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Exhibit 10.25(c)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of February
1, 2001 (this "Amendment"), by and among Alleghany Underwriting Ltd ("AUL"),
Alleghany Underwriting Capital Ltd ("AUCL"), Talbot Underwriting Limited
("Talbot"), Alleghany Underwriting Capital (Bermuda) Ltd ("AUCBL"), Alleghany
Corporation ("Alleghany" or the "Guarantor"), Alleghany Insurance Holdings LLC
("AIHL" or the "Pledgor"), the Banks and Agents which have signed the signature
pages hereto, and Mellon Bank, N.A., as a Bank, as Issuing Bank and as
Administrative Agent for the Banks and the Issuing Bank ("Mellon").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, AUL, AUCL, Talbot, AUCBL, the Guarantor, the Banks
and Agents listed on the signatures pages hereof and Mellon are parties to a
Credit Agreement, dated as of August 14, 2000 (the "Original Credit Agreement"),
pursuant to which the Banks and the Issuing Bank have agreed, on the terms and
subject to the conditions described therein, to extend credit to AUL, AUCL,
Talbot and AUCBL;
WHEREAS, AIHL is a wholly-owned Subsidiary of the Guarantor
and AIHL owns all or substantially all of the outstanding capital stock of AUL,
AUCL, Talbot and AUCBL;
WHEREAS, in connection with the Original Credit Agreement, and
to provide security for the repayment of the Obligations (as that term is
defined in the Original Credit Agreement), the Guarantor, as pledgor, entered
into a Pledge Agreement, dated as of August 14, 2000 (the "Original Pledge
Agreement"), with the Administrative Agent, pursuant to which the Guarantor
granted to the Administrative Agent a security interest in all outstanding
shares of the capital stock (the "Designated Pledged Shares") of Alleghany Asset
Management, Inc.
("AAM");
WHEREAS, the Guarantor desires that the Designated Pledged
Shares be released from the security interest under the Original Pledge
Agreement so that they may be sold to a third party;
WHEREAS, the Original Credit Agreement contemplates that the
Guarantor may propose for the consent of the Required Banks, and the Guarantor
and AIHL have proposed, a "Substitution of Eligible Substitute Collateral" (as
that term is defined in the Original Credit Agreement) whereby different
collateral would be substituted for the Designated Pledged Shares pursuant to,
among other things, an amendment to the Original Pledge Agreement;
WHEREAS, as contemplated by the Original Credit Agreement in
connection with a Substitution of Eligible Substitute Collateral, concurrently
with the execution and delivery of this Amendment the Guarantor and AIHL are
executing and delivering to the Administrative
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Agent an Amended and Restated Pledge Agreement, pursuant to which AIHL is
pledging Eligible Substitute Collateral to the Administrative Agent for the
benefit of the Banks;
WHEREAS, in connection with the Substitution of Eligible
Substitute Collateral, the Guarantor and the other Credit Parties have requested
the Banks, the Issuing Bank and the Agents to make certain changes to the
Original Credit Agreement and the Required Banks, the Issuing Bank, the
Administrative Agent and the Agents signing this Amendment are willing to amend
the Original Credit Agreement as set forth below;
WHEREAS, AIHL desires to become a party to the Original Credit
Agreement, as amended hereby, as a guarantor and as Grantor under such Amended
and Restated Pledge Agreement; and
WHEREAS, capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Original Credit
Agreement;
NOW THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
SECTION 1. AMENDMENTS TO ORIGINAL CREDIT AGREEMENT.
1.1. AMENDMENTS TO DEFINITIONS. Section 1.01 of the Original
Credit Agreement is hereby amended by changing the definitions of the following
defined terms to read as follows:
"Covered Subsidiary" shall mean AIHL, Alleghany
Underwriting Holdings Ltd, each of the AUHL Entities and each
Subsidiary of any of the AUHL Entities, of Alleghany Underwriting
Holdings Ltd or of AIHL.
