THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 OF THE AMENDED FACILITY AGREEMENT
Exhibit 10.1
DATED 8 May 2018
AMTRUST CORPORATE CAPITAL LIMITED
AMTRUST CORPORATE MEMBER LIMITED
AMTRUST CORPORATE MEMBER TWO LIMITED
ANV CORPORATE NAME LIMITED
as Corporate Members
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AMTRUST INTERNATIONAL INSURANCE, LTD.
as Account Party
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as Guarantor
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THE BANKS AND FINANCIAL INSTITUTIONS
LISTED IN SCHEDULE 1 OF THE AMENDED FACILITY AGREEMENT
as Original Banks
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BRANCH AND BANK OF MONTREAL, LONDON BRANCH
as Mandated Lead Arrangers
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ING BANK N.V., LONDON BRANCH
as Bookrunner, Agent, Issuing Bank and Security Trustee
SECOND AMENDMENT AGREEMENT RELATING TO A CREDIT FACILITY AGREEMENT |
THIS AGREEMENT dated 8 May 2018 is made
BETWEEN:
(1) | AMTRUST CORPORATE CAPITAL LIMITED, a company incorporated in England under registered number 08128684 whose registered office is at 0 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (“ACCL”); |
(2) | AMTRUST CORPORATE MEMBER LIMITED, a company incorporated in England under registered number 03621278 whose registered office is at 0 Xxxxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (“ACML”); |
(3) | AMTRUST CORPORATE MEMBER TWO LIMITED, a company incorporated in England under registered number 05264527 whose registered office is at 0 Xxxxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (“ACM2L”); |
(4) | ANV CORPORATE NAME LIMITED, a company incorporated in England under registered number 06705037 whose registered office is at 4th floor, 0 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (“ANV”); |
(5) | AMTRUST INTERNATIONAL INSURANCE, LTD., a company incorporated in Bermuda under registered number 9551 whose registered office is at 0 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx XX00, Xxxxxxx (the “Account Party”); |
(6) | AMTRUST FINANCIAL SERVICES, INC., a corporation organised under the laws of Delaware whose registered office is at 000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (the “Guarantor”); |
(7) | THE BANKS AND FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 OF THE AMENDED FACILITY AGREEMENT (the “Original Banks”); |
(8) | ING BANK N.V., LONDON BRANCH, as Bookrunner; |
(9) |
(10) | ING BANK N.V., LONDON BRANCH as Agent; |
(11) | ING BANK N.V., LONDON BRANCH as Issuing Bank; and |
(12) | ING BANK N.V., LONDON BRANCH as Security Trustee. |
WHEREAS
(A) | By a letter of credit facility agreement dated 26 November 2013, as amended and restated from time to time and most recently on 8 November 2017 and further amended on 20 December 2017 (the “Facility Agreement”) and made between the Parties, the Banks agreed to provide a letter of credit facility of up to £455,000,000 to provide Funds at Lloyd’s on behalf of the Corporate Members to support their underwriting at Lloyd’s of London. |
(B) | The Parties now wish to amend the Facility Agreement in accordance with the terms of this Agreement in order to: (i) reflect certain proposed changes to the method by which forecast losses are determined under the Agreement, and (ii) exclude Syndicate 44 from the scope of Clause 15.5 of the Facility Agreement. |
IT IS AGREED
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1. | DEFINITIONS AND INTERPRETATION |
1.1 | Words and expressions defined in the Facility Agreement have the same meaning in this Agreement unless otherwise defined herein. |
1.2 | In this Agreement: |
“Amendment Effective Date” means the date of this Agreement;
“Amended Facility Agreement” means the Facility Agreement as amended by this Agreement;
“Facility Agreement” has the meaning given in Recital (A) above; and
“Party” means each party to this Agreement.
