Exhibit 10.1
Conformed
SECOND AMENDMENT
SECOND AMENDMENT (this “
Amendment ”), dated as of June 26, 2009, to the
Second Amended and Restated Credit Agreement dated as of
August 30, 2006 together with the First Amendment to the
Second Amended and Restated Credit Agreement dated as of
October 1, 2007 (together, as further amended, supplemented or
modified from time to time, the “ Credit Agreement
”), among ARCH CAPITAL GROUP LTD., ARCH CAPITAL GROUP (U.S.)
INC., various DESIGNATED SUBSIDIARY BORROWERS party thereto, the
LENDERS party thereto, JPMORGAN CHASE BANK, N.A., as Administrative
Agent, THE BANK OF NEW YORK, as Collateral Agent, BANK OF AMERICA,
N.A., as Syndication Agent, and BARCLAYS BANK PLC, THE BANK OF NEW
YORK, WACHOVIA BANK, N.A., CALYON, NEW YORK BRANCH, CITIBANK, N.A.,
ING BANK N.V., LONDON BRANCH and LLOYDS TSB BANK PLC, as
Documentation Agents.
W I T N E S
S E T H :
WHEREAS, pursuant to the Credit
Agreement, the Lenders have agreed to make, and have made, certain
loans and other extensions of credit to the Borrower;
WHEREAS, the Borrower has requested
that certain provisions of the Credit Agreement be amended as set
forth herein; and
WHEREAS, the Lenders are willing to
agree to such amendment on the terms set forth herein;
NOW THEREFORE, in consideration of
the premises and mutual covenants contained herein, the undersigned
hereby agree as follows:
I.
Defined Terms
. Terms defined in the Credit
Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
II.
Amendments to
Section 1.01 .
(a) Section 1 is amended
by inserting in appropriate alphabetical order the following
definitions:
“ FRBNY ” means
the Federal Reserve Bank of New York, or any other governmental
authority that is a successor or supplemental lender under
TALF.
“ Permitted TALF
Indebtedness ” has the meaning provided in the definition
of Permitted Subsidiary Indebtedness in this
Section 1.01.
“ Permitted TALF
Subsidiary ” has the meaning provided in the definition
of Permitted Subsidiary Indebtedness in this
Section 1.01
“ Second Amendment
” means the Second Amendment, dated as of June 26, 2009,
to this Agreement.
“ Second Amendment
Effective Date ” has the meaning provided in the Second
Amendment.
“ TALF ” means
the Term Asset-Backed Securities Loan Facility, under which FRBNY
will provide funding on a non-recourse basis (other than in the
case of certain exceptions to the non-recourse provisions under
TALF) to any eligible borrower secured by eligible collateral, as
announced by the Board of Governors of the Federal Reserve System
and in effect on the effective date of the Amendment and as
thereafter amended or otherwise modified from time to time
(including any successor or supplemental program
thereto).
(b) Section 1.01 is
further amended by adding the following sentence to the end of the
definition of “Indebtedness”:
For purposes of Section 8.04,
“Indebtedness” shall not include any Permitted TALF
Indebtedness.
(c) Section 1.01 is
further amended by deleting the word “and” at the end
of clause (k) of the definition of “Permitted Subsidiary
Indebtedness”, replacing the period at the end of clause
(l) with “and,” and inserting a new clause
(m) immediately after such clause (l), to read in its entirety
as follows:
(m) Indebtedness incurred by
Arch Investments I LLC, a Delaware limited liability company, or
any other Subsidiary directly or indirectly formed by the Parent
Borrower solely for the purpose of participating in TALF (any such
entity, a “ Permitted TALF Subsidiary ”),
provided that the Administrative Agent consents to the
designation of such other Subsidiary as a Permitted TALF
Subsidiary, which consent shall not be unreasonably delayed or
withheld, arising out of funding extended through TALF and any
guarantee of any obligations relating thereto by an affiliate of
the Permitted TALF Subsidiary (any such Indebtedness or guarantee,
“ Permitted TALF Indebtedness ”);
provided , that if TALF is amended or modified following the
date hereafter such that a Permitted TALF Subsidiary incurring
Indebtedness under TALF as so amended or modified would (i) be
materially adverse to the interests of the Lenders,
(ii) change any of the limitations or requirements set forth
in this clause (m), or (iii) change in any material respect
the exceptions to the non-recourse
provisions, then from the date of
such amendment or modification, as applicable, no Permitted TALF
Subsidiary shall incur any additional Indebtedness under TALF under
this clause (m), unless such Indebtedness is consented to by the
Administrative Agent. For avoidance of doubt, the parties
hereto acknowledge and agree that (x) amendments or
modifications to TALF relating to eligibility requirements for
borrowers or collateral, collateral haircuts, tenor and interest
rates applicable to loans extended thereunder, administrative fees,
program size, termination date or allocation procedures shall not
be materially adverse to the interests of the Banks for purposes of
this clause (m), and (y) any Indebtedness incurred under this
clause (m) by a Permitted TALF Subsidiary prior to the date of
the applicable amendment or modification discussed in the proviso
above shall continue to constitute Permitted Subsidiary
Indebtedness under this clause (m) regardless of any amendment
or modification that may occur following the date such Indebtedness
is incurred.
III.
Amendment to
Section 1.04 .
Section 1.04 of the Credit Agreement is hereby amended by
adding a new clause (b) reading:
(b) Notwithstanding the
foregoing, for purposes of computing any amount under this
Agreement (including, but not limited to, Consolidated
Indebtedness, Consolidated Net Income, Consolidated Net Worth,
Consolidated Tangible Net Worth, and Consolidated Total Capital) on
a consolidated basis for any purpose under this Agreement,
including, but not limited to, Section&