"Credit Parties" means the Account Parties, the
Borrowers, the Guarantor and the Pledgor, and "Credit Party" means any
of them.
"Pledge Agreement" shall mean the Amended and
Restated Pledge Agreement, dated as of February 1, 2001, between the
Pledgor, Alleghany and the Administrative Agent, as the same shall be
amended from time to time in accordance with the requirements of this
Agreement.
"Transaction Document" or "Transaction Documents"
shall mean this Agreement, the Pledge Agreement, the Control Agreement,
the Continuing Letter of Credit Agreement, each Letter of Credit
Application, each Letter of Credit, each Note, each amendment to any of
the foregoing and any other documents or instruments executed and
delivered in connection herewith or therewith.
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1.2 ADDITIONS TO DEFINITIONS. Section 1.01 of the Original
Credit Agreement is hereby further amended by adding thereto, in appropriate
alphabetical sequence, the following definitions:
"AIHL" shall mean Alleghany Insurance Holdings LLC, a
Delaware limited liability company and a wholly-owned Subsidiary of
Alleghany.
"Collateral Value Requirement" shall have the meaning
ascribed to that term in Section 2.2 of the Pledge Agreement.
"Control Agreement" shall mean the Account Control
Agreement, dated as of February 1, 2001, among the Pledgor, Alleghany,
Mellon Bank, N.A., as Custodian, and the Administrative Agent, as the
same may be amended from time to time in accordance with the
requirements of this Agreement.
"Pledged Securities Available Amount" shall have the
meaning ascribed to that term in the Pledge Agreement (i.e., "Pledged
Securities Available Amount" at any time shall mean the amount which is
equal to 90% of the value of the Qualifying Pledged Securities (as
determined as a Dollar Equivalent at such time) maintained as security
entitlements in the Pledged Account).
"Pledged Account" shall have the meaning ascribed to
that term in the Pledge Agreement.
"Pledgor" shall mean AIHL.
"Pledgor Guaranteed Obligations" shall have the
meaning ascribed to that term in Section 9A.01 hereof.
"Qualifying Pledged Securities" shall have the
meaning ascribed to that term in the Pledge Agreement.
"Required Pledged Securities" shall have the meaning
ascribed to that term in the Pledge Agreement.
1.3 AMENDMENT TO SECTION 2.01. Section 2.01(a) of the Original
Credit Agreement is hereby amended by adding thereto, as a new last sentence
thereof, the following:
The Issuing Bank shall have no obligation to issue any Letter of Credit
if, after such Letter of Credit were issued, the aggregate Total Credit
Exposure of the Banks upon such issuance would exceed the Pledged
Securities Available Amount.
1.4 AMENDMENT TO SECTION 3.01. Section 3.01(a) of the Original
Credit Agreement is hereby amended by adding thereto, as a new last sentence
thereof, the following:
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A Bank shall have no obligation to make any Loan if the aggregate Total
Credit Exposure of the Banks upon the making of such Loan would exceed
the Pledged Securities Available Amount.
