EXHIBIT 10.11
FOURTH AMENDMENT TO
364-DAY REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT, dated as of October 17, 2003 (this "Amendment"),
amends and modifies a certain 364-Day Revolving Credit Agreement, dated as of
June 14, 2002, as amended by Amendments dated as of June 13, 2003, June 20, 2003
and September 30, 2003 (as so amended, the "Credit Agreement"), among ALLEGHANY
CORPORATION (the "Borrower"), the Banks named therein and U.S. BANK NATIONAL
ASSOCIATION, as Agent for the Banks (in such capacity, 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 which are signatories
hereto and the Agent agree as follows:
ARTICLE I - AMENDMENT TO THE CREDIT AGREEMENT
Upon effectiveness of this Amendment as provided below, the Credit
Agreement shall be deemed to be amended as follows.
1.1 Additional Banks. Upon effectiveness of this Amendment, Wachovia
Bank, National Association and Merrill Lynch Bank USA (such banks are called the
"New Banks"), shall be added as "Banks" and parties to the Credit Agreement.
Upon such effectiveness, the Banks (including the New Banks) shall have the
Revolving Commitment Amounts set forth on the signature pages to this Amendment
and the Revolving Percentages shall be calculated based on such Revolving
Commitment Amounts. As promptly as practical after the date of this Amendment,
the Agent shall inform each Bank of its Revolving Percentage of outstanding
Revolving Loans, and (a) the New Banks shall fund their Revolving Percentages of
the outstanding Revolving Loans by payment to the Agent, and (b) U.S. Bank
National Association shall accept payment from the Agent of a portion of its
outstanding Revolving Loans so its outstanding Revolving Loans equal its
Revolving Percentage (as amended by this Amendment) of all outstanding Revolving
Loans. By executing and delivering this Amendment, the New Banks each agrees to
become a "Bank" under the Credit Agreement, having all rights and obligations of
a Bank thereunder in accordance with their respective Revolving Commitment
Amounts.
1.2 Applicable Margin. The table in the definition of "Applicable
Margin" is amended to read as follows:
Applicable Margin
Level Rating (basis points per annum)
- --------------------------------------------------------------
I A/A2 or higher 50.0
- --------------------------------------------------------------
II A-/A3 55.0
- --------------------------------------------------------------
III BBB+/Baal 67.5
- --------------------------------------------------------------
IV BBB/Baa2 80.0
- --------------------------------------------------------------
V BBB-/Baa3 92.5
- --------------------------------------------------------------
VI BB+/Bal or lower 130.0
- --------------------------------------------------------------
In paragraph (a) of such definition, the parenthetical "(Level V being the
lowest Level)" is amended to read "(Level VI being the lowest Level)".
1.3 Utilization Fee Rate. The table in the definition of "Utilization
Fee Rate" is amended to read as follows:
Utilization Fee Rate
Level (basis points per annum)
- ----------------------------------------------
I 0.0
- ----------------------------------------------
II 20.0
- ----------------------------------------------
III 32.5
- ----------------------------------------------
IV 45.0
- ----------------------------------------------
V 57.5
- ----------------------------------------------
VI 70.0
- ----------------------------------------------
1.4 Revolving Commitment Fees. Section 2.9(1) is amended to read as
follows:
"2.9(a) The Borrower shall pay to the Agent, for the account
of each Bank, fees (the "Revolving Commitment Fees") in an amount
determined by applying to the average daily Unused Revolving
Commitment of such Bank for the period from the Closing Date to the
Termination Date a rate of (i) at any time that any of Levels I through
V apply, 0.25% per annum, or (b) at any time that Level VI applies,
0.375% per annum. Such Revolving Commitment Fees are payable in
arrears quarterly on the last day of each calendar quarter and on the
Termination Date."
1.5 Revolving Commitment Ending Date. Section 2.12 is amended by
deleting "October 17, 2003" and inserting "June 14, 2004" in place thereof.
1.6 Increase to Revolving Commitments. A new Section 2.21 is added to
the Credit Agreement, and shall read as follows:
"Section 2.21 Increase to Revolving Commitments.
(a) The Borrower has requested that the Agent use best efforts
to seek additional Revolving Commitments so that the aggregate
Revolving Commitment Amounts shall be $100,000,000. In the
event that the Borrower and one or more of the Banks or other
commercial banks or other financial institutions shall agree
upon such an increase, the Borrower, the Agent and each Bank
increasing its Revolving Commitment Amount or other commercial
bank or financial institution extending a new Revolving
Commitment shall enter into an amendment to this Agreement
setting forth the Revolving Commitment Amounts as so increased
and providing that each commercial bank or financial
institution extending new Revolving Commitments shall be a
'Bank' under this Agreement, having all rights and obligations
of a Bank hereunder in accordance with its Revolving
Commitment Amount. No such amendment shall require the
approval or consent of any Bank
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whose Revolving Commitment is not being increased. Upon the
execution and delivery of such amendment as provided above,
and upon satisfaction of such other conditions as the Agent
may reasonably specify upon the request of the commercial
banks or financial institutions that are extending new
Revolving Commitments, this Agreement shall be deemed to be
amended accordingly and the Revolving Percentage shall be
calculated by the Agent based on the Revolving Commitment
Amounts as amended thereby.
