, expressly stated to the Agent or, as the case may
be, the
Arrangers, that such information was confidential or (ii) such
disclosure
would or might in its opinion constitute a breach of any Law or
be
otherwise actionable at the suit of any
person;
|
|
(d)
|
be
under any obligations other than those for which express provision
is made
herein;
|
|
(e)
|
be
or be deemed to be a fiduciary for any other party hereto;
or
|
|
(f)
|
be
obliged to carry out any "know your customer" or other checks in
relation
to any person on behalf of any Lender and each Lender confirms
to the
Agent and the Arranger that it is solely responsible for any such
checks
it is required to carry out and that it may not rely on any statement
in
relation to such checks made by the Agent or the
Arranger.
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Indemnification
21.5 Each
Lender shall, pro rata according to its Applicable Percentage (determined
as of
the time that the applicable cost, claim, loss, expense and/or liability
is
sought), from time to time on demand by the Agent, indemnify the Agent against
any and all costs, claims, losses, expenses (including legal fees) and
liabilities together with any value added tax thereon (or equivalent) which
the
Agent may incur, otherwise than by reason of its own gross negligence or
wilful
misconduct, in acting in its capacity as agent hereunder (unless the Agent
has
been reimbursed by an Obligor pursuant to a Finance Document).
Exclusion
of Liabilities
21.6 Except
in
the case of gross negligence or wilful default, neither the Agent nor the
Arrangers accept any responsibility:
|
(a)
|
for
the adequacy, accuracy and/or completeness of any information supplied
by
the Agent or the Arrangers, by an Obligor or by any other person
in
connection with the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of,
pursuant to
or in connection with the Finance
Documents;
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|
(b)
|
for
the legality, validity, effectiveness, adequacy or enforceability
of the
Finance Documents or any other agreement, arrangement or document
entered
into, made or executed in anticipation of, pursuant to or in connection
with the Finance Documents; or
|
|
(c)
|
for
the exercise of, or the failure to exercise, any judgement, discretion
or
power given to any of them by or in connection with the Finance
Documents
or any other agreement, arrangement or document entered into, made
or
executed in anticipation of, pursuant to or in connection with
the Finance
Documents.
|
Accordingly,
neither the Agent nor the Arrangers shall be under any liability (whether
in
negligence or otherwise) in respect of such matters, save in the case of
gross
negligence or wilful misconduct.
No
Actions
21.7 Each
of
the Lenders agree that it will not assert or seek to assert against any
director, officer or employee of the Agent or the Arrangers any claim it
might
have against any of them in respect of the matters referred to in
Clause 21.6 (Exclusion
of Liabilities).
Business
with the Group
21.8 The
Agent
and the Arrangers may accept deposits from, lend money to and generally engage
in any kind of banking or other business with any of the Obligors or their
Subsidiaries.
Resignation
21.9 The
Agent
may resign its appointment hereunder at any time without assigning any reason
therefor by giving not less than thirty days’ prior notice to that effect to
each of the other parties hereto, PROVIDED
THAT
no such
resignation shall be effective until a successor for the Agent is appointed
in
accordance with the succeeding provisions of this Clause 21.
Successor
Agent
21.10 If
the
Agent gives notice of its resignation pursuant to Clause 21.9 (Resignation)
then
any reputable and experienced Lender or other financial institution may be
appointed as a successor to the Agent by the Majority Lenders (with the approval
of the Account Party, not to be unreasonably withheld or delayed,) during
the
period of such notice (with the co-operation of the Agent) but, if no such
successor is so appointed, the Agent may appoint such a successor
itself.
Rights
and Obligations
21.11 If
a
successor to the Agent is appointed under the provisions of Clause 21.10
(Successor
Agent),
then
(a) the retiring Agent shall be discharged from any further obligation
hereunder but shall remain entitled to the benefit of the provisions of this
Clause 21 and (b) its successor and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they would
have
had if such successor had been a party hereto.
Own
Responsibility
21.12 It
is
understood and agreed by each Lender that at all times it has itself been,
and
will continue to be, solely responsible for making its own independent appraisal
of and investigation into all risks arising under or in connection with this
Agreement including, but not limited to:
|
(a)
|
the
financial condition, creditworthiness, condition, affairs, status
and
nature of each member of the Group;
|
|
(b)
|
the
legality, validity, effectiveness, adequacy and enforceability
of the
Finance Documents and any other agreement, arrangement or document
entered
into, made or executed in anticipation of, pursuant to or in connection
with the Finance Documents;
|
|
(c)
|
whether
such Lender has recourse, and the nature and extent of that recourse,
against an Obligor or any other person or any of its assets under
or in
connection with the Finance Documents, the Transactions or any
other
agreement, arrangement or document entered into, made or executed
in
anticipation of, pursuant to or in connection with the Finance
Documents; and
|
|
(d)
|
the
adequacy, accuracy and/or completeness of any information provided
by the
Agent or the Arrangers, an Obligor or by any other person in connection
with the Finance Documents, the Transactions or any other agreement,
arrangement or document entered into, made or executed in anticipation
of,
pursuant to or in connection with the Finance
Documents.
|
Accordingly,
each Lender acknowledges to the Agent and the Arrangers that it has not relied
on and will not hereafter rely on the Agent and the Arrangers or any of them
in
respect of any of these matters.
Agency
Division Separate
21.13 In
acting
as agent hereunder for the Lenders, the Agent shall be regarded as acting
through its agency division which shall be treated as a separate entity from
any
other of its divisions or departments and, notwithstanding the foregoing
provisions of this Clause 21, any information received by some other division
or
department of the Agent may be treated as confidential and shall not be regarded
as having been given to the Agent’s agency division.
Declaration
of Agent as Security Trustee
21.14 The
Agent
hereby declares that it shall hold:
|
(a)
|
all
rights, titles and interests that may hereafter be mortgaged, charged,
assigned or otherwise secured in favour of the Agent by or pursuant
to the
Finance Documents;
|
|
(b)
|
the
benefit of all representations, covenants, guarantees, indemnities
and
other contractual provisions given in favour of the Agent (other
than any
such benefits given to the Agent solely for its own benefit) by
or
pursuant to the Finance Documents (other than this Agreement);
and
|
|
(c)
|
all
proceeds of the security referred to in paragraph (a) above and of
the enforcement of the benefits referred to in paragraph (b)
above,
|
on
trust
for itself and the other Finance Parties from time to time.
