Exhibit 10.3
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of October 23, 2001 (this
"Amendment") amends the Amended and Restated 364-Day Credit Agreement dated
as of May 8, 2000, as amended as of October 23, 2000 and amended and
restated as of April 6, 2001 (the "Credit Agreement") among ACE Limited, a
Cayman Islands company (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") (Ace Bermuda, Tempest, ACE INA
and ACE Guaranty, together with the Parent, the "Borrowers"), various
financial institutions (the "Lenders"), and Morgan Guaranty Trust Company
of New York ("MGT"), as administrative agent (in such capacity, the
"Agent"). Terms defined in the Credit Agreement are, unless otherwise
defined herein or the context otherwise requires, used herein as defined
therein.
WHEREAS, the Borrowers, the Lenders and the Agent have entered into
the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendment to Negative Covenants. Effective on (and
subject to the occurrence of) the Amendment Effective Date (as defined
below), Section 5.02 of the Credit Agreement shall be amended as set forth
below:
1.1 Amendment to Section 5.02(a)(xvii). Section 5.02(a)(xvii) of
the Credit Agreement shall be amended by deleting the word "and"
immediately after the semi-colon at the end thereof.
1.2 Amendment to Section 5.02(a)(xviii). Section 5.02(a)(xviii) of
the Credit 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.
1.3 Amendment to Section 5.02(a). Section 5.02(a) of the Credit
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 on securities arising out of repurchase agreements with
a term of not more than three months entered into with Lenders
(under and as defined in the Amended and Restated Five Year Credit
Agreement dated as of May 8, 2000 and as amended as of October 23,
2000 among Parent, ACE Bermuda, Tempest, ACE INA and ACE Financial
Services, Inc., various financial institutions, and MGT) or their
Affiliates or with securities dealers of recognized standing;
provided that the aggregate amount of all assets of the Parent
and its Subsidiaries subject to such agreements shall not at
any time exceed $800,000,000.
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SECTION 2 Representations and Warranties. Each Borrower represents
and warrants to the Agent and the Lenders that (a) each warranty set forth
in Article IV of the Credit 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 Borrower of its
respective obligations under the Credit Agreement, as amended hereby (as so
amended, the "Amended Credit Agreement") (i) are within the corporate or
limited liability company power, as applicable, of such Borrower (ii) have
been duly authorized by all necessary corporate action, as applicable, on
the part of such Borrower, (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
Borrower or of any indenture, loan agreement or other contract, order or
decree which is binding upon any Borrower and (c) the Amended Credit
Agreement is the legal, valid and binding obligation of each Borrower,
enforceable against such Borrower 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 3 Effectiveness. The amendments set forth in Section 1
above shall become effective on such date (the "Amendment Effective Date")
when the Agent shall have received each of the following documents, each in
form and substance satisfactory to the Agent:
3.1 Executed Counterparts. Counterparts of this Amendment executed
by the Parent and the Required Lenders.
3.2 Confirmation. A confirmation, substantially in the form of
Annex I attached hereto, executed by each existing Guarantor.
3.3 Other Documents. Such other documents as the Agent or any
Lender may reasonably request in connection with the authorization,
execution and delivery of this Amendment.
SECTION 4 Miscellaneous.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit
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 Credit Agreement and the other Loan Documents to "Credit
Agreement", "Agreement" or similar terms shall refer to the Amended Credit
Agreement.
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4.2 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.
4.3 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.
4.4 Successors and Assigns. This Amendment shall be binding upon
each Borrower, the Lenders and the Agent and their respective successors
and assigns, and shall inure to the benefit of the Borrowers, the Lenders
and the Agent and the respective successors and assigns of the Lenders and
the Agent.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
ACE LIMITED
By:
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Name:
Title:
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By:
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Name:
Title:
THE CHASE MANHATTAN BANK
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
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Name:
Title:
S-1
FLEET NATIONAL BANK
By:
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Name:
Title:
BARCLAYS BANK PLC
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
CITIBANK, N.A.
By:
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Name:
Title:
S-2
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN
BRANCHES
By:
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Name:
Title:
By:
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Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By:
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Name:
Title:
FIRST UNION NATIONAL BANK
By:
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Name:
Title:
S-3
LLOYDS TSB BANK PLC
By:
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Name:
Title:
By:
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Name:
Title:
ROYAL BANK OF CANADA
By:
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Name:
Title:
STATE STREET BANK AND
TRUST COMPANY
By:
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Name:
Title:
WACHOVIA BANK, N.A.
By:
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Name:
Title:
S-4
ABN AMRO BANK N.V.
By:
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Name:
Title:
By:
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Name:
Title:
BANK ONE, N.A.
By:
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Name:
Title:
THE BANK OF TOKYO-MITSUBISHI, LTD.
NEW YORK BRANCH
By:
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Name:
Title:
COMERICA BANK
By:
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Name:
Title:
S-5
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as Lender
By:
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Name:
Title:
By:
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Name:
Title:
MELLON BANK, N.A.
By:
-----------------------------------------
Name:
Title:
S-6
Annex I
CONFIRMATION
Dated as of October 23, 2001
To: Morgan Guaranty Trust Company of New York, individually and as Agent,
and the other financial institutions party to the Credit Agreement
referred to below
Please refer to: (a) the Amended and Restated 364-Day Credit
Agreement dated as of May 8, 2000, as amended as of October 23, 2000 and
amended and restated as of April 6, 2001 (the "Credit Agreement") among ACE
Limited, ACE Bermuda Insurance Ltd., ACE Tempest Reinsurance Ltd., formerly
known as Tempest Reinsurance Company Limited , ACE INA Holdings Inc. and
ACE Guaranty Services, Inc. (Ace Bermuda, Tempest, ACE INA and ACE
Guaranty, together with ACE Limited, the "Borrowers"), various financial
institutions (the "Lenders"), and Morgan Guaranty Trust Company of New York
("MGT"), as administrative agent (in such capacity, the "Agent"); (b) the
other "Loan Documents" (as defined in the Credit Agreement), including the
Guaranty; and (c) the Second Amendment dated as of October 23, 2001 to the
Credit Agreement (the "Second Amendment").
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Each of the undersigned hereby confirms to the Agent and the
Lenders 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:
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Title:
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ACE BERMUDA INSURANCE LTD.
By:
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Name:
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Title:
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ACE TEMPEST REINSURANCE LTD.,
formerly known as TEMPEST REINSURANCE
COMPANY LIMITED
By:
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Name:
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Title:
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ACE INA HOLDINGS INC.
By:
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Name:
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Title:
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