Exhibit 10.11(c)
FIRST AMENDMENT TO
$100,000,000 364 DAY REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT, dated as of November 20, 2001, amends and modifies a
certain $100,000,000 364 Day Revolving Credit Agreement, dated as of November
22, 2000 (the "Credit Agreement"), between ALLEGHANY CORPORATION (the
"Borrower") and U.S. BANK NATIONAL ASSOCIATION, and the sole Bank under the
Credit Agreement and as the Agent (the "Agent"). Terms not otherwise expressly
defined herein shall have the meanings set forth in the Credit Agreement.
FOR VALUE RECEIVED, the Borrower, the Banks and the Agent agree that the
Credit Agreement is amended as follows.
ARTICLE I - AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Definition. A definition of "Mellon Credit Agreement" is added
to Section 1.1 and shall read as follows:
"`Mellon Credit Agreement': An agreement between the Borrower and
Mellon Bank, N.A. (in such capacity, the `Issuing Bank'), to be dated on
or about November 30, 2001, pursuant to which the Issuing Bank may issue
letters of credit for the account of the Borrower in aggregate amounts not
to exceed $25,000,000."
1.2 Revolving Commitment Ending Date. Section 2.11 is amended by
deleting "November 20, 2001" and inserting "February 20, 2002" in place
thereof.
1.3 Negative Pledges. Section 6.4 is amended to read as follows:
"Section 6.4 Negative Pledges. Except for restrictions for the
benefit of the holder of any Lien that is permitted by Section 6.10 hereof
which restriction relates solely to the property which is the subject of
such Lien, the Borrower will not enter into any agreement, bond, note or
other instrument with or for the benefit of any Person other than the
Banks which would (i) prohibit the Borrower from granting, or otherwise
limit the ability of the Borrower to grant, to the Banks any Lien on any
assets or properties of the Borrower, except for provisions of the Mellon
Credit Agreement substantially in the form set forth on Exhibit A to the
First Amendment hereof, or (ii) require the Borrower to ▇▇▇▇▇ ▇ ▇▇▇▇ to
any other Person if the Borrower grants any Lien to the Banks."
1.4 Liens. Section 6.10(k) is amended to read as follows:
"6.10(k) Liens, other than Liens included in any of Sections 6.10(a)
through 6.10(j), that secure in the aggregate obligations not in excess of
an amount equal to 5% of the Tangible Net Worth of the Borrower, provided,
that during such time as the Mellon Credit Agreement shall include the
negative pledge described and permitted under Section 6.4
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hereof, Liens securing creditors other than Mellon Bank, N.A. in its
capacity as Issuing Bank under the Mellon Credit Agreement shall not
secure in the aggregate obligations in excess of the remainder of (a) 5%
of the Tangible Net Worth of the Borrower, less (b) the aggregate face
amount of letters of credit or other principal amount of credit that may
be extended to the Borrower under the Mellon Credit Agreement."
1.5 Construction. All references in the Credit Agreement to "this
Agreement", "herein" and similar references shall be deemed to refer to the
Credit Agreement as amended by this Amendment.
ARTICLE II - REPRESENTATIONS AND WARRANTIES
To induce the Banks and the Agent to enter into this Amendment and to make
and maintain the Loans under the Credit Agreement as amended hereby, the
Borrower hereby warrants and represents to the Banks and the Agent that it is
duly authorized to execute and deliver this Amendment, and to perform its
obligations under the Credit Agreement as amended hereby, and that this
Amendment constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms.
ARTICLE III - CONDITIONS PRECEDENT
This Amendment shall become effective on the date first set forth above,
provided, however, that the effectiveness of this Amendment is subject to the
satisfaction of each of the following conditions precedent:
3.1 Warranties. Before and after giving effect to this Amendment, the
representations and warranties in Article IV of the Credit Agreement shall be
true and correct as though made on the date hereof, except for changes that are
permitted by the terms of the Credit Agreement. The execution by the Borrower of
this Amendment shall be deemed a representation that the Borrower has complied
with the foregoing condition.
3.2 Defaults. Before and after giving effect to this Amendment, no Default
and no Event of Default shall have occurred and be continuing under the Credit
Agreement. The execution by the Borrower of this Amendment shall be deemed a
representation that the Borrower has complied with the foregoing condition.
