EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of December 15, 2003
(this "Amendment"), amends the Credit Agreement, dated as of December 16, 2002
(the "Credit Agreement"), among DELPHI FINANCIAL GROUP, INC., a Delaware
corporation (the "Borrower"), the various financial institutions parties thereto
(collectively, the "Lenders") and BANK OF AMERICA, N.A., as administrative agent
(the "Administrative Agent") for the Lenders. Terms defined in the Credit
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement,
which provides for the Lenders to extend certain credit facilities to the
Borrower from time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENTS. Effective as of the date hereof, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.16 below.
1.1 Deleted Definitions. The definitions of "Borrower Pledge
Agreement," "Collateral," "Collateral Agent," "Intercreditor Agreement," "Pledge
Agreements," "SIG Holdings Pledge Agreement," and "SIG Notes Pledge Agreement"
in Section 1.01 of the Credit Agreement are hereby deleted.
1.2 Loan Documents. The definition of "Loan Documents" in Section
1.01 is hereby amended to state in its entirety as follows:
"Loan Documents" shall mean this Agreement, each Note and the
Fee Letter.
1.3 Maturity Date. The definition of "Maturity Date" in Section
1.01 of the Credit Agreement is hereby amended by the deletion of the date
"December 16, 2005" and the substitution of the date "December 16, 2006"
therefor.
1.4 Related Documents. The definition of "Related Documents" in
Section 1.01 of the Credit Agreement is hereby amended to state in its entirety
as follows:
"Related Documents" shall mean the Notes, if any, the Tax
Sharing Agreements, and any and all other documents or
instruments furnished or required to be furnished pursuant to
or Article V, as the same may be amended or modified from time
to time.
1.5 Collateral. Article 4 of the Credit Agreement is hereby
deleted and intentionally left blank.
1.6 Conditions Precedent. Section 5.01(a)(i) of the Credit
Agreement is hereby amended to state in its entirety as follows:
"(i) executed counterparts of this Agreement, sufficient in
number for distribution to the Administrative Agent, each
Lender and the Borrower."
1.7 Collateral Representation. Section 6.16 of the Credit
Agreement is hereby deleted and intentionally left blank.
1.8 Pledged Shares. Section 6.26 of the Credit Agreement is hereby
deleted and intentionally left blank.
1.9 Other Information. Section 7.01(w) of the Credit Agreement is
hereby amended to state as follows:
"(w) Other Information. From time to time such other
information and certifications concerning the Borrower and any
of its Subsidiaries as the Administrative Agent or a Lender
may reasonably request."
1.10 Further Assurances. Section 7.11 of the Credit Agreement is
hereby deleted and intentionally left blank.
1.11 Liens. Section 8.01(a) of the Credit Agreement is hereby
deleted and intentionally left blank.
1.12 Liens - Investments. Section 8.01(i) of the Credit Agreement
is hereby amended to state in its entirety as follows:
"(i) Liens incurred in connection with the acquisition of
Investments permitted by this Agreement."
1.13 Change of Location. Section 8.12 of the Credit Agreement is
hereby deleted and intentionally left blank.
1.14 Ownership of RSL; SIG Holdings and Safety National. Section
8.15 of the Credit Agreement is hereby amended to state in its entirety as
follows:
"(a) Ownership of RSL; SIG Holdings and Safety National. Not
cease to own, free and clear of all Liens, 100% of the
outstanding shares of voting stock of RSL-Texas on a fully
diluted basis, except as a result of any merger,
consolidation, liquidation or dissolution referenced in clause
(a) of the definition of Change of Control; (b) Not permit
RSL-Texas to cease to own, free and clear
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of all Liens, 100% of the outstanding shares of voting stock
and voting power of RSL on a fully diluted basis, except as a
result of any merger, consolidation, liquidation or
dissolution referenced in clause (a) of the definition of
Change of Control, whereafter this clause (b) shall apply to
the Borrower rather than to RSL-Texas; (c) not cease to own,
free and clear of all Liens, 100% of the outstanding voting
stock and voting power of SIG Holdings and (d) not permit SIG
Holdings to cease to own, free and clear of all Liens, 100% of
the outstanding shares of voting stock and voting power of
Safety National on a fully diluted basis."
1.15 Risk-Based Capital Ratio. Section 8.18 of the Credit Agreement
is hereby amended by the deletion of the number "130%" and the substitution of
the number "110%" therefor.
1.16 Collateral Matters. Section 10.11 of the Credit Agreement is
hereby deleted and intentionally left blank.
1.17 Amendments. Section 11.01(g) of the Credit Agreement is hereby
deleted and intentionally left blank.
