AMENDMENT NO. 1 TO LETTER OF CREDIT FACILITY AND REIMBURSEMENT AGREEMENT
AMENDMENT NO. 1 dated as of March 21, 2002 between XL CAPITAL LTD,
a company incorporated under the laws of the Cayman Islands, British West Indies
("THE ACCOUNT PARTY"), X.L. AMERICA, INC., a Delaware corporation ("XL
AMERICA"), XL INSURANCE (BERMUDA) LTD, a Bermuda limited liability company ("XL
INSURANCE"), XL EUROPE LTD, a company incorporated under the laws of Ireland
("XL EUROPE"), and XL RE LTD, a Bermuda limited liability company ("XL RE" and,
together with the Account Party in its capacity as a Guarantor, XL America, XL
Insurance and XL Europe, each a "GUARANTOR" and, collectively, the "GUARANTORS";
the Guarantors and the Account Party being collectively referred to as the
"OBLIGORS"), and CITIBANK INTERNATIONAL PLC, as agent and trustee for the
Lenders, the "AGENT" and "SECURITY TRUSTEE".
The Obligors, the Lenders, the Agent and Salomon Brothers
International Limited as Arranger are parties to a Letter of Credit Facility and
Reimbursement Agreement dated November 20, 2001 (the "Agreement"), providing,
subject to the terms and conditions thereof, for the issuance of letters of
credit for the account of the Account Party in an aggregate face amount not
exceeding (pound)324,000,000. The Obligors and the Agent wish to amend the
Agreement in certain respects and accordingly the parties hereto hereby agree as
follows:
Clause 1. DEFINITIONS. Except as otherwise defined in this
Amendment No. 1, terms defined in the Agreement are used herein as defined
therein.
Clause 2. AMENDMENTS. Effective as provided in Clause 4 below, the
Agreement is hereby amended as follows:
2.01. References in the Agreement (including references to the
Agreement as amended hereby) to "this Agreement" (and indirect references such
as "hereunder", "hereby", "herein" and "hereof") shall be deemed to be
references to the Agreement as amended hereby.
2.02. Clause 18.1 is hereby amended to read in its entirety as
follows:
"18.1. Each Obligor will furnish to the Agent and each Lender:
(a) within 135 days after the end of each fiscal year of each
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 fis-
AMENDMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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cal 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 recognized national standing (without a GOING
CONCERN or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of such Obligor and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP or (in the case of
XL Europe, XL Insurance and XL Re) SAP, as the case may be, consistently
applied;
(b) by June 15 of each year, (i) an unaudited consolidating
balance sheet and related statements of operations, stockholders' equity and
cash flows of XL America and its consolidated Subsidiaries as of the end of and
for such year, setting forth in each case in comparative form the figures for
the previous fiscal year (if such figures were already produced for such
corresponding period or periods), and (ii) audited statutory financial
statements for each insurance subsidiary of XL America reported on by
independent public accountants of recognized national standing (without a GOING
CONCERN or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such audited
consolidated financial statements present fairly in all material respects the
financial condition and results of operations of such insurance subsidiaries in
accordance with SAP, consistently applied;
(c) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year of such 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 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 Europe, XL Insurance and XL
Re) SAP, as the case may be, consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes (it being understood that
delivery to the Lenders of 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));
AMENDMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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(d) 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 CAPITALIZATION), 19.6
(CONSOLIDATED NET WORTH) and 19.7 (INDEBTEDNESS) and (iii) stating whether any
change in GAAP or (in the case of XL Europe, XL Insurance and XL Re) 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 the effect of such change on the financial statements accompanying
such certificate;
(e) concurrently with any delivery of financial statements
under Clause 18.1 (a), a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed by
such 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;
(g) 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; and
(h) 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."
Clause 3. REPRESENTATIONS AND WARRANTIES. Each Obligor hereby
represents and warrants to the Agent and the Lenders that (i) the
representations and warranties set forth in Clause 17 of the Agreement are, on
the date hereof, true and complete as if made on the date hereof (and after
AMENDMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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giving effect to this Amendment No. 1) and as if each reference in said Clause
17 to "this Agreement" includes reference to this Amendment No. 1 and (ii) both
immediately prior to and as of the date hereof, no Default has occurred and is
continuing.
Clause 4. CONDITIONS PRECEDENT. The amendments to the Agreement
set forth in Clause 2 above shall become effective, as of the date hereof, upon
the satisfaction of the following conditions precedent:
4.01. EXECUTION BY ALL PARTIES. This Amendment No. 1 shall have
been executed and delivered by each of the Obligors and the Agent in accordance
with Clause 23.3 of the Agreement.
Clause 5. MISCELLANEOUS. Except as herein provided, the Agreement
shall remain unchanged and in full force and effect. Nothing in this Amendment
No. 1 shall constitute a waiver of any rights and/or remedies that the Lenders
and/or the Agent may have under the Agreement and nothing contained herein shall
obligate the Lenders to grant any future waiver of any provision of the
Agreement. The Account Party shall pay all reasonable expenses incurred by the
Agent, including the reasonable fees, charges and disbursements of Freshfields,
Bruckhaus Xxxxxxxx, special English counsel to the Agent, in connection with the
preparation, negotiation, execution and delivery of this Amendment No. 1. This
Amendment No. 1 may be executed in any number of counterparts, all of which
taken together shall constitute one and the same amendatory instrument and any
of the parties hereto may execute this Amendment No. 1 by signing any such
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the laws of England and Wales. Clause 29.2 (JURISDICTION) and
Clause 31 (THIRD PARTY RIGHTS) of the Agreement shall be deemed incorporated in
this Amendment No. 1 (with such conforming changes as the context requires) as
if set out herein.
AMENDMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
duly executed and delivered as of the day and year first above written.
ACCOUNT PARTY
EXECUTED as a DEED
by XL CAPITAL LTD
By: XXXXX DE ST. PAER
In the presence of: XXXXXX XXXXXXX
GUARANTORS
EXECUTED as a DEED
by XL CAPITAL LTD
By: XXXXX DE ST. PAER
In the presence of: XXXXXX XXXXXXX
SIGNED for and on behalf of X.L. AMERICA, INC.
By: XXXXXXXX X. XXXXX, XX
Title: PRESIDENT AND CEO
SIGNED for and on behalf of XL INSURANCE (BERMUDA) LTD
By: XXXXXXXXXX XXXXXX
Title: SVP, CHIEF FINANCIAL OFFICER
AMENDMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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SIGNED for and on behalf of XL EUROPE LTD
By: XXXXX XXXXXXX
Title: CFO AND COMPANY SECRETARY
SIGNED for and on behalf of XL RE LTD
By: XXXXX XXXXXXX
Title: PRESIDENT AND CEO
AGENT
SIGNED for and on behalf of CITIBANK INTERNATIONAL PLC
By: XXXX XXXXX
Address: 000 XXXXXX
XXXXXX
XX0X 0XX
Fax: x00 000 000 0000/4484
Tel: x00 000 000 0000
Attention: XXXXX XXXXXXXXX, LOANS AGENCY
AMENDMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
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SECURITY TRUSTEE
SIGNED for and on behalf of CITIBANK INTERNATIONAL PLC
By: XXXX XXXXX
Address: 000 XXXXXX
XXXXXX
XX0X 0XX
Fax: x00 000 000 0000/4484
Tel: x00 000 000 0000
Attention: XXXXX XXXXXXXXX, LOANS AGENCY
AMENDMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