1.5 AMENDMENT TO SECTION 7.01(c). Section 7.01(c) of the
Original Credit Agreement is hereby amended by deleting the phrase "Alleghany
shall default in the observance, performance or fulfillment of any covenant
contained in Section 4.2 or 4.3 of the Pledge Agreement or" and by inserting in
lieu of such deleted phrase the following:
The Pledged Securities Available Amount shall at any time be less than
the aggregate Total Credit Exposure after the Pledgor or Alleghany
shall have received at least one Business Day's notice thereof from the
Administrative Agent, or the Pledgor or Alleghany shall default in the
observance, performance or fulfillment of any covenant contained in
Section 2.2 of the Pledge Agreement after the Pledgor or Alleghany
shall have received at least one Business Day's notice thereof from the
Administrative Agent, or the Pledgor or Alleghany shall default in the
observance, performance or fulfillment of any covenant contained in
Section 4.2, 4.3 or 4.4 of the Pledge Agreement or
1.6 AMENDMENT TO SECTION 7.01(l). Section 7.01(l) of the
Original Credit Agreement is hereby amended in its entirety to read as follows:
(l) The Pledge Agreement or either of the guarantees
contained in Article IX and IXA hereof shall terminate or cease, in
whole or material part, to be a legally valid and binding obligation of
Alleghany or AIHL, as the case may be, or Alleghany, AIHL or any other
Credit Party or any Person acting for or on behalf of any of such
parties contests such validity or binding nature of the Pledge
Agreement or the validity, perfection or priority of the security
interest thereunder, or any such Person shall assert any of the
foregoing;
1.7 AMENDMENT TO SECTION 9.01. The first sentence of Section
9.01 of the Original Credit Agreement is hereby amended to read as follows:
The Guarantor hereby irrevocably, unconditionally and absolutely
guarantees to the Agents, the Issuing Bank and the Banks, and becomes
surety for, the prompt payment of the Obligations of the Account
Parties and the Borrowers and the prompt payment and performance of the
obligations of the Pledgor under the Pledge Agreement (the Obligations
and such payment and performance obligations being collectively
referred to herein as the "Guaranteed Obligations") in full when due
(whether at stated maturity, by acceleration, or otherwise) strictly in
accordance with the terms thereof.
1.8 AMENDMENT TO SECTIONS 9.02 AND 9.06. Each of Section 9.06
and the second sentence of Section 9.02 is hereby amended by inserting therein,
after the words "any Account Party" each time such words appear therein, the
words "or AIHL".
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1.9 ADDITION OF GUARANTEE BY AIHL. The Original Credit
Agreement is amended by adding thereto, between Articles IX and X thereof, a new
Article IXA to read as set forth in Exhibit A to this Amendment.
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective upon (i) the execution and delivery hereof by the Required
Lenders, the Administrative Agent, the Issuing Bank, Alleghany, AIHL, the
Borrowers and the Account Parties and (ii) the satisfaction of the following
conditions:
(a) The Administrative Agent shall have received, with
sufficient copies for all of the Banks, an opinion of U.S. counsel to the Credit
Parties to substantially the same effects, with respect to this Amendment, the
Original Credit Agreement as hereby amended and the other Transaction Documents
being delivered in connection herewith, as set forth in the opinion of such
counsel on the Closing Date;
(b) The Administrative Agent shall have received executed
copies of the Amended and Restated Pledge Agreement, the Account Control
Agreement related thereto and the Custody Agreement related thereto, and each of
the foregoing shall be in full force and effect;
(c) The Administrative Agent shall have received with respect
to Alleghany and AIHL documentation of the type contemplated by Section 5.01(a)
and (b) of the Original Credit Agreement;
(d) All legal details and proceedings in connection with the
transactions contemplated by this Amendment shall be reasonably satisfactory to
the Required Banks and each Bank shall have received all such counterpart
originals or certified or other copies of such documents and proceedings in
connection with such transactions, in form and substance satisfactory to the
Required Banks, as the Required Banks shall have reasonably requested; and
(e) There shall have been delivered to the Administrative
Agent with sufficient copies for each Bank such other certificates, opinions or
documents as may be reasonably requested by the Administrative Agent.
SECTION 3. DIRECTIONS TO ADMINISTRATIVE AGENT. The Required
Banks and the Issuing Bank hereby authorize and direct the Administrative Agent
to execute and deliver the Amended and Restated Pledge Agreement and the Account
Control Agreement, in substantially the respective forms of Exhibits B and C to
this Amendment, and to release the Designated Pledged Shares.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each of the Credit
Parties (including, for this purpose, AIHL) represents and warrants that the
representations and warranties contained in Article IV of the Original Credit
Agreement as amended hereby are true and correct on and as of the date of this
Amendment with the same effect as though made on and as of such date and no
Default and no Unmatured Default has occurred and is continuing or exists.
