|
Exhibit
10.6
EXECUTION
COPY
FIRST AMENDMENT AND
WAIVER
THIS FIRST AMENDMENT AND
WAIVER dated as of July 10, 2008 (this “
Amendment ”) amends the Second Amended and Restated
Credit Agreement dated as of November 8, 2007 (the “
Credit Agreement ”) among ACE Limited (the “
Parent ”), certain subsidiaries thereof, various
financial institutions and JPMorgan Chase Bank, N.A., as
Administrative Agent. Capitalized terms used but not defined herein
have the respective meanings set forth in the Credit
Agreement.
WHEREAS, the Parent has
informed the Administrative Agent that the Parent expects to
re-domesticate to move its place of incorporation from the Cayman
Islands to Switzerland; and
WHEREAS, the Parent has
requested and the parties have agreed to amend the Credit Agreement
in certain respects as more fully set forth below.
NOW, THEREFORE, the parties
hereto agree as follows:
SECTION 1.
Amendments to Credit Agreement . Subject to the conditions
set forth in Section 4 , the Credit Agreement is
amended as set forth in this Section 1 .
1.1 The recital of the
parties to the Credit Agreement is amended by deleting the language
“, a Cayman Islands company” immediately following the
phrase “among ACE Limited” therein.
1.2 Section 1.01 is
amended by adding the following defined terms in appropriate
alphabetical sequence:
“ Guidelines
” means, collectively, the guidelines numbered S-02.122.1
(4-1999), S-02.122.2 (4-1999), S-02.123 (9-1986), S-02.128 (1-2000)
and S-02.130.1 (4-1999) issued by the Swiss Federal Tax
Administration.
“ Non-Qualifying
Lender ” means a Person that is not a Qualifying
Lender.
“ Qualifying
Lender ” means a Person that conducts effectively banking
activities, with its own infrastructure and staff, as its principal
business purpose and that has a banking license in full force and
effect issued in accordance with the banking laws of its
jurisdiction of organization or, if acting through a branch, issued
in accordance with the banking laws in the jurisdiction of such
branch.
“ Swiss Withholding
Tax ” means Swiss anticipatory tax (
Verrechnungssteuer ).
“ Ten Non-Bank
Rule ” means the rule that not more than ten creditors of
the Parent under this Agreement may be Non-Qualifying Lenders (as
provided in the applicable Guidelines) without triggering Swiss
Withholding Tax.
“ Twenty Non-Bank
Rule ” means the rule that not more than 20 creditors of
the Parent under all interest-bearing obligations for borrowed
money of the Parent may be Non-Qualifying Lenders (as provided in
the applicable Guidelines) without triggering Swiss Withholding
Tax.
1.3 The definition of
“Affected Lender” in Section 1.01 is amended by
(a) substituting a comma for the word “or”
immediately before the reference to “(iii)” therein and
(b) adding the following new clause before the period at the
end of thereof:
or (iv) becomes a
Non-Qualifying Lender if the Parent determines such Lender’s
continuation as a Lender would, or would be reasonably likely to,
result in Swiss Withholding Tax being applicable to any payment
under this Agreement.
1.4 Section 2.08 is
amended by adding the following new clauses (d) and
(e) at the end thereof:
(d) Minimum Interest
Rates . The various rates of interest provided for in this
Agreement are minimum interest rates. The parties hereto have
assumed that interest at such rates is not and will not become
subject to Swiss Withholding Tax. Notwithstanding that the parties
hereto do not anticipate that any payment of interest will be
subject to Swiss Withholding Tax, each Lender, the Parent and the
Administrative Agent agree that if Swiss Withholding Tax is imposed
on any interest payment by the Parent to any Lender and it is
unlawful for any reason for the Parent to comply with
Section 2.13 when it would otherwise be required to make any
payment under such Section, then any payment of interest to be made
by the Parent to such Lender shall be increased to an amount which
(after making any deduction of the Non-refundable Portion of Swiss
Withholding Tax as defined below) results in a payment to such
Lender of an amount equal to the payment which would have been due
had no deduction of Swiss Withholding Tax been required. In
calculating the amount due pursuant to the foregoing sentence,
Swiss Withholding Tax shall be calculated on the full grossed-up
interest amount. For purposes of the foregoing,
“Non-refundable Portion of Swiss Withholding Tax” means
Swiss Withholding Tax at the standard rate (which, as of
July 1, 2008, is 35%) unless according to an applicable double
tax treaty, the Non-refundable Portion of Swiss Withholding Tax for
any Lender is a specified lower rate, in which case such lower rate
shall be applied in relation to such Lender. No payment pursuant to
this clause (d) shall be in duplication of any payment
pursuant to Section 2.13.
