Exhibit 10.2
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 6, 2001
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 Re Inc. ("ACE Guaranty"), the LENDERS listed on the
signature pages hereof, JPMORGAN, A DIVISION OF CHASE SECURITIES, INC., as
Lead Arranger and Bookrunner, BANK OF AMERICA, N.A., BARCLAYS BANK PLC, and
FLEET NATIONAL BANK as Co-Syndication Agents and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Administrative 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 amended, 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).
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SECTION 2. Amendment of the Agreement.
(a) Section 1.01 of the Agreement is amended by inserting the
following definitions in their appropriate alphabetical order:
"Final Maturity Date" means the first anniversary of the
Termination Date, or, if such day is not a Business Day, the next
preceding Business Day.
(b) The following definitions in Section 1.01 of the Agreement are
amended to read as follows:
"Lead Arranger" means JPMorgan, a division of Chase
Securities Inc., in its capacity as lead arranger and book runner
in respect of this Amended Agreement.
"Termination Date" means the earlier of April 5, 2002 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.
(c) The definition of "Adjusted Consolidated Debt" is amended by
changing the reference "Mandatorily Convertible Securities" to "Mandatorily
Convertible Preferred Securities".
(d) Proviso (a) to the definition of "Interest Period" is amended to
read as follows:
(a) such Borrower may not select any Interest Period with
respect to any Competitive Bid Advance that ends after the
Termination Date nor any Interest Period with respect to any
Eurodollar Rate Advance that ends after the Final Maturity Date;
(e) Section 2.04 of the Agreement is amended to read in its entirety
as follows:
SECTION 2.04. Repayment of Committed Advances. Each Borrower
shall repay to the Administrative Agent for the ratable account of
the Lenders on the Final Maturity Date the aggregate outstanding
principal amount of the Committed Advances to such Borrower then
outstanding.
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(f) Section 2.08(a) of the Agreement is amended to read in its
entirety as follows:
SECTION 2.08. Fees. (a) Facility Fee. The Borrowers agree to
pay to the Administrative Agent for the account of the Lenders a
facility fee (i) from and including the Effective Date to but not
including the Termination Date at the rate of the Applicable
Facility Fee Percentage on the average daily WC Commitment of each
Lender (whether used or unused) and (ii) from and including the
Termination Date to but not including the date on which the
Advances shall be repaid in their entirety, at the rate per annum
equal to the sum of 0.15% plus the Applicable Facility Fee
Percentage on the average daily aggregate outstanding principal
amount of the Advances of each Lender; provided, however, that no
facility fee shall accrue on the Unused WC Commitment of a
Defaulting Lender so long as such Lender shall be a Defaulting
Lender. Accrued facility fees shall be payable in arrears quarterly
on the last day of each March, June, September and December,
commencing on June 30, 2001, on the Termination Date and, if later,
on the date the Advances shall be repaid in their entirety.
(g) Schedule 4.01(b) is amended by adding "as of the Effective Date"
at the end thereto.
(h) Section 4.01(g) is amended by (i) changing each reference to
the date "December 31, 1999" to "December 31, 2000" and (ii) deleting the
phrase "and the date of the Initial Extension of Credit" in the last
sentence of the subsection.
(i) The form of Competitive Bid Note, Exhibit A-2, in the Agreement
is replaced by Exhibit A-2 attached hereto.
SECTION 3. Change in Commitments. With effect from and including
the date this Amendment and Restatement becomes effective in accordance
with Section 8 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.
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SECTION 4. 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 December 31, 2000 in the business, financial condition,
operations or properties of the Parent and its Subsidiaries, taken as a
whole.
SECTION 5. Governing Law. This Amendment and Restatement shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 6. 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").
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(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 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) Maples and Calder,
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 & Platt, 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) Conyers Dill & Pearman, Bermuda counsel for ACE
Bermuda and Tempest, to substantially the effect of Exhibit
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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) Hogan & Hartson, 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:
/s/ Donald Kramer
- ------------------------------
Director
/s/ Christopher Z. Marshall
- ------------------------------
Chief Financial Officer
ACE BERMUDA INSURANCE
LTD.
