EX-10.13 15 y91281exv10w13.txt SECOND AMENDMENT TO 3-YEAR REVOLVING CREDIT AGRMT. EXHIBIT 10.13 SECOND AMENDMENT TO THREE-YEAR REVOLVING CREDIT AGREEMENT THIS SECOND AMENDMENT, dated as of October 17, 2003 (this "Amendment"), amends and modifies a certain Three-Year Revolving Credit Agreement, dated as of June 14, 2002, as amended by an Amendment dated as of June 20, 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 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)". 1.2 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 ----------------------------------------------
1.3 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." 1.4 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. 1.5 Disposition of Loans. 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 364-Day Credit Agreement". 1.6 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 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. The Company, each Bank and the Agent shall have executed and delivered this Amendment. 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, which obligations of the Borrower shall survive any termination of the Credit Agreement, 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 page follows) 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 U.S. BANK NATIONAL ASSOCIATION, as Agent and as a Bank By: /s/ Sam S. Pepper ---------------------------- Title: Vice President LaSALLE BANK NATIONAL ASSOCIATION, as a Bank By: /s/ James J. Hess ---------------------------- James J. Hess Title: First Vice President 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 THE BANK OF NOVA SCOTIA, as a Bank By: /s/ John Campbell ---------------------------- By: John Campbell Title: Managing Director BANK HAPOALIM B.M., as a Bank By: /s/ James P. Surless ---------------------------- Title: VP and By: /s/ Laura A. Raffa ---------------------------- Title: SVP