SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of April 5, 2002 (this "Amendment")
amends the Reimbursement Agreement dated as of August 24, 2001 and as
amended as of October 23, 2001 (the "Reimbursement Agreement") among ACE
Limited, a Cayman Islands company (the "Parent"), ACE Bermuda Insurance
Ltd., a Bermuda company ("ACE Bermuda"), and ACE Tempest Reinsurance Ltd.,
a Bermuda company ("Tempest") (Ace Bermuda and Tempest, together with the
Parent, the "Account Parties"), various financial institutions (the
"Banks"), and Wachovia Bank, National Association (formerly known as First
Union National Bank) ("Wachovia"), as administrative agent (in such
capacity, the "Administrative Agent"). Terms defined in the Reimbursement
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the Account Parties, the Banks, Fleet National Bank, as
Documentation Agent, Wachovia, as Issuing Bank, and the Administrative
Agent have entered into the Reimbursement Agreement; and
WHEREAS, the parties hereto desire to amend the Reimbursement
Agreement in certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Representations and Warranties of Account
Parties. Effective on (and subject to the occurrence of) the Amendment
Effective Date (as defined below), Section 4.01(b) of the Reimbursement
Agreement is amended by adding "as of the Effective Date" at the end
thereof.
SECTION 2. Amendment to Negative Covenants. Effective on (and subject
to the occurrence of) the Amendment Effective Date (as defined below),
Section 5.02 of the Reimbursement Agreement shall be amended as set forth
below:
2.1 Amendment to Section 5.02(a)(xvii). Section 5.02(a)(xvii) of the
Reimbursement Agreement shall be amended by deleting the word "and"
immediately after the semi-colon at the end thereof.
2.2 Amendment to Section 5.02(a)(xviii). Section 5.02(a)(xviii) of the
Reimbursement Agreement shall be amended by deleting the period at the end
thereof and adding a semi-colon and the word "and" at the end thereof.
2.3 Amendment to Section 5.02(a). Section 5.02(a) of the Reimbursement
Agreement shall be amended by adding the following immediately after the
word "and" following the semi-colon at the end of subsection (xviii)
thereof:
(xix) Liens securing up to an aggregate amount of
$200,000,000 of obligations of Tempest, the Parent or any
wholly owned Subsidiary, arising out of catastrophe bond
financing.
SECTION 3. Representations and Warranties. Each Account Party
represents and warrants to the Administrative Agent and the Banks that (a)
each warranty set forth in Article IV of the Reimbursement Agreement is
true and correct as of the date of the execution and delivery of this
Amendment by the Parent, with the same effect as if made on such date
(except to the extent such representations and warranties expressly refer
to an earlier date, in which case they were true and correct as of such
earlier date), (b) the execution and delivery by the Parent of this
Amendment and the performance by each Account Party of its respective
obligations under the Reimbursement Agreement, as amended hereby (as so
amended, the "Amended Reimbursement Agreement") (i) are within the
corporate or limited liability company power, as applicable, of such
Account Party, (ii) have been duly authorized by all necessary corporate
action, as applicable, on the part of such Account Party, (iii) have
received all necessary governmental and regulatory approval and (iv) do not
and will not contravene or conflict with any provision of law or of the
organizational documents of any Account Party or of any indenture, loan
agreement or other contract, order or decree which is binding upon any
Account Party and (c) the Amended Reimbursement Agreement is the legal,
valid and binding obligation of each Account Party, enforceable against
such Account Party in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
SECTION 4. Effectiveness. The amendments set forth in Sections 1 and 2
above shall become effective on such date (the "Amendment Effective Date")
when the Administrative Agent shall have received each of the following
documents, each in form and substance satisfactory to the Administrative
Agent:
4.1 Executed Counterparts. Counterparts of this Amendment executed by
the Parent and the Required Banks.
4.2 Confirmation. A confirmation, substantially in the form of Annex I
attached hereto, executed by each of ACE Bermuda and Tempest.
4.3 Other Documents. Such other documents as the Administrative Agent
or any Bank may reasonably request in connection with the authorization,
execution and delivery of this Amendment.
SECTION 5. Miscellaneous.
5.1 Continuing Effectiveness, etc. As herein amended, the
Reimbursement Agreement shall remain in full force and effect and is hereby
ratified and confirmed in all respects. After the Amendment Effective Date,
all references in the Reimbursement Agreement and the other Loan Documents
to "Reimbursement Agreement", "Agreement" or similar terms shall refer to
the Amended Reimbursement Agreement.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and
each such counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same Amendment.
5.3 Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of New York applicable to contracts made
and to be fully performed within such state.
5.4 Successors and Assigns. This Amendment shall be binding upon each
Account Party, the Banks and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Account
Parties, the Banks and the Administrative Agent and the respective
successors and assigns of the Banks and the Administrative Agent.
2
Delivered at Chicago, Illinois, as of the day and year first above
written.
ACE LIMITED
By:
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Title:
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WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent
By:
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Title:
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FLEET NATIONAL BANK
By:
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Title:
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MELLON BANK, N.A.
By:
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Title:
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ROYAL BANK OF CANADA, NEW YORK BRANCH
By:
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Title:
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BANK ONE, N.A.
By:
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Title:
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S-1
(signatures continued)
COMERICA BANK
By:
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Title:
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DEUTSCHE BANK AG, NEW YORK BRANCH
By:
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Title:
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By:
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Title:
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STATE STREET BANK AND TRUST COMPANY
By:
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Title:
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THE BANK OF BERMUDA LIMITED
By:
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Title:
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THE BANK OF N.T. XXXXXXXXXXX & SON LIMITED
By:
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Title:
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CREDIT SUISSE FIRST BOSTON
By:
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Title:
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S-2
ANNEX I
CONFIRMATION
Dated as of April 5, 2002
To: Wachovia Bank, National Association, individually and as
Administrative Agent, and the other financial institutions party
to the Reimbursement Agreement referred to below
Please refer to: (a) the Reimbursement Agreement dated as of
August 24, 2001 and as amended as of October 23, 2001 (the "Reimbursement
Agreement") among ACE Limited, ACE Bermuda Insurance Ltd. and ACE Tempest
Reinsurance Ltd. (Ace Bermuda and Tempest, together with ACE Limited, the
"Account Parties"), various financial institutions (the "Banks"), and
Wachovia Bank, National Association (formerly known as First Union National
Bank) ("Wachovia"), as administrative agent (in such capacity, the
"Administrative Agent"); (b) the other "Loan Documents" (as defined in the
Reimbursement Agreement); and (c) the Second Amendment dated as of April 5,
2002 to the Reimbursement Agreement (the "Second Amendment").
Each of the undersigned hereby confirms to the Administrative
Agent and the Banks that, after giving effect to the Second Amendment and
the transactions contemplated thereby, each Loan Document to which such
undersigned is a party continues in full force and effect and is the legal,
valid and binding obligation of such undersigned, enforceable against such
undersigned in accordance with its terms.
ACE LIMITED
By:
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Name Printed:
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Title:
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ACE BERMUDA INSURANCE LTD.
By:
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Name Printed:
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Title:
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ACE TEMPEST REINSURANCE LTD.
By:
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Name Printed:
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Title:
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