Such
declaration shall remain valid notwithstanding that the Agent may on the
date
hereof or at any other time be the sole Finance Party; for the avoidance
of
doubt, however, such declaration shall, in such case, be deemed repeated
on each
date on which the Agent ceases to be the sole Finance Party.
Each
of
the parties hereto agrees that the obligations, rights and benefits vested
or to
be vested in the Agent as trustee as aforesaid by the Finance Documents or
any
document entered into pursuant thereto shall (as well before as after
enforcement) be performed and (as the case may be) exercised by the Agent
in
accordance with the provisions of this Clause 21.
Powers
and Discretions
21.15 The
Agent
shall have all the powers and discretions conferred upon trustees by the
Trustee
Xxx 0000 (to the extent not inconsistent herewith) and by way of supplement
it
is expressly declared as follows:
|
(a)
|
the
Agent shall be at liberty to place any of the Finance Documents
and any
other instruments, documents or deeds delivered to it pursuant
thereto or
in connection therewith for the time being in its possession in
any safe
deposit, safe or receptacle selected by the Agent or with any Lender,
any
company whose business includes undertaking the safe custody of
documents
or any firm of lawyers of good
repute;
|
|
(b)
|
the
Agent may, whenever it thinks fit, delegate by power of attorney
or
otherwise to any person or persons or fluctuating body of persons
all or
any of the rights, trusts, powers, authorities and discretions
vested in
it by any of the Finance Documents and such delegation may be made
upon
such terms and subject to such conditions (including the power
to
sub-delegate) and subject to such regulations as the Agent may
think fit
and the Agent shall not be bound to supervise, or be in any way
responsible for any loss incurred by reason of any misconduct or
default
on the part of, any such delegate (or
sub-delegate);
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|
(c)
|
notwithstanding
anything else herein contained, the Agent may refrain from doing
anything
which would or might in its opinion be contrary to any Law of any
jurisdiction or any directive or regulation of any agency of any
state or
which would or might otherwise render it liable to any person and
may do
anything which is, in its opinion, necessary to comply with any
such Law,
directive or regulation;
|
|
(d)
|
save
in the case of gross negligence or wilful misconduct, the Agent
and every
attorney, agent, delegate, sub-delegate and any other person appointed
by
any of them under any of the Finance Documents may indemnify itself
or
himself out of the security held by the Agent against all liabilities,
costs, fees, charges, losses and expenses incurred by any of them
in
relation to or arising out of the taking or holding of any of the
security
constituted by, or any of the benefits provided by, any of the
Finance
Documents, in the exercise or purported exercise of the rights,
trusts,
powers and discretions vested in any of them or in respect of any
other
matter or thing done or omitted to be done in any way relating
to any of
the Finance Documents or pursuant to any Law or regulation;
and
|
|
(e)
|
without
prejudice to the provisions of any of the Finance Documents, the
Agent
shall not be under any obligation to insure any property or to
require any
other person to maintain any such insurance and shall not be responsible
for any loss which may be suffered by any person as a result of
the lack
of or inadequacy or insufficiency of any such
insurance.
|
Liability
21.16 The
Agent
shall not be liable for any failure:
|
(a)
|
to
require the deposit with it of any deed or document certifying,
representing or constituting the title of the Account Party to
any of the
property mortgaged, charged, assigned or otherwise encumbered by
or
pursuant to any of the Finance
Documents;
|
|
(b)
|
to
obtain any licence, consent or other authority for the execution,
delivery, validity, legality, adequacy, performance, enforceability
or
admissibility in evidence of any of the Finance
Documents;
|
|
(c)
|
to
register or notify any deed or document mentioned at paragraph (a)
above in accordance with the provisions of any of the documents
of title
of the Account Party;
|
|
(d)
|
to
effect or procure registration of or otherwise protect any of the
security
created by any of the Finance Documents by registering the same
under any
applicable registration Laws in any territory or otherwise by registering
any notice, caution or other entry prescribed by or pursuant to
the
provisions of relevant Laws;
|
|
(e)
|
to
take or to require the Account Party to take any steps to render
the
security created or purported to be created by or pursuant to any
of the
Finance Documents effective or to secure the creation of any ancillary
charge under the Laws of any jurisdiction;
or
|
|
(f)
|
to
require any further assurances in relation to any of the Finance
Documents.
|
Title
to Security etc.
21.17 The
Agent
may accept without enquiry, requisition or objection such right and title
as the
Account Party may have to the property belonging (or purportedly belonging)
to
it (or any part thereof) which is the subject matter of any of the Finance
Documents and shall not be bound or concerned to investigate or make any
enquiry
into the right or title of the Account Party to such property (or any part
thereof) or, without prejudice to the foregoing, to require the Account Party
to
remedy any defect in the Account Party’s right or title as
aforesaid.
New
Security Trustee
21.18 The
Agent
may at any time appoint any person (whether or not a trust corporation) to
act
either as a separate trustee or as a co-trustee jointly with the
Agent:
|
(a)
|
if
the Agent considers such appointment to be in the interests of
the
Lenders; or
|
|
(b)
|
for
the purposes of conforming to any legal requirements, restrictions
or
conditions which the Agent deems relevant for the purposes of the
Finance
Documents and the Agent shall give prior notice to the Account
Party and
the Lenders of any such
appointment.
|
Any
person so appointed shall (subject to the provisions of the Finance Documents)
have such powers, authorities and discretions and such duties and obligations
as
shall be conferred or imposed or such person by the instrument of appointment
and shall have the same benefits under this Clause 21 as the
Agent.
The
Agent
shall have power in like manner to remove any person so appointed.
Such
reasonable remuneration as the Agent may pay to any person so appointed,
and any
costs, charges and expenses incurred by such person in performing its functions
pursuant to such appointment, shall for the purposes hereof be treated as
costs,
charges and expenses incurred by the Agent under the Finance
Documents.
