Exhibit 10.2
EXECUTION COPY
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364-DAY CREDIT AGREEMENT
dated as of
June 23, 2004
between
XL CAPITAL LTD,
X.L. AMERICA, INC., XL INSURANCE (BERMUDA)LTD and XL RE LTD,
as Account Parties and Guarantors,
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
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$1,000,000,000
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X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
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BARCLAYS BANK PLC,
CITIBANK, N.A.,
DEUTSCHE BANK AG, NEW YORK BRANCH,
KEYBANK NATIONAL ASSOCIATION,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents
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TABLE OF CONTENTS
PAGE
ARTICLE I.........................................................................................................1
DEFINITIONS....................................................................................................1
SECTION 1.01. Defined Terms...............................................................................1
SECTION 1.02. Terms Generally............................................................................15
SECTION 1.03. Accounting Terms; GAAP and SAP.............................................................16
ARTICLE II.......................................................................................................16
THE CREDITS...................................................................................................16
SECTION 2.01. Syndicated Letters of Credit...............................................................16
SECTION 2.02. Issuance and Administration................................................................18
SECTION 2.03. Reimbursement of LC Disbursements, Etc.....................................................18
SECTION 2.04. Non-Syndicated Letters of Credit...........................................................21
SECTION 2.05. Participated Letters of Credit.............................................................27
SECTION 2.06. Alternative Currency Letters of Credit.....................................................32
SECTION 2.07. Loans and Borrowings.......................................................................33
SECTION 2.08. Requests for Borrowings....................................................................34
SECTION 2.09. Funding of Borrowings......................................................................35
SECTION 2.10. Interest Elections.........................................................................35
SECTION 2.11. Termination, Reduction and Increase of the Commitments.....................................36
SECTION 2.12. Repayment of Loans; Term-Out Option; Evidence of Debt......................................38
SECTION 2.13. Prepayment of Loans........................................................................40
SECTION 2.14. Fees ......................................................................................40
SECTION 2.15. Interest...................................................................................42
SECTION 2.16. Alternate Rate of Interest.................................................................42
SECTION 2.17. Increased Costs............................................................................43
SECTION 2.18. Break Funding Payments.....................................................................44
SECTION 2.19. Taxes......................................................................................45
SECTION 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs................................46
SECTION 2.21. Mitigation Obligations; Replacement of Lenders.............................................48
ARTICLE III......................................................................................................49
GUARANTEE.....................................................................................................49
SECTION 3.01. The Guarantee..............................................................................49
SECTION 3.02. Obligations Unconditional..................................................................49
SECTION 3.03. Reinstatement..............................................................................50
SECTION 3.04. Subrogation................................................................................51
SECTION 3.05. Remedies...................................................................................51
SECTION 3.06. Continuing Guarantee.......................................................................51
SECTION 3.07. Rights of Contribution.....................................................................51
SECTION 3.08. General Limitation on Guarantee Obligations................................................52
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ARTICLE IV.......................................................................................................52
REPRESENTATIONS AND WARRANTIES................................................................................52
SECTION 4.01. Organization; Powers.......................................................................52
SECTION 4.02. Authorization; Enforceability..............................................................52
SECTION 4.03. Governmental Approvals; No Conflicts.......................................................52
SECTION 4.04. Financial Condition; No Material Adverse Change............................................53
SECTION 4.05. Properties.................................................................................53
SECTION 4.06. Litigation and Environmental Matters.......................................................53
SECTION 4.07. Compliance with Laws and Agreements........................................................54
SECTION 4.08. Investment and Holding Company Status......................................................54
SECTION 4.09. Taxes .....................................................................................54
SECTION 4.10. ERISA .....................................................................................54
SECTION 4.11. Disclosure.................................................................................55
SECTION 4.12. Use of Credit..............................................................................55
SECTION 4.13. Subsidiaries...............................................................................55
SECTION 4.14. Withholding Taxes..........................................................................55
SECTION 4.15. Stamp Taxes................................................................................55
SECTION 4.16. Legal Form.................................................................................56
ARTICLE V........................................................................................................56
CONDITIONS....................................................................................................56
SECTION 5.01. Effective Date.............................................................................56
SECTION 5.02. Each Credit Event..........................................................................58
ARTICLE VI.......................................................................................................58
AFFIRMATIVE COVENANTS.........................................................................................58
SECTION 6.01. Financial Statements and Other Information.................................................58
SECTION 6.02. Notices of Material Events.................................................................61
SECTION 6.03. Preservation of Existence and Franchises...................................................61
SECTION 6.04. Insurance..................................................................................61
SECTION 6.05. Maintenance of Properties..................................................................61
SECTION 6.06. Payment of Taxes and Other Potential Charges and Priority Claims; Payment of Other Current
Liabilities...........................................................................61
SECTION 6.07. Financial Accounting Practices.............................................................62
SECTION 6.08. Compliance with Applicable Laws............................................................62
SECTION 6.09. Use of Letters of Credit and Proceeds......................................................63
SECTION 6.10. Continuation of and Change in Businesses...................................................63
SECTION 6.11. Visitation.................................................................................63
ARTICLE VII......................................................................................................63
NEGATIVE COVENANTS............................................................................................63
SECTION 7.01. Mergers....................................................................................63
SECTION 7.02. Dispositions...............................................................................63
SECTION 7.03. Liens .....................................................................................64
SECTION 7.04. Transactions with Affiliates...............................................................66
SECTION 7.05. Ratio of Total Funded Debt to Total Capitalization.........................................66
SECTION 7.06. Consolidated Net Worth.....................................................................66
SECTION 7.07. Indebtedness...............................................................................66
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SECTION 7.08. Financial Strength Ratings.................................................................67
SECTION 7.09. Private Act................................................................................67
ARTICLE VIII.....................................................................................................67
EVENTS OF DEFAULT.............................................................................................67
ARTICLE IX.......................................................................................................70
THE ADMINISTRATIVE AGENT......................................................................................70
ARTICLE X........................................................................................................72
MISCELLANEOUS.................................................................................................72
SECTION 10.01. Notices...................................................................................72
SECTION 10.02. Waivers; Amendments.......................................................................73
SECTION 10.03. Expenses; Indemnity; Damage Waiver........................................................74
SECTION 10.04. Successors and Assigns....................................................................75
SECTION 10.05. Survival..................................................................................79
SECTION 10.06. Counterparts; Integration; Effectiveness..................................................79
SECTION 10.07. Severability..............................................................................79
SECTION 10.08. Right of Setoff...........................................................................80
SECTION 10.09. Governing Law; Jurisdiction; Etc..........................................................80
SECTION 10.10. WAIVER OF JURY TRIAL......................................................................81
SECTION 10.11. Headings..................................................................................81
SECTION 10.12. Treatment of Certain Information; Confidentiality.........................................81
SECTION 10.13. Judgment Currency.........................................................................82
SECTION 10.14. USA PATRIOT Act...........................................................................83
iii
364-DAY CREDIT AGREEMENT dated as of June 23, 2004, between XL
CAPITAL LTD, a company incorporated under the laws of the Cayman Islands,
British West Indies ("XL CAPITAL"), X.L. AMERICA, INC., a Delaware corporation
("XL AMERICA"), XL INSURANCE (BERMUDA) LTD, a Bermuda limited liability company
("XL INSURANCE") and XL RE LTD, a Bermuda limited liability company ("XL RE"
and, together with XL Capital, XL America and XL Insurance, each an "ACCOUNT
PARTY" and each a "GUARANTOR" and collectively, the "ACCOUNT PARTIES" and the
"GUARANTORS"; the Account Parties and the Guarantors being collectively referred
to as the "OBLIGORS"), the LENDERS party hereto, and JPMORGAN CHASE BANK, as
Administrative Agent.
The Account Parties have requested that the Lenders issue
letters of credit for their account and make loans to them in an aggregate face
or principal amount not exceeding $1,000,000,000 at any one time outstanding,
and the Lenders are prepared to issue such letters of credit and make such loans
upon the terms and conditions hereof. Accordingly, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"ACCOUNT PARTIES" means each of XL Capital, XL America, XL
Insurance and XL Re.
"ACCOUNT PARTY JURISDICTION" means (a) Bermuda, (b) the Cayman
Islands and (c) any other country (i) where any Account Party is licensed or
qualified to do business or (ii) from or through which payments hereunder are
made by any Account Party.
"ADJUSTED LIBO RATE" means, for the Interest Period for any
Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
MULTIPLIED BY (b) the Statutory Reserve Rate for such Interest Period.
"ADMINISTRATIVE AGENT" means JPMCB, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"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.
364-DAY CREDIT AGREEMENT
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"AGGREGATE CREDIT EXPOSURE" means the aggregate amount of the
Credit Exposures of each of the Lenders.
"ALTERNATE BASE RATE" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day, and (b) the
Federal Funds Effective Rate for such day PLUS 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"ALTERNATIVE CURRENCY" means any currency other than Dollars
(a) that is freely transferable and convertible into Dollars in the London
foreign exchange market and (b) for which no central bank or other governmental
authorization in the country of issue of such currency is required to permit use
of such currency by any Lender for issuing, renewing, extending or amending
letter of credits or funding or making drawings thereunder and/or to permit any
Account Party to pay the reimbursement obligations and interest thereon, each as
contemplated hereunder, unless such authorization has been obtained and is in
full force and effect.
"ALTERNATIVE CURRENCY LC EXPOSURE" means, at any time, the sum
of (a) the Dollar Equivalent of the aggregate undrawn amount of all outstanding
Alternative Currency Letters of Credit at such time PLUS (b) the Dollar
Equivalent of the aggregate amount of all LC Disbursements under Alternative
Currency Letters of Credit that have not been reimbursed by or on behalf of the
Account Parties at such time. The Alternative Currency LC Exposure of any Lender
shall at any time be such Lender's share of the total Alternative Currency LC
Exposure at such time.
"ALTERNATIVE CURRENCY LETTER OF CREDIT" means a letter of
credit issued by a Lender in an Alternative Currency pursuant to Section 2.06.
"ALTERNATIVE CURRENCY LETTER OF CREDIT REPORT" has the meaning
set forth in Section 2.06(b).
"APPLICABLE FACILITY FEE RATE" means 0.06%.
"APPLICABLE LETTER OF CREDIT FEE RATE" means 0.34%.
"APPLICABLE MARGIN" means a rate per annum equal to, (a) for
the period from and including the date hereof to but not including the
Commitment Termination Date, 0.34% and (b) in the event that the Term-Out Option
has been exercised and is in effect, for the period from and including the
Commitment Termination Date to but not including the date of payment in full of
the Loans, 0.59%.
"APPLICABLE ADDITIONAL MARGIN" means a rate per annum equal to
0.10% (a) for any period during which the aggregate outstanding principal amount
of the Loans shall be greater than 50% of the RC Sublimit then in effect and (b)
from and after the Term-Out Option has been exercised and is in effect.
364-DAY CREDIT AGREEMENT
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"APPLICABLE PERCENTAGE" means, with respect to any Lender, the
percentage of the Commitments of all the Lenders represented by such Lender's
Commitment. If the Commitments have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"APPROVED FUND" means any Person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"AVAILABILITY PERIOD" means the period from and including the
Effective Date to and including the Commitment Termination Date.
"BOARD" means the Board of Governors of the Federal Reserve
System of the United States of America.
"BORROWING" means, with respect to any Account Party, (a) all
ABR Loans of such Account Party made, converted or continued on the same date or
(b) all Eurodollar Loans of such Account Party that have the same Interest
Period.
"BORROWING REQUEST" means a request by an Account Party for a
Borrowing in accordance with Section 2.08.
"BUSINESS DAY" means any day (a) that is not a Saturday,
Sunday or other day on which commercial banks in New York City, London, the
Cayman Islands, British West Indies or Bermuda are authorized or required by law
to remain closed and (b) if such day relates to a borrowing of, a payment or
prepayment of principal of or interest on, a continuation or conversion of or
into, or the Interest Period for, a Eurodollar Loan, or to a notice by an
Account Party with respect to any such borrowing, payment, prepayment,
continuation, conversion, or Interest Period, that is also a day on which
dealings in Dollar deposits are carried out in the London interbank market.
"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 capitalized amount thereof
determined in accordance with GAAP.
"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
364-DAY CREDIT AGREEMENT
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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 XL Capital entitling such Person to exercise 40% or more of the total
voting power of all shares of capital stock of XL Capital that is entitled to
vote generally in elections of directors, other than an acquisition by XL
Capital, any of its Subsidiaries or any employee benefit plans of XL Capital; or
(b) XL Capital merges or consolidates with or into any other Person (other than
a Subsidiary), another Person (other than a Subsidiary) merges into XL Capital
or XL Capital 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 XL
Capital (other than the cancellation of any outstanding shares of capital stock
of XL Capital held by the Person with whom it merges or consolidates) or (ii)
which is effected solely to change the jurisdiction of incorporation of XL
Capital and results in a reclassification, conversion or exchange of outstanding
shares of capital stock of XL Capital solely into shares of capital stock of the
surviving entity; or (c) a majority of the members of XL Capital'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 Section 2.17(b), 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.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COMMITMENT" means, with respect to any Lender, the commitment
of such Lender (a) to issue Syndicated Letters of Credit and Non-Syndicated
Letters of Credit and acquire participations in Participated Letters of Credit
and (b) to make Loans, in each case expressed as an amount representing the
maximum aggregate amount of such Lender's Credit Exposure hereunder, as such
commitment may be (i) reduced or increased from time to time pursuant to Section
2.11 and (ii) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04. The initial amount of each Lender's
Commitment (including the RC Sublimit) is set forth on Schedule I or in the
Assignment and Assumption or other agreement entered into under Section 2.11(c)
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Lenders' Commitments is $1,000,000,000.
"COMMITMENT TERMINATION DATE" means June 22, 2005.
"CONFIRMING LENDER" means, with respect to any Lender, any
other Person which is listed on the NAIC Approved Bank List that has agreed, by
delivery of an agreement between such Lender and such other Person in
substantially the form of Exhibit D or any other form satisfactory to the
Administrative Agent, to honor the obligations of such Lender in respect of a
364-DAY CREDIT AGREEMENT
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draft complying with the terms of a Syndicated Letter of Credit or a
Non-Syndicated Letter of Credit, as the case may be, as if, and to the extent,
such other Person were the "issuing lender" (in place of such Lender) named in
such Syndicated Letter of Credit or Non-Syndicated Letter of Credit, as the case
may be.
"CONSOLIDATED NET WORTH" means, at any time, the consolidated
stockholders' equity of XL Capital and its Subsidiaries.
"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.
"CREDIT DOCUMENTS" means, collectively, this Agreement and the
Letter of Credit Documents.
"CREDIT EXPOSURE" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Loans and its
LC Exposure at such time.
"DEFAULT" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DOLLAR EQUIVALENT" means, as used in each Alternative
Currency Letter of Credit Report and in respect of any Alternative Currency
Letter of Credit, the amount of Dollars obtained by converting the Alternative
Currency LC Exposure with respect to such Alternative Currency Letter of Credit,
as specified in such Alternative Currency Letter of Credit Report, into Dollars
at the spot rate for the purchase of Dollars with such currency as quoted by the
Administrative Agent at approximately 11:00 a.m. (London time) on the second
Business Day before the date of such Alternative Currency Letter of Credit
Report (unless another rate or time is agreed to by XL Capital and the
Administrative Agent).
"DOLLARS" or "$" refers to lawful money of the United States
of America.
"EFFECTIVE DATE" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
"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, labeling, distribution,
transportation, handling, storage or disposal.
364-DAY CREDIT AGREEMENT
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"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of an Account Party 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, preemptive 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, as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with any Account Party, is treated as a single
employer under Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 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 Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 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 Account Party or any of such
Account Party's ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by any Account Party 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 Account Party 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 Account Party or
any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
any Account Party 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 reorganization, within the meaning of
Title IV of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans constituting such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VIII.
364-DAY CREDIT AGREEMENT
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"EXCESS FUNDING GUARANTOR" has the meaning assigned to such
term in Section 3.07.
"EXCESS PAYMENT" has the meaning assigned to such term in
Section 3.07.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of any Account Party hereunder, (a) Taxes imposed on
(or measured by) its net income, net profits or overall gross receipts
(including, without limitation, branch profits or similar taxes) by the United
States of America, or by any jurisdiction under the laws of which such recipient
is organized or resident, in which such recipient has an office or with which
such recipient has any other connection (other than a connection that is deemed
to arise solely by reason of both (I) the transactions contemplated by this
Agreement and (II) an Account Party being organized in, maintaining an office
in, conducting business in, or having a connection with, such jurisdiction), (b)
any Taxes not described in clause (a) above (other than Other Taxes) that are
imposed as a result of a connection the Administrative Agent or any Lender, as
the case may be, has with the relevant jurisdiction (other than a connection
that is deemed to arise solely by reason of both (I) the transactions
contemplated by this Agreement and (II) an Account Party being organized or
resident in, maintaining an office in, conducting business in, or having a
connection with, such jurisdiction) and (c) any Tax that is not imposed solely
as a result of a Change in Law formally announced after the date hereof.
"EXISTING CREDIT AGREEMENT" means the 364-Day Credit Agreement
dated as of June 25, 2003 between the Obligors, XL Europe Limited, the lenders
party thereto, and JPMCB, as administrative agent for such lenders.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"FINANCIAL OFFICER" means, with respect to any Obligor, a
principal financial officer of such Obligor.
"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 Account Party 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
States of America, or of any other nation (including the European Union), or any
political subdivision
364-DAY CREDIT AGREEMENT
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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.
"GRANTING LENDER" has the meaning assigned to such term in
Section 10.04.
"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 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 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.
"GUARANTEED OBLIGATIONS" has the meaning assigned to such term
in Section 3.01.
"GUARANTORS" means each of XL Capital, XL America, XL
Insurance 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 (it
being understood, for the avoidance of doubt, that insurance payment
liabilities, as such, and liabilities arising in the ordinary course of such
Person's business as an insurance or reinsurance company (including GICs and
Stable Value Instruments and any Specified Transaction Agreement relating
thereto) or 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) (in each
case other than in connection with the provision of financing to such Person or
any of such Person's Affiliates) shall not be deemed to constitute
Indebtedness): (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
364-DAY CREDIT AGREEMENT
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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.
"INDEMNIFIED TAXES" means Taxes imposed on the Administrative
Agent or any Lender on or with respect to any payment hereunder, other than
Excluded Taxes and Other Taxes.
"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.
"INTEREST ELECTION REQUEST" means a request by an Account
Party to convert or continue a Borrowing in accordance with Section 2.10.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR
Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the last
day of each Interest Period therefor and, in the case of any Interest Period of
more than three months' duration, each day prior to the last day of such
Interest Period that occurs at three-month intervals after the first day of such
Interest Period.
