EXHIBIT 10.2
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 4, 2003 among
ACE Limited (the "Parent"), ACE Bermuda Insurance Ltd. ("ACE Bermuda"), ACE
Tempest Reinsurance Ltd, formerly known as Tempest Reinsurance Company Limited
("Tempest"), ACE INA Holdings Inc. ("ACE INA") and ACE Guaranty Corp., formerly
known as ACE Guaranty Re Inc. ("ACE Guaranty"), the LENDERS listed on the
signature pages hereof, X.X. XXXXXX SECURITIES INC., as Lead Arranger and
Bookrunner, BANK OF AMERICA, N.A., BARCLAYS BANK PLC, CITIBANK, N.A. and FLEET
NATIONAL BANK, as Co-Syndication Agents, JPMORGAN CHASE BANK, as Administrative
Agent, and LLOYDS TSB BANK PLC, as Documentation Agent.
W I T N E S S E T H:
WHEREAS, certain of the parties hereto have heretofore entered into a
Credit Agreement dated as of May 8, 2000 (as heretofore amended and/or restated,
the "Agreement");
WHEREAS, at the date hereof, no Advances are outstanding under the
Agreement; and
WHEREAS, the parties hereto desire to amend the Agreement as set forth
herein and to restate the Agreement in its entirety to read as set forth in the
Agreement with the amendments specified below;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions; References. Unless otherwise specifically defined
herein, each capitalized term used herein which is defined in the Agreement
shall have the meaning assigned to such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended and restated hereby. The term "Notes" defined in the
Agreement shall include from and after the date hereof the New Notes (as defined
below).
Section 2. Amendment of the Agreement.
(a) The following definition in Section 1.01 of the Agreement is amended to
read as follows:
"Termination Date" means the earlier of April 3, 2004 and the date of
termination in whole of the WC Commitments or such later date to which the
Termination Date shall have been extended pursuant to Section 2.01(b) or,
if such day is not a Business Day, the next preceding Business Day.
(b) Section 5.04(b) of the Agreement is amended to read as follows:
Consolidated Net Worth. Maintain at all times Consolidated Net Worth
in an amount equal to the sum of (i) $4,400,000,000 plus (ii) 25% of
Consolidated Net Income for each fiscal quarter of the Parent ending on and
after March 31, 2003 for which such Consolidated Net Income is positive.
(c) Section 4.01(g) of the Agreement is amended by changing each reference
to the date "December 31, 2001" to "December 31, 2002".
Section 3. Change in Pricing. With effect from and including the date this
Amendment and Restatement becomes effective in accordance with Section 7 hereof,
the attached Pricing Schedule shall replace the existing Pricing Schedule.
Section 4. Change in Commitments. With effect from and including the date
this Amendment and Restatement becomes effective in accordance with Section 7
hereof, (i) each Person listed on the signature pages hereof which is not a
party to the Agreement (a "New Lender") shall become a Lender party to the
Agreement and (ii) the Commitment of each Lender shall be the amount set forth
opposite the name of such Lender on the attached Commitment Schedule, which
shall replace the existing Commitment Schedule. Any Lender whose Commitment is
changed to zero shall upon such effectiveness cease to be a Lender party to the
Agreement, and all accrued fees and other amounts payable under the Agreement
for the account of such Lender shall be due and payable on such date; provided
that the provisions of Sections 2.12, 8.05 and 9.03 of the Agreement shall
continue to inure to the benefit of each such Lender.
Section 5. Representations and Warranties. (a) Each Borrower hereby
represents and warrants (but, in the case of each Borrower other than the
Parent, only as to itself) that as of the date hereof and after giving effect
hereto:
(i) no Default has occurred and is continuing; and
(ii) each representation and warranty of such Borrower set forth in
the Agreement after giving effect to this Amendment and Restatement (but,
in the case of each Borrower other than the Parent, only as to itself) is
true and correct as though made on and as of such date.
(b) The Parent hereby represents and warrants that, as of the date of
effectiveness hereof, there shall have occurred no material adverse change since
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December 31, 2002 in the business, financial condition, operations or properties
of the Parent and its Subsidiaries, taken as a whole.
Section 6. Governing Law. This Amendment and Restatement shall be governed
by and construed in accordance with the laws of the State of New York.
Section 7. Counterparts; Effectiveness. This Amendment and Restatement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment and Restatement shall become effective as of the date
hereof when each of the following conditions shall have been satisfied:
(i) The Administrative Agent shall have received counterparts of this
Amendment and Restatement duly executed by each of the parties listed on
the signature pages hereof (or in the case of any party as to which such an
executed counterpart shall not have been received, the Administrative Agent
shall have received evidence satisfactory to it of the execution and
delivery of a counterpart hereof by such party).
(ii) The Administrative Agent shall have received the following in
form and substance reasonably satisfactory to the Administrative Agent
(unless otherwise specified) and (except for the New Notes (as defined
below)) in sufficient copies for each Lender.
