Exhibit 10.14.23
02.24.00
FIRST AMENDMENT TO SHORT TERM REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SHORT TERM REVOLVING CREDIT AGREEMENT, dated
as of February 25, 2000 (this "Amendment"), by and among XL Capital Ltd, XL
Insurance Ltd, XL Mid Ocean Reinsurance Ltd, as Borrowers and Guarantors (the
"Borrowers"), X.L. America, Inc., a Delaware corporation ("XL America" and,
collectively with the Borrowers, the "XL Parties"), Mellon Bank, N.A., as
Administrative Agent (the "Administrative Agent"), The Chase Manhattan Bank, as
Syndication Agent (the "Syndication Agent"), and the banks listed on the
signature pages hereto (collectively, the "Banks").
W I T N E S S E T H:
WHEREAS, the Borrowers, the Banks, the Administrative Agent and the
Syndication Agent are parties to a Short Term Revolving Credit Agreement, dated
as of June 30, 1999 (the "Credit Agreement"), pursuant to which the Banks have
agreed, on the terms and subject to the conditions described therein, to make
Loans to the Borrowers; and
WHEREAS, XL America is a subsidiary of XL Capital and of XL
Insurance and the XL Parties desire that XL America become a Borrower under the
Credit Agreement;
WHEREAS, the XL Parties have requested the Banks to make certain
additional changes to the Credit Agreement;
WHEREAS, the Banks are willing to amend the Credit Agreement as set
forth below; and
WHEREAS, capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Credit Agreement;
NOW THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding
thereto, in appropriate alphabetical sequence, the following definitions:
"Asset Accumulation Lien" means a Lien on amounts
received, and on actual and imputed investment income on such
amounts received, relating and identified to specific
insurance payment liabilities or to liabilities arising in the
ordinary course of any Borrower's or Subsidiary's business as
an insurance or reinsurance company or corporate member of
Lloyd's or as a provider of financial services or contracts,
or the proceeds thereof, in each case held in a segregated
trust or other account and securing such liabilities;
provided, that in no case shall an Asset Accumulation Lien
secure Indebtedness and any Lien which secures Indebtedness
shall not be an Asset Accumulation Lien.
"Borrowers" shall mean XL Capital, XL Insurance,
XL Mid Ocean and XL America and "Borrower" shall mean any one
of them.
"Total Adjusted Funded Debt" shall have the
meaning given that term in Section 6.06 hereof.
"XL America" shall mean X.L. America, Inc., a
Delaware corporation and an indirect wholly-owned subsidiary
of XL Capital.
(b) The definition of the term "Total Exposure" appearing in Section
1.01 of the Credit Agreement is hereby amended by adding thereto,
immediately following the phrase "to XL Insurance," appearing therein, the
phrase "to XL America,".
(c) Section 2.03(a) of the Credit Agreement is hereby amended by
adding thereto, immediately following the phrase "to XL Insurance,"
appearing therein, the phrase "to XL America,".
-2-
(d) Section 2.06(a) of the Credit Agreement is hereby amended by
adding thereto, immediately following the phrase "to XL Insurance,"
appearing therein, the phrase "XL America,".
(e) Section 5.01 of the Credit Agreement is hereby amended by adding
at the end thereof a new paragraph (j) thereof to read as follows:
(j) Information Regarding Asset Accumulation
Liens. At the time of furnishing each certificate furnished
pursuant to paragraph (c) of this Section 5.01, a statement,
certified as true and correct by a principal 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 (A)
the aggregate book value of assets which are subject to Asset
Accumulation Liens and the aggregate book value of liabilities
which are secured by Asset Accumulation Liens (it being
understood that the reports required by paragraphs (a) and (b)
of this Section 5.01 shall satisfy the requirement of this
clause (A) of this paragraph (j) if such reports set forth
separately, in accordance with GAAP, line items corresponding
to such aggregate book values) and (B) a calculation showing
the portion of each of such aggregate amounts which portion is
attributable to transactions among wholly-owned Subsidiaries
of XL Capital.
(f) Section 6.03 of the Credit Agreement is hereby amended by
deleting the period at the end of paragraph (f) thereof and replacing it
with the phrase "; or" and by adding at the end of such Section a new
paragraph (g) to read as follows:
(g) Asset Accumulation Liens.
(g) Section 6.06 of the Credit Agreement is hereby amended to read
as follows:
-3-
6.06. Ratio of Total Adjusted Funded Debt to
Consolidated Capital. XL Capital will not permit its ratio of
(i) Total Adjusted Funded Debt to (ii) the sum of Total
Adjusted Funded Debt plus Consolidated Net Worth to be greater
than 0.35 at any time. As used herein, the term "Total
Adjusted Funded Debt" shall mean, at any time, the sum of (x)
Total Funded Debt at such time plus (y) the aggregate undrawn
face amount of all letters of credit (as to which
reimbursement obligations are not secured by marketable
securities with a value at least equal to the face amount of
such letters of credit) issued for the account of, or
guaranteed by, XL Capital or any of its consolidated
Subsidiaries at such time (irrespective of whether the
beneficiary thereof is an Affiliate).
(h) Section 7.01(h) of the Credit Agreement is amended by adding
thereto, immediately after the phrase "voting shares of capital stock", the
phrase "of XL America,".
(i) Section 9.07 of the Credit Agreement is hereby amended by adding
thereto, immediately after the phrase "as the agent for" appearing in the last
sentence thereof, the phrase "XL America,".