"INTEREST PERIOD" means, for any Eurodollar Loan or Borrowing,
the period commencing on the date of such Loan or Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as specified in the applicable Borrowing Request or
Interest Election Request; PROVIDED that (i) if any Interest Period would end on
a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Loan initially shall be the
date on which such Loan is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Loan, and the date of a
Borrowing comprising Loans that have been converted or continued shall be the
effective date of the most recent conversion or continuation of such Loans.
"ISDA" has the meaning assigned to such term in Section
7.03(f).
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"ISSUING LENDER" means (a) with respect to any Participated
Letter of Credit, JPMCB, in its capacity as the issuer of such Participated
Letter of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(j), (b) with respect to any Syndicated Letter of Credit, each
Lender, in its capacity as the issuer of such Syndicated Letter of Credit and
(c) with respect to any Non-Syndicated Letter of Credit, the Lender named
therein as the issuer thereof.
"JPMCB" means JPMorgan Chase Bank.
"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) with respect to any Participated
Letter of Credit or Non-Syndicated Letter of Credit, a payment made by the
Issuing Lender thereof pursuant thereto and (b) with respect to any Syndicated
Letter of Credit or Alternative Currency Letter of Credit, a payment made by a
Lender pursuant thereto.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time PLUS (b) the
aggregate amount of all LC Disbursements under Letters of Credit that have not
yet been reimbursed by or on behalf of the Account Parties at such time. The LC
Exposure of any Lender at any time shall be the sum of (i) its Applicable
Percentage of the total LC Exposure (excluding any Alternative Currency LC
Exposure) PLUS (ii) the Alternative Currency LC Exposure (if any) of such Lender
at such time.
"LENDERS" means the Persons listed on Schedule I and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption or an agreement pursuant to the terms of Section 2.11(c), other than
any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption.
"LETTER OF CREDIT DOCUMENTS" means, with respect to any Letter
of Credit, collectively, any application therefor and any other agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for the rights
and obligations of the parties concerned or at risk with respect to such Letter
of Credit.
"LETTERS OF CREDIT" means each of the Syndicated Letters of
Credit, the Non-Syndicated Letters of Credit, the Participated Letters of Credit
and the Alternative Currency Letters of Credit.
"LIBO RATE" means, for the Interest Period for any Eurodollar
Borrowing, the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate
364-DAY CREDIT AGREEMENT
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for the offering of Dollar deposits with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time for any
reason, then the LIBO Rate for such Interest Period shall be the rate at which
Dollar deposits of $5,000,000 and for a maturity comparable to such Interest
Period are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"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.
"LOANS" means the loans made by the Lenders to the Account
Parties pursuant to Section 2.07.
"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 Account Party
and its Subsidiaries taken as a whole; or (b) the ability of an Account Party to
perform any of its payment or other material obligations under this Agreement.
"MATURITY DATE" means the Commitment Termination Date, as such
date may be extended pursuant to the Term-Out Option.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance
Commissioners.
"NAIC APPROVED BANK" means (a) any Person that is a bank
listed on the most current "Bank List" of banks approved by the NAIC (the "NAIC
APPROVED BANK LIST") or (b) any Lender as to which its Confirming Lender is a
bank listed on the NAIC Approved Bank List.
"NAIC APPROVED BANK LIST" has the meaning assigned to such
term in the definition of "NAIC Approved Bank" in this Section.
"NON-SYNDICATED LETTERS OF CREDIT" means letters of credit
issued under Section 2.04.
"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 Account Party or any of their Subsidiaries, with
respect to which such Account Party or such Subsidiary has an obligation to
contribute, for the benefit of employees of such Account Party or such
Subsidiary, which plan, fund or other similar program provides, or results in,
the type of
364-DAY CREDIT AGREEMENT
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benefits described in Section 3(1) or 3(2) of ERISA, and which plan is not
subject to ERISA or the Code.
"OBLIGORS" means each of the Account Parties and each of the
Guarantors.
"OTHER TAXES" means any and all present or future stamp or
documentary taxes or any other similar excise or property Taxes, arising from
any payment made hereunder or from the execution, delivery or enforcement of
this Agreement, but excluding property or similar Taxes other than any such
Taxes imposed in such circumstances solely as a result of the Account Party
being organized or resident in, maintaining an office in, conducting business in
or maintaining property located in the taxing jurisdiction in question.
"PARTICIPANT" has the meaning assigned to such term in Section
10.04.
"PARTICIPATED LETTERS OF CREDIT" means letters of credit
issued under Section 2.05.
"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 Section
412 of the Code or Section 302 of ERISA, and in respect of which any Account
Party or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"PRIME RATE" means the rate of interest per annum publicly
announced from time to time by JPMCB as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"PRIVATE ACT" means separate legislation enacted in Bermuda
with the intention that such legislation apply specifically to an Account Party,
in whole or in part.
"PRO RATA SHARE" has the meaning assigned to such term in
Section 3.07.
"QUARTERLY DATE" 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.
"RC SUBLIMIT" means $600,000,000, as such amount may be
reduced from time to time pursuant to Section 2.11.
"REGISTER" has the meaning assigned to such term in Section
10.04.
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"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.
"REQUIRED LENDERS" means, at any time, Lenders having
Commitments representing more than 50% of the aggregate amount of the
Commitments at such time; PROVIDED that, if the Commitments have expired or been
terminated, "Required Lenders" means Lenders having more than 50% of the
Aggregate Credit Exposure at such time.
"SAP" means, as to each Account Party and each Subsidiary that
offers insurance products, the statutory accounting practices prescribed or
permitted by the relevant Governmental Authority for such Account Party'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 Account Party
or such Subsidiary in effect on the date such statements or reports are to be
prepared, except if otherwise notified by XL Capital as provided in Section
1.03.
"SEC" means the Securities and Exchange Commission or any
successor entity.
"SIGNIFICANT SUBSIDIARY" means, at any time, each Subsidiary
of XL Capital that, as of such time, meets the definition of a "significant
subsidiary" under Regulation S-X of the SEC.
"SPECIFIED ACCOUNT PARTY" has the meaning assigned to such
term in Section 2.05.
"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).
"SPV" has the meaning assigned to such term in Section 10.04.
"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 (and in
exchange for which the SVI provider typically receives a fee).
"STATUTORY RESERVE RATE" means, for any day (or for the
Interest Period for any Eurodollar Borrowing), a fraction (expressed as a
decimal), the numerator of which is the
364-DAY CREDIT AGREEMENT
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number one and the denominator of which is the number one MINUS the aggregate of
the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which
the Administrative Agent is subject on such day (or, with respect to an Interest
Period, the denominator of which is the number one MINUS the arithmetic mean of
such aggregates for the days in such Interest Period) with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"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 Account Party.
"SUPPLEMENTAL COMMITMENT DATE" has the meaning assigned to
such term in Section 2.11(c).
"SUPPLEMENTAL LENDER" has the meaning assigned to such term in
Section 2.11(c).
"SYNDICATED LETTERS OF CREDIT" means letters of credit issued
under Section 2.01.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM-OUT OPTION" has the meaning assigned to such term in
Section 2.12(b).
"THREE-YEAR CREDIT AGREEMENT" shall mean the Three-Year Credit
Agreement dated as of the date hereof among the Account Parties, the lenders
party thereto and JPMCB, as Administrative Agent.
"TOTAL FUNDED DEBT" means, at any time, all Indebtedness of XL
Capital and its Subsidiaries which would at such time be classified in whole or
in part as a liability on the consolidated balance sheet of XL Capital in
accordance with GAAP.
"TRANSACTIONS" means the execution, delivery and performance
by the Obligors of this Agreement and the other Credit Documents to which any
Account Party is intended to be a party, the issuance of Letters of Credit, the
borrowing of Loans and the use of the proceeds thereof.
364-DAY CREDIT AGREEMENT
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"TYPE", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans
constituting such Borrowing, is determined by reference to the Adjusted LIBO
Rate or the Alternate Base Rate.
"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.
SECTION 1.02. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "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.
364-DAY CREDIT AGREEMENT
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SECTION 1.03. ACCOUNTING TERMS; GAAP AND SAP. 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 XL Capital
notifies the Administrative Agent that the Account Parties 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 Administrative Agent
notifies the Account Parties that the Required 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.
ARTICLE II
THE CREDITS
SECTION 2.01. SYNDICATED LETTERS OF CREDIT.
----------------------------
(a) GENERAL. Subject to the terms and conditions set forth
herein, at the request of any Account Party the Lenders agree at any time and
from time to time during the Availability Period to issue Syndicated Letters of
Credit for the account of such Account Party in an aggregate amount that will
not result in the Credit Exposure exceeding the Commitments (it being understood
that Syndicated Letters of Credit may be issued, or be outstanding, for the
account of more than one of the Account Parties at any time). Each Syndicated
Letter of Credit shall be in such form as is consistent with the requirements of
the applicable regulatory authorities in Illinois, California, Wisconsin or New
York, as reasonably determined by the Administrative Agent or as otherwise
agreed to by the Administrative Agent and XL Capital; PROVIDED that, without the
prior consent of each Lender, no Syndicated Letter of Credit may be issued that
would vary the several and not joint nature of the obligations of the Lenders
thereunder as provided in the next succeeding sentence. Each Syndicated Letter
of Credit shall be issued by all of the Lenders, acting through the
Administrative Agent, at the time of issuance as a single multi-bank letter of
credit, but the obligation of each Lender thereunder shall be several and not
joint, based upon its Applicable Percentage of the aggregate undrawn amount of
such Syndicated Letter of Credit.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION. To
request the issuance of a Syndicated Letter of Credit (or the amendment, renewal
or extension of an outstanding Syndicated Letter of Credit), an Account Party
shall hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Administrative Agent) to the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a
Syndicated Letter of Credit, or identifying the Syndicated Letter of Credit to
be amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension, as the case may be (which shall be a Business Day), the
date on which such Syndicated Letter of Credit is to expire (which shall comply
with paragraph (d) of this Section), the amount of such Syndicated
364-DAY CREDIT AGREEMENT
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Letter of Credit, the name and address of the beneficiary thereof and the terms
and conditions of (and such other information as shall be necessary to prepare,
amend, renew or extend, as the case may be) such Syndicated Letter of Credit. If
any Syndicated Letter of Credit shall provide for the automatic extension of the
expiry date thereof unless the Administrative Agent gives notice that such
expiry date shall not be extended, then the Administrative Agent will give such
notice if requested to do so by the Required Lenders in a notice given to the
Administrative Agent not more than 60 days, but not less than 45 days, prior to
the current expiry date of such Syndicated Letter of Credit. If requested by the
Administrative Agent, such Account Party also shall submit a letter of credit
application on JPMCB's standard form in connection with any request for a
Syndicated Letter of Credit. In the event of any inconsistency between the terms
and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by any Account Party
to, or entered into by any Account Party with, the Administrative Agent relating
to any Syndicated Letter of Credit, the terms and conditions of this Agreement
shall control.
(c) LIMITATIONS ON AMOUNTS. A Syndicated Letter of Credit
shall be issued, amended, renewed or extended only if (and upon such issuance,
amendment, renewal or extension of each Syndicated Letter of Credit the Account
Parties shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension, (i) the Aggregate Credit
Exposure shall not exceed the aggregate amount of the Commitments and (ii) the
Credit Exposure (excluding any Alternative Currency LC Exposure) of each Lender
shall not exceed the Commitment of such Lender.
(d) EXPIRY DATE. Each Syndicated Letter of Credit shall expire
at or prior to the close of business on the date one year after the date of the
issuance of such Syndicated Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension).
(e) OBLIGATION OF LENDERS. The obligation of any Lender under
any Syndicated Letter of Credit shall be several and not joint and shall at any
time be in an amount equal to such Lender's Applicable Percentage of the
aggregate undrawn amount of such Syndicated Letter of Credit, and each
Syndicated Letter of Credit shall expressly so provide.
(f) CONTINUATION OF EXISTING SYNDICATED LETTERS OF CREDIT.
Subject to the terms and conditions hereof, each Syndicated Letter of Credit
under (and as defined in) the Existing Credit Agreement which is outstanding on
the Effective Date and is designated to be continued hereunder in the notice
provided by XL Capital to the Administrative Agent pursuant to Section 5.01(f)
shall automatically be continued hereunder by all of the Lenders having
Commitments on the Effective Date. The obligation of each such Lender in respect
of each such continued Syndicated Letter of Credit shall be several and not
joint, based upon its Applicable Percentage and the aggregate undrawn amount
thereof, and each such Syndicated Letter of Credit shall be deemed a Syndicated
Letter of Credit for all purposes of this Agreement as of the Effective Date.
The Administrative Agent shall, on the Effective Date or as promptly as
practicable thereafter, notify the beneficiary of each such Syndicated Letter of
Credit that is being continued hereunder as to the names of the Lenders that, as
of the Effective Date, will be issuing lenders under, and party to, such
Syndicated Letter of Credit and the Lenders' respective
364-DAY CREDIT AGREEMENT
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Applicable Percentages thereunder as of the Effective Date.
(g) ADJUSTMENT OF APPLICABLE PERCENTAGES. Upon (i) each
increase of the Commitments pursuant to Section 2.11(c) or (ii) the assignment
by a Lender of all or a portion of its Commitment and its interests in the
Syndicated Letters of Credit pursuant to an Assignment and Assumption, the
Administrative Agent shall promptly notify each beneficiary under an outstanding
Syndicated Letter of Credit of the Lenders that are parties to such Syndicated
Letter of Credit and their respective Applicable Percentages as of the effective
date of, and after giving effect to, such increase or assignment, as the case
may be.
SECTION 2.02. ISSUANCE AND ADMINISTRATION. Each Syndicated
Letter of Credit shall be executed and delivered by the Administrative Agent in
the name and on behalf of, and as attorney-in-fact for, each Lender party to
such Syndicated Letter of Credit, and the Administrative Agent shall act under
each Syndicated Letter of Credit, and each Syndicated Letter of Credit shall
expressly provide that the Administrative Agent shall act, as the agent of each
Lender to (a) receive drafts, other demands for payment and other documents
presented by the beneficiary under such Syndicated Letter of Credit, (b)
determine whether such drafts, demands and documents are in compliance with the
terms and conditions of such Syndicated Letter of Credit and (c) notify such
Lender and the Account Parties that a valid drawing has been made and the date
that the related LC Disbursement is to be made; PROVIDED that the Administrative
Agent shall have no obligation or liability for any LC Disbursement under such
Syndicated Letter of Credit, and each Syndicated Letter of Credit shall
expressly so provide. Each Lender hereby irrevocably appoints and designates the
Administrative Agent as its attorney-in-fact, acting through any duly authorized
officer of JPMCB, to execute and deliver in the name and on behalf of such
Lender each Syndicated Letter of Credit to be issued by such Lender hereunder.
Promptly upon the request of the Administrative Agent, each Lender will furnish
to the Administrative Agent such powers of attorney or other evidence as any
beneficiary of any Syndicated Letter of Credit may reasonably request in order
to demonstrate that the Administrative Agent has the power to act as
attorney-in-fact for such Lender to execute and deliver such Syndicated Letter
of Credit. Notwithstanding anything in this Agreement to the contrary, the
Administrative Agent has no responsibility hereunder with respect to the
issuance, renewal, extension, amendment or other administration of any
Alternative Currency Letter of Credit, except as expressly set forth in Section
2.06.
SECTION 2.03. REIMBURSEMENT OF LC DISBURSEMENTS, ETC.
(a) REIMBURSEMENT. If any Lender shall make any LC
Disbursement in respect of any Syndicated Letter of Credit or Alternative
Currency Letter of Credit, regardless of the identity of the Account Party of
such Syndicated Letter of Credit or Alternative Currency Letter of Credit, as
the case may be, the Account Parties jointly and severally agree that they shall
reimburse such Lender in respect of such LC Disbursement under (x) a Syndicated
Letter of Credit by paying to the Administrative Agent an amount equal to such
LC Disbursement not later than noon, New York City time, on (i) the Business Day
that the Account Parties receive notice of such LC Disbursement, if such notice
is received prior to 10:00 a.m., New York City time, or (ii) the Business Day
immediately following the day that the Account Parties receive such notice, if
such notice is not received prior to such time and (y) an Alternative Currency
Letter of Credit, by paying such Lender on the date, in the currency and amount
thereof, together
364-DAY CREDIT AGREEMENT
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with interest thereon (if any), and in the manner (including the place of
payment) as such Lender and such Account Party shall have separately agreed
pursuant to Section 2.06.
(b) REIMBURSEMENT OBLIGATIONS ABSOLUTE. The Account Parties'
joint and several obligations to reimburse LC Disbursements as provided in
paragraph (a) of this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of
validity or enforceability of any Syndicated Letter of Credit or any term or
provision therein, (ii) any draft or other document presented under a Syndicated
Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii) payment
under a Syndicated Letter of Credit against presentation of a draft or other
document that does not comply strictly with the terms of such Syndicated Letter
of Credit (PROVIDED that the Account Parties shall not be obligated to reimburse
such LC Disbursements unless payment is made against presentation of a draft or
other document that at least substantially complies with the terms of such
Syndicated Letter of Credit), (iv) at any time or from time to time, without
notice to any Account Party, the time for any performance of or compliance with
any of such reimbursement obligations of any other Account Party shall be
waived, extended or renewed, (v) any of such reimbursement obligations of any
other Account Party being amended or otherwise modified in any respect, or any
guarantee of any of such reimbursement obligations being released, substituted
or exchanged in whole or in part or otherwise dealt with, (vi) the occurrence of
any Default, (vii) the existence of any proceedings of the type described in
clause (g) or (h) of Article VIII with respect to any other Account Party or any
guarantor of any of such reimbursement obligations, (viii) any lack of validity
or enforceability of any of such reimbursement obligations against any other
Account Party or any guarantor of any of such reimbursement obligations, or (ix)
any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of the obligations of any Account Party hereunder.
Neither the Administrative 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 Syndicated 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 Syndicated 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 Administrative Agent or a Lender from liability to any Account Party
to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Account Parties to the extent
permitted by applicable law) suffered by any Account Party that are caused by
the gross negligence or willful misconduct of the Administrative Agent or a
Lender. The parties hereto expressly agree that:
(i) the Administrative Agent may accept documents that appear
on their face to be in substantial compliance with the terms of a
Syndicated Letter of Credit without responsibility for further
investigation, regardless of any notice or information to the
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contrary, and may make payment upon presentation of documents that
appear on their face to be in substantial compliance with the terms of
such Syndicated Letter of Credit;
(ii) the Administrative 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 Syndicated Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Administrative Agent when determining whether drafts
and other documents presented under a Syndicated 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).