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SECTION 5. EFFECT OF AMENDMENT. The Original Credit Agreement,
as amended by this Amendment, is in all respects ratified, approved and
confirmed and shall, as so amended, remain in full force and effect.
SECTION 6. GOVERNING LAW. This Amendment and the rights and
obligations of the parties hereto shall for all purposes be governed by and
construed and enforced in accordance with the substantive law of the State of
New York without giving effect to conflict of laws principles.
SECTION 7. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which, when so executed and delivered, shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
ALLEGHANY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
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ALLEGHANY INSURANCE HOLDINGS LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Manager
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ALLEGHANY UNDERWRITING LTD
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director/Secretary
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ALLEGHANY UNDERWRITING CAPITAL LTD
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director/Secretary
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TALBOT UNDERWRITING LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director/Secretary
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ALLEGHANY UNDERWRITING CAPITAL (BERMUDA) LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Assistant Secretary
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MELLON BANK, N.A., AS A BANK, AS ISSUING BANK AND AS ADMINISTRATIVE AGENT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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NATIONAL WESTMINSTER BANK, PLC, AS A BANK AND AS SYNDICATION AGENT
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Senior Manager
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ING BANK, N.V., LONDON BRANCH., AS A BANK AND AS MANAGING AGENT
By:
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(Signature)
Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH, AS A BANK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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(Signature)
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Senior Vice President
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FLEET NATIONAL BANK, AS A BANK
By:
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(Signature)
Name:
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Title:
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ABN AMRO BANK, N.V., AS A BANK
By:
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(Signature)
Name:
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Title:
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PNC BANK, NATIONAL ASSOCIATION., AS A BANK
By:
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(Signature)
Name:
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Title:
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EXHIBIT A
ARTICLE IXA
GUARANTEE OF PLEDGOR
9A.01. The Guarantee of Pledgor. The Pledgor hereby irrevocably,
unconditionally and absolutely guarantees to the Agents, the Issuing Bank and
the Banks, and becomes surety for, the prompt payment of the Obligations of the
Account Parties and the Borrowers (the "Pledgor Guaranteed Obligations") in full
when due (whether at stated maturity, by acceleration, or otherwise) strictly in
accordance with the terms thereof. The Pledgor hereby further agrees, as a
primary obligor, that if any of the Pledgor Guaranteed Obligations are not paid
in full when due (whether at stated maturity, by acceleration, or otherwise and
whether or not such payments would not be permitted under any applicable
bankruptcy or similar law), the Pledgor will promptly pay the same, without any
demand or notice whatsoever (except as expressly provided herein), and that in
the case of any extension of time of payment or renewal of any of the Pledgor
Guaranteed Obligations, the same will be promptly paid in full when due (whether
at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal. Without limiting the generality of the foregoing,
the Pledgor Guaranteed Obligations shall include the obligations of the Account
Parties under Section 7.03 hereof.
Notwithstanding any provision to the contrary contained herein or in
any other of the Transaction Documents, to the extent the obligations of the
Pledgor shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable law, including the
insolvency laws, relating to fraudulent conveyances or transfers) then the
obligations of the Pledgor hereunder automatically shall be limited to the
maximum amount that is permissible under applicable law.
9A.02. Obligations Unconditional. The obligations of the Pledgor under
this Article are irrevocable, absolute and unconditional (to the fullest extent
permitted by applicable law), irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Transaction Documents, or any other
agreement or instrument referred to therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Pledgor Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Article that the obligations of the Pledgor
hereunder shall be absolute and unconditional under any and all circumstances.