Perpetuity
Period
21.19 The
perpetuity period under the rule against perpetuities if applicable to the
trusts constituted in this Clause 21 and the other Finance Documents shall
be the period of eighty years from the date of this Agreement and, subject
thereto, if the Agent determines that all of the obligations of the Account
Party under any of the Finance Documents have been fully and unconditionally
discharged, such trusts shall be wound up.
Lender
Representations
21.20 Each
Lender represents to the Agent on the date of issue of each Letter of Credit
that:
|
(a)
|
the
execution and delivery of each Letter of Credit by the Agent on
the
Lender’s behalf has been duly authorised by all necessary action on the
part of the Lender; and
|
|
(b)
|
the
obligations of the Lender under each Letter of Credit constitute
its
legal, valid and binding
obligations.
|
Letters
of Credit
21.21 Each
Lender shall, (a) pro rata according to its respective Commitment, indemnify
the
Agent against any and all liabilities, costs and expenses which the Agent
may
incur otherwise than by reason of its own gross negligence or wilful misconduct
(in its capacity as Agent) as a result of the execution and delivery of any
Letter of Credit and any documents executed and delivered by the Agent in
connection therewith; and (b) inform the Agent promptly if at any time the
collateral securing the repayment of any amounts payable under any Letter
of
Credit comprises directly or indirectly a security interest over a principal
private residence.
22. Notices
Except
in
the case of notices and other communications expressly permitted to be given
by
telephone, all notices and other communications provided for herein shall
be in
writing and shall be delivered by hand or overnight courier service, mailed
by
certified or registered mail or sent by facsimile, as follows:
|
(a)
|
if
to any Obligor, to:
|
|
XX
Xxxxx
Xxx
Xxxxxxxxxx Xxxx
Xxxxxxxx
XX 00
Bermuda
|
|
Fax: 0
000 000 0000
Attention: Senior
Vice President, Chief Corporate Legal Officer and Secretary
|
|
(b)
|
if
to the Agent:
|
|
0xx
Xxxxx
0
Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx
X00 0XX
|
|
Fax: 00
000 000 0000/4484
Attention: Loans
Agency
|
|
(c)
|
if
to a Lender, to it at its address (or facsimile number) on the
signature
pages of this Agreement, or such other address as it shall notify
to the
Agents and the Account Party.
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Any
party
hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto (or, in the
case
of any such change by a Lender, by notice to the Account Party and the Agent).
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given
on the
date of receipt.
23. Waivers
and Amendments
No
Deemed Waivers
23.1 No
failure or delay by any Finance Party in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or
the exercise of any other right or power. No waiver of any provision of this
Agreement or consent to any departure by an Obligor therefrom shall in any
event
be effective unless the same shall be permitted by Clause 23.3
(Amendments),
and
then such waiver or consent shall be effective only in the specific instance
and
for the purpose for which given. Without limiting the generality of the
foregoing, the issuance of a Letter of Credit shall not be construed as a
waiver
of any Default, regardless of whether the Agent or any Lender may have had
notice or knowledge of such Default at the time.
Remedies
Cumulative
23.2 The
rights and remedies of the Finance Parties hereunder are cumulative and are
not
exclusive of any rights or remedies that they would otherwise have.
Amendments
23.3 Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by
the
Obligors and the Majority Lenders or by the Obligors and the Agent with the
consent of the Majority Lenders; PROVIDED
that
no
such agreement shall:
|
(a)
|
increase
the Commitment of any Lender without the written consent of such
Lender,
|
|
(b)
|
reduce
the amount of any reimbursement obligation of the Account Party
in respect
of any LC Disbursement or reduce the rate of interest thereon,
or reduce
any fees payable hereunder, without the written consent of each
Lender
affected thereby,
|
|
(c)
|
postpone
the scheduled date for reimbursement of any LC Disbursement, or
any
interest thereon, or any fees payable hereunder, or reduce the
amount of,
waive or excuse any such payment, or postpone the scheduled date
of
expiration of any Commitment or any Letter of Credit (other than
an
extension thereof pursuant to Clause 4), without the written consent
of each Lender affected thereby,
|
|
(d)
|
change
Clause 15.4 (Pro
Rata Treatment)
or 15.5 (Sharing
of Payments By Lenders)
without the consent of each Lender affected
thereby,
|
|
(e)
|
release
any of the Guarantors from any of their guarantee obligations under
Clause 16 (Guarantee
and Indemnity)
without the written consent of each
Lender,
|
|
(f)
|
release
any security granted by the Account Party pursuant to Clause 19.8
(Ratings
Downgrade)
or 20 (Events
of Default)
without the written consent of each Lender,
and
|
|
(g)
|
change
any of the provisions of this Clause or the percentage in the definition
of the term Majority
Lenders
or
any other provision hereof specifying the number or percentage
of Lenders
required to waive, amend or modify any rights hereunder or make
any
determination or grant any consent hereunder, without the written
consent
of each Lender;
|
and
PROVIDED
FURTHER that
no
such agreement shall amend, modify or otherwise affect the rights or duties
of
the Agent hereunder without the prior written consent of the Agent.
24. Costs
and Expenses
24.1 The
Account Party shall pay:
|
(a)
|
all
reasonable out-of-pocket expenses and charges incurred by the Agent
and/or
the Arrangers (together with VAT or any similar tax thereon and
including
the reasonable fees, charges and disbursements of counsel for the
Agent)
in connection with the syndication of the credit facilities provided
for
herein, the negotiation, preparation, execution and administration
of the
Finance Documents (subject to the terms of the Commitment Letter)
or any
amendments, modifications or waivers of the provisions
|
hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated);
|
(b)
|
all
reasonable out-of-pocket expenses incurred by the Agent, the Security
Trustee or any Lender, (together with VAT or any similar tax thereon
and
including the reasonable fees, charges and disbursements of one
legal
counsel for the Agent and one legal counsel for the Lenders), in
connection with the preservation and/or enforcement or protection
of its
rights in connection with the Finance Documents, including its
rights
under this Clause, or in connection with Letters of Credit issued
hereunder, including in connection with any workout, restructuring
or
negotiations in respect thereof.
|
Stamp
Duty
24.2 The
Account Party shall pay all transfer, stamp, documentary or other similar
taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any other document referred to herein.