(c) DISBURSEMENT PROCEDURES. The Administrative Agent shall,
within a reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under any Syndicated Letter of
Credit. The Administrative Agent shall promptly after such examination (i)
notify each of the Lenders and the Account Parties by telephone (confirmed by
telecopy) of such demand for payment and (ii) deliver to each Lender a copy of
each document purporting to represent a demand for payment under such Syndicated
Letter of Credit. With respect to any drawing properly made under a Syndicated
Letter of Credit, each Lender will make an LC Disbursement in respect of such
Syndicated Letter of Credit in accordance with its liability under such
Syndicated Letter of Credit and this Agreement, such LC Disbursement to be made
to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders. The Administrative Agent will make any
such LC Disbursement available to the beneficiary of such Syndicated Letter of
Credit by promptly crediting the amounts so received, in like funds, to the
account identified by such beneficiary in connection with such demand for
payment. Promptly following any LC Disbursement by any Lender in respect of any
Syndicated Letter of Credit, the Administrative Agent will notify the Account
Parties of such LC Disbursement; PROVIDED that any failure to give or delay in
giving such notice shall not relieve the Account Parties of their obligation to
reimburse the Lenders with respect to any such LC Disbursement.
(d) INTERIM INTEREST. If any LC Disbursement with respect to a
Syndicated Letter of Credit is made, then, unless the Account Parties shall
reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the Account
Parties reimburse such LC Disbursement, at the rate per annum equal to (i) 1%
PLUS the Alternate Base Rate to but excluding the date three Business Days after
such LC Disbursement is made and (ii) from and including the date three Business
Days after such LC Disbursement is made, 3% PLUS the Alternate Base Rate.
(e) RIGHT OF CONTRIBUTION. The Account Parties hereby agree,
as between themselves, that if any Account Party shall pay any reimbursement
obligation in respect of any LC Disbursement with respect to a Syndicated Letter
of Credit issued to support the obligations of another Account Party (the
"SPECIFIED ACCOUNT PARTY"), the Specified Account Party shall, on demand (but
subject to the next sentence), pay to such first Account Party an amount equal
to the
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amount of such reimbursement. The payment obligation of a Specified Account
Party to another Account Party under this paragraph (e) shall be subordinate and
subject in right of payment to the prior payment in full of the obligations of
the Specified Account Party under this Agreement and each other Credit Document,
and such other Account Party shall not exercise any right or remedy with respect
to such reimbursement until payment and satisfaction in full of all of such
obligations of the Specified Account Party.
SECTION 2.04. NON-SYNDICATED LETTERS OF CREDIT.
(a) GENERAL. Subject to the terms and conditions set forth
herein, at the request of any Account Party the Lenders agree at any time and
from time to time during the Availability Period to issue Non-Syndicated Letters
of Credit for the account of such Account Party in an aggregate amount that will
not result in the Credit Exposure exceeding the Commitments (it being understood
that Non-Syndicated Letters of Credit may be issued, or be outstanding, for the
account of more than one of the Account Parties at any time). Each
Non-Syndicated Letter of Credit shall be in such form as is consistent with the
requirements of the applicable regulatory authorities in the jurisdiction of
issue as reasonably determined by the Administrative Agent or as otherwise
agreed to by the Administrative Agent and XL Capital. Each Non-Syndicated Letter
of Credit shall be issued by the respective Issuing Lender thereof, through the
Administrative Agent as provided in Section 2.04(c), in the amount of such
Issuing Lender's Applicable Percentage of the aggregate amount of Non-Syndicated
Letters of Credit being requested by such Account Party at such time, and
(notwithstanding anything herein or in any other Letter of Credit Document to
the contrary) such Non-Syndicated Letter of Credit shall be the sole
responsibility of such Issuing Lender (and of no other Person, including any
other Lender or the Administrative Agent). Notwithstanding anything to the
contrary in this Agreement, no Non-Syndicated Letter of Credit may be requested
hereunder for any jurisdiction unless XL Capital provides evidence reasonably
satisfactory to the Administrative Agent that Syndicated Letters of Credit do
not comply with the insurance laws of such jurisdiction.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION. To
request the issuance of Non-Syndicated Letters of Credit (or the amendment,
renewal or extension of outstanding Non-Syndicated Letters of Credit), an
Account Party shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Administrative Agent) to the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of Non-Syndicated Letters of Credit, or identifying the
Non-Syndicated Letters of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension, as the case
may be (which shall be a Business Day), the date on which such Non-Syndicated
Letters of Credit are to expire (which shall comply with paragraph (e) of this
Section), the aggregate amount of all Non-Syndicated Letters of Credit to be
issued in connection with such request, the name and address of the beneficiary
thereof and the terms and conditions of (and such other information as shall be
necessary to prepare, amend, renew or extend, as the case may be) such
Non-Syndicated Letters of Credit. If Non-Syndicated Letters of Credit issued in
connection with the same request shall provide for the automatic extension of
the expiry date thereof unless the Issuing Lender thereof or the Administrative
Agent gives notice that such expiry date shall not be extended, then the
Administrative Agent (acting on behalf of the relevant Issuing Lenders) will
give such notice for all such Non-Syndicated Letters of Credit if requested to
do so by the
364-DAY CREDIT AGREEMENT
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Required Lenders in a notice given to the Administrative Agent not more than 60
days, but not less than 45 days, prior to the current expiry date of such
Non-Syndicated Letter of Credit. If requested by the Administrative Agent, such
Account Party also shall submit a letter of credit application on JPMCB's
standard form in connection with any request for a Non-Syndicated Letter of
Credit. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by any Account Party to, or entered
into by any Account Party with, the Administrative Agent (acting on behalf of
the relevant Issuing Lenders) relating to any Non-Syndicated Letter of Credit,
the terms and conditions of this Agreement shall control.
(c) ISSUANCE AND ADMINISTRATION. Each Non-Syndicated Letter of
Credit shall be executed and delivered by the Administrative Agent (which term,
for purposes of this Section 2.04 and any other provisions of this Agreement,
including Article IX and Section 10.03, relating to Non-Syndicated Letters of
Credit, shall be deemed to refer to, unless the context otherwise requires,
JPMCB acting in its capacity as the Administrative Agent or in its individual
capacity, in either case as attorney-in-fact for the respective Issuing Lender),
acting through any duly authorized officer of JPMCB, in the name and on behalf
of, and as attorney-in-fact for, the Issuing Lender party to such Non-Syndicated
Letter of Credit. With respect to each Non-Syndicated Letter of Credit, the
Administrative Agent shall act in the name and on behalf of, and as
attorney-in-fact for, the Lender issuing such Non-Syndicated Letter of Credit
and in that capacity shall, and each Lender hereby irrevocably appoints and
designates the Administrative Agent, acting through any duly authorized officer
of JPMCB, to so act in the name and on behalf of, and as attorney-in-fact for,
each Lender with respect to each Non-Syndicated Letter of Credit to be issued by
such Lender hereunder and, without limiting any other provision of this
Agreement, to, (i) execute and deliver in the name and on behalf of such Lender
each Non-Syndicated Letter of Credit to be issued by such Lender hereunder, (ii)
receive drafts, other demands for payment and/or other documents presented by
the beneficiary thereunder, (iii) determine whether such drafts, demands and/or
documents are in compliance with the terms and conditions thereof, (iv) notify
the beneficiary of any such Non-Syndicated Letter of Credit of the expiration or
non-renewal thereof in accordance with the terms thereof, (v) advise such
beneficiary of any change in the office for presentation of drafts under any
such Non-Syndicated Letter of Credit, (vi) enter into with the Account Parties
any such letter of credit application or similar agreement with respect to any
such Non-Syndicated Letter of Credit as the Administrative Agent shall require,
(vii) remit to the beneficiary of any such Non-Syndicated Letter of Credit any
payment made by such Lender and received by the Administrative Agent in
connection with a drawing thereunder, (viii) perform any and all other acts
which in the sole opinion of the Administrative Agent may be necessary or
incidental to the performance of the powers herein granted with respect to such
Non-Syndicated Letter of Credit, (ix) notify such Lender and the Account Parties
that a valid drawing has been made and the date that the related LC Disbursement
is to be made; PROVIDED that the Administrative Agent shall have no obligation
or liability for any LC Disbursement under such Non-Syndicated Letter of Credit
and (x) delegate to any agent of JPMCB and such agent's Related Parties, or any
of them, the performance of any of such powers. Each Lender hereby ratifies and
confirms (and undertakes to ratify and confirm from time to time upon the
request of the Administrative Agent) whatsoever the Administrative Agent (or any
Related Party thereof) shall do or purport to do by virtue of the power herein
granted. Promptly upon the request of the Administrative Agent, each
364-DAY CREDIT AGREEMENT
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Lender will furnish to the Administrative Agent such powers of attorney or other
evidence as any beneficiary of any Non-Syndicated Letter of Credit may
reasonably request in order to demonstrate that the Administrative Agent has the
power to act as attorney-in-fact for such Lender with respect to such
Non-Syndicated Letter of Credit (together with such evidence of the due
authorization, execution, delivery and validity of such power of attorney as the
Administrative Agent may reasonably request). Without limiting any provision of
Article IX, the Administrative Agent may perform any and all of its duties and
exercise any and all of its rights and powers under this Section through its
Related Parties.
(d) LIMITATIONS ON AMOUNTS. Non-Syndicated Letters of Credit
shall be issued, amended, renewed or extended only if (and upon such issuance,
amendment, renewal or extension of each Non-Syndicated Letter of Credit the
Account Parties shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension, (i) the Aggregate
Credit Exposure shall not exceed the aggregate amount of the Commitments and
(ii) the Credit Exposure (excluding any Alternative Currency LC Exposure) of
each Lender shall not exceed the Commitment of such Lender.
(e) EXPIRY DATE. Each Non-Syndicated Letter of Credit shall
expire at or prior to the close of business on the date one year after the date
of the issuance of such Non-Syndicated Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension).
(f) PARTICIPATIONS. By the issuance of a Non-Syndicated Letter
of Credit (or an amendment to a Non-Syndicated Letter of Credit increasing the
amount thereof) by the respective Issuing Lender, and without any further action
on the part of such Issuing Lender or the Lenders, such Issuing Lender hereby
grants to each Lender (other than the Issuing Lender itself), and each such
Lender hereby acquires from such Issuing Lender, a participation in such
Non-Syndicated Letter of Credit equal to such Lender's Applicable Percentage of
the aggregate amount available to be drawn under such Non-Syndicated Letter of
Credit. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Non-Syndicated Letter of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Non-Syndicated Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Commitments. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for account of the respective Issuing
Lender, such Lender's Applicable Percentage of each LC Disbursement made by an
Issuing Lender in respect of any Non-Syndicated Letter of Credit promptly upon
the request of the Administrative Agent at any time from the time such LC
Disbursement is made until such LC Disbursement is reimbursed by the Account
Parties or at any time after any reimbursement payment is required to be
refunded to the Account Parties for any reason. Such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Promptly
following receipt by the Administrative Agent of any payment from the Account
Parties pursuant to the next following paragraph, the Administrative Agent shall
distribute such payment to the respective Issuing Lender or, to the extent that
the Lenders have made payments pursuant to this paragraph to reimburse such
Issuing Lender, then to such Lenders and such Issuing Lender as their interests
may appear. Any payment made by a Lender
364-DAY CREDIT AGREEMENT
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pursuant to this paragraph to reimburse an Issuing Lender for any LC
Disbursement shall not relieve the Account Parties of their obligation to
reimburse such LC Disbursement.
(g) REIMBURSEMENT. If any Issuing Lender shall make any LC
Disbursement in respect of any Non-Syndicated Letter of Credit, regardless of
the identity of the Account Party of such Non-Syndicated Letter of Credit, the
Account Parties jointly and severally agree that they shall reimburse such
Issuing Lender in respect of such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
noon, New York City time, on (i) the Business Day that the Account Parties
receive notice of such LC Disbursement, if such notice is received prior to
10:00 a.m., New York City time, or (ii) the Business Day immediately following
the day that the Account Parties receive such notice, if such notice is not
received prior to such time.
If the Account Parties fail to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from the Account Parties in respect thereof and such
Lender's Applicable Percentage thereof.
(h) OBLIGATIONS ABSOLUTE. The Account Parties' joint and
several obligations to reimburse LC Disbursements in respect of any
Non-Syndicated Letter of Credit as provided in paragraph (g) of this Section
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Non-Syndicated Letter of Credit, or any term or provision
therein, (ii) any draft or other document presented under a Non-Syndicated
Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Lender under a Non-Syndicated Letter of Credit against
presentation of a draft or other document that does not comply strictly with the
terms of such Non-Syndicated Letter of Credit (PROVIDED that the Account Parties
shall not be obligated to reimburse such LC Disbursements unless payment is made
against presentation of a draft or other document that at least substantially
complies with the terms of such Non-Syndicated Letter of Credit), (iv) at any
time or from time to time, without notice to any Account Party, the time for any
performance of or compliance with any of such reimbursement obligations of any
other Account Party being waived, extended or renewed, (v) any of such
reimbursement obligations of any other Account Party being amended or otherwise
modified in any respect, or any guarantee of any of such reimbursement
obligations being released, substituted or exchanged in whole or in part or
otherwise dealt with, (vi) the occurrence of any Default, (vii) the existence of
any proceedings of the type described in clause (g) or (h) of Article VIII with
respect to any other Account Party or any guarantor of any of such reimbursement
obligations, (viii) any lack of validity or enforceability of any of such
reimbursement obligations against any other Account Party or any guarantor of
any of such reimbursement obligations, or (ix) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of the
obligations of any Account Party hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing
Lender, nor any of their respective Related Parties, shall have any liability or
responsibility by reason of or in connection with the payment or failure to make
any payment under a Non-Syndicated Letter of
364-DAY CREDIT AGREEMENT
- 25 -
Credit (irrespective of any of the circumstances referred to in the preceding
sentence) as a result of determining whether drafts or other documents presented
under a Non-Syndicated Letter of Credit comply with the terms thereof, or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Non-Syndicated
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 the control of an Issuing Lender; PROVIDED that the foregoing
shall not be construed to excuse the Administrative Agent or a Lender from
liability to the Account Parties to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Account Parties to the extent permitted by applicable law) suffered by the
Account Parties that are caused by the gross negligence or willful misconduct of
the Administrative Agent or a Lender when determining whether drafts and other
documents presented under a Non-Syndicated Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that:
(i) the Administrative Agent may accept documents that appear
on their face to be in substantial compliance with the terms of a
Non-Syndicated 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
Non-Syndicated Letter of Credit;
(ii) the Administrative 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 Non-Syndicated Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Administrative Agent when determining whether drafts
and other documents presented under a Non-Syndicated 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).
(i) DISBURSEMENT PROCEDURES. The Administrative Agent shall,
within a reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under any Non-Syndicated Letter of
Credit. The Administrative Agent shall promptly after such examination (i)
notify each of the Lenders and the Account Parties by telephone (confirmed by
telecopy) of such demand for payment and (ii) deliver to each Lender (including
the Issuing Lender) a copy of each document purporting to represent a demand for
payment under such Non-Syndicated Letter of Credit. With respect to any drawing
properly made under a Non-Syndicated Letter of Credit, the Issuing Lender
thereof will make an LC Disbursement in respect of such Non-Syndicated Letter of
Credit in accordance with its liability under such Non-Syndicated Letter of
Credit and this Agreement, such LC Disbursement to be made to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make any such LC Disbursement
available to the beneficiary of such Non-Syndicated Letter of Credit by promptly
crediting the amounts so received, in like funds, to the account identified by
such beneficiary in connection with such demand for payment. Promptly following
any LC Disbursement by any Issuing
364-DAY CREDIT AGREEMENT
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Lender in respect of any Non-Syndicated Letter of Credit, the Administrative
Agent will notify the Account Parties of such LC Disbursement; PROVIDED that any
failure to give or delay in giving such notice shall not relieve the Account
Parties of their obligation to reimburse such Issuing Lender with respect to any
such LC Disbursement.
(j) INTERIM INTEREST. If any LC Disbursement with respect to a
Non-Syndicated Letter of Credit is made, then, unless the Account Parties shall
reimburse such LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the Account
Parties reimburse such LC Disbursement, at the rate per annum equal to (i) 1%
PLUS the Alternate Base Rate to but excluding the date three Business Days after
such LC Disbursement is made and (ii) from and including the date three Business
Days after such LC Disbursement is made, 3% PLUS the Alternate Base Rate.
(k) RIGHT OF CONTRIBUTION. The Account Parties hereby agree,
as between themselves, that if any Account Party shall pay any reimbursement
obligation in respect of any LC Disbursement with respect to a Non-Syndicated
Letter of Credit issued to support the obligations of another Account Party (the
"SPECIFIED ACCOUNT PARTY"), the Specified Account Party shall, on demand (but
subject to the next sentence), pay to such first Account Party an amount equal
to the amount of such reimbursement. The payment obligation of a Specified
Account Party to another Account Party under this paragraph (k) shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of the Specified Account Party under this Agreement and each other
Credit Document, and such other Account Party shall not exercise any right or
remedy with respect to such reimbursement until payment and satisfaction in full
of all of such obligations of the Specified Account Party.
(l) CONTINUATION OF EXISTING NON-SYNDICATED LETTERS OF CREDIT.
Subject to the terms and conditions hereof, each Non-Syndicated Letter of Credit
under (and as defined in) the Existing Credit Agreement which is outstanding on
the Effective Date and is designated to be continued hereunder in the notice
provided by XL Capital to the Administrative Agent pursuant to Section 5.01(f)
shall, effective as of the Effective Date, be amended by the respective Issuing
Lender (through the Administrative Agent) to reflect the Lenders having
Commitments as of the Effective Date and, with respect to each such
Non-Syndicated Letter of Credit issued by a Lender that is party to the Existing
Credit Agreement, a face amount based upon the respective Lender's Applicable
Percentage of the Commitments as in effect on the Effective Date, and each such
Non-Syndicated Letter of Credit, as so amended, shall be deemed continued
hereunder as a Non-Syndicated Letter of Credit issued by such Lender for all
purposes of this Agreement as of the Effective Date.
(m) ADJUSTMENTS TO NON-SYNDICATED LETTERS OF CREDIT. Upon each
increase of the Commitments pursuant to Section 2.11(c), (i) each Non-Syndicated
Letter of Credit then outstanding hereunder shall, as of the effective date of
such increase, be amended by the respective Issuing Lenders thereof (through the
Administrative Agent) to reflect the Lenders having Commitments after giving
effect to such increase and having, with respect to each such Non-Syndicated
Letter of Credit issued by an existing Lender, a face amount based upon such
Lender's Applicable Percentage of such Commitments and/or (ii) as applicable,
new Non-
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Syndicated Letters of Credit shall be issued hereunder as of such effective date
by each Supplemental Lender which has undertaken a new or incremental Commitment
in connection with such increase in a face amount based upon such Supplemental
Lender's Applicable Percentage of such Commitments. Upon the assignment by a
Lender of all or a portion of its Commitment and its interests in the
Non-Syndicated Letters of Credit pursuant to an Assignment and Assumption, (i)
XL Capital shall, at the reasonable request of the Administrative Agent, execute
such documents as may be necessary in connection with amendments to each
Non-Syndicated Letter of Credit issued by such assigning Lender then outstanding
hereunder (or to replace each such Non-Syndicated Letter of Credit with a new
Non-Syndicated Letter of Credit of such assigning Lender) to reflect such
assigning Lender's Commitment and with a face amount based upon such Lender's
Applicable Percentage after giving effect to such assignment and/or (ii) as
applicable, a new Non-Syndicated Letter of Credit shall be issued hereunder as
of the effective date of such assignment by the assignee Lender which has
undertaken a new or incremental Commitment in connection with such assignment in
a face amount based upon such assignee Lender's Applicable Percentage of the
Commitments after giving effect to such assignment.