(b) As promptly as practical after the date of any amendment
and increase as provided in Section 2.21(a), the Agent shall
inform each Bank of its Revolving Percentage of outstanding
Revolving Loans, and (i) the Bank that has increased its
Revolving Commitment or extended a new Revolving Commitment
shall fund its Revolving Percentages of the outstanding
Revolving Loans by payment to the Agent, and (b) each Bank
that has not increased its Revolving Commitment shall accept
payment from the Agent of a portion of its outstanding
Revolving Loans so its outstanding Revolving Loans equal its
Revolving Percentage (as amended by such amendment) of all
outstanding Revolving Loans."
1.7 Unrestricted Liquid Assets. Section 6.15 is amended by deleting
"less than 1.25 to 1.00" and inserting "less than 1.10 to 1.00" in place
thereof. In the form of Compliance Certificate (Exhibit 5.1) the reference in
the corresponding Section to "Must be at least 1.25" is deleted and "Must be at
least 1.10" is inserted in place thereof.
1.8 Disposition of Loans. Section 9.6 is amended as follows:
(a) The first proviso of the second sentence of Section 9.6 is amended
by deleting "for each party". Prior to such amendment such provision
had read:
"and only upon payment to the Agent by the parties to such
disposition of a processing and recording fee in the amount of
$3,500 for each party . . ."
(b) The second proviso of the second sentence of Section 9.6 is
deleted. Such proviso read, and the text deleted reads:
"and provided further, that concurrently with the assignment
of a portion of any Bank's Revolving Percentage hereunder,
such Bank shall assign a like Revolving Percentage under the
Three-Year Credit Agreement".
1.9 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 and as may be further amended,
restated, supplemented or otherwise modified from time to time.
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
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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 obligations 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. The representations and warranties in Article IV of the
Credit Agreement shall be true and correct as though made on the date hereof
(other than those which speak as of a specific date, which shall be true and
correct as of such date). 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.
3.3 Documents.
(a) The Company, each Bank and the Agent shall have executed and
delivered this Amendment;
(b) The Company shall have executed and delivered Revolving Notes
payable to the New Banks in the principal amount of their Revolving
Commitment Amounts; and
(c) The Company shall have executed and delivered a Revolving Note
payable to U.S. Bank National Association in the amount of its
Revolving Commitment Amount (as amended hereby), which Revolving Note
shall, upon effectiveness of this Amendment and funding as provided in
Section 1.1 hereof, be deemed to supersede and replace the Revolving
Note currently held by U.S. Bank National Association.
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 the Agent in connection with 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 respect to the execution or delivery of this
Amendment, and delivery of the Revolving Notes hereunder, which obligations of
the Borrower shall survive any termination of the Credit Agreement.
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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 governed by the internal laws of the
State of Minnesota, without giving effect to conflict of laws principles
thereof, but giving effect to federal laws of the United States applicable to
national banks.
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.
(signature pages follow)
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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 date
first written above.
ALLEGHANY CORPORATION
By: /s/ Peter R. Sismondo
----------------------------
Title: VP
Revolving Commitment Amounts:
$17,500,000 U.S. BANK NATIONAL ASSOCIATION, as
Agent and as a Bank
By: /s/ Sam S. Pepper
----------------------------
Title: Vice President
$17,500,000 LaSALLE BANK NATIONAL
ASSOCIATION, as a Bank
By: /s/ Henry J. Munez
----------------------------
Henry J. Munez
Title: First Vice President
$10,000,000 M&I MARSHALL & ILSLEY BANK,
as a Bank
By: /s/ Jeffrey T. Ticknor
----------------------------
Title: Sr. Vice President
and
By: /s/ John Ronzia
----------------------------
Title: Vice President
$10,000,000 THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ John Campbell
----------------------------
By: John Campbell
Title: Managing Director
$5,000,000 BANK HAPOALIM B.M., as a Bank
By: /s/ James P. Surless
----------------------------
Title: VP
and
By: /s/ Laura A. Raffa
----------------------------
Title: SVP
(additional signature page follows)
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$25,000,000 WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Bank
By: /s/ Stephen L. Karp
----------------------------
Title: Vice President
$10,000,000 MERRILL LYNCH BANK USA,
as a Bank
By: /s/ D. Kevin Imlay
----------------------------
D. Kevin Imlay
Title: Director
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