Exhibit 10(QQ)
Amendment No. 1 to Amended and Restated Credit Agreement
Among
SAF Funding Corporation, the Lenders and
Bank One, NA
Dated as of
November 14, 2002
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment (this "AMENDMENT") is entered into as of November 14,
2002 by and among SAF Funding Corporation, a Delaware corporation (the
"BORROWER"), Bank One, NA, individually and as agent ("AGENT"), and the other
financial institutions signatory hereto.
RECITALS
A. The Borrower, the Agent and the Lenders are party to that certain
Credit Agreement dated as of November 19, 1999 (as amended and restated by that
certain Amended and Restated Credit Agreement dated as of November 16, 2001, the
"CREDIT AGREEMENT"). Unless otherwise specified herein, capitalized terms used
in this Amendment shall have the meanings ascribed to them by the Credit
Agreement;
B. The Borrower has requested an extension of the Commitment
Termination Date, and each of the Lenders have approved such extension request
in accordance with the terms of the Credit Agreement; and
C. Firstar Bank, NA ("FIRSTAR") has notified the Agent of its desire to
terminate its Commitment on the current Commitment Termination Date (as defined
in the Credit Agreement).
NOW, THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Upon the "Effective Date" (as defined
below), the Credit Agreement shall be amended as follows:
(a) The definition of "Commitment Termination Date" set forth
in Article I of the Credit Agreement is amended in its entirety to read
as follows:
"COMMITMENT TERMINATION DATE" means November 12, 2003 or any
earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
(b) The definition of "Company Pledge Agreement" set forth in
Article I of the Credit Agreement is amended in its entirety to read as
follows:
"COMPANY PLEDGE AGREEMENT" shall mean a Pledge and Security
Agreement dated as of November 19, 1999 between the Borrower and the
Agent, as the same shall be modified and supplemented and in effect
from time to time.
(c) The definition of "Parent Pledge Agreement" set forth in
Article I of the Credit Agreement is amended in its entirety to read as
follows:
"PARENT PLEDGE AGREEMENT" shall mean a Pledge and Security
Agreement dated as of November 19, 1999 between the Parent and the
Agent, as the same shall be modified and supplemented and in effect
from time to time.
(d) Schedule 1 to the Credit Agreement is deleted in its
entirety, and SCHEDULE 1 attached hereto and made a part hereof is
substituted in its place.
2. TERMINATION OF FIRSTAR COMMITMENT. The Commitment of Firstar shall
be terminated and of no further force and effect from and after the Effective
Date.
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants that:
(a) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate
action and that this Amendment is a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its
terms, except as the enforcement thereof may be subject to the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally;
(b) Each of the representations and warranties contained in
the Credit Agreement is true and correct in all material respects on
and as of the date hereof as if made on the date hereof except to the
extent any such representation or warranty is stated to relate solely
to an earlier date, in which case such representation or warranty was
true and correct on and as of such earlier date;
(c) After giving effect to this Amendment, no Default or
Unmatured Default has occurred and is continuing.
4. EFFECTIVE DATE. Sections 1 and 2 of this Amendment shall become
effective upon:
(a) the execution and delivery hereof by the Borrower, the
Agent and all the Lenders;
(b) the execution and delivery of Amendment No. 2 to Put
Agreement, a copy of which is attached hereto as EXHIBIT A (the "PUT
AGREEMENT AMENDMENT"), by the State Auto Obligors and the Agent;
(c) the execution and delivery of Amendment No. 1 to Standby
Purchase Agreement by State Auto Financial and the Borrower;
(d) the Borrower's repayment to Firstar in full of all
Obligations outstanding and due to Firstar on the Effective Date;
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(e) a certificate, signed by the chief financial officer of
the Borrower, stating that (i) on the Effective Date no Default or
Unmatured Default has occurred and is continuing and (ii) no amendments
or modifications have been made to the articles or certificate of
incorporation or by-laws of the Borrower or the Parent since November
16, 2001 (or, if any amendments or modifications have been made,
attaching a copy thereof to such certificate);
(f) copies of the resolutions of the board of directors of the
Borrower authorizing the transactions contemplated hereby, certified as
of the date hereof by the Secretary or an Assistant Secretary of the
Borrower; and
(g) a certificate of the Secretary or an Assistant Secretary
of the Borrower, dated as of the date hereof, certifying the names and
true signatures of the officers of the Borrower authorized to execute,
deliver and perform this Amendment.
The date upon which such events have occurred is the "Effective Date."
5. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy
of the Agent or any Lender under the Credit Agreement or any Loan
Document, nor constitute a waiver of any provision of the Credit
Agreement or any Loan Document, except as specifically set forth
herein. Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of similar import shall mean and be a reference to the Credit
Agreement as amended hereby.
6. CONSENT TO PUT AGREEMENT AMENDMENT. By their signatures below, each
of the undersigned Lenders hereby consents to the execution of the Put Agreement
Amendment.
7. COSTS AND EXPENSES. The Borrower hereby affirms its obligation under
Section 9.6 of the Credit Agreement to reimburse the Agent for all reasonable
costs, internal charges and out-of-pocket expenses paid or incurred by the Agent
in connection with the preparation, negotiation, execution and delivery of this
Amendment, including but not limited to the attorneys' fees and time charges of
attorneys for the Agent with respect thereto.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS)
OF THE STATE OF ILLINOIS BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
9. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
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10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
SAF FUNDING CORPORATION
By: Jill A. Gordon
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Title: Vice President
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BANK ONE, NA, as Agent and as a Lender
By: /s/ Cynthia Priest
-------------------------------------
Title: Director
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KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Mary K. Young
-------------------------------------
Title: Vice President
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THE HUNTINGTON NATIONAL BANK, as a Lender
By: /s/ Nancy Cracoiice
------------------------------------
Title: Vice President
---------------------------------
NATIONAL CITY BANK, as a Lender
By: /s/ Rick Marriotti
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Title: Vice President
---------------------------------
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[TO AMENDMENT NO. 1]
FIFTH THIRD BANK, as a Lender
By: /s/ John K. Beardslee
------------------------------------
Title: Vice President
---------------------------------
PARK NATIONAL BANK, as a Lender
By: /s/ Thomas Button
------------------------------------
Title: Vice President
---------------------------------
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[TO AMENDMENT NO. 1]
SCHEDULE 1
COMMITMENTS
Lender Commitment
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Bank One, NA $20,000,000
Keybank National Association $20,000,000
The Huntington National Bank $20,000,000
National City Bank $17,000,000
Fifth Third Bank $15,000,000
Park National Bank $8,000,000
Aggregate Commitment $100,000,000