SECTION 2.05. PARTICIPATED LETTERS OF CREDIT.
(a) GENERAL. Subject to the terms and conditions set forth
herein, any Account Party may request the Issuing Lender to issue, at any time
and from time to time during the Availability Period, Participated Letters of
Credit for its own account. Each Participated Letter of Credit shall be in such
form as is consistent with the requirements of the applicable regulatory
authorities in Illinois, California, Wisconsin or New York as reasonably
determined by the Administrative Agent or as otherwise agreed to by the
Administrative Agent and XL Capital. Participated Letters of Credit issued
hereunder shall constitute utilization of the Commitments.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL OR EXTENSION. To
request the issuance of a Participated Letter of Credit (or the amendment,
renewal or extension of an outstanding Participated Letter of Credit), an
Account Party shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the Issuing
Lender) to the Issuing Lender and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Participated Letter of Credit, or
identifying the Participated Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Participated Letter of
Credit is to expire (which shall comply with paragraph (d) of this Section), the
amount of such Participated Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Participated Letter of Credit. If requested by the
Issuing Lender, such Account Party also shall submit a letter of credit
application on the Issuing Lender's standard form in connection with any request
for a Participated Letter of Credit. In the event of any inconsistency between
the terms and conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted by such
Account Party to, or entered into by any Account Party with, the Issuing Lender
relating to any Participated Letter of Credit, the terms and conditions of this
Agreement shall control.
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(c) LIMITATIONS ON AMOUNTS. A Participated Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Participated Letter of Credit each
Account Party shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the sum of (A) the
LC Exposure of the Issuing Lender with respect to Participated Letters of Credit
(determined for these purposes without giving effect to the participations
therein of the Lenders pursuant to paragraph (e) of this Section) and (B) with
respect to the Three-Year Credit Agreement, the LC Exposure of the Issuing
Lender with respect to Participated Letters of Credit (determined for these
purposes without giving effect to the participations therein of the Lenders
pursuant to Section 2.05(e) of the Three-Year Credit Agreement) (the terms used
in this clause (B) having the definitions assigned to them in the Three-Year
Credit Agreement) shall not exceed $100,000,000 and (ii) the Aggregate Credit
Exposure shall not exceed the aggregate amount of the Commitments.
(d) EXPIRY DATE. Each Participated Letter of Credit shall
expire at or prior to the close of business on the date one year after the date
of the issuance of such Participated Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension).
(e) PARTICIPATIONS. By the issuance of a Participated Letter
of Credit (or an amendment to a Participated Letter of Credit increasing the
amount thereof) by the Issuing Lender, and without any further action on the
part of the Issuing Lender or the Lenders, the Issuing Lender hereby grants to
each Lender, and each Lender hereby acquires from the Issuing Lender, a
participation in such Participated Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Participated Letter of Credit. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Participated Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Participated Letter of Credit or the occurrence and continuance
of a Default or reduction or termination of the Commitments. In consideration
and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for account of the
Issuing Lender, such Lender's Applicable Percentage of each LC Disbursement made
by the Issuing Lender in respect of any Participated Letter of Credit promptly
upon the request of the Issuing Lender at any time from the time such LC
Disbursement is made until such LC Disbursement is reimbursed by the Account
Parties or at any time after any reimbursement payment is required to be
refunded to the Account Parties for any reason. Such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Promptly
following receipt by the Administrative Agent of any payment from the Account
Parties pursuant to the next following paragraph, the Administrative Agent shall
distribute such payment to the Issuing Lender or, to the extent that the Lenders
have made payments pursuant to this paragraph to reimburse the Issuing Lender,
then to such Lenders and the Issuing Lender as their interests may appear. Any
payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Lender for any LC Disbursement shall not relieve the Account Parties of their
obligation to reimburse such LC Disbursement.
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(f) REIMBURSEMENT. If any Lender shall make any LC
Disbursement in respect of any Participated Letter of Credit, regardless of the
identity of the Account Party of such Participated Letter of Credit, the Account
Parties jointly and severally agree that they shall reimburse such Lender in
respect of such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement not later than noon, New York City time, on (i)
the Business Day that the Account Parties receive notice of such LC
Disbursement, if such notice is received prior to 10:00 a.m., New York City
time, or (ii) the Business Day immediately following the day that the Account
Parties receive such notice, if such notice is not received prior to such time.
If the Account Parties fail to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC Disbursement,
the payment then due from the Account Parties in respect thereof and such
Lender's Applicable Percentage thereof.
(g) OBLIGATIONS ABSOLUTE. The Account Parties' joint and
several obligations to reimburse LC Disbursements in respect of any Participated
Letter of Credit as provided in paragraph (f) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Participated
Letter of Credit, or any term or provision therein, (ii) any draft or other
document presented under a Participated Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Lender under a
Participated Letter of Credit against presentation of a draft or other document
that does not comply strictly with the terms of such Participated Letter of
Credit (PROVIDED that the Account Parties shall not be obligated to reimburse
such LC Disbursements unless payment is made against presentation of a draft or
other document that at least substantially complies with the terms of such
Participated Letter of Credit), (iv) at any time or from time to time, without
notice to any Account Party, the time for any performance of or compliance with
any of such reimbursement obligations of any other Account Party shall be
waived, extended or renewed, (v) any of such reimbursement obligations of any
other Account Party shall be amended or otherwise modified in any respect, or
any guarantee of any of such reimbursement obligations shall be released,
substituted or exchanged in whole or in part or otherwise dealt with, (vi) the
occurrence of any Default, (vii) the existence of any proceedings of the type
described in clause (g) or (h) of Article VIII with respect to any other Account
Party or any guarantor of any of such reimbursement obligations, (viii) any lack
of validity or enforceability of any of such reimbursement obligations against
any other Account Party or any guarantor of any of such reimbursement
obligations, or (ix) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of the obligations of any
Account Party hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing
Lender, nor any of their respective Related Parties, shall have any liability or
responsibility by reason of or in connection with the payment or failure to make
any payment under a Participated Letter of Credit (irrespective of any of the
circumstances referred to in the preceding sentence) as a result of determining
whether drafts or other documents presented under a Participated Letter of
Credit comply with the terms thereof, or any error, omission, interruption, loss
or delay in transmission
364-DAY CREDIT AGREEMENT
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or delivery of any draft, notice or other communication under or relating to any
Participated 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 the control of the Issuing Lender; PROVIDED that the
foregoing shall not be construed to excuse the Issuing Lender from liability to
the Account Parties to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Account Parties to the extent permitted by applicable law) suffered by the
Account Parties that are caused by the Issuing Lender's gross negligence or
willful misconduct when determining whether drafts and other documents presented
under a Participated Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that:
(i) the Issuing Lender may accept documents that appear on
their face to be in substantial compliance with the terms of a
Participated 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
Participated Letter of Credit;
(ii) the Issuing Lender 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 Participated Letter of Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Lender when determining whether drafts and
other documents presented under a Participated 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).
(h) DISBURSEMENT PROCEDURES. The Issuing Lender shall, within
a reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Participated Letter of
Credit. The Issuing Lender shall promptly after such examination notify the
Administrative Agent and XL Capital by telephone (confirmed by telecopy) of such
demand for payment and whether the Issuing Lender has made or will make a LC
Disbursement thereunder; PROVIDED that any failure to give or delay in giving
such notice shall not relieve the Account Parties of their obligation to
reimburse the Issuing Lender and the Lenders with respect to any such LC
Disbursement.
(i) INTERIM INTEREST. If any LC Disbursement is made with
respect to a Participated Letter of Credit, then, unless the Account Parties
shall reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that
the Account Parties reimburse such LC Disbursement, at the rate per annum equal
to (i) 1% PLUS the Alternate Base Rate to but excluding the date three Business
Days after such LC Disbursement is made and (ii) from and including the date
three Business Days after such LC Disbursement is made, 3% PLUS the Alternate
Base Rate. Interest accrued pursuant to this paragraph shall be for account of
the Issuing Lender, except that interest accrued on and after the date of
payment by any Lender pursuant to paragraph (f) of this Section to reimburse the
Issuing Lender shall be for account of such Lender to the extent of such
payment.
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(j) REPLACEMENT OF THE ISSUING LENDER. The Issuing Lender may
be replaced at any time by written agreement between XL Capital, the
Administrative Agent, the replaced Issuing Lender and the successor Issuing
Lender. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Lender. At the time any such replacement shall become
effective, the Account Parties shall pay all unpaid fees accrued for account of
the replaced Issuing Lender pursuant to Section 2.14(d). From and after the
effective date of any such replacement, (i) the successor Issuing Lender shall
have all the rights and obligations of the replaced Issuing Lender under this
Agreement with respect to Participated Letters of Credit to be issued thereafter
and (ii) references herein to the term "Issuing Lender" shall be deemed to refer
to such successor or to any previous Issuing Lender, or to such successor and
all previous Issuing Lenders, as the context shall require. After the
replacement of an Issuing Lender hereunder, the replaced Issuing Lender shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Lender under this Agreement with respect to Participated Letters
of Credit issued by it prior to such replacement, but shall not be required to
issue additional Participated Letters of Credit.
(k) RIGHT OF CONTRIBUTION. The Account Parties hereby agree,
as between themselves, that if any Account Party shall pay any reimbursement
obligation in respect of any LC Disbursement with respect to a Participated
Letter of Credit issued to support the obligations of another Account Party (the
"SPECIFIED ACCOUNT PARTY"), the Specified Account Party shall, on demand (but
subject to the next sentence), pay to such first Account Party an amount equal
to the amount of such reimbursement. The payment obligation of a Specified
Account Party to another Account Party under this paragraph (k) shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of the Specified Account Party under this Agreement and each other
Credit Document, and such other Account Party shall not exercise any right or
remedy with respect to such reimbursement until payment and satisfaction in full
of all of such obligations of the Specified Account Party.
(l) CONTINUATION OF EXISTING PARTICIPATED LETTERS OF CREDIT.
Subject to the terms and conditions hereof, each Participated Letter of Credit
under (and as defined in) the Existing Credit Agreement which is outstanding on
the Effective Date and is designated to be continued hereunder in the notice
provided by XL Capital to the Administrative Agent pursuant to Section 5.01(f)
shall automatically be continued hereunder on the Effective Date by the Issuing
Lender of such Participated Letter of Credit, and as of the Effective Date the
Lenders shall acquire a participation therein as if such Participated Letter of
Credit were issued hereunder, and each such Participated Letter of Credit shall
be deemed a Participated Letter of Credit for all purposes of this Agreement as
of the Effective Date.
(m) ADJUSTMENT OF APPLICABLE PERCENTAGES. Notwithstanding
anything herein to the contrary, upon (i) each increase of the Commitments
pursuant to Section 2.11(c), each Lender's participation in each Participated
Letter of Credit then outstanding shall automatically be adjusted to reflect its
Applicable Percentage after giving effect to such increase and (ii) the
assignment by a Lender of all or a portion of its Commitment and its interests
in the Participated Letters of Credit pursuant to an Assignment and Assumption,
the respective assigning Lender's participation in each Participated Letter of
Credit then outstanding shall automatically be adjusted to reflect, and the
respective assignee Lender shall be deemed to acquire a participation in each
such Participated Letter of Credit in an amount equal to, its Applicable
Percentage after
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giving effect to such assignment.
SECTION 2.06. ALTERNATIVE CURRENCY LETTERS OF CREDIT.
(a) REQUESTS FOR OFFERS. From time to time during the
Availability Period, an Account Party may request any or all of the Lenders to
make offers to issue an Alternative Currency Letter of Credit for account of
such Account Party. Each Lender may, but shall have no obligation to, make such
offers on terms and conditions that are satisfactory to such Lender, and such
Account Party may, but shall have no obligation to, accept any such offers. An
Alternative Currency Letter of Credit shall be issued, amended, renewed or
extended only if (and upon such issuance, amendment, renewal or extension of
each Alternative Currency Letter of Credit the Account Parties shall be deemed
to represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension, the Aggregate Credit Exposure shall not exceed the
aggregate amount of the Commitments. Each such Alternative Currency Letter of
Credit shall be issued, and subsequently, renewed, extended, amended and
confirmed, on such terms as XL Capital, the applicable Account Party and such
Lender shall agree, including expiry, drawing conditions, reimbursement,
interest, fees and provision of cover; PROVIDED that the expiry of any
Alternative Currency Letter of Credit shall not be later than the one-year
anniversary from the date of issuance thereof (or, in the case of any renewal or
extension thereof, one-year after such renewal or extension).
(b) REPORTS TO ADMINISTRATIVE AGENT. The Account Parties shall
deliver to the Administrative Agent and each of the Lenders a report in respect
of each Alternative Currency Letter of Credit (an "ALTERNATIVE CURRENCY LETTER
OF CREDIT REPORT") on and as of the date (i) on which such Alternative Currency
Letter of Credit is issued, (ii) of the issuance, renewal, extension or
amendment of a Syndicated Letter of Credit or a Non-Syndicated Letter of Credit,
if any Alternative Currency Letter of Credit is then outstanding and (iii) on
which the Commitments are to be reduced pursuant to Section 2.11, specifying for
each such Alternative Currency Letter of Credit (after giving effect to issuance
thereof, as applicable):
(A) the date on which such Alternative Currency Letter of
Credit was or is being issued;
(B) the Alternative Currency of such Alternative Currency
Letter of Credit;
(C) the aggregate undrawn amount of such Alternative Currency
Letter of Credit (in such Alternative Currency);
(D) the aggregate unpaid amount of LC Disbursements under such
Alternative Currency Letter of Credit (in such Alternative Currency);
(E) the Alternative Currency LC Exposure (in Dollars) in
respect of such Alternative Currency Letter of Credit; and
(F) the aggregate amount of Alternative Currency LC Exposures
(in Dollars).
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Each Alternative Currency Letter of Credit Report shall be
delivered to the Administrative Agent and each of the Lenders by 10:00 a.m. (New
York City time) on the date on which it is required to be delivered.
SECTION 2.07. LOANS AND BORROWINGS.
(a) GENERAL. Subject to the terms and conditions set forth
herein, each Lender agrees to make Loans to an Account Party from time to time
during the Availability Period in an aggregate principal amount that will not
result in (i) such Lender's outstanding Loans exceeding such Lender's Applicable
Percentage of the RC Sublimit, (ii) such Lender's Credit Exposure (excluding any
Alternative Currency LC Exposure) exceeding such Lender's Commitment, (iii) the
sum of (A) the aggregate outstanding principal amount of the Loans and (B) the
aggregate outstanding principal amount of the Loans under (and as defined in)
the Three-Year Credit Agreement exceeding the RC Sublimit or (iv) the Aggregate
Credit Exposure exceeding the aggregate amount of the Commitments. Loans may be
made, or be outstanding, to more than one of the Account Parties at any time.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Account Parties may borrow, prepay and reborrow Loans. Loans shall
constitute utilization of both the RC Sublimit and the Commitments.
(b) OBLIGATIONS OF LENDERS. Each Loan shall be made as part of
a Borrowing consisting of Loans of the same Type made by the Lenders ratably in
accordance with their respective Commitments. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its
obligations hereunder; PROVIDED that the Commitments of the Lenders are several
and no Lender shall be responsible for any other Lender's failure to make Loans
as required.
(c) TYPE OF LOANS. Subject to Section 2.15, each Borrowing
shall be constituted entirely of ABR Loans or of Eurodollar Loans as any Account
Party may request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; PROVIDED that any exercise of such option shall not
affect the obligation of the Account Parties to repay such Loan in accordance
with the terms of this Agreement.
(d) MINIMUM AMOUNTS; LIMITATION ON NUMBER OF BORROWINGS. Each
Eurodollar Borrowing shall be in an aggregate amount of $10,000,000 or a larger
multiple of $1,000,000. Each ABR Borrowing shall be in an aggregate amount equal
to $10,000,000 or a larger multiple of $1,000,000; PROVIDED that an ABR
Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Commitments or that is requested to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.03(a). Borrowings of more than
one Type may be outstanding at the same time; PROVIDED that there shall not at
any time be more than a total of ten Eurodollar Borrowings outstanding.
(e) LIMITATIONS ON INTEREST PERIODS. Notwithstanding any other
provision of this Agreement, no Account Party shall be entitled to request (or
to elect to convert to or continue as a Eurodollar Borrowing) any Borrowing if
the Interest Period requested therefor would end after the Maturity Date.
364-DAY CREDIT AGREEMENT
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SECTION 2.08. REQUESTS FOR BORROWINGS.
(a) NOTICE BY THE ACCOUNT PARTIES. To request a Borrowing, XL
Capital shall notify the Administrative Agent of such request by telephone (i)
in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (ii) in
the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, on
the date of the proposed Borrowing; provided that any such notice of an ABR
Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.03(a) may be given not later than 11:00 a.m., New York City time, on
the date of the proposed Borrowing. Each such telephonic Borrowing Request shall
be irrevocable and shall be confirmed promptly by hand delivery or telecopy to
the Administrative Agent of a written Borrowing Request in a form approved by
the Administrative Agent and signed by XL Capital.
(b) CONTENT OF BORROWING REQUESTS. Each telephonic and written
Borrowing Request shall specify the following information in compliance with
Section 2.07:
(i) the relevant Account Party;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.07(e); and
(vi) the location and number of such Account Party's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.09.
(c) NOTICE BY THE ADMINISTRATIVE AGENT TO THE LENDERS.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
(d) FAILURE TO ELECT. If no election as to the Type of a
Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.
If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the requested Borrowing shall be made instead as an ABR
Borrowing.
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SECTION 2.09. FUNDING OF BORROWINGS.
(a) FUNDING BY LENDERS. Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time (or 1:00 p.m., New
York City time with respect to ABR Loans requested by XL Capital no later than
11:00 a.m. on the same day), to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the relevant Account
Party by promptly crediting the amounts so received, in like funds, to an
account of such Account Party maintained with the Administrative Agent in New
York City and designated by such Account Party in the applicable Borrowing
Request.
(b) PRESUMPTION BY THE ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing (or in the case of any ABR Borrowing, on or prior
to the proposed date of such Borrowing) that such Lender will not make available
to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the relevant Account Party a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the relevant Account Party severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to such Account Party to but excluding the date of payment to the Administrative
Agent, at (i) in the case of such Lender, the Federal Funds Effective Rate or
(ii) in the case of such Account Party, the interest rate applicable to ABR
Loans. If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.10. INTEREST ELECTIONS.