ARTICLE IV - GENERAL
4.1 Expenses. The Borrower agrees to reimburse the Agent upon demand for
all reasonable expenses (including reasonable attorneys' fees and legal
expenses) incurred by this Agent in the preparation, negotiation and execution
of this Amendment and any other document required to be furnished herewith, and
in enforcing the obligations of the Borrower hereunder, and to pay and save the
Agent harmless from all liability for, any stamp or other taxes which may be
payable with
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respect to the execution or delivery of this Amendment, which obligations of the
Borrower shall survive any termination of the Credit Agreement.
4.2 Counterparts. This Amendment may be executed in as many counterparts
as may be deemed necessary or convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
instrument.
4.3 Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
4.4 Law. This Amendment shall be a contract made under the laws of the
State of Minnesota, which laws shall govern all the rights and duties hereunder.
4.5 Successors; Enforceability. This Amendment shall be binding upon the
Borrower, the Banks and the Agent and their respective successors and assigns,
and shall inure to the benefit of the Borrower, the Banks and the Agent and the
successors and assigns of the Banks and the Agent. Except as hereby amended, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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Title Vice President
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ALLEGHANY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title Vice President
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Exhibit A
to First Amendment
Form of Relevant Provisions
of Mellon Credit Agreement
6.10. Liens. Unless one or more of the Credit Parties shall have granted
to, and shall continue to maintain in favor of, the Issuing Bank as security for
payment of the Obligations a perfected first priority security interest in cash
collateral on deposit at the Issuing Bank (or in a custodial account maintained
with the Issuing Bank's trust operations) in an amount not less than 105% of the
Letter of Credit Exposure pursuant to documentation reasonably satisfactory to
the Issuing Bank, no Credit Party will create, incur, assume or suffer to exist
any Lien, or enter into, or make any commitment to enter into, any arrangement
for the acquisition of any property through conditional sale, lease-purchase or
other title retention agreements, with respect to any property now owned or
hereafter acquired by such Credit Party, except:
(a) Liens existing on the date of this Agreement and disclosed on
Schedule 6.10 hereto;
(b) Any Lien extending, renewing or replacing any Lien permitted by
Section 6.10 (a) above, provided that such Lien may relate solely to the
property subject thereto as of the date hereof and provided further that such
Lien may secure only (i) the Indebtedness secured by such Lien as of the date
hereof or (ii) Indebtedness extending, replacing or renewing such Indebtedness
the incurrence of which is permitted by Section 6.09 hereof.
(c) Deposits or pledges to secure payment of workers' compensation,
unemployment insurance, old age pensions or other social security obligations,
in the ordinary course of business of such Credit Party.
(d) Liens for taxes, fees, assessments and governmental charges not
delinquent or to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of Section 5.04.
(e) Liens of carriers, warehousemen, mechanics and materialmen, and other
like Liens arising in the ordinary course of business, for sums not due or to
the extent that payment therefor shall not at the time be required to be made in
accordance with the provisions of Section 5.04.
(f) Liens incurred or deposits or pledges made or given in connection
with, or to secure payment of, indemnity, performance or other similar bonds.
(g) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution, or security interests retained by depositary banks
pursuant to their standard banking services agreements; provided that (i) such
deposit account is not a dedicated cash collateral account and is not subject to
restriction against access by such Credit Party in excess of those set forth by
regulations promulgated by the Board of Governors of the Federal Reserve System
or any successor thereto, and (ii) such deposit account is not intended by such
Credit Party to provide collateral to the depository institution.
(h) Encumbrances in the nature of zoning restrictions, easements and
rights or restrictions of record on the use of real property and landlord's
Liens under leases on the premises rented, which do not materially detract from
the value of such property or impair the use thereof in the business of such
Credit Party.
(i) The interest of any lessor under any Capitalized Lease entered into
after the Closing Date or purchase money Liens on property acquired after the
Closing Date; provided, that, (i) the Indebtedness secured thereby is otherwise
permitted by this Agreement and (ii) such Liens are limited to the property
acquired and do not secure Indebtedness other than the related Capitalized Lease
Obligations or the purchase price of such property.
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(j) Liens, other than Liens included in any of Sections 6.10(a) through
6.10(i), that secure in the aggregate obligations not in excess of an amount
equal to 5% of the Tangible Net Worth of such Credit Party.
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