The Common Seal of ACE Bermuda
Insurance Ltd. was hereunto
affixed in the presence of:
/s/ Donald Kramer
- ------------------------------
Director
/s/ Christopher Z. Marshall
- ------------------------------
Director
ACE TEMPEST REINSURANCE
LTD.
The Common Seal of ACE Tempest
Reinsurance Ltd. was hereunto
affixed in the presence of:
/s/ Donald Kramer
- ------------------------------
Director
/s/ Christopher Z. Marshall
- ------------------------------
Director
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ACE INA HOLDINGS INC.
By: /s/ Robert B. Jefferson
-----------------------------------
Name: Robert B. Jefferson
Title: Chief Financial Officer
ACE GUARANTY RE INC.
By: /s/ Joseph W. Swain
-----------------------------------
Name: Joseph W. Swain
Title: President
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as
Administrative Agent and as
Lender
By: /s/ Maria H. Dell'Aquila
-----------------------------------
Name: Maria H. Dell'Aquila
Title: Vice President
THE CHASE MANHATTAN
BANK, as Lender
By: /s/ Helen L. Newcomb
-----------------------------------
Name: Helen L. Newcomb
Title: Vice President
BANK OF AMERICA, N.A., as
Syndication Agent and as Lender
By: /s/ Debra Basler
-----------------------------------
Name: Debra Basler
Title: Vice President
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FLEET NATIONAL BANK, as
Syndication Agent and as Lender
By: /s/ Lawrence Davis
-----------------------------------
Name: Lawrence Davis
Title: Associate, Portfolio
Manager
BARCLAYS BANK PLC, as
Syndication Agent and as Lender
By: /s/ Neil A. Holmes
-----------------------------------
Name: Neil A. Holmes
Title: Relationship Director
THE BANK OF NEW YORK, as
Co-Agent and as Lender
By: /s/ David Trick
-----------------------------------
Name: David Trick
Title: Assistant Vice
President
CITIBANK, N.A., as Co-Agent and
as Lender
By: /s/ Michael Taylor
-----------------------------------
Name: Michael Taylor
Title: Vice President
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COMMERZBANK
AKTIENGESELLSCHAFT, NEW
YORK AND GRAND CAYMAN
BRANCHES, as Co-Agent and as
Lender
By: /s/ Werner Samuel
-----------------------------------
Name: Werner Samuel
Title: Vice President
By: /s/ Henry Spark
-----------------------------------
Name: Henry Spark
Title: Assistant Treasurer
CREDIT LYONNAIS, NEW YORK
BRANCH, as Co-Agent and as
Lender
By: /s/ Sebastian Rocco
-----------------------------------
Name: Sebastian Rocco
Title: Senior Vice President
FIRST UNION NATIONAL BANK,
as Co-Agent and as Lender
By: /s/ Gail M. Golightly
-----------------------------------
Name: Gail M. Golightly
Title: Senior Vice President
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LLOYDS TSB BANK PLC, as
Co-Agent and as Lender
By: /s Michael J. Gilligan
-----------------------------------
Name: Michael J. Gilligan
Title: Director, Financial
Institutions, USA
By: /s/ Paul D. Briamonte
-----------------------------------
Name: Paul D. Briamonte
Title: Director-Project
Finance (USA)
ROYAL BANK OF CANADA, as
Co-Agent and as Lender
By: /s/ Alexander Birr
-----------------------------------
Name: Alexander Birr
Title: Senior Manager
STATE STREET BANK AND
TRUST COMPANY, as Co-Agent
and as Lender
By: /s/ Edward M. Anderson
-----------------------------------
Name: Edward M. Anderson
Title: Vice President
WACHOVIA BANK, N.A., as Co-
Agent and as Lender
By: /s/ Mark A. Edwards
-----------------------------------
Name: Mark A. Edwards
Title: Senior Vice President
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ABN AMRO BANK N.V., as
Lender
By: /s/ Ray Catt
-----------------------------------
Name: Ray Catt
Title: Relationship Banker
By: /s/ Martyn Taplin
-----------------------------------
Name: Martyn Taplin
Title: Authorized Signatory
BANK ONE, N.A., as Lender
By: /s/ Gretchen Roetzer
-----------------------------------
Name: Gretchen Roetzer
Title: Assistant Vice
President
THE BANK OF TOKYO-
MITSUBISHI, LIMITED, as Lender
By: /s/ Matthew D. Gallino
-----------------------------------
Name: Matthew D. Gallino
Title: Attorney-in-Fact
COMERICA BANK, as Lender
By: /s/ Martin G. Ellis
-----------------------------------
Name: Martin G. Ellis
Title: Vice President
