EX-10.2 3 ex102.txt 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). 1 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. 2 (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. 3 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"). 4 (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 5 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. 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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