25. Indemnities
Currency
Indemnity
25.1 (a) If:
(i)
any
amount payable by the Account Party under or in connection with this Agreement
is received by any Finance Party in a currency (the Payment
Currency)
other
than that agreed in this Agreement (the Agreed
Currency)
whether
as a result of any judgement or order or the enforcement thereof, the
liquidation of the payer or otherwise; and
(ii)
the
amount produced by converting the Payment Currency so received into the Agreed
Currency is less than the relevant amount of the Agreed Currency.
then
the
Account Party shall, as an independent obligation, indemnify such Finance
Party
for the deficiency and any loss sustained as a result. Such conversion shall
be
made at such prevailing rate of exchange, on such date and in such market
as is
determined by such Finance Party (acting reasonably) as being most appropriate
for the conversion. The Account Party shall in addition pay the costs of
the
conversion.
|
(b)
|
The
Account Party waives any right it may have in any jurisdiction
to pay any
amount under this Agreement in a currency other than that in which
it is
expressed to be payable in this
Agreement.
|
Other
Indemnities
25.2 The
Obligors shall indemnify the Agent and each Lender, and each Related Party
of
any of the foregoing Persons (each such Person being called an Indemnitee)
against, and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against
any Indemnitee arising out of, in connection with, or as a result
of:
|
(a)
|
the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their
respective
|
obligations
hereunder or the consummation of the Transactions or any other transactions
contemplated hereby;
|
(b)
|
any
Letter of Credit or the use of any thereof (including any refusal
by any
Lender to honour a demand for payment under a Letter of Credit
if the
documents presented in connection with such demand do not strictly
comply
with the terms of such Letter of
Credit);
|
|
(c)
|
any
actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort
or any
other theory and regardless of whether any Indemnitee is a party
thereto;
provided that such indemnity shall not, as to any Indemnitee, be
available
to the extent that such losses, claims, damages, liabilities or
related
expenses result from or arise out of the gross negligence or wilful
misconduct of such Indemnitee.
|
Reimbursement
by Lenders
25.3 To
the
extent that the Obligors fail to pay any amount required to be paid by them
to
the Agent under Clauses 24.1 (Costs
and Expenses)
or 25.1
(Currency
Indemnity)
and
25.2 (Other
Indemnities),
each
Lender severally agrees to pay to the Agent such Lender’s Applicable Percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; PROVIDED
that
the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agent
in
its capacity as such.
26. Alteration
to the parties
Successors
26.1 The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted
hereby.
Assignments
and Transfers by the Account Party
26.2 The
Account Party shall not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and
any
attempted assignment or transfer by the Account Party without such consent
shall
be null and void).
Transfers
by Lenders.
26.3 (a)
Any
Lender (the Transferor)
may at
any time transfer to another Approved Credit Institution (the Transferee)
all or
a portion of its rights and obligations under this Agreement (including all
or a
portion of its Commitment) and under any Letter of Credit to which it is
a
party; PROVIDED
THAT:
(i)
except
in
the case of an transfer to a Lender or a Lender Affiliate, each of the Account
Party and the Agent must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed);
(ii)
except
in
the case of an transfer to a Lender or a Lender Affiliate or a transfer of
the
entire remaining amount of the Transferor’s Commitment, the amount of the
Commitment of the Transferor subject to each such transfer (determined as
of the
date of the Transfer Certificate) shall not be less than
£3,000,000
unless each of the Account Party and the
Agent otherwise consent;
(iii)
a
transfer of obligations shall only be effective if the Transferee:
(A)
if
it
shall not be a Lender, has delivered relevant contact, notice and account
details to the Agent (with a copy to the Account Party) as well as any
information required by the Agent to perform "know your customer" or other
checks relating to any person that it is required to carry out in relation
to
the Transferee, the completion of which the Agent shall promptly notify to
the
Transferor and the Transferee; and
(B)
has
confirmed to the Agent and the Account Party prior to the transfer taking
effect
that it undertakes to be bound by the terms of this Agreement as Lender in
form
and substance reasonably satisfactory to the Agent and the Account Party;
and on
any such transfer being made the Transferor shall be relieved of its obligations
to the extent they are transferred to the Transferee.
PROVIDED
FURTHER that
any
consent of the Account Party otherwise required under this paragraph shall
not
be required if an Event of Default under Clause 20(a), (e) or (f) has
occurred and is continuing. Upon transfer pursuant to Clause 26.4, from and
after the last to occur of (i) the effective date specified in each
Transfer Certificate; and (ii) the cancellation of a Letter of Credit and
the issue of a new Letter of Credit with the Transferee identified as an
Issuing
Lender (the Issuing
Lender Transfer),
the
Transferee thereunder shall be a party hereto and, to the extent of the lesser
of the interest assigned by such Transfer Certificate and the Transferee’s
participation as an Issuing Lender of a re-issued Letter of Credit (the
Transferred
Interest),
have
the rights and obligations of a Lender under this Agreement, and the Transferor
thereunder shall, to the extent of the Transferred Interest, be released
from
its obligations under this Agreement (and, in the case of Transfer Certificate
covering all of the Transferor’s rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Clauses 12 (Increased
Costs),
10
(Taxes)
24
(Costs
and Expenses)
and 25
(Indemnities)).
Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of
this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with Clause 26.7 (Participations).
Notwithstanding
anything to the contrary contained herein, any Lender (a Granting
Lender)
may
grant to a special purpose vehicle (an SPV)
of such
Granting Lender, identified as such in writing from time to time by the Granting
Lender to the Agent and the Account Party, the option to provide to the Account
Party all or any part of any LC Disbursement that such Granting Lender would
otherwise be obligated to make to the Account Party pursuant to Clause 2.1,
PROVIDED
that
(i)
nothing herein shall constitute a commitment by any SPV to make any LC
Disbursement, (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such LC Disbursement, the Granting Lender
shall be obligated to make such LC Disbursement pursuant to the terms hereof
and
(iii) the Account Party may bring any proceeding against either or both the
Granting Lender or the SPV in order to enforce any rights of the Account
Party
hereunder; and (iv) the SPV shall agree to the terms of Clause 30.2
(Confidentiality).