SECTION 2. Addition of XL America as Borrower. XL America hereby
agrees to become and be a Borrower under, and as defined in, the Credit
Agreement (as amended hereby) and agrees to be bound by the terms of the Credit
Agreement (as so amended) as a Borrower.
SECTION 3. Conditions to Effectiveness. This First Amendment shall
become effective upon the execution and delivery hereof by the XL Parties, the
Required Banks and the Administrative Agent, provided, however, that no Loans
under the Credit Agreement as amended hereby shall be made to XL America until
(i) all the Banks have executed this Amendment or have otherwise consented in
writing to XL America becoming a Borrower under the Credit Agreement as amended
hereby and (ii) the following additional conditions shall have been fulfilled on
or prior to a date (prior to March 31, 2000) designated in writing to the
Administrative Agent by XL Capital (the "XL America Amendment Date"):
-4-
(a) Proceedings and Incumbency. There shall have been delivered to
the Administrative Agent with sufficient copies for each Bank a
certificate with respect to XL America in form and substance satisfactory
to the Administrative Agent dated on or about the XL America Amendment
Date and signed on behalf of XL America by its Secretary or an Assistant
Secretary, certifying as to: (a) true copies of all corporate action taken
by XL America relative to this Amendment and the other Loan Documents
applicable to it and (b) the names, true signatures and incumbency of the
officer or officers of XL America authorized to execute and deliver this
Amendment and the other Loan Documents applicable to it. Each Bank may
conclusively rely on such certificates unless and until a later
certificate revising the prior certificate has been furnished to such
Bank.
(b) Organizational Documents. There shall have been delivered to the
Administrative Agent with sufficient copies for each Bank (i) certified
copies of the certificate of incorporation and by-laws for XL America and
(ii) a certificate of good standing for XL America certified by the
Secretary of State of Delaware.
(c) Opinions of Counsel. There shall have been delivered to the
Administrative Agent with sufficient copies for each Bank a written
opinion addressed to the Banks, dated on or about the XL America Amendment
Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, the Borrowers' U.S. counsel, in form
satisfactory to the Administrative Agent, which is substantially to the
effects (insofar as XL America is concerned), but with reference to this
Amendment and the Credit Agreement as amended hereby, set forth in the
opinions delivered by counsel to the Borrowers on the Closing Date.
(d) Details, Proceedings, Notes and other Documents. All legal
details and proceedings in connection with the transactions contemplated
by this Amendment shall be satisfactory to the Administrative Agent and
each Bank shall have received all such counterpart originals or certified
or other copies of the Loan Documents (including a Note issued by XL
America for each Bank in substantially the form of Exhibit A-1 to the
Credit Agreement, with appropriate changes) and such other documents and
proceedings in connection with such transactions, in form and substance
-5-
satisfactory to it, as the Administrative Agent or any Bank have
reasonably requested.
(e) Expenses. The Borrowers shall have paid all expenses and other
compensation to be paid by them hereunder on or prior to the XL America
Amendment Date.
(f) Representation and Warranties. The representations and
warranties contained in Article III of the Credit Agreement shall be true
on and as of the XL America Amendment Date with the same effect as though
made on and as of the XL America Amendment Date, after giving effect to
this First Amendment (it being understood that references in such Article
III to the Credit Agreement shall be deemed for this purpose to be
references to this First Amendment and to the Credit Agreement as amended
hereby) and the Administrative Agent shall have received a certificate of
XL Capital and, insofar as is applicable to it, XL America, to such
effect.
SECTION 4. Effect of Amendment. The Credit Agreement, as amended by
this Amendment, is in all respects ratified, approved and confirmed and shall,
as so amended, remain in full force and effect.
SECTION 5. Governing Law. This Amendment shall be deemed to be a
contract under the laws of the Commonwealth of Pennsylvania and for all purposes
shall be governed by and construed and enforced in accordance with the laws of
said Commonwealth.
SECTION 6. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
XL INSURANCE LTD
as Borrower and as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Chief Financial Officer
-------------------------------------
-6-
XL MID OCEAN REINSURANCE LTD,
as Borrower and as Guarantor
By: /s/ ▇▇▇▇▇ ▇.▇.▇▇▇▇▇▇▇
----------------------------------------
Title: President & CEO
-------------------------------------
XL CAPITAL LTD,
as Borrower and as Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇
----------------------------------------
Title: President & CEO
-------------------------------------
X.L. AMERICA, INC.
as Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Chief Financial Officer
-------------------------------------
-7-
MELLON BANK, N.A., as a Bank
and as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
THE CHASE MANHATTAN BANK, as a
Bank and as Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Managing Director
-------------------------------------
CITIBANK, N.A., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
-8-
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Title: Senior Vice President
-------------------------------------
By: ________________________________________
Title: _____________________________________
DEUTSCHE BANK AG, NEW YORK OR CAYMAN
ISLANDS BRANCHES,
as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Director
-------------------------------------
By: ________________________________________
Title: _____________________________________
BANK OF AMERICA, N.A.,
as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
THE BANK OF BERMUDA LIMITED,
as a Bank
By: /s/
----------------------------------------
Title: Vice President
-------------------------------------
-9-
BANQUE NATIONALE DE PARIS,
as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
By: /s/
----------------------------------------
Title: Vice President
-------------------------------------
FLEET NATIONAL BANK, as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
STATE STREET BANK AND TRUST
COMPANY, as a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
-------------------------------------
ROYAL BANK OF CANADA,
as a Bank
By: /s/
----------------------------------------
Title: Senior Manager
-------------------------------------
-10-