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Exhibit
10.8
EXECUTION
COPY
FIRST AMENDMENT AND
WAIVER
(ACE INA Loan
Agreement)
THIS FIRST AMENDMENT AND
WAIVER dated as of July 10, 2008 (this “
Amendment ”) amends the Term Loan Agreement dated as
of April 1, 2008 (the “ Loan Agreement ”)
among ACE INA Holdings Inc. (the “ Borrower ”),
ACE Limited (the “ Parent ”), certain
subsidiaries of the Parent, various financial institutions and Bank
of America, N.A., as Administrative Agent. Capitalized terms used
but not defined herein have the respective meanings set forth in
the Loan 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 Loan Agreement
in certain respects as more fully set forth below.
NOW, THEREFORE, the parties
hereto agree as follows:
SECTION 1.
Amendments to Loan Agreement . Subject to the conditions set
forth in Section 4, the Loan Agreement is amended as set forth
in this Section 1.
1.1 Section 2.12 is
amended by (a) adding “(a)” immediately following
the title thereof and (b) adding the following new Section
(b) at the end thereof:
(b) No proceeds of any
Advance may be used directly or indirectly in
Switzerland.
1.2 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.
1.3 The first sentence of
Section 9.10(a) is amended by inserting the phrase “in
the Borough of Manhattan” immediately after the phrase
“court of the United States of America sitting”
therein.
1.4 The first sentence of
Section 9.10(b) is amended by adding the phrase “sitting
in the Borough of Manhattan in New York City” immediately
before the period at the end thereof.
SECTION 2.
Waiver . The Required Lenders waive any Default that may
arise under Section 5.01(d) of the Loan Agreement upon the
re-domestication of the Parent to move its place of incorporation
from the Cayman Islands to Switzerland in the third or fourth
quarter of 2008 (the “ Re-domestication
”).
SECTION 3.
Representations and Warranties . The Parent represents and
warrants as follows:
3.1 Authorization .
The execution, delivery and performance by the Parent of this
Amendment are within its corporate powers, have been duly
authorised by all necessary corporate action, require no action by
or in respect of, or filing with, any governmental body, agency
or
official and do not contravene, or
constitute a default under, any provision of applicable law or
regulation or of the memorandum of association, articles of
association or by-laws (or any comparable document) of any Loan
Party or of any material agreement, judgment, injunction, order,
decree or other instrument binding upon any Loan Party or any of
its Subsidiaries or result in the creation or imposition of any
Lien on any asset of any Loan Party or any of its
Subsidiaries.
3.2 Enforceability .
This Amendment constitutes a legal, valid and binding obligation of
the Parent enforceable against the Parent in accordance with its
terms, subject to bankruptcy, insolvency or other laws of general
application affecting the enforcement of creditors’ rights,
the application of equitable principles, the non-availability of
the equitable remedies of specific performance or injunctive relief
and, with respect to matters of Swiss law, the limitations and
qualifications set forth in the opinion letter referred to
in
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