The
making of an LC Disbursement by an
SPV
hereunder shall utilise the Commitment of the Granting Lender to the same
extent, and as if, such LC Disbursement were made by the Granting Lender.
Each
party hereto hereby agrees that no SPV shall be liable for any payment under
this Agreement for which a Lender would otherwise be liable, for so long
as, and
to the extent, the related Granting Lender makes such payment. In furtherance
of
the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year
and
one day after the payment in full of all outstanding commercial paper or
other
senior indebtedness of any SPV, it will not institute against, or join any
other
person in instituting against, such SPV any bankruptcy, reorganisation,
arrangement, insolvency or liquidation proceedings or similar proceedings
under
the Laws of the United States or any State thereof arising out of any claim
against such SPV under this Agreement. In addition, notwithstanding anything
to
the contrary contained in this Clause, any SPV may with notice to, but without
the prior written consent of, the Account Party or the Agent and without
paying
any processing fee therefor, assign all or a portion of its interests in
any
Letter of Credit to its Granting Lender or to any financial institutions
(consented to by the Account Party and the Agent) providing liquidity and/or
credit support (if any) with respect to commercial paper issued by such SPV
to
issue such Letters of Credit and such SPV may disclose, on a confidential
basis,
confidential information with respect to any Account Party and its Subsidiaries
to any rating agency, commercial paper dealer or provider of a surety, guarantee
or credit liquidity enhancement to such SPV. This paragraph may not be amended
without the consent of any SPV at the time holding LC Disbursements under
this
Agreement.
|
(b)
|
On
each occasion a Transferor assigns, transfers or novates any of
its rights
and/or obligations under this Agreement, the Transferee (unless
it is
already a Lender or a Lender Affiliate immediately prior to the
transfer)
shall ensure that the Agent has notice of the same and shall, on
the date
the assignment, transfer and/or novation takes effect, pay to the
Agent
for its own account a fee of
£1,000.
|
|
(c)
|
Neither
a Transferor nor any other Finance Party is responsible to a Transferee
for:
|
(i) the
execution, genuineness, validity, enforceability or sufficiency of any Finance
Documents or any other document;
(ii) the
collectability of amounts payable under any Finance Documents or the financial
condition of or the performance of its obligations under the Finance Documents
by any Obligor; or
(iii)
the
accuracy of any statements or information (whether written or oral) made
in or
in connection with or supplied in connection with any Finance
Documents.
|
(d)
|
Each
Transferee confirms to the Transferor and the other Finance Parties
that
it:
|
(i)
has
made
its own independent investigation and assessment of the financial condition
and
affairs of each Obligor and its related entities in connection with its
participation in this Agreement and has not relied exclusively on any
information provided to it by the Transferor or any other Finance Party in
connection with any Finance Documents; and
(ii) will
continue to make its own independent appraisal of the creditworthiness of
each
Obligor and its related entities for so long as there are any Commitments
or LC
Exposures under this Agreement.
|
(e)
|
Nothing
in any Finance Document obliges a Transferor
to:
|
(i)
accept
a
re-transfer from a Transferee of any of the rights and/or obligations assigned,
transferred or novated under this Clause; or
(ii)
support
any losses incurred by the Transferee by reason of the non-performance by
any
Obligor of its obligations under any Finance Document or otherwise.
26.4 Transfer
Procedure:
|
(a)
|
A
novation is effected if:
|
(i)
the
Transferor and the Transferee deliver to the Agent a duly completed Transfer
Certificate executed by the Transferor and the Transferee; and
(ii)
the
Agent
executes it
PROVIDED
THAT
the
Agent shall only be obliged to execute a Transfer Certificate delivered to
it by
the Transferor and the Transferee once it is satisfied it has complied with
all
necessary "know your customer" or similar other checks under all applicable
laws
and regulations in relation to the transfer to such Transferee.
|
(b)
|
Each
Party (other than the Transferor and the Transferee) irrevocably
authorises the Agent to execute any duly completed Transfer Certificate
on
its behalf.
|
|
(c)
|
To
the extent that they are expressed to be the subject of the novation
in
the Transfer Certificate:
|
(i)
the
Transferor and the other Parties (the existing
Parties)
will be
released from their obligations to each other under the Finance Documents
(the
discharged
obligations);
(ii)
the
Transferee and the existing Parties will assume obligations towards each
other
under the Finance Documents which differ from the discharged obligations
only
insofar as they are owed to or assumed by the Transferee instead of the
Transferor;
(iii)
the
rights of the Transferor against the existing Parties under the Finance
Documents and vice versa (the discharged
rights)
will be
cancelled; and
(iv)
the
Transferee and the existing Parties will acquire rights against each other
under
the Finance Documents which differ from the discharged rights only insofar
as
they are exercisable by or against the Transferee instead of the Transferor,
all
on
the date specified in the proviso to Clause 26.3(a).
Right
to substitute single Lender
26.5 If:
|
(a)
|
any
sum payable to any Finance Party by the Account Party is required
to be
increased under Clause 10 (Taxes);
or
|
|
(b)
|
any
Lender claims indemnification from the Account Party under
Clause 12.1 (Increased
Costs);
or
|
|
(c)
|
a
Lender’s Available Commitment has been reduced to zero pursuant to
Clause 13(b) (Illegality),
|
the
Account Party may give the Agent notice of its intention to arrange the
substitution of that Lender with a new bank or financial
institution.
On
receipt of a notice from the Account Party referred to above, the Lender
shall
use its best endeavours to promptly assign or transfer all of its rights
and
obligations under this Agreement to an Approved Credit Institution nominated
by
the Account Party. Such transfer will be effected in accordance with
Clause 26.4 (Transfer
Procedure)
and the
consideration for such transfer shall be an amount equal to the sum of all
amounts accrued and owing by the Account Party to the transferring Lender
as
calculated on the date of transfer.
Reference
Banks
26.6 If
a
Reference Bank ceases to be one of the Lenders, the Agent shall (in consultation
with the Account Party) appoint another Lender or an affiliate of a Lender
to
replace that Reference Bank.