(a) ELECTIONS BY THE ACCOUNT PARTIES. The Loans constituting
each Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have the
Interest Period specified in such Borrowing Request. Thereafter, the relevant
Account Party may elect to convert such Borrowing to a Borrowing of a different
Type or to continue such Borrowing as a Borrowing of the same Type and, in the
case of a Eurodollar Borrowing, may elect the Interest Period therefor, all as
provided in this Section. The relevant Account Party may elect different options
with respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
constituting such Borrowing, and the Loans constituting each such portion shall
be considered a separate Borrowing.
(b) NOTICE OF ELECTIONS. To make an election pursuant to this
Section, XL Capital shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.08 if XL Capital were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by
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hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by XL
Capital.
(c) CONTENT OF INTEREST ELECTION REQUESTS. Each telephonic and
written Interest Election Request shall specify the following information in
compliance with Section 2.07:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period therefor after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period" and permitted under Section 2.07(e).
(d) NOTICE BY THE ADMINISTRATIVE AGENT TO THE LENDERS.
Promptly following receipt of an Interest Election Request, the Administrative
Agent shall advise each Lender of the details thereof and of such Lender's
portion of each resulting Borrowing.
(e) FAILURE TO ELECT; EVENTS OF DEFAULT. If XL Capital fails
to deliver a timely and complete Interest Election Request with respect to a
Eurodollar Borrowing prior to the end of the Interest Period therefor, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders,
so notifies XL Capital, then, so long as an Event of Default is continuing (i)
no outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period therefor.
SECTION 2.11. TERMINATION, REDUCTION AND INCREASE OF THE
COMMITMENTS.
(a) SCHEDULED TERMINATION. Unless previously terminated, the
Commitments shall terminate at the close of business on the Commitment
Termination Date.
(b) VOLUNTARY TERMINATION OR REDUCTION. The Account Parties
may at any time terminate, or from time to time reduce, the Commitments and/or
the RC Sublimit; PROVIDED that (i) each reduction of the Commitments or the RC
Sublimit shall be in an amount that is $25,000,000 or a larger multiple of
$5,000,000 and (ii) the Account Parties shall not terminate or reduce the
Commitments or the RC Sublimit if the Aggregate Credit Exposure would exceed the
Commitments or the outstanding Loans would exceed the RC Sublimit, as the case
may be. XL
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Capital shall notify the Administrative Agent of any election to terminate or
reduce the Commitments or the RC Sublimit under this paragraph (b) at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof, PROVIDED
that no reduction of the RC Sublimit shall occur in connection with a reduction
of the Commitments unless specified in such notice, except that upon the earlier
of (x) the termination of the Commitments and (y) the Commitment Termination
Date, the RC Sublimit shall be reduced to zero. Promptly following receipt of
any such notice, the Administrative Agent shall advise the Lenders of the
contents thereof. Each notice delivered by XL Capital pursuant to this paragraph
(b) shall be irrevocable; PROVIDED that a notice of termination of the
Commitments delivered by XL Capital may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by XL Capital (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Subject to the
proviso in the immediately preceding sentence, any termination or reduction of
the Commitments or the RC Sublimit shall be permanent. Each reduction of the
Commitments or the RC Sublimit shall be made ratably among the Lenders in
accordance with their respective Commitments.
(c) INCREASES TO COMMITMENTS. XL Capital shall have the right,
at any time by notice to the Administrative Agent, to increase the Commitments
hereunder up to an aggregate amount not exceeding $1,800,000,000 (i) by
including as a Lender hereunder with a new Commitment, any Person which is a
NAIC Approved Bank that is not an existing Lender or (ii) by having an existing
Lender increase its Commitment then in effect (with the consent of such Lender
in its sole discretion) (each new or increasing Lender, a "SUPPLEMENTAL LENDER")
in each case with the approval (not to be unreasonably withheld) of the
Administrative Agent, which notice shall specify the name of each Supplemental
Lender, the aggregate amount of such increase and the portion thereof being
assumed by each such Supplemental Lender, and the date on which such increase is
to become effective (each a "SUPPLEMENTAL COMMITMENT DATE") (which shall be a
Business Day at least three Business Days after the delivery of such notice and
30 days prior to the Commitment Termination Date); PROVIDED that (x) the
Commitment of any Supplemental Lender that is not an existing Lender shall be in
an amount of at least $25,000,000 and (y) the aggregate amount of the increase
of the Commitments effected on any day shall be in an aggregate amount of at
least $25,000,000 and larger multiples of $1,000,000. Each such Supplemental
Lender shall enter into an agreement in form and substance satisfactory to XL
Capital and the Administrative Agent pursuant to which such Supplemental Lender
shall, as of the applicable Supplemental Commitment Date, undertake a Commitment
(or, if any such Supplemental Lender is an existing Lender, pursuant to which
such Supplemental Lender's Commitment shall be increased in the agreed amount on
such date) and such Supplemental Lender shall thereupon become (or, if it is
already a Lender, continue to be) a "Lender" for all purposes hereof; PROVIDED
that, in the case of any Supplemental Lender that is not a Lender immediately
prior to such Supplemental Commitment Date and is not listed on the NAIC
Approved Bank List, such Supplemental Lender and its Confirming Lender shall
have entered into an agreement of the type contemplated in the definition of
"Confirming Lender" in Section 1.01.
Notwithstanding the foregoing, no increase in the Commitments
hereunder pursuant to this Section shall be effective unless on the applicable
Supplemental Commitment Date:
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(i) no Default shall have occurred and be continuing;
(ii) the representations and warranties of the Obligors set
forth in this Agreement (other than in Section 4.04(b)) shall be true
and correct on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date,
as of such specific date); and
(iii) no Loans are outstanding and no notices in respect of
the issuance, amendment, renewal or extension of any Letter of Credit
or of any Borrowing are pending, unless the Administrative Agent
otherwise agrees.
Each such notice shall be deemed to constitute a representation and warranty by
XL Capital as to the matters specified in clauses (i) and (ii) of the
immediately preceding sentence as of such date.
SECTION 2.12. REPAYMENT OF LOANS; TERM-OUT OPTION;
EVIDENCE OF DEBT.
(a) REPAYMENT. Each Account Party hereby unconditionally
promises to pay to the Administrative Agent for account of the relevant Lenders,
(i) in the event that the Term-Out Option has not been exercised, the
outstanding principal amount of the Loans made to such Account Party on the
Commitment Termination Date and (ii) in the event that the Term-Out Option has
been exercised and is in effect, the outstanding principal amount of the Loans
made to such Account Party on the Maturity Date.
(b) TERM-OUT OPTION. The Account Parties may, by notice given
by XL Capital to the Administrative Agent (which shall promptly notify the
Lenders) not less than 15 days prior to the Commitment Termination Date, extend
the Maturity Date for all Loans outstanding at the close of business New York
City time on the Commitment Termination Date to the first anniversary of the
Commitment Termination Date (the "TERM-OUT OPTION"); PROVIDED that such
extension shall not be effective with respect to any Lender unless:
(i) no Default shall have occurred and be continuing on each
of the date of the notice requesting such extension and on the
Commitment Termination Date; and
(ii) the representations and warranties of the Obligors set
forth in this Agreement (other than in Section 4.04(b)) shall be true
and correct on and as of each of the date of the notice requesting such
extension and the Commitment Termination Date (or, if any such
representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date).
Such notice shall be deemed to constitute a representation and warranty by XL
Capital as to the matters specified in clauses (i) and (ii) of the immediately
preceding sentence as of each such date.
Notwithstanding the foregoing, the Commitments of the Lenders
to make Loans shall terminate on the Commitment Termination Date.
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(c) MANNER OF PAYMENT. Prior to any repayment or prepayment of
any Borrowings hereunder, XL Capital shall select the Borrowing or Borrowings to
be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 11:00 a.m., New York City time, three
Business Days before the scheduled date of such repayment; PROVIDED that each
repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings
before any other Borrowings. If XL Capital fails to make a timely selection of
the Borrowing or Borrowings to be repaid or prepaid, such payment shall be
applied, first, to pay any outstanding ABR Borrowings and, second, to other
Borrowings in the order of the remaining duration of their respective Interest
Periods (the Borrowing with the shortest remaining Interest Period to be repaid
first). Each payment of a Borrowing shall be applied ratably to the Loans
included in such Borrowing.
(d) MAINTENANCE OF RECORDS BY LENDERS. Each Lender shall
maintain in accordance with its usual practice records evidencing the
indebtedness of each Account Party to such Lender resulting from each Loan made
by such Lender to such Account Party, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(e) MAINTENANCE OF RECORDS BY THE ADMINISTRATIVE AGENT. The
Administrative Agent shall maintain records in which it shall record (i) the
amount of each Loan made to each Account Party hereunder, the Type thereof and
each Interest Period therefor, (ii) the amount of any principal or interest due
and payable or to become due and payable from such Account Party to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for account of the Lenders and each Lender's share thereof.
(f) EFFECT OF ENTRIES. The entries made in the records
maintained pursuant to paragraph (d) or (e) of this Section shall be PRIMA FACIE
evidence of the existence and amounts of the obligations recorded therein;
PROVIDED that the failure of any Lender or the Administrative Agent to maintain
such records or any error therein shall not in any manner affect the obligation
of the Account Parties to repay the Loans in accordance with the terms of this
Agreement.
(g) PROMISSORY NOTES. Any Lender may request that Loans made
by it to any Account Party be evidenced by a promissory note of such Account
Party. In such event, each Account Party shall prepare, execute and deliver to
such Lender a promissory note payable to such Lender (or, if requested by such
Lender, to such Lender and its registered assigns) and in a form approved by the
Administrative Agent. Thereafter, the Loans evidenced by such promissory note
and interest thereon shall at all times (including after assignment pursuant to
Section 10.04) be represented by one or more promissory notes in such form
payable to the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).
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SECTION 2.13. PREPAYMENT OF LOANS.
(a) RIGHT TO PREPAY BORROWINGS. The Account Parties shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to the requirements of this Section.
(b) NOTICES, ETC. XL Capital shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in
the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment or (ii) in the
case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; PROVIDED that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.11, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.11. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of a Borrowing of the same Type as provided in
Section 2.07. Each prepayment of a Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.15 and shall be made in the
manner specified in Section 2.12(c).
SECTION 2.14. FEES.
(a) FACILITY FEE. XL Capital agrees to pay to the
Administrative Agent for account of each Lender a facility fee which shall
accrue at a rate per annum equal to the Applicable Facility Fee Rate, (i) prior
to the termination of such Lender's Commitment, on the daily amount of such
Commitment (whether used or unused) during the period from and including the
Effective Date to but excluding the earlier of the date on which such Commitment
terminates and the Commitment Termination Date and (ii) if such Lender continues
to have any Credit Exposure after its Commitment terminates, on the daily amount
of such Lender's Credit Exposure from and including the date on which such
Lender's Commitment terminates to but excluding the date on which such Lender
ceases to have any Credit Exposure. Accrued facility fees shall be payable on
each Quarterly Date and on (i) in the event the Term-Out Option has not been
exercised, the earlier of the date the Commitments terminate and the Commitment
Termination Date or (ii) in the event the Term-Out Option has been exercised and
is in effect, on the Maturity Date; PROVIDED that any facility fees accruing
after such earlier date or the Maturity Date, as the case may be, shall be
payable on demand.
(b) SYNDICATED LETTER OF CREDIT FEES. XL Capital agrees to pay
to the Administrative Agent for account of each Lender a letter of credit fee
which shall accrue at a rate per annum equal to the Applicable Letter of Credit
Fee Rate on the average daily aggregate undrawn amount of all outstanding
Syndicated Letters of Credit during the period from and including the Effective
Date to but excluding the later of the date on which such Lender's Commitment
terminates and the date on which such Lender ceases to have any LC Exposure.
Syndicated Letter of Credit fees accrued through and including each Quarterly
Date shall be
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payable on the third Business Day following such Quarterly Date, commencing on
the first such date to occur after the Effective Date; PROVIDED that all such
fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be
payable on demand.
(c) NON-SYNDICATED LETTER OF CREDIT FEES. XL Capital agrees to
pay to the Administrative Agent for account of each Lender a letter of credit
fee which shall accrue at a rate per annum equal to the Applicable Letter of
Credit Fee Rate on the average daily aggregate undrawn amount of all outstanding
Non-Syndicated Letters of Credit during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure. Non-Syndicated Letter of Credit fees accrued through and including
each Quarterly Date shall be payable on the third Business Day following such
Quarterly Date, commencing on the first such date to occur after the Effective
Date; PROVIDED that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand.
(d) PARTICIPATED LETTER OF CREDIT FEES. XL Capital agrees to
pay (i) to the Administrative Agent for account of each Lender a participation
fee with respect to its participations in Participated Letters of Credit, which
shall accrue at a rate per annum equal to the Applicable Letter of Credit Fee
Rate on the average daily amount of such Lender's LC Exposure in respect of
Participated Letters of Credit (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Commitment terminates and the date on which such Lender ceases to have any such
LC Exposure, and (ii) to the Issuing Lender a fronting fee which shall accrue at
a rate per annum as agreed in writing between XL Capital and the Issuing Lender
on the average daily amount of the LC Exposure in respect of Participated
Letters of Credit (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any such LC Exposure. Participation fees and
fronting fees accrued through and including each Quarterly Date shall be payable
on the third Business Day following such Quarterly Date, commencing on the first
such date to occur after the Effective Date; PROVIDED that all such fees shall
be payable on the date on which the Commitments terminate and any such fees
accruing after the date on which the Commitments terminate shall be payable on
demand.
(e) LC ADMINISTRATIVE FEES. XL Capital agrees to pay to the
Administrative Agent, for its own account, within 10 Business Days after demand
the Administrative Agent's standard administrative fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder.
(f) ADMINISTRATIVE AGENT FEES. XL Capital agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between XL Capital and the Administrative
Agent.
(g) PAYMENT AND COMPUTATION OF FEES. All fees payable
hereunder shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, in
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the case of the fees referred to in paragraphs (a) through (d) of this Section,
to the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances. All fees payable under paragraphs (a) through (d) of this Section
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
SECTION 2.15. INTEREST.
(a) ABR LOANS. The Loans constituting each ABR Borrowing shall
bear interest at a rate per annum equal to the Alternate Base Rate PLUS the
Applicable Additional Margin, if any.
(b) EURODOLLAR LOANS. The Loans constituting each Eurodollar
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period for such Borrowing PLUS the Applicable Margin PLUS
the Applicable Additional Margin, if any.
(c) DEFAULT INTEREST. Notwithstanding the foregoing, if any
principal of or interest on any Loan or any fee or other amount payable (other
that in respect of any LC Disbursement under Sections 2.03(d), 2.04(j), and
2.05(i)) by the Account Parties hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% PLUS the rate otherwise applicable
to such Loan as provided above or (ii) in the case of any other amount, 2% PLUS
the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) PAYMENT OF INTEREST. Accrued interest on each Loan shall
be payable by the applicable Account Party in arrears on each Interest Payment
Date for such Loan and upon (i) in the event the Term-Out Option has not been
exercised, the date the Commitments terminate or (ii) in the event the Term-Out
Option has been exercised and is in effect, the Maturity Date; PROVIDED that (x)
interest accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (y) in the event of any repayment or prepayment of any Loan (other than
a prepayment of an ABR Loan prior to the later of the Commitment Termination
Date and the Maturity Date), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (z) in
the event of any conversion of any Eurodollar Borrowing prior to the end of the
Interest Period therefor, accrued interest on such Borrowing shall be payable on
the effective date of such conversion.
(e) COMPUTATION. All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable
Alternate Base Rate or Adjusted LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.16. ALTERNATE RATE OF INTEREST. If prior to the
commencement of the Interest Period for any Eurodollar Borrowing:
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(a) the Administrative Agent determines in good faith (which
determination shall be conclusive absent manifest error) that adequate
and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders (acting in good faith) that the Adjusted LIBO Rate for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders of making or maintaining their respective Loans included in
such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to XL Capital and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies XL Capital and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or the
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and such Borrowing (unless prepaid) shall be continued as, or converted to, an
ABR Borrowing and (ii) if any Borrowing Request requests a Eurodollar Borrowing,
such Borrowing shall be made as an ABR Borrowing.
SECTION 2.17. INCREASED COSTS.
(a) INCREASED COSTS GENERALLY. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement, any Letter of Credit (or any
participation therein) or any Eurodollar Loan made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining, or participating in, any Letter of Credit (or
of maintaining any participation therein) or Eurodollar Loan (or of maintaining
its obligation to make any such Loan) or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal, interest
or otherwise), then the Account Parties jointly and severally agree that they
will pay to such Lender such additional amount or amounts as will compensate
such Lender for such additional costs incurred or reduction suffered.
(b) CAPITAL REQUIREMENTS. If any Lender determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement or the
Letters of Credit issued or participated in, or the Loans made, by such Lender
to a level below that which such Lender or such Lender's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy), then from time to time the Account Parties will pay to
such Lender such additional amount or amounts as will compensate such Lender or
such Lender's holding company for any such reduction suffered.
364-DAY CREDIT AGREEMENT
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(c) CERTIFICATES FROM LENDERS. A certificate of a Lender
setting forth such Lender's good faith determination of the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to XL
Capital and shall be conclusive absent manifest error. The Account Parties shall
pay such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof by XL Capital.
(d) DELAY IN REQUESTS. Failure or delay on the part of any
Lender to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's right to demand such compensation; PROVIDED that the
Account Parties shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than 90 days prior
to the date that such Lender notifies XL Capital of the Change in Law giving
rise to such increased costs or reductions and of such Lender's intention to
claim compensation therefor; PROVIDED FURTHER that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 90 day
period referred to above shall be extended to include the period of retroactive
effect thereof.
(e) APPLICATION TO TAXES. Notwithstanding anything in this
Section to the contrary, this Section shall not apply to Taxes, which shall be
governed solely by Section 2.19.
SECTION 2.18. BREAK FUNDING PAYMENTS. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay any Loan
on the date specified in any notice delivered pursuant hereto (regardless of
whether such notice is permitted to be revocable under Section 2.13(b) and is
revoked in accordance herewith), or (d) the assignment as a result of a request
by XL Capital pursuant to Section 2.21(b) of any Eurodollar Loan other than on
the last day of an Interest Period therefor, then, in any such event, the
Account Parties shall compensate each Lender for the loss attributable to such
event. The loss to any Lender attributable to any such event shall be deemed to
be an amount determined by such Lender to be equal to the excess, if any, of (i)
the amount of interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest Period, OVER (ii)
the amount of interest that such Lender would earn on such principal amount for
such period if such Lender were to invest such principal amount for such period
at the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for Dollar deposits from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth such
Lender's good faith determination of any amount or amounts that such Lender is
entitled to receive pursuant to this Section shall be delivered to XL Capital
and shall be conclusive absent manifest error. The Account Parties shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof by XL Capital.
