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Exhibit
10.4
EXECUTION
COPY
SECOND AMENDMENT AND
WAIVER
(Sterling Credit
Agreement)
THIS SECOND AMENDMENT AND
WAIVER dated as of July 10, 2008 (this “
Amendment ”) amends the Credit Agreement dated as of
December 13, 2005 (as previously amended, the “
Credit Agreement ”) among ACE European Holdings No.2
Limited (the “ Borrower ”), ACE Limited (the
“ Guarantor ”), various financial institutions
and The Royal Bank of Scotland plc, as Agent. Capitalized terms
used but not defined herein have the respective meanings set forth
in the Credit Agreement.
WHEREAS, the Guarantor has
informed the Agent that the Guarantor expects to re-domesticate to
move its place of incorporation from the Cayman Islands to
Switzerland; and
WHEREAS, the Guarantor 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 Clause 2.2 is amended by
adding the following immediately before the period at the end
thereof: “, provided that no amount borrowed under
this Facility may be used directly or indirectly in
Switzerland”.
1.2 Clause 15.5 is amended by
adding the following phrase immediately before the period at the
end thereof “or if such disclosure would violate any
applicable law”.
SECTION 2.
Waiver . The Majority Banks waive any Default that may arise
under Clause 15.4 (Preservation of Corporate Existence) of the
Credit Agreement upon the re-domestication of the Guarantor 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 . Each Obligor represents and
warrants as follows:
3.1 Authorization .
The execution, delivery and performance by such Obligor 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 such Obligor or of any material agreement, judgment,
injunction, order, decree or other instrument binding upon such
Obligor or any of its Subsidiaries or result in the creation or
imposition of any Lien on any asset of such Obligor or any of its
Subsidiaries.
3.2 Enforceability .
This Amendment constitutes a legal, valid and binding obligation of
such Obligor enforceable against such Obligor 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 Section 5 below.
3.3 Representations and
Warranties; No Default . After giving effect to this Amendment:
(a) each representation and warranty of such Obligor contained
in Clauses 13 and 14, as applicable, of the Credit Agreement is
true and correct on and as of the date her
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