Exhibit 10.11a
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"),
dated as of March 15, 2007, is entered into by and among Ohio
Casualty Corporation, an Ohio corporation ("Borrower"), the
Lenders party hereto, LaSalle Bank National Association, as Agent
(in such capacity, "Agent"), Joint Lead Arranger and Sole
Bookrunner, Banc of America Securities LLC, as Joint Lead
Arranger and Bank of America, N.A. as Syndication Agent
R E C I T A L S
WHEREAS, Borrower, Agent, the Lenders and the other parties
named therein have entered into that certain Credit Agreement,
dated as of February 16, 2006 (as amended hereby and as hereafter
amended, supplemented, modified and/or restated from time to
time, the "Agreement"). Capitalized terms used but not otherwise
defined herein shall have the meaning given to them in the
Agreement; and
WHEREAS, Borrower has requested and Agent and the Lenders
are willing to, among other things, extend the Facility
Termination Date, on the terms and subject to the conditions set
forth herein.
NOW, THEREFORE, in consideration of the premises and the
other mutual covenants contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Amendments. As of the date hereof, the following
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sections of the Agreement shall be and hereby are amended as
follows:
(A) Recitals. The foregoing recitals are hereby incorporated
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into and made a part of this Amendment, including all defined
terms referenced therein.
(B) Section 1.1 (Definitions). The Agreement is hereby amended
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by deleting the defined term "Facility Termination Date" in its
entirety and inserting the following in its stead:
" "Facility Termination Date" means March 16, 2012."
(C) Section 1.1 (Definitions). The Agreement is hereby amended
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by deleting the defined term "Applicable Margin" in its entirety
and inserting the following in its stead:
" "Applicable Margin" means, for any day, the percentage per
annum set forth below opposite the level (the "Level") then in
effect based on Borrower's then applicable Senior Unsecured Debt
Rating, it being understood that the Applicable Margin for (i)
LIBOR Loans shall be the percentage set forth under the column
"LIBOR Margin," (ii) the Non-Use Fee Rate shall be the percentage
set forth under the column "Non-Use Fee Rate" and (iii) the L/C
Fee Rate shall be the percentage set forth under the column "L/C
Fee Rate":
LIBOR Non-Use L/C Fee
Level Senior Unsecured Debt Rating Margin Fee Rate Rate
- ----- ---------------------------- ------ -------- ----
I >A- or A3 0.35% .07% 0.35%
-
II BBB+ or Baa1 0.40% .08% 0.40%
III BBB or Baa2 0.50% .10% 0.50%
IV BBB- or Baa3 0.625% .125% 0.625%
V Below BBB- or Baa3 0.875% .175% 0.875%
For purposes of the foregoing, (a) if none of the Ratings
Agencies shall have in effect a Senior Unsecured Debt Rating, the
Applicable Margin will be set in accordance with Level V; (b) if
only one of the Ratings Agencies shall have in effect a Senior
Unsecured Debt Rating, the Applicable Margin shall be determined
by reference to the available rating; (c) if only two of the
Ratings Agencies shall have in effect a Senior Unsecured Debt
Rating and such ratings fall within different levels, the
Applicable Margin shall be based upon the higher rating unless
such ratings differ by two or more levels, in which case the
applicable level will be deemed to be one level below the higher
of such levels; (d) if the ratings established by the Ratings
Agencies shall fall within three different levels, then the
Applicable Margin shall be determined by reference to the middle
level of such three different levels; (e) if the ratings
established by the Ratings Agencies shall fall within different
levels and two of the ratings fall within the same level (the
"Majority Level"), and the third rating is in a different level,
then the Applicable Margin shall be determined by reference to
the Majority Level; and (f) if any rating established by the
Ratings Agencies shall be changed, such change shall be effective
as of the date on which such change is first announced publicly
by the rating agency making such change."
SECTION 2. Conditions. This Amendment, and the waivers,
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consents and amendments contained herein, shall be effective only
upon and subject to satisfaction of the following conditions
precedent:
(A) Agent shall have received this Amendment duly executed by
the parties hereto.
(B) Agent shall have received such other approvals, opinions,
documents, agreements, instruments, certificates, schedules and
materials as Agent or any Lender may request in their reasonable
discretion.
SECTION 3. Agreement in Full Force and Effect as Amended.
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Except as specifically amended, consented and/or waived hereby,
the Agreement and other Loan Documents shall remain in full force
and effect and are hereby ratified and confirmed as so amended.
Except as expressly set forth herein, this Amendment shall not be
deemed to be a waiver, amendment or modification of any
provisions of the Agreement or any other Loan Document or any
right, power or remedy of Agent or Lenders, nor constitute a
waiver of any provision of the Agreement or any other Loan
Document, or any other document, instrument and/or agreement
executed or delivered in connection therewith or of any Unmatured
Default or Default under any of the foregoing, in each case
whether arising before or after the date hereof or
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as a result of performance hereunder or thereunder. This Amendment
also shall not preclude the future exercise of any right, remedy,
power, or privilege available to Agent and/or Lenders whether under
the Agreement, the other Loan Documents, at law or otherwise. All
references to the Agreement shall be deemed to mean the Agreement
as modified hereby. This Amendment shall not constitute a
novation or satisfaction and accord of the Agreement and/or other
Loan Documents, but shall constitute an amendment thereof. The
parties hereto agree to be bound by the terms and conditions of
the Agreement and Loan Documents as amended by this Amendment, as
though such terms and conditions were set forth herein. Each
reference in the Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of similar import shall mean and be a
reference to the Agreement as amended by this Amendment, and each
reference herein or in any other Loan Document to the "Loan
Agreement" or "Credit Agreement" shall mean and be a reference to
the Agreement as amended and modified by this Amendment.