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SECTION 2.19. TAXES.
(a) PAYMENTS FREE OF TAXES. Any and all payments by or on
account of any obligation of the Account Parties hereunder shall be made free
and clear of and without deduction for any Indemnified Taxes; PROVIDED that if
any Account Party shall be required to deduct any Indemnified Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) the Administrative Agent or Lender (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Account Party shall make such deductions and
(iii) such Account Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) PAYMENT OF OTHER TAXES BY THE ACCOUNT PARTIES. In
addition, each Account Party shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) INDEMNIFICATION BY THE ACCOUNT PARTIES. The Account
Parties shall indemnify the Administrative Agent and each Lender, within 10 days
after written demand to XL Capital therefor, for the full amount of any
Indemnified Taxes and Other Taxes (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section) paid by the
Administrative Agent or such Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes, as the case may be, were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate setting forth the Administrative Agent's or such Lender's, as the
case may be, good faith determination of the amount of such payment or liability
delivered to XL Capital by a Lender, or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive as between such Lender or
the Administrative Agent, as the case may be, and the Account Parties absent
manifest error.
(d) EVIDENCE OF PAYMENTS. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by any Account Party to a
Governmental Authority, XL Capital on behalf of such Account Party shall deliver
to the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) EXEMPTIONS. Each Lender and the Administrative Agent
shall, at the written request of XL Capital, provide to any Account Party such
form, certification or similar documentation, if any (each duly completed,
accurate and signed) as is currently required by any Account Party Jurisdiction
or any other jurisdiction, or comply with such other requirements, if any, as is
currently applicable in such Account Party Jurisdiction or any other
jurisdiction, in order to obtain an exemption from, or reduced rate of,
deduction, payment or withholding of Indemnified Taxes or Other Taxes to which
such Lender or the Administrative Agent is entitled pursuant to an applicable
tax treaty or the law of such Account Party Jurisdiction or any other
jurisdiction; PROVIDED that XL Capital shall have furnished to such Lender or
the Administrative Agent in a reasonably timely manner copies of such
documentation and notice of such
364-DAY CREDIT AGREEMENT
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requirements together with applicable instructions. Upon the reasonable request
of XL Capital in writing, each Lender and the Administrative Agent will provide
to XL Capital such form, certification or similar documentation (each duly
completed, accurate and signed) as may in the future be required by any Account
Party Jurisdiction or any other jurisdiction, or comply with such other
requirements, if any, as may be applicable in such Account Party Jurisdiction or
any other jurisdiction in order to obtain an exemption from, or reduced rate of,
deduction, payment or withholding of Indemnified Taxes or Other Taxes to which
such Lender or the Administrative Agent is entitled pursuant to an applicable
tax treaty or the law of the relevant jurisdiction. The Account Parties shall
not be required to pay additional amount to, or to indemnify, any Lender or the
Administrative Agent under paragraph (a) or (c) of this Section for any
Indemnified Taxes or Other Taxes to the extent such Indemnified Taxes or Other
Taxes would not have been imposed but for the failure by such Lender or the
Administrative Agent, as the case may be, to comply with the foregoing
provisions of paragraph (e) of this Section.
(f) If the Administrative Agent or a Lender determines, in its
reasonable discretion, that it has received a refund of any Taxes or Other Taxes
as to which it has been indemnified by an Account Party or with respect to which
an Account Party has paid additional amounts pursuant to this Section, it shall
pay over such refund to such Account Party (but only to the extent of indemnity
payments made, or additional amounts paid, by such Account Party under this
Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED that such Account Party, upon
the request of the Administrative Agent or such Lender, agrees to repay the
amount paid over to such Account Party (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall
not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which
it deems confidential) to any Account Party or any other Person.
(g) Any Lender that is not a Lender as of the date hereof
shall not be entitled to any greater payment under this Section than such
Lender's assignor was entitled to immediately prior to such assignment
(determined taking into account the provisions of this Section) except to the
extent that the entitlement to a greater payment resulted solely from a Change
in Law formally announced after the date on which such Lender became a Lender
hereunder.
SECTION 2.20. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING
OF SET-OFFS.
(a) PAYMENTS BY THE ACCOUNT PARTIES. The Account Parties shall
make each payment required to be made by them hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, interest or fees, or under
Section 2.17, 2.18 or 2.19, or otherwise) or under any other Credit Document
(except to the extent otherwise provided therein) prior to 12:00 noon, New York
City time, on the date when due, in immediately available funds, without set-off
or counterclaim; PROVIDED that any payments in respect of Alternative Currency
Letters of Credit shall be made in the manner (including the time and place of
payment) as shall have been separately agreed between the relevant Account Party
and Lender pursuant to Section 2.06. Any amounts received after such time on any
date may, in the discretion of the
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Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments pursuant to Sections 2.17, 2.18, 2.19 and 10.03,
which shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for account of any other
Person to the appropriate recipient promptly following receipt thereof. 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. All payments hereunder shall be made in Dollars.
(b) APPLICATION OF INSUFFICIENT PAYMENTS. If at any time
insufficient funds are received by and available to the Administrative Agent to
pay fully all amounts of principal, unreimbursed LC Disbursements, interest and
fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, to pay principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) PRO RATA TREATMENT. Except to the extent otherwise
provided herein: (i) each reimbursement of LC Disbursements (other than in
respect of Alternative Currency Letters of Credit) shall be made to the Lenders,
each Borrowing shall be made from the Lenders, each payment of fees under
Section 2.14 shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments under Section 2.11
shall be applied to the respective Commitments of the Lenders, in each case pro
rata according to the amounts of their respective Commitments (or, in the case
of any such reimbursement or payment after the termination of the Commitments,
pro rata according to the Aggregate Credit Exposure); (ii) each Borrowing shall
be allocated pro rata among the Lenders according to the amounts of their
respective Commitments (in the case of the making of Loans) or their respective
Loans that are to be included in such Borrowing (in the case of conversions and
continuations of Loans); (iii) each payment or prepayment of principal of Loans
by any Account Party shall be made for account of the Lenders pro rata according
to the respective unpaid principal amounts of the Loans of such Account Party;
and (iv) each payment of interest on Loans by an Account Party shall be made for
account of the Lenders pro rata according to the amounts of interest on such
Loans then due and payable thereunder.
(d) SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or LC Disbursements
(other than with respect to Alternative Currency Letters of Credit) resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of
its Loans and/or LC Disbursements (other than with respect to Alternative
Currency Letters of Credit) 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 Loans
and/or LC Disbursements (other than with respect to Alternative Currency Letters
of Credit) of other Lenders to the extent necessary so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of
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principal of and accrued interest on their respective Loans and/or LC
Disbursements (other than with respect to Alternative Currency Letters of
Credit); PROVIDED that (i) 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 (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by any Account Party 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
any of its Loans or LC Disbursements to any assignee or participant, other than
to any Account Party or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). Each Account Party 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 such Account Party rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Account Party in the amount of such participation.
(e) PRESUMPTIONS OF PAYMENT. Unless the Administrative Agent
shall have received notice from an Account Party prior to the date on which any
payment is due to the Administrative Agent for account of the relevant Lenders
hereunder that such Account Party will not make such payment, the Administrative
Agent may assume that such Account Party has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
relevant Lenders the amount due. In such event, if the relevant Account Party
has not in fact made such payment, then each of the Lenders severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed
to such Lender 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
Administrative Agent, at the Federal Funds Effective Rate.
(f) CERTAIN DEDUCTIONS BY THE ADMINISTRATIVE AGENT. If any
Lender shall fail to make any payment required to be made by it pursuant to
Section 2.20(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.21. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS.
(a) DESIGNATION OF A DIFFERENT LENDING OFFICE. If any Lender
requests compensation under Section 2.17, or if any Account Party is required to
pay any additional amount or indemnification payment to any Lender or any
Governmental Authority for account of any Lender pursuant to Section 2.19, then
such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans and/or Letters of Credit hereunder or to assign
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 (i) would eliminate or reduce amounts payable pursuant to Section
2.17 or 2.19, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. Each Account Party hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
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(b) REPLACEMENT OF LENDERS. If any Lender requests
compensation under Section 2.17, 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 Section 2.19, or if any Lender defaults in its obligation to
fund Loans or to make LC Disbursements hereunder, or if any Lender ceases to be
a NAIC Approved Bank, then XL Capital may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement to an assignee selected by XL Capital that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); PROVIDED that (i) XL Capital shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and/or 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 (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.17 or payments required to be made
pursuant to Section 2.19, 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.
ARTICLE III
GUARANTEE
SECTION 3.01. THE GUARANTEE. Each Guarantor hereby jointly and
severally guarantees to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether
at stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans and LC Disbursements (and interest thereon) made by the
Lenders to each of the Account Parties (other than such Guarantor in its
capacity as an Account Party hereunder) and all other amounts from time to time
owing to the Lenders or the Administrative Agent by such Account Parties under
this Agreement, in each case strictly in accordance with the terms thereof (such
obligations being herein collectively called the "GUARANTEED OBLIGATIONS"). Each
Guarantor hereby further jointly and severally agrees that if any Account Party
(other than such Guarantor in its capacity as an Account Party hereunder) shall
fail to pay in full when due (whether at stated maturity, by acceleration or
otherwise) any of the Guaranteed Obligations, such Guarantor will promptly pay
the same, without any demand or notice whatsoever, and that in the case of any
extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity,
by acceleration or otherwise) in accordance with the terms of such extension or
renewal.
SECTION 3.02. OBLIGATIONS UNCONDITIONAL. The obligations of
the Guarantors
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under Section 3.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the obligations of the Account Parties under this Agreement or any other
agreement or instrument referred to herein or therein, or any substitution,
release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Article that the obligations of the Guarantors
hereunder shall be absolute and unconditional, joint and several, under any and
all circumstances. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not alter
or impair the liability of the Guarantors hereunder, which shall remain absolute
and unconditional as described above:
(i) at any time or from time to time, without notice to the
Guarantors, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
this Agreement or any other agreement or instrument referred to herein
shall be done or omitted; or
(iii) the maturity of any of the Guaranteed Obligations shall
be accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect, or any right under this
Agreement or any other agreement or instrument referred to herein shall
be waived or any other guarantee of any of the Guaranteed Obligations
or any security therefor shall be released or exchanged in whole or in
part or otherwise dealt with.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against any
Account Party under this Agreement or any other agreement or instrument referred
to herein, or against any other Person under any other guarantee of, or security
for, any of the Guaranteed Obligations.
SECTION 3.03. REINSTATEMENT. The obligations of the Guarantors
under this Article shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of any Account Party in respect of
the Guaranteed Obligations is rescinded or must be otherwise restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Guarantors
jointly and severally agree that they will indemnify the Administrative Agent
and each Lender on demand for all reasonable costs and expenses (including
reasonable fees of counsel) incurred by the Administrative Agent or such Lender
in connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
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SECTION 3.04. SUBROGATION. The Guarantors hereby jointly and
severally agree that until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments
they shall not exercise any right or remedy arising by reason of any performance
by them of their guarantee in Section 3.01, whether by subrogation or otherwise,
against any Account Party or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations.
SECTION 3.05. REMEDIES. The Guarantors jointly and severally
agree that, as between the Guarantors and the Lenders, the obligations of the
Account Parties under this Agreement may be declared to be forthwith due and
payable as provided in Article VIII (and shall be deemed to have become
automatically due and payable in the circumstances provided in Article VIII) for
purposes of Section 3.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against any Account Party and that, in the
event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by any Account Party) shall forthwith become due and payable by the Guarantors
for purposes of Section 3.01.
SECTION 3.06. CONTINUING GUARANTEE. The guarantee in this
Article is a continuing guarantee, and shall apply to all Guaranteed Obligations
whenever arising.
SECTION 3.07. RIGHTS OF CONTRIBUTION. The Guarantors (other
than XL Capital) 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 XL Capital) 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 Section 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 Article III 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 Section, (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
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all of the Guarantors (other than XL Capital) 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 Article III) of all of the Guarantors (other than XL Capital), 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.
SECTION 3.08. GENERAL LIMITATION ON GUARANTEE OBLIGATIONS. In
any action or proceeding involving any corporate law, or any bankruptcy,
insolvency, reorganization or other law affecting the rights of creditors
generally, if the obligations of any Guarantor under Section 3.01 would
otherwise, taking into account the provisions of Section 3.07, 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 Section
3.01, 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 Administrative 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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Account Party represents and warrants to the Lenders
that:
SECTION 4.01. ORGANIZATION; POWERS. Such Account Party and
each of its Significant Subsidiaries is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, 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.
SECTION 4.02. AUTHORIZATION; ENFORCEABILITY. The Transactions
are within such Account Parties' corporate powers and have been duly authorized
by all necessary corporate and, if required, by all necessary shareholder
action. This Agreement has been duly executed and delivered by such Account
Party and constitutes a legal, valid and binding obligation of such Account
Party, enforceable against such Account Party in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, examination 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).
SECTION 4.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. 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 organizational documents of such Account
364-DAY CREDIT AGREEMENT
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Party 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 Account Party 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 Account Party or any
of its Significant Subsidiaries.
SECTION 4.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE
CHANGE.
(a) FINANCIAL CONDITION. Such Account Party has heretofore
furnished to the Lenders the consolidated balance sheet and statements of
income, stockholders' equity and cash flows of such Account Party and its
consolidated Subsidiaries (A) as of and for the fiscal year ended December 31,
2003, reported on by PricewaterhouseCoopers LLP, independent public accountants
(as provided in XL Capital's Report on Form 10-K filed with the SEC for the
fiscal year ended December 31, 2003), and (B) as of and for the fiscal quarter
ended March 31, 2004, as provided in XL Capital's Report on Form 10-Q filed with
the SEC for the fiscal quarter ended March 31, 2004. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of such 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 Insurance 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.
(b) NO MATERIAL ADVERSE CHANGE. Since December 31, 2003, there
has been no material adverse change in the assets, business, financial condition
or operations of such Account Party and its Subsidiaries, taken as a whole.
SECTION 4.05. PROPERTIES.
(a) PROPERTY GENERALLY. Such Account Party 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 Section 7.03 and except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes.
(b) INTELLECTUAL PROPERTY. Such Account Party 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 Account Party and its 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.
SECTION 4.06. LITIGATION AND ENVIRONMENTAL MATTERS.
(a) ACTIONS, SUITS AND PROCEEDINGS. Except as disclosed in
Schedule III 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
364-DAY CREDIT AGREEMENT
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Account Party, threatened against or affecting such Account Party or any of its
Subsidiaries (i) 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 (ii) that involve this
Agreement or the Transactions.
(b) ENVIRONMENTAL MATTERS. Except as disclosed in Schedule IV
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 Account Party 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 Liability, (iii) has
received notice of any claim with respect to any Environmental Liability or (iv)
knows of any basis for any Environmental Liability.
SECTION 4.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Such
Account Party 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.
SECTION 4.08. INVESTMENT AND HOLDING COMPANY STATUS. Such
Account Party 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.
SECTION 4.09. TAXES. Such Account Party 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 file any such Tax
return or pay any such Taxes could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.10. ERISA. 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
Account Party 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
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Governmental Authority and (iii) neither any Account Party nor any of their
Subsidiaries has incurred any obligation in connection with the termination or
withdrawal from any Non-U.S. Benefit Plan.
SECTION 4.11. DISCLOSURE. The reports, financial statements,
certificates or other information furnished by such Account Party to the Lenders
in connection with the negotiation of this Agreement 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 Account Party represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
SECTION 4.12. USE OF CREDIT. Neither such Account Party 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. No part of the proceeds of any Loan hereunder will be used to buy or
carry any Margin Stock (except for repurchases of the capital stock of XL
Capital and purchases of Margin Stock in accordance with XL Capital'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 a resolution duly adopted by the
board of directors of XL Capital (or any committee thereof)). The purchase of
any Margin Stock with the proceeds of any Loan will not be in violation of
Regulation U or X of the Board and, after applying the proceeds of such Loan,
not more than 25% of the value of the assets of XL Capital and its Subsidiaries
taken as a whole consists or will consist of Margin Stock.
SECTION 4.13. SUBSIDIARIES. Set forth in Schedule V is a
complete and correct list of all of the Subsidiaries of XL Capital as of March
31, 2004, together with, for each such Subsidiary, (i) the jurisdiction of
organization 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 V, (x)
each of XL Capital 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 V, (y) all of the issued and
outstanding capital stock of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) except as disclosed in
filings of XL Capital with the SEC prior to the date hereof, there are no
outstanding Equity Rights with respect to any Account Party.
SECTION 4.14. WITHHOLDING TAXES. Based upon information with
respect to each Lender provided by each Lender to the Administrative Agent, as
of the date hereof, the payment of the LC Disbursements and interest thereon,
principal of and interest on the Loans, the fees under Section 2.14 and all
other amounts payable hereunder will not be subject, by withholding or
deduction, to any Indemnified Taxes imposed by Bermuda or the Cayman Islands.
SECTION 4.15. STAMP TAXES. To ensure the legality, validity,
enforceability or
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admissibility in evidence of this Agreement or any promissory notes evidencing
Loans made (or to be made), it is not necessary, as of the date hereof, that
this Agreement or such promissory notes or any other document be filed or
recorded with any Governmental Authority in Bermuda or the Cayman Islands, or
that any stamp or similar tax be paid on or in respect of this Agreement in any
such jurisdiction, or such promissory notes or any other document other than
such filings and recordations that have already been made and such stamp or
similar taxes that have been paid.
SECTION 4.16. LEGAL FORM. Each of this Agreement and any
promissory notes evidencing Loans made (or to be made) is in proper legal form
under the laws of any Account Party Jurisdiction for the admissibility thereof
in the courts of such Account Party Jurisdiction.
ARTICLE V
CONDITIONS
SECTION 5.01. EFFECTIVE DATE. The obligations of the Lenders
(or the Issuing Lender, as the case may be) to issue or continue Letters of
Credit and to make Loans hereunder are subject to the receipt by the
Administrative Agent of each of the following documents, each of which shall be
satisfactory to the Administrative Agent (and to the extent specified below, to
each Lender) in form and substance (or such condition shall have been waived in
accordance with Section 10.02):
(a) EXECUTED COUNTERPARTS. From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this
Agreement) that such party has signed a counterpart of this Agreement.
(b) OPINIONS OF COUNSEL TO THE OBLIGORS. Opinions, each dated
the Effective Date, of (i) Xxxx X. Xxxxxxxx, Esq., counsel to XL
Capital, substantially in the form of Exhibit B-1, (ii) Xxxxxxx X.
Xxxx, Esq., counsel to XL America, substantially in the form of Exhibit
B-2, (iii) Xxxxxx Xxxxxx & Xxxxxxx LLP, special U.S. counsel for the
Obligors, substantially in the form of Exhibit B-3, (iv) Xxxxxxx, Xxxx
& Xxxxxxx, special Bermuda counsel to XL Insurance and XL Re,
substantially in the form of Exhibit B-4 and (v) Xxxxxxx Xxxxxxxx
Xxxxxx, special Cayman Islands counsel to XL Capital, substantially in
the form of Exhibit B-5.
