EX-10.44 6 c22070_ex10-44.txt AMENDED AND RESTATED CREDIT AGREEMENT Exhibit 10.44 EXECUTION COUNTERPART AMENDMENT NO. 1 TO CREDIT AGREEMENT AMENDMENT NO. 1 dated as of September 26, 2001, between XL CAPITAL LTD, a company incorporated under the laws of the Cayman Islands, British West Indies ("XL CAPITAL"), XL INSURANCE LTD, a Bermuda limited liability company ("XL INSURANCE"), MID OCEAN LIMITED, a corporation duly organized and validly existing under the laws of the Cayman Islands, British West Indies ("MID OCEAN") and XL RE, LTD (formerly known as XL MID OCEAN REINSURANCE LTD), a Bermuda limited liability company ("XL RE" and, together with XL Capital, XL Insurance and Mid Ocean, each a "BORROWER" and each a "GUARANTOR" and, collectively, the "BORROWERS" and the "GUARANTORS"; the Borrowers and the Guarantors being collectively referred to as the "OBLIGORS"), the BANKS party hereto, and THE CHASE MANHATTAN BANK, as Administrative Agent. The Obligors, the Banks and the Administrative Agent are parties to an Amended and Restated Credit Agreement dated as of August 31, 2001 (the "CREDIT AGREEMENT"), providing, subject to the terms and conditions thereof, for loans to be made by said Banks to the Borrowers in an aggregate principal amount not exceeding $100,000,000. The Obligors, the Banks and the Administrative Agent wish to amend the Credit Agreement in certain respects and accordingly the parties hereto hereby agree as follows: Section 1. DEFINITIONS. Except as otherwise defined in this Amendment No. 1, terms defined in the Credit Agreement are used herein as defined therein. Section 2. AMENDMENTS. Effective as provided in Section 4 below, the Credit Agreement is hereby amended as follows: 2.01. References in the Credit Agreement (including references to the Credit Agreement as amended hereby) to "this Agreement" (and indirect references such as "hereunder", "hereby", "herein" and "hereof") shall be deemed to be references to the Credit Agreement as amended hereby. 2.02. Clause (b) of Section 8.04 is hereby amended to read in its entirety as follows: "(b) NO MATERIAL ADVERSE CHANGE. Since December 31, 2000, there has been no material adverse change in the assets, business, financial condition or operations of such Borrower and its Subsidiaries, taken as a whole, except for losses caused by or relating to or arising out of the terrorist events of September 11, 2001; PROVIDED, HOWEVER, that XL Capital remains in compliance with Section 9.17." AMENDMENT NO. 1 TO CREDIT AGREEMENT (5-YEAR) 2.03. Section 9.17 of the Credit Agreement is hereby amended to read in its entirety as follows: "9.17 CONSOLIDATED NET WORTH. XL Capital will not permit its Consolidated Net Worth to be less than $4,250,000,000." Section 3. REPRESENTATIONS AND WARRANTIES. Each Obligor hereby represents and warrants to the Administrative Agent and the Banks that (i) the representations and warranties set forth in Section 8 of the Credit Agreement are, on the date hereof, true and complete as if made on the date hereof (and after giving effect to this Amendment No. 1) and as if each reference in said Section 8 to "this Agreement" includes reference to this Amendment No. 1 and (ii) both immediately prior to and as of the date hereof, no Default has occurred and is continuing. Section 4. CONDITIONS PRECEDENT. The amendments to the Credit Agreement set forth in Section 2 above shall become effective, as of the date hereof, upon the satisfaction of the following conditions precedent: 4.01. EXECUTION BY ALL PARTIES. This Amendment No. 1 shall have been executed and delivered by each of the Obligors and the Majority Banks. 