The Pledgor agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against any other Credit Party for amounts paid
under this Article IXA until such time as the Banks have been paid in full, no
Pledgor Guaranteed Obligation is outstanding, the Letter of Credit Participating
Interest Commitments under this Agreement have been terminated and no Person or
Official Body shall have any right to request any return or reimbursement of
funds from any Bank in connection with monies received under the Transaction
Documents. Without limiting the generality of the foregoing, it is agreed that,
to the fullest extent permitted
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by applicable law, the occurrence of any one or more of the following shall not
alter or impair the liability of the Pledgor hereunder which shall remain
irrevocable, absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the
Pledgor, the time for any performance of or compliance with any of the
Pledgor Guaranteed Obligations shall be extended, or such performance
or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any
of the Transaction Documents, or any other agreement or instrument
referred to in the Transaction Documents shall be done or omitted;
(iii) the maturity of any of the Pledgor Guaranteed
Obligations shall be accelerated, or any of the Pledgor Guaranteed
Obligations shall be modified, supplemented or amended in any respect,
or any right under any of the Transaction Documents, or any other
agreement or instrument referred to in the Transaction Documents shall
be waived or any other guarantee of any of the Pledgor Guaranteed
Obligations or any security therefor shall be released or exchanged in
whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, any Agent or any
Bank as security for any of the Pledgor Guaranteed Obligations shall be
void or voidable, or shall fail to attach or be perfected or any Agent
or any Bank shall fail to realize on any collateral security; or
(v) any of the Pledgor Guaranteed Obligations shall be
determined to be void or voidable (including, without limitation, for
the benefit of any creditor of the Pledgor) or shall be subordinated to
the claims of any Person (including, without limitation, any creditor
of the Pledgor).
With respect to its obligations hereunder, the Pledgor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever
(except notices expressly required hereunder), and any requirement that the
Banks exhaust any right, power or remedy or proceed against any Person under any
of the Transaction Documents, or any other agreement or instrument referred to
in the Transaction Documents, or against any other Person under any other
guarantee of, or security for, any of the Pledgor Guaranteed Obligations. This
is a guarantee of payment and not merely of collection.
9A.03. Reinstatement. The obligations of the Pledgor under this Article
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of any Person in respect of the Pledgor Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Pledgor Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy, receivership, or reorganization or otherwise, and the Pledgor agrees
that it will indemnify the Agents and the Banks on demand for all reasonable
out-of-pocket costs and expenses (including, without limitation, reasonable fees
and expenses of counsel) incurred by any Agent or any Bank in connection with
such rescission or restoration, including any such reasonable costs and expenses
incurred in defending against any claim alleging that such
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payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency, receivership, reorganization or similar law.
9A.04. Remedies. The Pledgor agrees that, to the fullest extent
permitted by applicable law, as between the Pledgor, on the one hand, and the
Agents and the Banks, on the other hand, the Pledgor Guaranteed Obligations may
be declared to be forthwith due and payable as provided in Section 7.02 hereof
(and shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 7.02) for purposes of Section 9A.01
hereof notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing the Pledgor Guaranteed Obligations from becoming
automatically due and payable) as to any other Person and that, in the event of
such declaration (or Pledgor Guaranteed Obligations being deemed to have become
automatically due and payable), the Pledgor Guaranteed Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable
by the Pledgor for purposes of said Section 9A.01.
9A.05. Continuing Guarantee. The guarantee in this Article is a
continuing guarantee, and shall apply to all of the Pledgor Guaranteed
Obligations whenever arising.
9A.06. No Restrictions. Except for restrictions under the Transaction
Documents, the Pledgor shall not be or become subject to any restriction of any
nature (whether arising by operation of Law, by agreement, by its articles of
incorporation, by-laws or other constituent documents, or otherwise) on the
right of the Pledgor from time to time to (x) pay any indebtedness, obligations
or liabilities from time to time owed to any Account Party or any Borrower, (y)
make loans or advances to any Account Party or any Borrower, or (z) transfer any
of its properties or assets to any Account Party or any Borrower.
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