1.18 Confidentiality. Section 11.08 of the Credit Agreement is
hereby amended by the addition of the following at the end:
Notwithstanding anything herein to the contrary, except as
reasonably necessary to comply with applicable securities
laws, each party (and each employee, representative or other
agent of each party) hereto may disclose to any and all
Persons, without limitation of any kind, any information with
respect to the United States federal income "tax treatment"
and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to such
parties (or their representatives) relating to such tax
treatment and tax structure; provided that with respect to any
document or similar item that in either case contains
information concerning the tax treatment or tax structure of
the transaction as well as other information, this sentence
shall only apply to such portions of the document or similar
item that relate to the United States federal income tax
treatment or tax structure of the transactions contemplated
hereby.
1.19 Schedule 2.01. Schedule 2.01 to the Credit Agreement is hereby
amended to state as set forth on Schedule 2.01 hereto.
1.20 Exhibits. Exhibits F, G and H of the Credit Agreement are
hereby deleted and intentionally left blank.
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SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 2 shall have
been satisfied, and notice thereof shall have been given by the Administrative
Agent to the Borrower and the Lenders.
2.1 Receipt of Documents. The Administrative Agent shall have received
all of the following documents duly executed, dated the date hereof or such
other date as shall be acceptable to the Administrative Agent, and in form and
substance satisfactory to the Administrative Agent:
(a) Amendment. This Amendment, duly executed by the
Borrower, the Administrative Agent and the Lenders.
(b) Secretary's Certificate. A certificate of the
secretary or an assistant secretary of the Borrower, as to (i)
resolutions of the Board of Directors of the Borrower then in full
force and effect authorizing the execution, delivery and performance of
this Amendment and each other document described herein, and (ii) the
incumbency and signatures of those officers of the Borrower authorized
to act with respect to this Amendment and each other document described
herein.
2.2 Compliance with Warranties, No Default, etc. Both before and after
giving effect to the effectiveness of this Amendment, the following statements
by the Borrower shall be true and correct (and the Borrower, by its execution of
this Amendment, hereby represents and warrants to the Administrative Agent and
each Lender that such statements are true and correct as at such times):
(a) the representations and warranties set forth in
Article 6 of the Credit Agreement shall be true and correct with the
same effect as if then made (unless stated to relate solely to an
earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date); and
(b) no Default shall have then occurred and be
continuing.
2.3 Amendment Fee. The Borrower shall have paid to the Administrative
Agent for the account of the Lenders, based on their Pro Rata Shares, an
amendment fee of 0.15% of the Aggregate Commitments.
SECTION 3. REPRESENTATIONS AND WARRANTIES. To induce the Lenders and
the Administrative Agent to enter into this Amendment, the Borrower hereby
represents and warrants to the Administrative Agent and each Lender as follows:
3.1 Due Authorization, Non-Contravention, etc. The execution, delivery
and performance by the Borrower of this Amendment are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate action,
and do not
(a) contravene the Borrower's Organization Documents;
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(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower; or
(c) result in, or require the creation or imposition of,
any Lien on any of the Borrower's properties.
3.2 Government Approval, Regulation, etc. No authorization or approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body or other Person is required for the due execution, delivery
or performance by the Borrower.
3.3 Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of the Borrower enforceable in accordance with its terms.
SECTION 4. MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be
an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness of this
Amendment in accordance with its terms, all references to the Credit Agreement
in the Loan Documents or in any other document, instrument, agreement or writing
shall be deemed to refer to the Credit Agreement as amended hereby.
4.2 Payment of Costs and Expenses. The Borrower agrees to pay on demand
all reasonable out-of-pocket expenses of the Administrative Agent (including the
fees and out-of-pocket expenses of counsel to the Administrative Agent) in
connection with the negotiation, preparation, execution and delivery of this
Amendment.
4.3 Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
4.4 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
4.5 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
4.7 Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
DELPHI FINANCIAL GROUP, INC.
By /s/ ROBERT M. SMITH, JR.
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Title: Executive Vice President
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BANK OF AMERICA, N.A., individually and
as Administrative Agent
By /s/ DEBRA BASLER
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Title: Principal
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WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ KIMBERLY SHAFFER
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Title: Director
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FLEET NATIONAL BANK
By /s/ LAWRENCE DAVIS
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Title: Portfolio Manager
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ING CAPITAL LLC
By /s/ MARK NEWSOME
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Title: Vice President
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US BANK NATIONAL ASSOCIATION
By /s/ ERIC HARTMAN
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Title: Vice President
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THE NORTHERN TRUST COMPANY
By /s/ TIMOTHY DUNNING
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Title: Vice President - Credit
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