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DEUTSCHE BANK AG NEW
YORK AND/OR CAYMAN
ISLANDS BRANCHES, as Lender
By: /s/ Clinton M. Johnson
-----------------------------------
Name: Clinton M. Johnson
Title: Managing Director
By: /s/ Gayma Z. Shivnarain
-----------------------------------
Name: Gayma Z. Shivnarain
Title: Director
MELLON BANK, N.A., as Lender
By: /s/ Carrie Burnham
-----------------------------------
Name: Carrie Burnham
Title: Assistant Vice
President
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COMMITMENT SCHEDULE
Lender Commitment
- --------------------------------------------------------------------------
Morgan Guaranty Trust Company of New York $40,000,000
The Chase Manhattan Bank $40,000,000
Bank of America, N.A. $55,000,000
Fleet National Bank $55,000,000
Barclays Bank PLC $55,000,000
The Bank of New York $40,000,000
Citibank, N.A. $40,000,000
Commerzbank Aktiengesellschaft, New York and Grand $40,000,000
Cayman Branches
Credit Lyonnais New York Branch $40,000,000
First Union National Bank $40,000,000
Lloyds TSB Bank Plc $40,000,000
Royal Bank of Canada $40,000,000
State Street Bank and Trust Company $40,000,000
Wachovia Bank, N.A. $40,000,000
ABN AMRO Bank N.V. $32,500,000
Bank One, N.A. $32,500,000
The Bank of Tokyo-Mitsubishi, Limited $32,500,000
Comerica Bank $32,500,000
Deutsche Bank AG New York and/or Cayman Islands $32,500,000
Branches
Mellon Bank, N.A. $32,500,000
Total $800,000,000
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EXHIBIT A-2
FORM OF COMPETITIVE BID NOTE
Dated: _____________ __, ____
FOR VALUE RECEIVED, the undersigned, __________________, a _______
__________ corporation (the "Obligor"), HEREBY PROMISES TO PAY ___________
_____________ (the "Lender") for the account of its Applicable Lending
Office (as defined in the Credit Agreement referred to below) the aggregate
principal amount of the Competitive Bid Advances (as defined in the Credit
Agreement referred to below) owing to the Lender by the Obligor pursuant to
the Amended and Restated 364-Day Credit Agreement dated as of May 8, 2000
(as amended, amended and restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; terms defined therein, unless
otherwise defined herein, being used herein as therein defined) among ACE
Limited, ACE Bermuda Insurance Ltd., Tempest Reinsurance Company Limited,
ACE INA Holdings Inc. and ACE Guaranty Re Inc., the Initial Lenders, Bank
of America, N.A. and The Chase Manhattan Bank as Co-Syndication Agents, and
Morgan Guaranty Trust Company of New York, as Administrative Agent, payable
at such times as are specified in the Credit Agreement.
The Obligor promises to pay interest on the unpaid principal amount
of each Competitive Bid Advance from the date of such Competitive Bid
Advance until such principal amount is paid in full, at such interest
rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Morgan Guaranty Trust Company of New York, as
Administrative Agent, at such location as shall be designated by the
Administrative Agent in a written notice to the Obligor in same day funds.
Each Competitive Bid Advance owing to the Lender by the Obligor and the
maturity thereof, and all payments made on account of principal thereof,
shall be recorded by the Lender and, prior to any transfer hereof, endorsed
on the grid attached hereto, which is part of this Promissory Note;
provided, however, that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Obligor
under this Promissory Note.
This Promissory Note is one of the Competitive Bid Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
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maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof
upon the terms and conditions therein specified. The obligations of the
Obligor under this Promissory Note and the other Loan Documents, are
unconditionally guaranteed by the Guarantors referred to in the Credit
Agreement.
The Obligor hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF OBLIGOR]
By ___________________________________
Title:
16
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of Unpaid
Amount of Principal Paid or Principal Notation
Date Advance Prepaid Balance Made By