(e) Refunds of Increased
Interest. If a Lender shall become aware that it is entitled to
claim a refund from a governmental authority in respect of
increased interest paid pursuant to clause (d) above, such
Lender shall promptly notify the Parent of the availability of such
refund claim and shall, within 30 days after receipt of a request
by the Parent, make a claim to such governmental authority for such
refund at the Parent’s expense, if obtaining such refund
would not, in the good faith judgment of such Lender, be materially
disadvantageous to such Lender; provided that nothing in
this clause (e) shall be construed to require any Lender to
institute any
2
administrative proceeding
(other than the filing of a claim for any such refund) or judicial
proceeding to obtain any such refund. If a Lender determines, in
its sole discretion, that it has received a refund in respect of
any increased interest paid pursuant to clause (d) above, such
Lender shall, within 60 days from the date of such receipt, pay
over such refund to the Parent (but only to the extent of the
increased interest paid by the Parent under clause (d) above
giving rise to such refund), net of all out-of-pocket expenses of
such Lender in obtaining such refund and without interest (other
than interest paid by the relevant governmental authority with
respect to the relevant portion of such refund); provided
that the Parent, upon request of such Lender, agrees to repay the
amount paid over to the Parent (plus penalties, interest or other
charges) to such Lender in the event such Lender is required to
repay such refund to such governmental authority. Nothing in this
clause (e) shall be construed to require any Lender to make
available its tax returns (or any other information relating to its
taxes which it deems confidential) to the Parent or any other
Person.
1.5 Section 5.01(e) is
amended by adding the phrase “or if such disclosure would
violate any applicable law” before the period at the end
thereof.
1.6 Section 5.01 is
amended by adding the following new Section (k) at the end
thereof:
(k) Ten Non-Bank Rule and
Twenty Non-Bank Rule . In the case of the Parent, ensure that
(a) it complies with the Ten Non-Bank Rule and the Twenty
Non-Bank Rule; and (b) the aggregate number of Lenders and
holders of participations, sub-participations or other interests in
any Lender’s rights hereunder that are Non-Qualifying Lenders
does not exceed ten at any time; provided that under no
circumstances shall any failure of the Parent to comply with this
Section 5.01(k), or the application of Swiss Withholding Tax
to any payment hereunder, be a Default hereunder.
1.7 Section 9.06(b) is
amended by (a) adding “(i)” in the third sentence
thereof immediately after the phrase “participating interest
shall provide that” and (b) adding the following text
before the period at the end of such sentence:
; and (ii) no further
participation, sub-participation or other transfer by the
Participant of any rights or obligations thereunder may be made in
violation of Section 9.06(f).
1.8 Section 9.06 is
amended by adding the following new Section (f) at the end
thereof:
(f) Notwithstanding the
foregoing provisions of this Section 9.06, Section 9.07
or any other provision of this Agreement, no Lender or Participant
may assign, participate, sub-participate or otherwise transfer any
ownership interest in (any of the foregoing, a “
Transfer ”) any of its rights or obligations hereunder
(including any right to provide all or any portion of any Loan as
contemplated by Section 9.07), under any other Loan Document
or under any participation agreement or similar document unless
(i) the proposed assignee,
3
p
| 
