Exhibit 10.5
AMENDMENT AND WAIVER OF STOCK PURCHASE
AGREEMENT
AMENDMENT AND WAIVER (this “
Amendment ”), dated as of January 26, 2006, of
the Stock Purchase Agreement (the “ Agreement
”), dated as of January 5, 2005, by and among ACE INA
International Holdings, Ltd., a Delaware corporation, Century
Indemnity Company, a Pennsylvania property and casualty insurance
company and Randall & Quilter Investment Holdings Limited,
a company incorporated in England and Wales. Capitalized terms used
herein and not otherwise defined herein have the respective
meanings given in the Agreement.
WITNESSETH
:
WHEREAS, the parties desire to amend
the Agreement in the manner set forth below;
WHEREAS, the parties each desire
that Sellers waive certain of the conditions to their obligations
under the Agreement; and
WHEREAS, the parties each desire
that Purchaser make the representations and warranties set forth
below.
NOW, THEREFORE, in consideration of
the mutual agreements and covenants contained herein, and of the
mutual benefits to be derived hereby, the parties agree as
follows:
ARTICLE I
AMENDMENTS
1.1 Amendment of
Section 1.1 .
Section 1.1 of the Agreement is
hereby amended by adding the following definition in alphabetical
order:
“ BRUK Guarantee Trust
Account ” has the meaning set forth in
Section 5.4(d) of this Agreement.”
1.2 Addition of
Section 4.1.10 .
The Agreement is hereby amended by
adding the following Section 4.1.10:
“4.1.10. ACE Reinsurance
Agreement . AARe, as ceding company, and an Affiliate of ACE or
other reinsurer with a financial strength rating of “A”
or better from a third-party credit rating agency, as assuming
company, shall have entered into a reinsurance agreement
incorporating the terms of the reinsurance slip attached as
Exhibit G hereto.”
1.3 Addition of
Section 4.1.11 .
The Agreement is hereby amended by
adding the following Section 4.1.11:
“4.1.11. Purchaser Note
. Purchaser shall have issued to AARe a promissory note
substantially in the form attached as Exhibit H
hereto.”
1.4 Amendment of
Section 4.3.4 .
Section 4.3.4 of the Agreement
is hereby amended to read in its entirety as follows:
“4.3.4. BRUK Guarantee
. If, prior to the Closing Date, Purchaser shall have received a
definitive response from the ILU in respect of the offer made by
Purchaser to the ILU pursuant to Section 5.4(d), either (
i ) ACE shall have been irrevocably and unconditionally
released from its obligations and liabilities under the BRUK
Guarantee or ( ii ) Purchaser shall have entered into
an assignment, assumption and indemnity agreement with ACE pursuant
to which Purchaser assumes ACE’s obligations and liabilities
under the BRUK Guarantee and agrees to indemnify ACE for any and
all amounts paid by ACE under the BRUK Guarantee. If, prior to the
Closing Date, Purchaser shall not have received a definitive
response from the ILU in respect of the offer made by Purchaser to
the ILU pursuant to Section 5.4(d), Purchaser shall have
provided Sellers with evidence reasonably satisfactory to Sellers
that it has deposited $750,000 in immediately available funds into
the BRUK Guarantee Trust Account in accordance with
Section 5.4(d);”
1.5 Amendment of
Section 5.4(d) .
Section 5.4(d) of the Agreement
is hereby amended to read in its entirety as follows:
“(d) In order to secure the
irrevocable and unconditional release of ACE from all its
obligations and liabilities under the BRUK Guarantee, Purchaser
shall offer to the ILU either ( i ) to purchase
third-party reinsurance from a reinsurer that is acceptable to ACE
and that has a Standard & Poor’s financial strength
rating of at least A+ with a limit of liability equal to the lower
of ( A ) $10,000,000 and ( B ) an amount
sufficient to cause the ILU to irrevocably release ACE from all its
obligations and liabilities under the BRUK Guarantee or ( ii
) to replace ACE as the guarantor under the BRUK Guarantee
with Purchaser or one if its Affiliates. If Purchaser elects to
offer the second of such alternatives and it is rejected by the
ILU, Purchaser shall use its best efforts to procure third party
reinsurance on terms reasonably acceptable to Purchaser in order to
offer the
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first of such alternatives to the ILU. If, prior
to the Closing Date, Purchaser shall not have received a definitive
response from the ILU in respect of the offer made by Purchaser to
the ILU pursuant to this Section 5.4(d), at the Closing
Purchaser will deposi