(c) OPINION OF SPECIAL NEW YORK COUNSEL TO JPMCB. An opinion,
dated the Effective Date, of Milbank, Tweed, Xxxxxx & XxXxxx LLP,
special New York counsel to JPMCB, substantially in the form of Exhibit
C (and JPMCB hereby instructs such counsel to deliver such opinion to
the Lenders).
(d) CORPORATE DOCUMENTS. Such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing, if applicable, of the
Obligors, the authorization of the Transactions and
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any other legal matters relating to the Obligors, this Agreement or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(e) OFFICER'S CERTIFICATE. A certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial
Officer of XL Capital, confirming compliance with the conditions set
forth in the lettered clauses of the first sentence of Section 5.02.
(f) EXISTING CREDIT AGREEMENT; EXISTING LETTERS OF CREDIT.
Evidence that (i) the Account Parties shall have paid in full all
principal of and interest accrued on the loans and reimbursement
obligations under the Existing Credit Agreement and all fees, expenses
and other amounts owing by the Account Parties thereunder, (ii) the
Commitments under (and as defined in) the Existing Credit Agreement)
have terminated. In addition, the Administrative Agent shall have (i)
received a notice satisfactory to the Administrative Agent from XL
Capital designating whether any of the Syndicated Letters of Credit,
Non-Syndicated Letters of Credit and/or Participated Letters of Credit
under (and as defined in) the Existing Credit Agreement outstanding
immediately prior to the Effective Date are to be continued under this
Agreement and (ii) with respect to each such Non-Syndicated Letters of
Credit to be continued hereunder, evidence that such Non-Syndicated
Letters of Credit shall have been either amended in the manner
contemplated by Section 2.04(l) or replaced with one or more
Non-Syndicated Letters of Credit in favor of the relevant beneficiary
issued by the Lenders having Commitments hereunder as of the Effective
Date (or arrangements satisfactory to the Administrative Agent for such
amendment or replacement, as applicable, as promptly as practicable
following the Effective Date shall have been made).
(g) OTHER DOCUMENTS. Such other documents as the
Administrative Agent or any Lender or special New York counsel to JPMCB
may reasonably request.
The obligation of any Lender to make its initial extension of
credit hereunder is also subject to the payment by XL Capital of such fees as XL
Capital shall have agreed to pay to any Lender or the Administrative Agent in
connection herewith, including the reasonable fees and expenses of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special New York counsel to JPMCB, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the other Credit Documents and the extensions of credit hereunder (to the extent
that reasonably detailed statements for such fees and expenses have been
delivered to XL Capital).
The Administrative Agent shall notify the Account Parties and
the Lenders of the Effective Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders (or the
Issuing Lender, as the case may be) to issue or continue, Letters of Credit or
to make Loans hereunder shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 10.02) at or prior to
5:00 p.m., New York City time, on June 23, 2004 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
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SECTION 5.02. EACH CREDIT EVENT. The obligation of each Lender
to issue, continue, amend, renew or extend any Letter of Credit or to make any
Loan is additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Obligors set
forth in this Agreement (other than, at any time after the Effective
Date, in Section 4.04(b)) shall be true and correct on and as of the
date of issuance, continuation, amendment, renewal or extension of such
Letter of Credit or the date of such Loan, as applicable (or, if any
such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date);
(b) at the time of and immediately after giving effect to the
issuance, amendment, renewal or extension of such Letter of Credit or
such Loan, as applicable, no Default shall have occurred and be
continuing; and
(c) in the case of any Alternative Currency Letter of Credit,
receipt by the Administrative Agent of a request for offers as required
by Section 2.06(a).
Each issuance, continuation, amendment, renewal or extension of a Letter of
Credit and each Borrowing shall be deemed to constitute a representation and
warranty by the Obligors on the date thereof as to the matters specified in
clauses (a) and (b) of the immediately preceding sentence.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated, the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Account Parties covenant
and agree with the Lenders that:
SECTION 6.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. Each
Account Party will furnish to the Administrative Agent and each Lender:
(a) within 135 days after the end of each fiscal year of each
Account Party except for XL America (but in the case of XL Capital,
within 100 days after the end of each fiscal year of XL Capital), the
audited consolidated balance sheet and related statements of
operations, stockholders' equity and cash flows of such Account Party
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 XL Capital'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 XL Capital
so long as the financial information required to be contained in such
Report is substantially the same as the financial information required
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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
Account Party and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP or (in the case of XL Insurance and XL Re) SAP,
as the case may be, consistently applied;
(b) by June 15 of each year, (i) 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 (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 Account Party, the
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows of such Account Party 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 Account Party as presenting fairly in all material
respects the financial condition and results of operations of such
Account Party and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP or (in the case of 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 XL Capital'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 XL Capital 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));
(d) concurrently with any delivery of financial statements
under clause (a), (b) or (c) of this Section, a certificate signed on
behalf of each Account Party 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
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thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 7.03, 7.05, 7.06 and 7.07 and
(iii) stating whether any change in GAAP or (in the case of XL
Insurance, 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 Section 4.04 and, if any such
change has occurred, specifying any material effect of such change on
the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements
under clauses (a) and (b)(ii) of this Section, 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 Account Party 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 Account Party to its shareholders
generally, as the case may be;
(g) concurrently with any delivery of financial statements
under clause (a), (b) or (c) of this Section, a certificate of a
Financial Officer of XL Capital, setting forth on a consolidated basis
for XL Capital 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 Section 7.03(h) and the aggregate book value of liabilities which
are subject to Liens permitted under Section 7.03(h)(it being
understood that the reports required by paragraphs (a), (b) and (c) of
this Section shall satisfy the requirement of this clause (i) of this
paragraph (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 XL Capital;
(h) 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 XL Capital (commencing with the fiscal year
ending December 31, 2004), a statement of a Financial Officer of XL
Capital listing, as of the end of the immediately preceding fiscal
quarter of XL Capital, the amount of cash and the securities of the
Account Parties and their Subsidiaries that have been posted as
collateral under Section 7.03(f); and
(i) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of XL Capital or any of its Subsidiaries, or compliance with
the terms of this Agreement, as the Administrative Agent or any Lender
may reasonably request.
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SECTION 6.02. NOTICES OF MATERIAL EVENTS. Each Account Party
will furnish to the Administrative Agent and each Lender prompt written notice
of the following:
(a) the occurrence of any Default; and
(b) any event or condition constituting, or which could
reasonably be expected to have a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the relevant Account Party
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken by such Account Party with respect
thereto.
SECTION 6.03. PRESERVATION OF EXISTENCE AND FRANCHISES. Each
Account Party 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; PROVIDED that the
foregoing shall not prohibit any merger or consolidation permitted under Section
7.01. Each Account Party will, and will cause each of its 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.
SECTION 6.04. INSURANCE. Each Account Party 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.
SECTION 6.05. MAINTENANCE OF PROPERTIES. Each Account Party
will, and will cause each of its 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 Account Party or any Subsidiary of
such Account Party any obligation in respect of any property leased by such
Account Party or such Subsidiary in addition to such Account Party's obligations
under the applicable document creating such Account Party's or such Subsidiary's
lease or tenancy.
SECTION 6.06. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS; PAYMENT OF OTHER CURRENT LIABILITIES. Each Account Party will,
and will cause each of its Subsidiaries to, pay or discharge:
(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) 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
(c) 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 Section 7.03) or which, if
unpaid, might give rise to a claim entitled to priority over general
creditors of such Account Party or such Subsidiary in any proceeding
under the Bermuda Companies Law or Bermuda Insurance Law, or any
insolvency proceeding, liquidation, receivership, rehabilitation,
dissolution or winding-up involving such Account Party or such
Subsidiary;
PROVIDED that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, such Account Party or such Subsidiary
need not pay or discharge any such tax, assessment, charge, levy or claim (i) so
long as the validity thereof is contested in good faith and by appropriate
proceedings diligently conducted and so long as such reserves or other
appropriate provisions as may be required by GAAP or SAP, as the case may be,
shall have been made therefor or (ii) so long as such failure to pay or
discharge would not have a Material Adverse Effect.
SECTION 6.07. FINANCIAL ACCOUNTING PRACTICES. Such Account
Party 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 Section 6.01 in conformity with GAAP and
SAP, as applicable, and to maintain accountability for assets.
SECTION 6.08. COMPLIANCE WITH APPLICABLE LAWS. Each Account
Party 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 Account Party or any
Subsidiary of such Account Party will not be deemed to be in violation of this
Section 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 Account Party to perform its
obligations under this Agreement.
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SECTION 6.09. USE OF LETTERS OF CREDIT AND PROCEEDS. No part
of the proceeds of any Loan and 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 Account Party will
use the Letters of Credit issued for its account hereunder in the ordinary
course of business of, and will use the proceeds of all Loans made to it for the
general corporate purposes of, such Account Party and its Affiliates. For the
avoidance of doubt, the parties agree that any Account Party may apply for a
Letter of Credit hereunder to support the obligations of any Affiliate of XL
Capital, it being understood that such Account Party shall nonetheless remain
the account party and as such be liable with respect to such Letter of Credit.
SECTION 6.10. CONTINUATION OF AND CHANGE IN BUSINESSES. Each
Account Party 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.
SECTION 6.11. VISITATION. Each Account Party will permit such
Persons as any Lender may reasonably designate to visit and inspect any of the
properties of such Account Party, to discuss its affairs with its financial
management, and provide such other information relating to the business and
financial condition of such Account Party at such times as such Lender may
reasonably request. Each Account Party hereby authorizes its financial
management to discuss with any Lender the affairs of such Account Party.
ARTICLE VII
NEGATIVE COVENANTS
Until the Commitments have expired or terminated, the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, all Letters of Credit have expired or terminated and all LC
Disbursements have been reimbursed, each of the Account Parties covenants and
agrees with the Lenders that:
SECTION 7.01. MERGERS. No Account Party 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 (a) any Account Party may
merge or consolidate with any other corporation, including a Subsidiary, if such
Account Party shall be the surviving corporation, (b) XL Capital 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 XL Capital (other than the cancellation
of any outstanding shares of capital stock of XL Capital held by the Person with
whom it merges or consolidates) and (c) any Account Party may enter into a
merger or consolidation which is effected solely to change the jurisdiction of
incorporation of such Account Party and results in a reclassification,
conversion or exchange of outstanding shares of capital stock of such Account
Party solely into shares of capital stock of the surviving entity.
SECTION 7.02. DISPOSITIONS. No Account Party will, nor will it
permit any of
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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 Section 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:
(a) Dispositions in the ordinary course of business involving
current assets or other invested assets classified on such Account
Party's or its respective Subsidiaries' balance sheet as available for
sale or as a trading account;
(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 Account Parties and their
respective Subsidiaries, exceed $500,000,000 in any calendar year; or
(c) Dispositions of equipment or other property which is
obsolete or no longer used or useful in the conduct of the business of
such Account Party or its Subsidiaries.
SECTION 7.03. LIENS. No Account Party 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:
(a) Liens existing on the date hereof (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) and listed on Part B of Schedule II;
(b) Liens arising from taxes, assessments, charges, levies or
claims described in Section 6.06 that are not yet due or that remain
payable without penalty or to the extent permitted to remain unpaid
under the provision of Section 6.06;
(c) Liens on property securing all or part of the purchase
price thereof to such Account Party and Liens (whether or not assumed)
existing on property at the time of purchase thereof by such Account
Party (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 Account Party,
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;
(d) 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 Account Party or any such Subsidiary;
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(e) Liens securing Indebtedness permitted by Section 7.07(b)
covering assets whose market value is not materially greater than the
amount of the Indebtedness secured thereby plus a commercially
reasonable margin;
(f) Liens on cash and securities of an Account Party 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 XL Capital'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 a
resolution duly adopted by the board of directors of XL Capital (or any
committee thereof);
(g) Liens on cash and securities not to exceed $500,000,000 in
the aggregate securing obligations of an Account Party 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 clause (g) preclude any Person (other than any Subsidiary of
XL Capital) in which XL Capital 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 XL Capital or any of its Subsidiaries (other than
any investees)), PROVIDED that, for purposes of determining the
aggregate amount of cash and/or securities subject to such Liens under
this clause (g), the aggregate amount of cash and/or securities on
which any Account Party or any Subsidiary shall have granted a Lien in
favor 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 favor of such Account Party or such
Subsidiary, as the case may be, at such time, so long as the relevant
agreement between such Account Party or such Subsidiary, as the case
may be, provides for the netting of their respective obligations
thereunder;
(h) 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 Account Parties' or any of their Subsidiary's business as
an insurance or reinsurance company (including GICs and Stable Value
Investments) or corporate member of The Council 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, or (ii) 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);
(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) Liens existing on property of a Person immediately prior
to its being consolidated with or merged into any Account Party or any
of their Subsidiaries or its becoming a Subsidiary, and Liens existing
on any property acquired by any Account Party 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.
SECTION 7.04. TRANSACTIONS WITH AFFILIATES. No Account Party
will, nor will it permit any of its Significant Subsidiaries to, enter into or
carry out any transaction with (including 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 Account Party, or
directly or indirectly agree to do any of the foregoing, except (i) transactions
involving guarantees or co-obligors with respect to any Indebtedness described
in Part A of Schedule II, (ii) transactions among the Account Parties and their
wholly-owned Subsidiaries and (iii) transactions with Affiliates in good faith
in the ordinary course of such Account Party's business consistent with past
practice and on terms no less favorable to such Account Party or any Subsidiary
than those that could have been obtained in a comparable transaction on an arm's
length basis from an unrelated Person.
SECTION 7.05. RATIO OF TOTAL FUNDED DEBT TO TOTAL
CAPITALIZATION. XL Capital 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.
SECTION 7.06. CONSOLIDATED NET WORTH. XL Capital will not
permit its Consolidated Net Worth to be less than $5,000,000,000 at any time.
SECTION 7.07. INDEBTEDNESS. No Account Party 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;
(b) secured Indebtedness (including secured reimbursement
obligations with respect to letters of credit) of any Account Party or
any Subsidiary in an aggregate principal amount (for all Account
Parties and their respective Subsidiaries) not exceeding at any time
outstanding 15% of Consolidated Net Worth;
(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 Account Party or any Subsidiary;
(e) Indebtedness incurred in transactions described in Section
7.03(f) and (g); and
(f) Indebtedness existing on the date hereof and described in
Part A of Schedule II and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal amount
thereof.
SECTION 7.08. FINANCIAL STRENGTH RATINGS. None of XL Capital,
XL Insurance and XL Re will permit at any time its financial strength ratings to
be less than "A-" from A.M. Best & Co. (or its successor).
SECTION 7.09. PRIVATE ACT. No Account Party will become
subject to a Private Act other than the X.L. Insurance Company, Ltd. Act, 1989.
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall
occur:
(a) any Account Party shall fail to pay any principal of any
Loan or any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Account Party shall fail to pay any interest on any
Loan or LC Disbursement or any fee payable under this Agreement or any
other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall
become due and payable, and such failure shall continue unremedied for
a period of 5 or more days;
(c) any representation or warranty made or deemed made by any
Account Party in or in connection with this Agreement 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;
(d) any Account Party shall fail to observe or perform any
covenant, condition or agreement contained in Article VII;
(e) any Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article or the reporting
requirement pursuant to Section 6.01(h)) and such failure shall
continue unremedied for a period of 20 or more days after notice
thereof from the Administrative Agent (given at the request of any
Lender) to such Obligor;
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(f) any Account Party 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 (f) 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;
(g) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging any Account Party a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization of such Account Party under the Bermuda Companies Law or
the Cayman Islands Companies Law (2003 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
an examiner, receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of such Account Party 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;
(h) any Account Party 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 reorganization under the Bermuda Companies Law or the
Cayman Islands Companies Law (2003 Revision) or any other similar
applicable Law, or shall consent to the filing of any such petition, or
shall consent to the appointment of an examiner, 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 Account Party in furtherance of any of the
aforesaid purposes;
(i) one or more judgments for the payment of money in an
aggregate amount in excess of $100,000,000 shall be rendered against
any Account Party 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;
(j) an ERISA Event (or similar event with respect to any
Non-U.S. Benefit Plan) shall have occurred that, in the opinion of the
Required 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 Account Parties and their Subsidiaries in an
aggregate amount exceeding $100,000,000;
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(k) a Change in Control shall occur;
(l) XL Capital shall cease to own, beneficially and of record,
directly or indirectly all of the outstanding voting shares of capital
stock of XL Insurance, XL Re or XL America; or
(m) the guarantee contained in Article III 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;
then, and in every such event (other than an event with respect to any Account
Party described in clause (g) or (h) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Account
Parties, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Account
Parties accrued hereunder, 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 Parties; and in case of any event with respect to
any Account Party described in clause (g) or (h) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Account Parties 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 Parties.
If an Event of Default shall occur and be continuing and XL
Capital receives notice from the Administrative Agent or the Required Lenders
demanding the deposit of cash collateral for the aggregate LC Exposure of all
the Lenders pursuant to this paragraph, the Account Parties shall immediately
deposit into an account established and maintained on the books and records of
the Administrative Agent, which account may be a "securities account" (within
the meaning of Section 8-501 of the Uniform Commercial Code as in effect in the
State of New York (the "UNIFORM COMMERCIAL CODE")), in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to the total LC Exposure as of such date PLUS any accrued and unpaid interest
thereon; PROVIDED that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to any Account Party described in clause (g) or
(h) of this Article. Such deposit shall be held by the Administrative Agent as
collateral for the LC Exposure under this Agreement, and for this purpose each
of the Account Parties hereby grant a security interest to the Administrative
Agent for the benefit of the Lenders in such collateral account and in any
financial assets (as defined in the Uniform Commercial Code) or other property
held therein.