Participations
26.7 Any
Lender may sell participations to one or more Lenders or other entities (a
Participant)
in all
or a portion of such Lender’s rights and obligations under this Agreement and
the other Credit Documents (including all or a portion of its Commitment);
PROVIDED
that:
|
(a)
|
any
such participation sold to a Participant which is not a Lender
or a Lender
Affiliate shall be made only with the consent (which in each case
shall
not be unreasonably withheld) of the Account Party and the Agent,
unless
an Event of Default under Clause 20(a), (e) or (f) has occurred and
is continuing, in which case the consent of the Account Party shall
not be
required;
|
|
(b)
|
such
Lender’s obligations under this Agreement and the other Finance Documents
shall remain unchanged;
|
|
(c)
|
such
Lender shall remain solely responsible to the other parties hereto
for the
performance of such obligations;
|
|
(d)
|
the
Account Party, the Agent, the Security Trustee and the other Lenders
shall
continue to deal solely and directly with such Lender in connection
with
such Lender’s rights and obligations under this Agreement and the other
Finance Documents; and
|
|
(e)
|
the
Participant shall agree to the terms of Clause 30.2 (Confidentiality).
|
Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and the other Finance Documents and to approve any amendment,
modification or waiver of any provision of this Agreement or the other Finance
Documents; PROVIDED
that
such agreement or instrument may provide that such Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Clause 23.3 (Amendments)
that
affects such Participant. Subject to Clause 26.8 (No
Increased Costs),
the
Obligors agree that each Participant shall be entitled to the benefits of
Clauses 12 (Increased
Costs) and
10
(Taxes)
to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to Clause 26.3 (Transfers
by Lenders).
No
Increased Costs
26.8 No
Participant or Transferee shall be entitled to receive any greater payment
under
Clause 12 (Increased
Costs)
and 10
(Taxes)
than
the applicable Lender would have been entitled to receive with respect to
the
participation sold to such Participant or the Lender interest
transferred.
Certain
Pledges
26.9 Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender,
and this Clause shall not apply to any such pledge or assignment of a security
interest; PROVIDED
that no
such pledge or assignment of a security interest shall release a Lender from
any
of its obligations hereunder or substitute any such assignee for such Lender
as
a party hereto.
No
Transfers to any Account Party or Affiliates
26.10 Anything
in this Clause to the contrary notwithstanding, no Lender may assign or
participate any interest in any LC Exposure held by it hereunder to any Obligor
or any of its Affiliates or Subsidiaries without the prior consent of each
Lender.
Maintenance
of Register by the Agent
26.11 The
Agent, acting for this purpose as an agent of the Account Party, shall maintain
at one of its offices in London a copy of each Transfer Certificate delivered
to
it and a register of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the LC Disbursements owing to, each Lender pursuant
to the terms hereof from time to time (the Register).
The
entries in the Register shall be conclusive, and the Account Party, the Agent,
the Security Trustee and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by any Account Party and any Lender,
at any reasonable time and from time to time upon reasonable prior
notice.
27. Set
off
Right
of Set-off
If
an
Event of Default shall have occurred and be continuing, each Finance Party
is
hereby authorised at any time and from time to time, to the fullest extent
permitted by Law, to set off and apply any and all deposits in any currency
(general or special, time or demand, provisional or final) at any time held
and
other indebtedness in any currency at any time owing by such Finance Party
to or
for the credit or the account of any Obligor against any of
and
all
the obligations of such Obligor now or hereafter existing under this Agreement
held by such Finance Party, irrespective of whether or not such Finance Party
shall have made any demand under this Agreement and although such obligations
may be unmatured. The rights of each Finance Party under this Clause are
in
addition to other rights and remedies (including other rights of set-off)
which
such Finance Party may have. The relevant Finance Party may effect any
appropriate currency exchanges to implement such set-off.
28. Miscellaneous
provisions
Certificates
28.1 Any
determination or notification by the Agent or any other Finance Party concerning
any rate or amount under the Finance Documents shall, in the absence of manifest
error, be conclusive evidence as to that matter.
Survival
28.2 All
covenants, agreements, representations and warranties made by the Account
Party
herein and in the certificates or other instruments delivered in connection
with
or pursuant to this Agreement shall be considered to have been relied upon
by
the other parties hereto and shall survive the execution and delivery of
this
Agreement and the issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Agent or any Lender may have had notice or knowledge of any Default
or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as any fee
or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Clauses 12 (Increased
Costs),
10
(Taxes),
24
(Costs
and Expenses),
25
(Indemnities)
and 21
(Agent)
shall
survive and remain in full force and effect regardless of the consummation
of
the transactions contemplated hereby, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement
or
any provision hereof.
Counterparts
28.3 This
Agreement may be executed in counterparts (and by different parties hereto
on
separate counterparts), each of which shall constitute an original, but all
of
which when taken together shall constitute one and the same instrument.
Entire
Agreement
28.4 This
Agreement and the other Finance Documents constitute the entire contract
between
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.
Severability
28.5 Any
provision of this Agreement or any other Finance Document 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. The invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
To
the extent permitted by applicable Law, each Obligor hereby waives any provision
of Law which renders any provision of the Finance Documents prohibited or
unenforceable in any respect.
USA
Patriot Act Notification
28.6 Each
Lender hereby notifies each Obligor that pursuant to the requirements of
the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law on October 26,
2001))
(the Act)
it is
required to obtain, verify and record information that identifies each Obligor
which information includes the name and address of such Obligor and other
information that will allow such Lender to identify the Obligor in accordance
with the Act. Each Obligor agrees to promptly upon the request of such Lender
supply, or procure the supply of, such information as is reasonably requested
by
such Lender in order for such Lender to be satisfied that it has complied
with
the Act.
29. Governing
Law and Jurisdiction
Governing
Law
29.1 This
Agreement shall be construed in accordance with and governed by English
law.