SECTION 4. Representations. Borrower hereby represents and
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warrants to Agent and Lenders as of the date of this Amendment
and as of the date hereof as follows: (A) it is duly
incorporated or organized, validly existing and in good standing
under the laws of its jurisdiction of organization; (B) the
execution, delivery and performance by it of this Amendment and
all other Loan Documents executed and/or delivered in connection
herewith are within its powers, have been duly authorized, and do
not contravene (i) its articles of organization, operating
agreement, or other organizational documents, or (ii) any
applicable law; (C) no consent, license, permit, approval or
authorization of, or registration, filing or declaration with any
Governmental Authority or other Person, is required in connection
with the execution, delivery, performance, validity or
enforceability of this Amendment or any other Loan Documents
executed and/or delivered in connection herewith by or against
it; (D) this Amendment and all other Loan Documents executed
and/or delivered in connection herewith have been duly executed
and delivered by it; (E) this Amendment and all other Loan
Documents executed and/or delivered in connection herewith
constitute its legal, valid and binding obligation enforceable
against it in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally or by general
principles of equity; (F) after giving effect to this Amendment,
it is not in default under the Loan Documents and no Unmatured
Default or Default exists, has occurred and is continuing or
would result by the execution, delivery or performance of this
Amendment; and (G) the representations and warranties contained
herein and in all other Loan Documents are true and correct in
all material respects as of the date hereof, except for such
representations and warranties limited by their terms to a
specific date.
SECTION 5. Miscellaneous.
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(A) This Amendment may be executed in any number of
counterparts (including by facsimile), and by the different parties
hereto on the same or separate counterparts, each of which shall be
deemed to be an original instrument but all of which together shall
constitute one and the same agreement. Each party agrees that it
will be bound by its own facsimile signature and that it accepts
the facsimile signature of each other party. The descriptive
headings of the various sections of this Amendment are inserted
for convenience of reference only and shall not be deemed to
affect the meaning or construction of any of the provisions
hereof or thereof. Whenever the context and construction so
require, all words herein in the singular number herein shall be
deemed to have been used in the plural, and vice versa,
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and the masculine gender shall include the feminine and neuter and the
neuter shall include the masculine and feminine.
(B) This Amendment may not be changed, amended, restated,
waived, supplemented, discharged, canceled, terminated or
otherwise modified orally or by any course of dealing or in any
manner other than as provided in the Agreement. This Amendment
shall be considered part of the Agreement and shall be a Loan
Document for all purposes under the Agreement and other Loan
Documents.
(C) This Amendment, the Agreement and the Loan Documents
constitute the final, entire agreement and understanding between
the parties with respect to the subject matter hereof and thereof
and may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements between the parties, and shall be
binding upon and inure to the benefit of the successors and
assigns of the parties hereto and thereto. There are no
unwritten oral agreements between the parties with respect to the
subject matter hereof and thereof.
(D) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET
FORTH IN THE AGREEMENT AND SHALL BE SUBJECT TO THE WAIVER OF JURY
TRIAL AND NOTICE PROVISIONS OF THE AGREEMENT.
(E) Borrower may not assign, delegate or transfer this
Amendment or any of its rights or obligations hereunder. No rights
are intended to be created under this Amendment for the benefit of
any third party donee, creditor or incidental beneficiary of
Borrower. Nothing contained in this Amendment shall be construed
as a delegation to Agent or Lenders of Borrower's duty of
performance, including, without limitation, any duties under any
account or contract in which Agent or Lenders have a security
interest or Lien. This Amendment shall be binding upon Borrower
and its successors and assigns.
(F) Borrower hereby (i) agrees that this Amendment shall
not limit or diminish the obligations of Borrower under the Loan
Documents, (ii) reaffirms its obligations under each of the Loan
Documents to which it is a party, and (iii) agrees that each of
such Loan Documents remains in full force and effect and is
hereby ratified and confirmed.
(G) All representations and warranties made in this
Amendment shall survive the execution and delivery of this Amendment
and no investigation by Agent or Lenders shall affect such
representations or warranties or the right of Agent or Lenders to
rely upon them.
(H) BORROWER HEREBY ACKNOWLEDGE THAT THE BORROWER'S PAYMENT
OBLIGATIONS ARE ABSOLUTE AND UNCONDITIONAL WITHOUT ANY RIGHT OF
RECISSION, SETOFF, COUNTERCLAIM, DEFENSE, OFFSET, CROSS-
COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT
CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE
RELIEF OR DAMAGES OF ANY KIND OR NATURE FROM THE AGENT OR ANY
LENDER. THE BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES
AND FOREVER
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DISCHARGES AGENT AND EACH LENDER AND ITS PREDECESSORS, AGENTS,
EMPLOYEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "RELEASED
PARTIES"), FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN
OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED,
FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING
IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED,
WHICH THE BORROWER MAY NOW OR HEREAFTER HAVE AGAINST THE RELEASED
PARTIES, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT
OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE,
AND ARISING FROM ANY "LOANS", INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR
RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE
APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE
AGREEMENT OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND
EXECUTION OF THIS AMENDMENT.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties have caused this First Amendment
to Credit Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above written to
be effective as of the date hereof.
OHIO CASUALTY CORPORATION
By:
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Name: A. Larry Sisk
Title: Vice President and Treasurer
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LASALLE BANK NATIONAL ASSOCIATION,
as a Lender and as Agent
By:
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Name: Brandon S. Allison
Title: Vice President
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BANK OF AMERICA, N.A., as a Lender
By:
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Name:
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Title:
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FIRST FINANCIAL BANK, NATIONAL
ASSOCIATION, as a Lender
By:
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Name: Daniel G. Griesinger
Title: First Vice President
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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U.S. BANK, N.A., as a Lender
By:
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Name:
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Title:
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