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In addition to the provisions of this Article, each Account
Party agrees that upon the occurrence and during the continuance of any Event of
Default any Lender which has issued any Alternative Currency Letter of Credit
may, by notice to XL Capital and the Administrative Agent: (a) declare that all
fees and other obligations of the Account Parties accrued in respect of
Alternative Currency Letters of Credit issued by such Lender shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Account Party and (b) demand
the deposit (without duplication of any amounts deposited with the
Administrative Agent under the preceding paragraph) of cash collateral from the
Account Parties in immediately available funds in the currency of such
Alternative Currency Letter of Credit or, at the option of such Lender, in
Dollars in an amount equal to the then aggregate undrawn face amount of all such
Alternative Currency Letters of Credit and in such manner as previously agreed
to by the Account Parties and such Lender; PROVIDED that, in the case of any of
the Events of Default specified in clause (g) or (h) of this Article, without
any notice to any Account Party or any other act by the Administrative Agent or
the Lenders, all fees and other obligations of the Account Parties accrued in
respect of all Alternative Currency Letters of Credit shall become due and
payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Account Party. If the
Administrative Agent receives any notice from a Lender pursuant to the previous
sentence, then it will promptly give notice thereof to the other Lenders.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Account Party or any
Subsidiary or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing by the Required Lenders,
and (c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to any Account Party or any of their Subsidiaries that
is communicated to or obtained by the bank serving as Administrative Agent or
any of its
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Affiliates in any capacity. The Administrative Agent shall not be liable for any
action taken or not taken by it with the consent or at the request of the
Required Lenders or in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the
Administrative Agent by an Account Party or a Lender, and the Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for any Account Party), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying
the Lenders and the Account Parties. Upon any such resignation, the Required
Lenders shall have the right, in consultation with XL Capital, to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent's resignation shall nonetheless become effective and (1)
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and (2) the Required Lenders shall perform the duties of
the Administrative Agent (and all payments and communications provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender directly) until such time as the Required Lenders appoint a
successor agent as provided for above in this paragraph. Upon the acceptance of
its appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
364-DAY CREDIT AGREEMENT
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hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by XL Capital to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between XL Capital and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 10.03 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Notwithstanding anything herein to the contrary, the Sole Lead
Arranger and Sole Bookrunner and the Co-Syndication Agents named on the cover
page of this Agreement shall not have any duties or liabilities under this
Agreement, except in their capacity, if any, as Lenders.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. 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 telecopy, as follows:
(a) if to any Account Party, to XL Capital at XX Xxxxx, Xxx
Xxxxxxxxxx Xxxx, Xxxxxxxx XX 00 Xxxxxxx, Xxxxxxxxx of Xxxxxxxx Xxxx
(Telecopy No. (000) 000-0000); WITH A COPY to Xxxx Xxxxxxxx, Esq. at
the same address and telecopy number (000) 000-0000);
(b) if to the Administrative Agent, to JPMorgan Chase Bank,
0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000-0000, Attention of
Loan and Agency Services Group (Telecopy No. (000) 000-0000; Telephone
No. (000) 000-0000), WITH A COPY to JPMorgan Chase Bank, 000 Xxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxxx
(Telecopy No. (000) 000-0000; Telephone No. (000) 000-0000); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto (or, in the case
of any such
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change by a Lender, by notice to the Account Parties and the Administrative
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.
Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; PROVIDED that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or any
Account Party may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; PROVIDED that approval of such procedures may be
limited to particular notices or communications. Without limiting the foregoing,
the Account Parties may furnish to the Administrative Agent and the Lenders the
financial statements required to be furnished by it pursuant to Section 6.01(a),
6.01(b) or 6.01(c) by electronic communications pursuant to procedures approved
by the Administrative Agent.
SECTION 10.02. WAIVERS; AMENDMENTS.
(a) NO DEEMED WAIVERS; REMEDIES CUMULATIVE. No failure or
delay by the Administrative Agent or any Lender 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. The rights and remedies of
the Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Account
Parties therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, 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 making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) AMENDMENTS. 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 Required Lenders or
by the Obligors and the Administrative Agent with the consent of the Required
Lenders; PROVIDED that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or the amount of
any reimbursement obligation of an Account Party in respect of any LC
Disbursement or reduce the rate of interest thereon, or reduce any fees
or other amounts payable hereunder, without the written consent of each
Lender directly affected thereby,
364-DAY CREDIT AGREEMENT
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(iii) postpone the scheduled date of payment of the principal
amount of any Loan or 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 an "evergreen" provision"), without the
written consent of each Lender directly affected thereby,
(iv) change Section 2.20(c) or 2.20(d) without the consent of
each Lender directly affected thereby,
(v) release any of the Guarantors from any of their guarantee
obligations under Article III without the written consent of each
Lender, and
(vi) change any of the provisions of this Section or the
percentage in the definition of the term "Required 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 Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
SECTION 10.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) COSTS AND EXPENSES. The Account Parties jointly and
severally agree to pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers
of the provisions hereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all out-of-pocket expenses incurred by
the Administrative Agent or any Lender, including the fees, charges and
disbursements of one legal counsel for the Administrative Agent and one legal
counsel for the Lenders, in connection with the enforcement or protection of its
rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) INDEMNIFICATION BY THE ACCOUNT PARTIES. The Account
Parties shall jointly and severally indemnify the Administrative 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
(but not including Excluded Taxes), incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) 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
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transactions contemplated hereby, (ii) any Loan or the use of the proceeds
thereof or any Letter of Credit or the use thereof (including any refusal by any
Lender to honor 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), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by any Account
Party or any of its Subsidiaries, or any Environmental Liability related in any
way to any Account Party or any of its Subsidiaries, or (iv) 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 willful misconduct of such Indemnitee.
(c) REIMBURSEMENT BY LENDERS. To the extent that the Account
Parties fail to pay any amount required to be paid by them to the Administrative
Agent under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative 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 Administrative Agent in its
capacity as such.
(d) WAIVER OF CONSEQUENTIAL DAMAGES, ETC. To the extent
permitted by applicable law, no Account Party shall assert, and each Account
Party hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) PAYMENTS. All amounts due under this Section shall be
payable promptly after written demand therefor.
SECTION 10.04. SUCCESSORS AND ASSIGNS.
(a) ASSIGNMENTS GENERALLY. 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, except that (i) no Account
Party may 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 an Account Party without such consent shall be null
and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) ASSIGNMENTS BY LENDERS. (i) Subject to the conditions set
forth in paragraph
364-DAY CREDIT AGREEMENT
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(b)(ii) of this Section, any Lender may assign all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans and LC Disbursements at the time owing to it) to one or
more NAIC Approved Banks with the prior written consent (such consent not to be
unreasonably withheld) of:
(A) the Account Parties, PROVIDED that no consent of
any Account Party shall be required for an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or, if an Event of Default
under clause (a), (b), (g) or (h) of Article VIII has occurred and is
continuing, any other assignee; and
(B) the Administrative Agent; and
(C) the Issuing Lender with respect to Participated
Letters of Credit.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender,
an Approved Fund or an Affiliate of a Lender or an assignment of the
entire remaining amount of the assigning Lender's Commitment, the
amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless each of the Account
Parties and the Administrative Agent otherwise consent, PROVIDED that
no such consent of the Account Parties shall be required if an Event of
Default under clause (a), (b), (g) or (h) of Article VIII has occurred
and is continuing;
(B) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights
and obligations under this Agreement;
(C) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall
deliver an Administrative Questionnaire to the Administrative Agent
(with a copy to XL Capital).
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(v) of this Section, from and after the effective date specified in
each Assignment and Assumption, the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Lender'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 Sections 2.17, 2.18, 2.19 and 10.03). Any assignment or transfer
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by a Lender of rights or obligations under this Agreement that does not comply
with this Section 10.04 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 paragraph (c) of this Section.
(iv) 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 Administrative Agent and the Account Parties,
the option to provide to the Account Parties all or any part of any Loan or LC
Disbursement that such Granting Lender would otherwise be obligated to make to
the Account Parties pursuant to Section 2.01, PROVIDED that (i) nothing herein
shall constitute a commitment by any SPV to make any Loan or LC Disbursement,
(ii) if an SPV elects not to exercise such option or otherwise fails to provide
all or any part of such Loan or LC Disbursement, the Granting Lender shall be
obligated to make such Loan or LC Disbursement pursuant to the terms hereof and
(iii) the Account Parties may bring any proceeding against either or both the
Granting Lender or the SPV in order to enforce any rights of the Account Parties
hereunder. The making of a Loan or LC Disbursement by an SPV hereunder shall
utilize the Commitment of the Granting Lender to the same extent, and as if,
such Loan or 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, reorganization, 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 Section, any SPV may with notice to, but without the prior
written consent of, the Account Parties or the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Loan or Letter of Credit to its Granting Lender or to any financial
institutions (consented to by the Account Parties and the Administrative Agent)
providing liquidity and/or credit support (if any) with respect to commercial
paper issued by such SPV to fund such Loans and 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. Notwithstanding anything to the contrary in this
Agreement, no SPV shall be entitled to any greater rights under Section 2.17 or
Section 2.19 than its Granting Lender would have been entitled to absent the use
of such SPV. This paragraph may not be amended without the consent of any SPV at
the time holding Loans or LC Disbursements under this Agreement.
(v) The Administrative Agent, acting for this purpose as an
agent of the Account Parties, shall maintain at one of its offices in New York
City a copy of each Assignment and Assumption delivered to it and a register for
the recordation of the names and addresses of the Lenders, the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
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the Register shall be conclusive, and the Account Parties, the Administrative
Agent 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.
(vi) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b)(ii)(C) of this Section and any written consent to such assignment required
by paragraph (b)(i) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(c) PARTICIPATIONS. (i) Any Lender may, without the consent of
the Account Parties, the Administrative Agent or any Issuing Lender, sell
participations to one or more banks 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, the
Loans and LC Disbursements owing to it); PROVIDED that (A) any such
participation sold to a Participant which is not a Lender, an Approved Fund or a
Federal Reserve Bank shall be made only with the consent (which in each case
shall not be unreasonably withheld) of XL Capital and the Administrative Agent,
unless a Default has occurred and is continuing, in which case the consent of XL
Capital shall not be required, (B) such Lender's obligations under this
Agreement and the other Credit Documents shall remain unchanged, (C) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (D) the Account Parties, the Administrative Agent 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 Credit Documents. 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 Credit Documents and to
approve any amendment, modification or waiver of any provision of this Agreement
or the other Credit 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
Section 10.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, the Account Parties agree that each Participant shall be entitled
to the benefits of Sections 2.17, 2.18 and 2.19 (subject to the requirements of
such Sections) to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 10.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.20(d) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.17, 2.18 or 2.19 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant or the Lender interest assigned, unless (A) the sale of the
participation to such Participant is made with the Account Parties' prior
written
364-DAY CREDIT AGREEMENT
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consent and (B) in the case of Section 2.17 or 2.19, the entitlement to greater
payment results solely from a Change in Law formally announced after such
Participant became a Participant.
(d) CERTAIN PLEDGES. 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, including any such pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section
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 pledgee or
assignee for such Lender as a party hereto.
(e) NO ASSIGNMENTS TO ACCOUNT PARTIES OR AFFILIATES. Anything
in this Section to the contrary notwithstanding, no Lender may assign or
participate any interest in any Loan or LC Exposure held by it hereunder to any
Account Party or any of its Affiliates or Subsidiaries without the prior consent
of each Lender.
SECTION 10.05. SURVIVAL. All covenants, agreements,
representations and warranties made by the Account Parties 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
making of any Loans 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 Administrative 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 the
principal of, or any accrued interest on, any Loan or 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 Sections 2.17, 2.18, 2.19 and 10.03 and Article IX
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the
expiration or termination of the Letters of Credit and the expiration or
termination of the Commitments or the termination of this Agreement or any
provision hereof.
SECTION 10.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract between and among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 5.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page to this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. SEVERABILITY. Any provision of this Agreement
held to be
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invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of any Account Party against any of and all
the obligations of such Account Party now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 10.09. GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) SUBMISSION TO JURISDICTION. Each Obligor hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Obligor or its properties in
the courts of any jurisdiction.
(c) WAIVER OF VENUE. Each Obligor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) SERVICE OF PROCESS. By the execution and delivery of this
Agreement, XL Capital Ltd, XL Insurance (Bermuda) Ltd and XL Re Ltd acknowledge
that they have by a separate written instrument, designated and appointed CT
Corporation System, 000 Xxxxxx Xxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or
any successor entity thereto), as its
364-DAY CREDIT AGREEMENT
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authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to this Agreement that may be instituted in any
federal or state court in the State of New York. Each party to this Agreement
irrevocably consents to service of process in the manner provided for notices in
Section 10.01. Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
(e) WAIVER OF IMMUNITIES. To the extent that any Account Party
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 this Agreement.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. TREATMENT OF CERTAIN INFORMATION;
CONFIDENTIALITY.
(a) TREATMENT OF CERTAIN INFORMATION. Each of the Account
Parties acknowledge that from time to time financial advisory, investment
banking and other services may be offered or provided to any Account Party 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 Account Parties hereby authorizes each Lender to share
any information delivered to such Lender by such Account Party 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 (i) any such information shall be used only for the
purpose of advising the Account Parties or preparing presentation materials for
the benefit of the Account Parties and (ii) any such subsidiary or affiliate
receiving such information shall be bound by the provisions of paragraph (b) of
this Section as if it were a Lender hereunder. Such authorization shall survive
the repayment of the Loans, the expiration or termination of the Letters of
Credit, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof.
364-DAY CREDIT AGREEMENT
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(b) CONFIDENTIALITY. Each of the Administrative Agent, the
Lenders and each SPV agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (i) 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), (ii) to the
extent requested by any regulatory authority (including self-regulating
organizations) having jurisdiction over the Administrative Agent or any Lender,
(iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iv) to any other party to this Agreement,
(v) 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, (vi) subject to an agreement in writing containing provisions
substantially the same as those of this paragraph and for the benefit of the
Account Parties, to (a) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (b) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to any Account Party and its
obligations, (vii) with the consent of the Account Parties or (viii) to the
extent such Information (A) becomes publicly available other than as a result of
a breach of this paragraph or (B) becomes available to the Administrative Agent
or any Lender on a nonconfidential basis from a source other than an Account
Party. For the purposes of this paragraph, "INFORMATION" means all information
received from an Account Party relating to an Account Party or its business,
other than any such information that is available to the Administrative Agent or
any Lender on a nonconfidential basis prior to disclosure by such Account Party;
PROVIDED that, in the case of information received from an Account Party 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 Section 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 Administrative Agent and the Lenders agree that they will not trade the
securities of any of the Account Parties based upon non-public Information that
is received by them.
SECTION 10.13. JUDGMENT CURRENCY. This is an international
loan transaction in which the obligations of each Account Party under this
Agreement to make payment hereunder shall be satisfied only in Dollars and only
if such payment shall be made in New York City, and the obligations of each
Account Party under this Agreement to make payment to (or for account of) a
Lender in Dollars shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any other currency or in
another place except to the extent that such tender or recovery results in the
effective receipt by such Lender in New York City of the full amount of Dollars
payable to such Lender under this Agreement. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency (in this Section called the "JUDGMENT CURRENCY"), the rate
of exchange that shall be applied shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase such Dollars
at the principal office of the Administrative Agent in New York City with the
judgment currency on the Business Day next preceding the day on which such
judgment is rendered. The obligation of each Account Party in respect of any
such sum due from it to the Administrative Agent or any Lender hereunder (in
this
364-DAY CREDIT AGREEMENT
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Section called an "ENTITLED PERSON") shall, notwithstanding the rate of exchange
actually applied in rendering such judgment, be discharged only to the extent
that on the Business Day following receipt by such Entitled Person of any sum
adjudged to be due hereunder in the judgment currency such Entitled Person may
in accordance with normal banking procedures purchase and transfer Dollars to
New York City with the amount of the judgment currency so adjudged to be due;
and each Account Party hereby, as a separate obligation and notwithstanding any
such judgment, agrees to indemnify such Entitled Person against, and to pay such
Entitled Person on demand, in Dollars, the amount (if any) by which the sum
originally due to such Entitled Person in Dollars hereunder exceeds the amount
of the Dollars so purchased and transferred.
SECTION 10.14. USA PATRIOT ACT. Each Lender hereby notifies
the Account Parties that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)), such Lender is
required to obtain, verify and record information that identifies the Account
Parties, which information includes the name and address of the Account Parties
and other information that will allow such Lender to identify each Account Party
in accordance with said Act.
364-DAY CREDIT AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
X.L. AMERICA, INC.,
as an Account Party and a Guarantor
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice-President,
General Counsel & Secretary
U.S. FEDERAL TAX IDENTIFICATION NO.: 00-0000000
XL INSURANCE (BERMUDA) LTD,
as an Account Party and a Guarantor
By: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice-President &
Chief Financial Officer
U.S. FEDERAL TAX IDENTIFICATION NO.: 00-0000000
XL RE LTD,
as an Account Party and a Guarantor
By: /s/ Xxxxx X' Xxxxxxxxxxx
----------------------------------
Name: Xxxxx X' Xxxxxxxxxxx
Title: Senior Vice-President and
Chief Financial Officer
U.S. FEDERAL TAX IDENTIFICATION NO.: 00-0000000
364-DAY CREDIT AGREEMENT
- 85 -
IN WITNESS WHEREOF, XL Capital has caused this Agreement to be
duly executed as a Deed by an authorized officer as of the day and year first
above written.
EXECUTED AS A DEED by XL CAPITAL LTD,
as an Account Party and a Guarantor
/s/ Xxxxx Xxxxxx
---------------------------------
witness
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice-President and
Controller
U.S. FEDERAL TAX IDENTIFICATION NO.: 00-0000000
364-DAY CREDIT AGREEMENT
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LENDERS
JPMORGAN CHASE BANK,
individually and as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BARCLAYS BANK PLC, NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Relationship Director
CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
DEUTSCHE BANK AG NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ Xxxx X. XxXxxx
------------------------------------------
Name: Xxxx X. XxXxxx
Title: Director
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
364-DAY CREDIT AGREEMENT
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WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Group Vice President
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxxx XxXxxxx
Title: Assistant Vice President
CALYON NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxx Xxxxx
------------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
HSBC BANK USA
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
364-DAY CREDIT AGREEMENT
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XXXXXXX XXXXX BANK USA
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Director
MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxx, Xx.
------------------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Authorized Signatory
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Principal
BNP PARIBAS
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxxxx X. Xxxxx
Title: Vice President
364-DAY CREDIT AGREEMENT
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CREDIT SUISSE FIRST BOSTON NEW YORK BRANCH
By: /s/ Xxx Xxxxx
------------------------------------------
Name: Xxx Xxxxx
Title: Director
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: Associate
ING BANK N.V., LONDON BRANCH
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Director
XXXXXX BROTHERS BANK, FSB
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
LLOYDS TSB BANK PLC, NEW YORK BRANCH
By: /s/ Xxxxxxx X.X. Tuck
------------------------------------------
Name: Xxxxxxx X.X. Xxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
364-DAY CREDIT AGREEMENT
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NATIONAL WESTMINSTER BANK PLC
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxx
Title: Relationship Director
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
UBS AG, STAMFORD BRANCH
By: /s/ Xxxxxxx X. Saint
------------------------------------------
Name: Xxxxxxx X. Saint
Title: Director
By: /s/ Xxxxx Xxxx
------------------------------------------
Name: Xxxxx Xxxx
Title: Associate Director
COMERICA BANK
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
XXXXXX XXXXXXX BANK
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
364-DAY CREDIT AGREEMENT
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THE BANK OF NOVA SCOTIA
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
LANDESBANK HESSEN-THURINGEN
GIROZENTRALE, acting through its NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: German Legal Counsel
Syndications Manager