1.3 | The provisions of Clauses 1.2 to 1.9 of the Facility Agreement shall apply to this Agreement as if references therein to “this Agreement” were references to this Agreement. |
1.4 | From the Amendment Effective Date, any reference in any Finance Document to the Facility Agreement shall be read and construed for all purposes as a reference to the Amended Facility Agreement. |
2. | AMENDMENTS TO FACILITY AGREEMENT |
2.1 | Amendments to Clause 15.5 |
With effect from the Amendment Effective Date:
(a) | the text contained in the first paragraph of Clause 15.5(a)(i) shall be deleted and replaced with the following wording: |
“the projected, in-force and actual loss estimates for each Syndicate (other than Syndicate 44 and Syndicate 2526) in respect of an RDS which falls within the scope of the Whole World AEP shall not, without the written consent of all of the Banks, for any open year of account, exceed:”
(b) | the text contained in the first paragraph of Clause 15.5(a)(ii) shall be deleted and replaced with the following wording: |
“the projected, in-force and actual loss estimates for each Syndicate (other than Syndicate 44 and Syndicate 2526) in respect of any other RDS shall not, without the written consent of all of the Banks, for any open year of account, exceed:”
(c) | the text contained in the first paragraph of Clause 15.5(b)(i) shall be deleted and replaced with the following wording: |
“the projected, in-force and actual loss estimates for Syndicate 1861 in respect of an RDS which falls within the scope of the Whole World AEP shall not, without the written consent of all of the Banks, for any open year of account, exceed:”; and
(d) | the text contained in the first paragraph of Clause 15.5(b)(ii) shall be deleted and replaced with the following wording: |
“the projected, in-force and actual loss estimates for Syndicate 1861 in respect of any other RDS shall not, without the written consent of all of the Banks, for any open year of account, exceed:”
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2.2 | Amendments to Clause 15.6 |
With effect from the Amendment Effective Date, the text contained in Clause 15.6 (Forecast Losses) of the Facility Agreement shall be deleted and replaced with the following wording:
“The Account Party shall, and the Guarantor will ensure that the Account Party shall, ensure that:
(a) | the aggregate forecast losses in respect of any one open year of account of Syndicates 1861, 1206, 2526 and 5820, calculated on a combined and consolidated basis, shall not exceed 25 per cent. of the aggregate allocated capacity in respect of such open year of account of such Syndicates, calculated on a combined and consolidated basis, and |
(b) | the forecast losses in respect of any one open year of account of Syndicate 44 shall not exceed 25 per cent. of the allocated capacity in respect of such open year of account of Syndicate 44. |
This Clause 15.6 shall not apply to Syndicate 2526 pursuant to the waiver granted by the Agent dated 28 March 2017 in respect of that Syndicate.”
3. | REPRESENTATIONS AND WARRANTIES |
3.1 | Subject to Clause 3.2 of this Agreement, each Obligor represents and warrants that each of the representations and warranties set out in Clauses 13.2 to 13.33 of the Amended Facility Agreement, construed as if references therein to “this Agreement” were references to this Agreement, is true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to “material”, “Material Adverse Change” or similar wording, in all respects) as at the Amendment Effective Date. |
3.2 | Each Obligor gives each representation and warranty under Clause 3.1 in respect of itself only, and only to the extent that the terms of the relevant clause make the relevant clause applicable in respect of it. |
4. | CONTINUITY AND FURTHER ASSURANCE |
4.1 | Continuing obligations |
The rights and obligations of the Parties under the Facility Agreement and the other Finance Documents shall continue in full force and effect, uninterrupted by the amendment hereunder, save insofar as they are amended hereby. In addition:
(a) | each Obligor that has granted Security pursuant to the Security Documents confirms that the Security created by the relevant Security Documents shall continue to fully secure the obligations of the relevant Obligors under the Finance Documents (including but not limited to the Amended Facility Agreement); and |
(b) | the Guarantor confirms that from the Amendment Effective Date the guarantee and indemnity given by it in Clause 12 (Guarantee and Indemnity) of the Facility Agreement will continue in full force and effect and will extend to all Obligations of each other Obligor under the Finance Documents (including but not limited to the Amended Facility Agreement), |
in each case, notwithstanding the amendment to the Facility Agreement made pursuant to this Agreement.
4.2 | Retrospective and prospective effect |
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The amendments made hereby to the Facility Agreement shall, with effect from the Amendment Effective Date:
(a) | in the case of the amendments to the Facility Agreement set out in Clause 2.2 (Amendments to Clause 15.6), have retrospective effect for the period from and excluding the Amendment Effective Date, to and including the Effective Date of the Facility Agreement; and |
(b) | in the case of all of the amendments set out in Clause 2 (Amendments to Facility Agreement), have prospective effect, |
and the Finance Parties confirm that the Obligors shall not be treated as having been in default of any previous form of wording contained in Clause 15.5 (RDS Maximum Loss) or 15.6 (Forecast Losses) of the Facility Agreement.
4.3 | Actions already taken |
Any action already taken and any payment already made by a party under the Facility Agreement prior to the Amendment Effective Date shall be treated as having been taken or made notwithstanding the amendment hereby, and shall not be required to be taken or made again by reason of the amendment hereby.
4.4 | Further assurance |
Each of the parties shall do all acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant hereto.
5. | AMENDMENTS |
The parties may agree to further amendments to the Amended Facility Agreement in accordance with the terms thereof without being required to amend or terminate this Agreement.
6. | TRANSFERS |
Any transfer or assignment made in accordance with the terms of the Amended Facility Agreement shall have the same effect in relation to the rights and obligations of the parties under this Agreement as it has in relation to their rights and obligations under the Amended Facility Agreement.
7. | INCORPORATION OF TERMS |
The provisions of Clauses 18.5 (Indemnity against costs), 33 (Miscellaneous), 36 (Notices) and 37 (Applicable Law and Jurisdiction) of the Facility Agreement shall be incorporated into this Agreement as if set out herein and as if references therein to “this Agreement” were references to this Agreement.
8. | GOVERNING LAW |
This Agreement and any contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law.
AS WITNESS the hands of the duly authorised representatives of the parties hereto the day and year first before written.