Jurisdiction
29.2 (a) All
the
parties agree that the courts of England are, subject to Clause 29.2(b) and
(c) below, to have jurisdiction to settle any disputes which may arise in
connection with the creation, validity, effect, interpretation or performance
of, or the legal relationships established by, this Agreement (including,
without limitation, claims for set-off or counterclaim) or otherwise arising
in
connection with this Agreement and for such purposes irrevocably submit to
the
jurisdiction of the English courts;
|
(b)
|
notwithstanding
the agreement in (a) above, each of the Finance Parties shall retain
the
right to bring proceedings in any other court which has jurisdiction
whether by virtue of the Convention on Jurisdiction and the Enforcement
of
Judgments signed on 27 September 1968 (as from time to time amended
and extended) or by virtue of the Convention on Jurisdiction and
the
Enforcement of Judgments signed on 16 September 1988 (from time to
time amended and extended) or otherwise;
|
|
(c)
|
with
respect to the courts agreed in paragraphs (a) and (b) above, each
of the
Parties irrevocably waives any objections on the ground of venue
or forum
non conveniens or any similar
ground;
|
|
(d)
|
each
of the Parties irrevocably agrees that a judgment or order of any
court
referred to in this Clause in connection with this Agreement is
conclusive
and binding on it and may be enforced against it in the courts
of any
other jurisdiction; and
|
|
(e)
|
each
of the Parties irrevocably consents to service of process by mail
or in
any other manner permitted by the relevant
Law.
|
Agent
for Service of Process
29.3 Each
Obligor shall at all times maintain an agent for service of process and any
other documents in proceedings in England or any other proceedings in connection
with this Agreement (a Process
Agent).
The
Process Agent shall be XL Services UK Limited, XX Xxxxx, 00 Xxxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (Attn: Company Secretary) and any writ, judgment or other
notice
of legal process shall be sufficiently served on the relevant Obligor if
delivered to the Process Agent marked for the attention of the Finance Director
at its address for the time being. Each Obligor undertakes not to revoke
the
authority of the Process Agent without promptly appointing a successor and
notifying the Agent thereof.
Waiver
of Immunities
29.4 To
the
extent that any Obligor has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service
of
notice, attachment prior to judgment, attachment in aid of execution or
execution, on the ground of sovereignty or otherwise) with respect to itself
or
its property, it hereby irrevocably waives, to the fullest extent permitted
by
applicable Law, such immunity in respect of its obligations under the Finance
Documents.
30. Treatment
of Certain Information; Confidentiality
Treatment
of Certain Information
30.1 Each
of
the Obligors acknowledges that from time to time financial advisory, investment
banking and other services may be offered or provided to any Obligor or one
or
more of their Subsidiaries (in connection with this Agreement or otherwise)
by
any Lender or by one or more subsidiaries or affiliates of such Lender and
each
of the Obligors hereby authorises each Lender to share any information delivered
to such Lender by such Obligor and its Subsidiaries pursuant to this Agreement,
or in connection with the decision of such Lender to enter into this Agreement,
to any such subsidiary or affiliate, it being understood that (a) any such
information shall be used only for the purpose of advising the Obligor or
preparing presentation materials for the benefit of the Obligor and (b) any
such
subsidiary or affiliate receiving such information shall be bound by Clause
30.2
(Confidentiality)
as if
it were a Lender hereunder. Such authorisation shall survive the expiration
or
termination of the Letters of Credit and the Commitments or the termination
of
this Agreement or any provision hereof.
Confidentiality
30.2 Each
of
the Finance Parties agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed:
|
(a)
|
to
its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will
be
informed of the confidential nature of such Information and instructed
to
keep such Information
confidential);
|
|
(b)
|
to
the extent requested by any regulatory authority having jurisdiction
over
the Agent or any Lender;
|
|
(c)
|
to
the extent required by applicable Laws or regulations or by any
subpoena
or similar legal process;
|
|
(d)
|
to
any other Party;
|
|
(e)
|
in
connection with the exercise of any remedies hereunder or any suit,
action
or proceeding relating to this Agreement or the enforcement of
rights
hereunder;
|
|
(f)
|
subject
to an agreement in writing containing provisions substantially
the same as
those of this paragraph and for the benefit of the Obligor, to
(i) any assignee of or Participant in, or any prospective assignee
of
or Participant in, any of its rights or obligations under this
Agreement
or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to any Obligor and
its
obligations;
|
|
(g)
|
with
the consent of the Obligor; or
|
|
(h)
|
to
the extent such Information (i) becomes publicly available other than
as a result of a breach of this Clause 30.2 or (ii) becomes available
to the Agent or any Lender on a non-confidential basis from a source
other
than an Obligor.
|
For
the
purposes of this Clause, Information
means
all information received from an Obligor relating to an Obligor or its business,
other than any such information that is available to the Finance Parties
on a
non-confidential basis prior to disclosure by such Obligor; PROVIDED
that, in
the case of information received from an Obligor after the date hereof, such
information is clearly identified at the time of delivery as confidential.
Any
Person required to maintain the confidentiality of Information as provided
in
this Clause shall be considered to have complied with its obligation to do
so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information. Notwithstanding the foregoing, each of the Finance
Parties agree that they will not trade the securities of any of the Obligors
based upon non-public Information that is received by them.
30.3 Notwithstanding
anything in this Agreement to the contrary, the Agent, the Lenders and the
Account Party (and each of their respective employees, representatives or
other
agents) may disclose to any and all persons, without limitation of any kind,
the
U.S. tax treatment and U.S. tax structure of the transactions contemplated
by
this Agreement and all materials of any kind (including opinions or other
tax
analyses) that are provided to such person relating to such tax treatment
or tax
structure, other than any information for which nondisclosure is reasonably
necessary in order to comply with applicable securities laws, and except
that,
with respect to any document or similar item that in either case contains
information concerning the U.S. tax treatment or U.S. tax structure of such
transactions as well as other information, this paragraph shall only apply
to
such portions of the document or similar item that relate to such tax treatment
or tax structure
31. Third
Party Rights
A
person
who is not a Party shall have no rights under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any of its terms.
In
witness whereof,
XL
CAPITAL LTD
has
caused this Agreement to be duly executed by an authorised officer on the
day
and year first above written.
Account
Party
SIGNED
for
and
on behalf of XL
CAPITAL LTD
By:
/s/
FIONA
LUCK
Guarantors
SIGNED
for
and
on behalf of XL
CAPITAL LTD
By:
/s/
FIONA
LUCK
SIGNED
for and
on behalf of XL
AMERICA, INC.