4.02. AMENDMENT FEE. The Administrative Agent shall have received for the account of each Bank that consents to this Amendment No. 1 (evidenced by receipt by the Administrative Agent of an executed counterpart of this Amendment No. 1) an amendment fee in an amount equal to 0.03% of the sum of outstanding Loans and unused Commitments of each such Bank. 4.03. OTHER DOCUMENTS. Receipt by the Administrative Agent of such other documents as the Administrative Agent or special New York counsel to Chase may reasonably request. Section 5. MISCELLANEOUS. Except as herein provided, the Credit Agreement shall remain unchanged and in full force and effect. Nothing in this Amendment No. 1 shall constitute a waiver of any rights and/or remedies that the Banks and/or the Administrative Agent may have under the Credit Agreement and nothing contained herein shall obligate the Banks to grant any future waiver of any provision of the Credit Agreement. XL Capital shall pay all reasonable expenses incurred by the Administrative Agent, including the reasonable fees, charges and disbursements of Milbank, Tweed, Hadley & McCloy LLP, special New York counsel to Chase, in connection with the preparation, negotiation, execution and delivery of this Amendment No. 1. This Amendment No. 1 may be executed in any number of counterparts, all of which taken together shall constitute one and the same amendatory instrument and any of the parties hereto may execute this Amendment No. 1 by signing any such counterpart. This Amendment No. 1 shall be governed by, and construed in accordance with, the law of the State of New York. AMENDMENT NO. 1 TO CREDIT AGREEMENT (5-YEAR) IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be duly executed and delivered as of the day and year first above written. XL INSURANCE LTD, as a Borrower and a Guarantor By /s/ CHRIS COELHO -------------------------------------------- Name: Chris Coehlo Title: Chief Financial Officer MID OCEAN LIMITED, as a Borrower and a Guarantor By /s/ HENRY C. V. KEELING -------------------------------------------- Name: Henry C. V. Keeling Title: President XL RE LTD, (formerly known as MID OCEAN REINSURANCE LTD), as a Borrower and a Guarantor By /s/ HENRY C. V. KEELING -------------------------------------------- Name: Henry C. V. Keeling Title: President & Chief Executive Officer AMENDMENT NO. 1 TO CREDIT AGREEMENT (5-YEAR) IN WITNESS WHEREOF, XL Capital has caused this Amendment No. 1 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 a Borrower and a Guarantor /s/ PAUL GIORDANO -------------------------------------------- witness By /s/ MICHAEL SIESE ------------------------------------------ Name: Michael Siese Title: Senior Vice President & Controller AMENDMENT NO. 1 TO CREDIT AGREEMENT (5-YEAR) BANKS THE CHASE MANHATTAN BANK, Individually and as Administrative Agent By /s/ HELEN L. NEWCOMB ---------------------------------------------- Title: Vice President CITIBANK N.A. By: /s/ MICHAEL TAYLOR ---------------------------------------------- Title: VP By: ---------------------------------------------- Title: DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS BRANCHES By: /s/ RUTH LEUNG ---------------------------------------------- Title: Ruth Leung - Director By: /s/ CLINTON M. JOHNSON ---------------------------------------------- Title: Clinton M. Johnson - Managing Director MELLON BANK, N.A. By: /s/ KARLA K. MALOOF ---------------------------------------------- Title: Vice President AMENDMENT NO. 1 TO CREDIT AGREEMENT (5-YEAR) ROYAL BANK OF CANADA By -------------------------------- Title: THE BANK OF BERMUDA LIMITED By: /s/ A. KERRY DAVISON -------------------------------- Title: VP - Credit Manager - Corporate Cash Management CREDIT LYONNAIS NEW YORK BRANCH By: /s/ KEN RICCIARDI ----------------------------------------- Title: VP STATE STREET BANK AND TRUST COMPANY By: /s/ EDWARD M. ANDERSON ----------------------------------------- Title: Vice President BANQUE NATIONALE DE PARIS By -------------------------------- _ Title: By -------------------------------- Title: AMENDMENT NO. 1 TO CREDIT AGREEMENT (5-YEAR) THE BANK OF NOVA SCOTIA NY AGENCY By: /s/ TODD MELLER -------------------------------- Title: Managing Director AMENDMENT NO. 1 TO CREDIT AGREEMENT (5-YEAR)