(A) Duly executed Committed Notes (in substantially the form of
Exhibit A-1 to the Agreement) from each Borrower for each of the New
Lenders and each Lender with a Commitment (as reflected on the
existing Commitment Schedule) which differs from the Commitment
reflected on the attached Commitment Schedule, dated on or before the
date of effectiveness hereof (the "New Notes").
(B) Certified copies of the resolutions of the Board of Directors
of each Loan Party approving the transactions contemplated by the Loan
Documents and each Loan Document to which it is or is to be a party,
and of all documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any,
with respect to the transactions contemplated by the Loan Documents
and each Loan Document to which it is or is to be a party.
(C) A certificate of each Loan Party, signed on behalf of such
Loan Party by its President, Vice President, Chief Executive Officer,
Chief Financial Officer or Chief Accounting Officer and its Secretary
or any Assistant Secretary, dated the date of effectiveness hereof,
certifying, in the case of each Loan Party other than the Parent, only
as to such Loan Party, as to (1) the
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truth of the representations and warranties contained in the Loan
Documents as though made on and as of the date of effectiveness hereof
and (2) the absence of any event occurring and continuing, or
resulting from the effectiveness hereof, that constitutes a Default.
(D) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign this Amendment and
Restatement, the New Notes to be issued by such Loan Party and the
other documents to be delivered hereunder and thereunder.
(E) A favorable opinion of (1) Xxxxxx and Xxxxxx, Cayman Islands
counsel for the Parent, to substantially the effect of Exhibit D-1 to
the Agreement with respect to this Amendment and Restatement and the
Agreement as amended and restated hereby and as to such other matters
as the Administrative Agent may reasonably request, (2) Mayer, Brown,
Xxxx & Maw, New York counsel for the Loan Parties, to substantially
the effect of Exhibit D-2 to the Agreement with respect to this
Amendment and Restatement and the Agreement as amended and restated
hereby and as to such other matters as the Administrative Agent may
reasonably request, (3) Xxxxxxx Xxxx & Xxxxxxx, Bermuda counsel for
ACE Bermuda and Tempest, to substantially the effect of Exhibit D-3 to
the Agreement with respect to this Amendment and Restatement and the
Agreement as amended and restated hereby and as to such other matters
as the Administrative Agent may reasonably request and (4) Xxxxx &
Xxxxxxx, Maryland counsel for ACE Guaranty, to substantially the
effect of Exhibit D-4 to the Agreement with respect to this Amendment
and Restatement and the Agreement as amended and restated hereby and
as to such other matters as any Lender through the Administrative
Agent may reasonably request.
(iii) The Borrowers shall have paid all accrued fees of the Agents and
the Lenders and all accrued expenses of the Agents (including the accrued
fees and expenses of counsel to the Administrative Agent), in each case to
the extent then due and payable.
This Amendment and Restatement shall not become effective or binding on any
party hereto unless all of the foregoing conditions are satisfied not later than
the date hereof. The Administrative Agent shall promptly notify the Borrowers
and the Lenders of the effectiveness of this Amendment and Restatement, and such
notice shall be conclusive and binding on all parties hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed by their respective authorized officers as of
the day and year first above written.
ACE LIMITED
The Common Seal of ACE Limited was
hereunto affixed in the presence of:
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
ACE BERMUDA INSURANCE LTD.
The Common Seal of ACE Bermuda
Insurance Ltd. was hereunto affixed in the
presence of:
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
ACE TEMPEST REINSURANCE LTD.
The Common Seal of ACE Tempest
Reinsurance Ltd. was hereunto affixed in
the presence of:
By:
Name:
Title:
By:
Name:
Title:
ACE INA HOLDINGS INC.
By: _______________________________________
Name:
Title:
ACE GUARANTY CORP.
By: _______________________________________
Name:
Title:
JPMORGAN CHASE BANK, as
Administrative Agent and as Lender
By: _______________________________________
Name:
Title:
BANK OF AMERICA, N.A., as Syndication Agent and as
Lender
By: _______________________________________
Name:
Title:
FLEET NATIONAL BANK, as
Syndication Agent and as Lender
By: ____________________________________
Name:
Title:
BARCLAYS BANK PLC, as Syndication Agent
and as Lender
By: ____________________________________
Name:
Title:
CITIBANK, N.A., as Syndication Agent and
as Lender
By: ____________________________________
Name:
Title:
LLOYDS TSB BANK PLC, as Documentation
Agent and as Lender
By: ____________________________________
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By: ____________________________________
Name:
Title:
ROYAL BANK OF CANADA
By: ____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By: ____________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ____________________________________
Name:
Title:
ABN AMRO BANK N.V.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI LIMITED
By: ____________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH
By: ____________________________________
Name:
Title:
MELLON BANK, N.A.
By: ____________________________________
Name:
Title:
HSBC BANK USA
By: ____________________________________
Name:
Title:
BANK ONE, N.A.
By:
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Name:
Title:
PRICING SCHEDULE
COMMITMENT SCHEDULE