By:
/s/
XXXXXXX
X. XXXXXX
Title: Senior
Vice-President
SIGNED
for and
on behalf of XL
INSURANCE (BERMUDA) LTD
By:
/s/
XXXXXXXXXXX
X. XXXXXX
Title:
Senior
Vice-President and Chief Financial Officer
SIGNED
for
and
on behalf of XL
RE LTD
By:
/s/
XXXXXXX
X. XXXXXXXX
Title:
President
and Chief Underwriting Officer
Agent
SIGNED
for
and
on behalf of CITIBANK
INTERNATIONAL PLC
By:
/s/
XXXX
XXXXX
Address:
Citigroup
Centre
33 Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax:
x00
00
0000 0000/4484
Tel:
x00
00
0000 0000
Attention:
Loans
Agency
Arrangers
SIGNED
for
and
on behalf of BARCLAYS
CAPITAL
By:
/s/ XXXXX
XXXXXX
Address: 5
Xxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax:
x00
00
0000 0000
Tel:
x00
00
0000 0000
Attention:
Xxxxx
Xxxxxx
SIGNED
for
and
on behalf of CITIGROUP
GLOBAL MARKETS LIMITED
By:
/s/
XXXX
XXXXX
Address:
Citigroup
Centre
33 Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax:
x00
00
0000 0000
Tel:
x00
00
0000 0000
Attention:
Xxxxxxxx
Xxxxxxx
Security
Trustee
SIGNED
for
and
on behalf of CITIBANK
INTERNATIONAL PLC
By:
/s/
XXXX
XXXXX
Address:
Citigroup
Centre
33 Canada Square
Caxxxx Xxxxx
Xxxxxx X00 0XX
Fax:
x00
00
0000 0000/4484
Tel:
x00
00
0000 0000
Attention:
Loans
Agency
Lenders
SIGNED
for
and
on behalf of
ABN
AMRO BANK N.V.
By:
/s/
XXXXXX
XXXXXX
/s/
XXXXXX XXXXX
Address: 250
Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax:
x00
(0)
000 000 0000
Attention: Xxxxxx
Xxxxx
SIGNED
for
and
on behalf of
BARCLAYS
BANK PLC
By:
/s/
XXXXX
XXXXXX
Address: 1 Xxxxxxxxx
Place
London
E14 5HP
Fax:
x00
(0)
000 0000000
Attention:
Xxxx
Xxxxxxx
SIGNED
for
and
on behalf of
BAYERISCHE
HYPO-UND VEREINSBANK AG
By:
/s/
XXXXX
XXXXXX
By:
/s/
XXXXXXX
XXXXX
Address:
150
Xxxx
00xx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Fax: x0
(000)
000-0000
Attention: Xxxxxx
XxXxxxxx, Insurance Structuring Group
Copy:
Credit
Group
150 Xxxx 00xx
Xxxxxx,
00xx
Xxxxx
Xxx Xxxx, XX 00000
Fax: x0
(000)
000-0000
Attention: Xxxxxxx
Xxxxx
SIGNED
for
and
on behalf of
CALYON
By:
/s/
XXXXXXXXX
XXXXX
/s/
XXXXXXX
XXXXXXXXXX
Address:
Calyon
Building
1300 Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Fax:
x0
(000)
000 0000
Attention: Xxxxxxx
Xxxxxxxxxx
SIGNED
for
and
on behalf of
CITIBANK,
N.A.
By:
/s/
XXXX
XXXXX
Address: Citigroup
Centre
33 Xxxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax:
x00
(0)
000 000 0000
Attention: Loans
Processing Unit
SIGNED
for
and
on behalf of
COMMERZBANK
AKTIENGESELLSCHAFT,
NEW
YORK AND GRAND CAYMAN BRANCHES
By:
/s/
XXXXXX
X. XXXXX
By:
/s/
XXXXX
X. XXXXX
Address:
Two
World
Fixxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax:
x0
(000)
000-0000
Attention:
Xxxxx
Xxxxx
SIGNED
for
and
on behalf of
ING
BANK N.V., LONDON BRANCH
By:
/s/
X.
XXXXXXX
/s/
X.
XXXXXXXX
Address:
60
Xxxxxx
Xxxx
Xxxxxx, XX0X 0XX
Fax: x00
(0)000 000 0000
Attention: Xxxxxx
Xxxxxxx
Copy:
Xxxx
Xxxxx
Fax: x00
(0)000 000 0000
SIGNED
for
and
on behalf of
LANDESBANK
HESSEN-THURINGEN GIROZENTRALE
By:
/s/
XXXXXX
XXXXXXX
/s/
XXXXX
XXXX
Address:
3rx
Xxxxx,
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Fax:
x00
(0)000 000 0000
Attention:
Xxxx
Xxxxxxx
SIGNED
for
and
on behalf of
LLOYDS
TSB BANK PLC
By:
/s/
XXXXX
XXXXXXX
Address:
25
Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: x00
(0)
000 000 0000
Attention:
Xxxxx
Xxxxxxx
SIGNED
for
and
on behalf of
NATIONAL
AUSTRALIA BANK LIMITED
A.B.N.
12 004 044 937
By:
/s/
XXXXXX
XXXXX
Address:
88
Xxxx
Xxxxxx
Xxxxxx XX0X 0XX
Fax: x00
(0)
000 000 0000
Attention: Lending
Admin NHH
SIGNED
for
and
on behalf of
THE
BANK OF TOKYO MITSUBISHI UFJ, LTD., NEW YORK BRANCH
By:
/s/
CHIMIE
T. PEMBA
Address: 1200
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Fax:
x0
(000)
000-0000 / x00 (000) 000-0000
Attention:
Xx.
Xxxxxxx Xx, AVP, Loan Operations Dept.
Copy:
Chimie
T.
Pemba
Fax:
x0
(000)
000-0000
SIGNED
for
and
on behalf of
THE
ROYAL BANK OF SCOTLAND PLC
By:
/s/
XXXX
XXXXX
Address: 130
Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
Fax:
x00
(0)000 000 0000
Attention:
Xxxx
Xxxxx
