SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of April 5,
2002 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, J.P. MORGAN 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).
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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 4, 2003 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 2.08(a)(ii) of the Agreement is amended by replacing
the figure "0.15%" with the figure "0.25%".
(c) Section 4.01(g) of the Agreement is amended by changing each
reference to the date "December 31, 2000" to "December 31, 2001".
(d) Section 5.02(a)(xviii) of the Agreement is amended by deleting
the word "and" immediately after the semi-colon at the end thereof.
(e) Section 5.02(a)(xix) of the Agreement is amended by deleting
the period at the end thereof and adding a semi-colon and the word "and" at
the end thereof.
(f) Section 5.02(a) of the Agreement is amended by adding the
following immediately after the word "and" following the semi-colon at the
end of subsection (xix) thereof:
(xx) 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.
(g) The lead-in to Section 5.03 of the Agreement is amended by
replacing the phrase "the Parent will furnish to the Agents and the
Lenders" with the phrase "the Parent will furnish to the Administrative
Agent for distribution to the Lenders".
(h) Section 9.01 of the Agreement is amended by adding the
following phrase at the end of the parenthetical in the first proviso
thereto:
"and other than any Lender that is not affected by such amendment,
waiver or consent."
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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 December 31, 2001 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:
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(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 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
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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, Rowe & 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) Conyers Dill & Pearman, 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) 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:
- --------------------------------------
Director
- --------------------------------------
Chief Financial Officer
ACE BERMUDA INSURANCE
LTD.
The Common Seal of ACE Bermuda
Insurance Ltd. was hereunto affixed
in the presence of:
- ---------------------------------------
Director
- ---------------------------------------
Director
ACE TEMPEST REINSURANCE
LTD.
The Common Seal of ACE Tempest
Reinsurance Ltd. was hereunto affixed in
the presence of:
- ---------------------------------------
Director
- ---------------------------------------
Director
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ACE INA HOLDINGS INC.
By:
-----------------------------------
Title: Director
ACE GUARANTY RE INC.
By:
-----------------------------------
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:
7
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:
By:
-----------------------------------
Name:
Title:
8
COMMERZBANK
AKTIENGESELLSCHAFT, NEW
YORK AND GRAND CAYMAN
BRANCHES
By:
-----------------------------------
Name:
Title:
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:
9
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:
COMERICA BANK
By:
-----------------------------------
Name:
Title:
10
DEUTSCHE BANK AG, NEW
YORK BRANCH
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
-----------------------------------
Name:
Title:
HSBC BANK USA
By:
-----------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-----------------------------------
Name:
Title:
BANK ONE, N.A.
By:
-----------------------------------
Name:
Title:
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PRICING SCHEDULE
Each of "Applicable Facility Fee Percentage" and "Applicable
Margin" means, for any day, the rate per annum set forth below in the row
opposite such term and in the column corresponding to the Pricing Level and
Usage that apply on such day:
Pricing Level Level I Level II Level III Level IV Level V Level VI
- ------------------------ ---------- ---------- ------------- ---------- ----------- -----------
Applicable Facility Fee 0.060% 0.070% 0.080% 0.110% 0.135% 0.185%
Percentage
Applicable Margin
Usage < 33% 0.140% 0.230% 0.270% 0.390% 0.615% 0.815%
Usage > 33% 0.240% 0.330% 0.370% 0.515% 0.740% 1.065%
-
For purposes of this Schedule, the following terms have the
following meanings, subject to the concluding paragraph of this Schedule:
"Level I Pricing" applies on any day on which the Borrower's
long-term debt is rated A+ or higher by S&P or A1 or higher by Moody's.
"Level II Pricing" applies on any day on which (i) the Borrower's
long-term debt is rated A or higher by S&P or A2 or higher by Moody's and
(ii) Level I Pricing does not apply.
"Level III Pricing" applies on any day on which (i) the Borrower's
long-term debt is rated A- or higher by S&P or A3 or higher by Moody's and
(ii) neither Level I Pricing nor Level II Pricing applies.
"Level IV Pricing" applies on any day on which (i) the Borrower's
long-term debt is rated BBB+ or higher by S&P and/or Baa1 or higher by
Moody's and (ii) none of Level I Pricing, Level II Pricing and Level III
Pricing applies.
"Level V Pricing" applies on any day on which (i) the Borrower's
long-term debt is rated BBB or higher by S&P or Baa2 or higher by Moody's
and (ii) none of Level I Pricing, Level II Pricing, Level III Pricing and
Level IV Pricing applies.
"Level VI Pricing" applies on any day if no other Pricing Level
applies on such day.
"Moody's" means Moody's Investors Service, Inc.
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"Pricing Level" refers to the determination of which of Level I,
Level II, Level III, Level IV, Level V or Level VI Pricing applies on any
day.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
The "Usage" applicable to any date is the percentage equivalent of
a fraction the numerator of which is the sum of the aggregate outstanding
principal amount of the Advances at such date and the denominator of which
is the aggregate amount of the WC Commitments at such date. If for any
reason any Advances remain outstanding following the termination of the WC
Commitments, Usage will be deemed to be more than 33%.
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the senior unsecured long-term debt securities of the
Parent without third-party credit enhancement, and any rating assigned to
any other debt security of the Parent shall be disregarded. The ratings in
effect for any day are those in effect at the close of business on such
day.
In the case of split ratings from S&P and Moody's, the rating to be
used to determine the applicable Pricing Level is the higher of the two
(e.g., A+/A2 results in Level I Pricing); provided that if the split is
more than one full rating category, the intermediate (or higher of the two
intermediate ratings) will be used (e.g. A+/A3 results in Level II Pricing
and AA-/A3 results in Level I Pricing); and provided further that unless
the Parent's credit ratings qualify for at least Level V Pricing, no better
Pricing Level will be applicable.
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COMMITMENT SCHEDULE
===============================================================================
Lender Commitment
===============================================================================
JPMorgan Chase Bank $66,000,000
- -------------------------------------------------------------------------------
Barclays Bank PLC $55,000,000
- -------------------------------------------------------------------------------
Bank of America, N.A. $55,000,000
- -------------------------------------------------------------------------------
Citibank, N.A. $55,000,000
- -------------------------------------------------------------------------------
Fleet National Bank $55,000,000
- -------------------------------------------------------------------------------
Lloyds TSB Bank plc $55,000,000
- -------------------------------------------------------------------------------
Wachovia Bank, National Association $50,000,000
- -------------------------------------------------------------------------------
Credit Lyonnais New York Branch $50,000,000
- -------------------------------------------------------------------------------
Commerzbank Aktiengesellschaft, New York and $50,000,000
Grand Cayman Branches
- -------------------------------------------------------------------------------
Deutsche Bank AG, New York Branch $50,000,000
- -------------------------------------------------------------------------------
HSBC Bank USA $37,000,000
- -------------------------------------------------------------------------------
Mellon Bank, N.A. $37,000,000
- -------------------------------------------------------------------------------
Royal Bank of Canada $37,000,000
- -------------------------------------------------------------------------------
ABN AMRO Bank N.V. $37,000,000
- -------------------------------------------------------------------------------
Comerica Bank $37,000,000
- -------------------------------------------------------------------------------
State Street Bank and Trust Company $37,000,000
- -------------------------------------------------------------------------------
Bank of Tokyo-Mitsubishi, Limited $37,000,000
- -------------------------------------------------------------------------------
The Bank of New York $0.00
- -------------------------------------------------------------------------------
Bank One, N.A. $0.00
- -------------------------------------------------------------------------------
Total $800,000,000
===============================================================================
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