SIGNATURES TO AMENDMENT AGREEMENT
ACCL
SIGNED for and on behalf of AMTRUST CORPORATE CAPITAL LIMITED | /s/ Xxxxxx Xxxxx Xxxxxx Xxxxx Director | Signature Print Name Job Title | |
ACML
SIGNED for and on behalf of AMTRUST CORPORATE MEMBER LIMITED | /s/ Xxxxxx Xxxxx Xxxxxx Xxxxx Director | Signature Print Name Job Title | |
ACM2L
SIGNED for and on behalf of AMTRUST CORPORATE MEMBER TWO LIMITED | /s/ Xxxxxx Xxxxx Xxxxxx Xxxxx Director | Signature Print Name Job Title | |
ANV
SIGNED for and on behalf of ANV CORPORATE NAME LIMITED | /s/ Xxxxxx Xxxxx Xxxxxx Xxxxx Director | Signature Print Name Job Title | |
ACCOUNT PARTY
SIGNED for and on behalf of AMTRUST INTERNATIONAL INSURANCE, LTD. | /s/ Xxxxx Xxxxxx Xxxxx Xxxxxx Chief Financial Officer | Signature Print Name Job Title | |
GUARANTOR
SIGNED for and on behalf of AMTRUST FINANCIAL SERVICES, INC. | /s/ Xxxxxxx Xxxxx Xxxxxxx Xxxxx Secretary | Signature Print Name Job Title | |
[Signature Page to Second Amendment Agreement]
ORIGINAL BANKS
SIGNED for and on behalf of ING BANK N.V., LONDON BRANCH | /s/ Xxxx Xxxxxxx Xxxx Xxxxxxx Managing Director | Signature Print Name Job Title | |
/s/ Xxxx Xxxxxxxx Xxxx Xxxxxxxx Director | Signature Print Name Job Title | ||
SIGNED for and on behalf of THE BANK OF NOVA SCOTIA, LONDON BRANCH | /s/ Xxxxx Xxx Xxxxx Xxx Director | Signature Print Name Job Title | |
/s/ Xxxxx Xxxxx Xxxxx Xxxxx Managing Director | Signature Print Name Job Title | ||
SIGNED for and on behalf of BANK OF MONTREAL, LONDON BRANCH | /s/ Xxx Xxxxxxx Xxx Xxxxxxx Managing Director | Signature Print Name Job Title | |
/s/ Xxxx Xxxxx Xxxx Xxxxx Managing Director | Signature Print Name Job Title | ||
MANDATED LEAD ARRANGERS
SIGNED for and on behalf of ING BANK N.V., LONDON BRANCH | /s/ Xxxx Xxxxxxx Xxxx Xxxxxxx Managing Director | Signature Print Name Job Title | |
/s/ Xxxx Xxxxxxxx Xxxx Xxxxxxxx Director | Signature Print Name Job Title | ||
SIGNED for and on behalf of THE BANK OF NOVA SCOTIA, LONDON BRANCH | /s/ Xxxxx Xxx Xxxxx Xxx Director | Signature Print Name Job Title | |
/s/ Xxxxx Xxxxx Xxxxx Xxxxx Managing Director | Signature Print Name Job Title | ||
[Signature Page to Second Amendment Agreement]
SIGNED for and on behalf of BANK OF MONTREAL, LONDON BRANCH | /s/ Xxx Xxxxxxx Xxx Xxxxxxx Managing Director | Signature Print Name Job Title | |
/s/ Xxxx Xxxxx Xxxx Xxxxx Managing Director | Signature Print Name Job Title | ||
BOOKRUNNER
SIGNED for and on behalf of ING BANK N.V., LONDON BRANCH | /s/ Xxxx Xxxxxxx Xxxx Xxxxxxx Managing Director | Signature Print Name Job Title | |
/s/ Xxxx Xxxxxxxx Xxxx Xxxxxxxx Director | Signature Print Name Job Title | ||
AGENT
SIGNED for and on behalf of ING BANK N.V., LONDON BRANCH | /s/ Xxxx Xxxxxxx Xxxx Xxxxxxx Managing Director | Signature Print Name Job Title | |
/s/ Xxxx Xxxxxxxx Xxxx Xxxxxxxx Director | Signature Print Name Job Title | ||
ISSUING BANK
SIGNED for and on behalf of ING BANK N.V., LONDON BRANCH | /s/ Xxxx Xxxxxxx Xxxx Xxxxxxx Managing Director | Signature Print Name Job Title | |
/s/ Xxxx Xxxxxxxx Xxxx Xxxxxxxx Director | Signature Print Name Job Title | ||
SECURITY TRUSTEE
SIGNED for and on behalf of ING BANK N.V., LONDON BRANCH | /s/ Xxxx Xxxxxxx Xxxx Xxxxxxx Managing Director | Signature Print Name Job Title | |
/s/ Xxxx Xxxxxxxx Xxxx Xxxxxxxx Director | Signature Print Name Job Title | ||
[Signature Page to Second Amendment Agreement]
