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Exhibit
10.3
EXECUTION COPY
THIRD AMENDMENT AND
WAIVER
(A$ Credit
Agreement)
THIRD AMENDMENT AND
WAIVER dated as of 10 July 2008 (this “
Amendment ”) amends the Credit Agreement dated as of
13 December 2005, as amended on 22 June 2007 and as
amended and restated on 19 December 2007 pursuant to an
Amendment and Restatement Agreement dated as of 14 December
2007 (as so amended and restated, the “ Credit
Agreement ”) among ACE Australia Holdings Pty 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”.
1.3 Clause 29.3.1 is amended
by (a) deleting the phrase “to a Subsidiary of the
Guarantor” that begins in the eighth to last line thereof and
substituting the phrase “to a Wholly-Owned Consolidated
Subsidiary of the Guarantor that is not organized under the laws of
Switzerland” therefor; (b) deleting the phrase
“that Subsidiary” that begins in the third to last line
thereof and substituting the phrase “that Wholly-Owned
Consolidated Subsidiary”; and (c) adding the following
immediately before the period at the end thereof: “;
provided that (notwithstanding any other provision of this
Agreement to the contrary) so long as the Guarantor is incorporated
under the laws of Switzerland, the Guarantor may not be the
Borrower Transferee without the prior written consent of all
Finance Parties”.
1.4 Clause 29.3.2(b) is
amended by deleting the phrase “Subsidiary of the
Guarantor” each time it appears therein and substituting the
phrase “Wholly-Owned Consolidated Subsidiary of the
Guarantor” therefor.
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 injunctiv
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