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Exhibit 10.17(e)
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT (this "AGREEMENT") is
made as of December 11, 1998 by and among ALLEGHANY PROPERTIES, INC. (the,
"COMPANY"), a Delaware corporation, ALLEGHANY CORPORATION (the "PARENT"), a
Delaware corporation, HARTFORD LIFE INSURANCE COMPANY ("HARTFORD LIFE"),
TRANSAMERICA LIFE INSURANCE & ANNUITY COMPANY ("TRANSAMERICA LIFE"),
TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY ("TRANSAMERICA"), UNITED OF OMAHA
LIFE INSURANCE COMPANY ("OMAHA LIFE"), MUTUAL OF OMAHA INSURANCE COMPANY
("MUTUAL OF OMAHA"), THE LINCOLN NATIONAL LIFE INSURANCE COMPANY ("LINCOLN
NATIONAL"), KNIGHTS OF COLUMBUS ("KNIGHTS OF COLUMBUS"), WOODMEN ACCIDENT AND
LIFE COMPANY ("WOODMEN ACCIDENT") (Hartford Life, Transamerica Life,
Transamerica, Omaha Life, Mutual of Omaha, Lincoln National, Knights of Columbus
and Woodmen Accident are herein referred to collectively as the "NOTEHOLDERS").
RECITALS
WHEREAS, the Company and the Parent entered into those separate Note
Purchase Agreements (as in effect prior to the effectiveness of this Agreement,
collectively, the "EXISTING NOTE PURCHASE AGREEMENT" and as amended by this
Agreement, the "AMENDED NOTE PURCHASE AGREEMENT"), each dated as of January 15,
1995, with the Noteholders, pursuant to which the Company sold, and the
Noteholders purchased the Company's 8.62% Senior Notes due February 23, 2000 in
the aggregate original principal amount of Fifty Million Dollars ($50,000,000)
(the "NOTES");
WHEREAS, the Noteholders, are the holders of one hundred percent (100%)
of the Notes outstanding as of the Effective Time (defined below);
WHEREAS, the Company and the Parent are contemporaneously entering into
those separate Note Purchase Agreements (collectively, the "1998 NOTE PURCHASE
AGREEMENT"), each dated as of the date hereof, with the Purchasers identified on
Annex 1 thereto, pursuant to which the Company has agreed to sell, and such
Purchasers have agreed to purchase the Company's 6.83% Senior Notes due December
11, 2004 in the aggregate original principal amount of Forty Million Dollars
($40,000,000);
WHEREAS, in connection with the execution and delivery of the 1998 Note
Purchase Agreement the Noteholders, the Company and the Parent wish to amend
certain provisions of the Existing Note Purchase Agreement and have agreed to be
bound by the Amended Note Purchase Agreement, in each case, pursuant to and in
accordance with the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the mutual premises,
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINED TERMS
Unless otherwise defined herein, terms that are defined in the Existing
Note Purchase Agreement are used herein as so defined.
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2. AMENDMENTS
2.1 AMENDMENT OF EXISTING NOTE PURCHASE AGREEMENT.
The Existing Note Purchase Agreement is hereby amended in the manner
specified in Exhibit A to this Agreement (such amendments herein referred to as,
the "AMENDMENTS").
2.2 EFFECT OF AMENDMENT.
Except as expressly amended hereby, the Existing Note Purchase
Agreement and the other Financing Documents shall continue in full force and
effect in accordance with the provisions thereof. Except as expressly provided
herein, this Agreement shall not be deemed (a) to be a waiver of, or consent to,
or a modification or amendment of, any other term or condition of the Existing
Note Purchase Agreement or any other Financing Document or (b) to prejudice any
right or rights which the Noteholders may have in the future under or in
connection with the Existing Note Purchase Agreement or any other Financing
Document.
2.3 EFFECTIVE. This Agreement shall become effective upon execution and
delivery of this Agreement by each of the parties hereto. The term "Effective
Time" shall mean the first time all conditions set forth in Section 3 shall have
been satisfied (or waived by each of the Noteholders).
3. CONDITIONS TO CONSENT OF REQUIRED HOLDERS
The effectiveness of the Amendments are subject to satisfaction of the
following conditions precedent (or waiver of one or more of such conditions by
each of the Noteholders):
3.1 WARRANTIES AND REPRESENTATIONS TRUE; COMPLIANCE WITH THIS
AGREEMENT.
(a) WARRANTIES AND REPRESENTATIONS TRUE. The warranties
and representations contained in Section 4 hereof shall be true at the
Effective Time with the same effect as though made on and as of that
time.
(b) COMPLIANCE WITH THIS AGREEMENT. Each of the Company
and the Parent shall have performed and complied with all agreements
and conditions contained herein that, in each case, are required to be
performed or complied with by the Company and the Parent on or prior to
the Effective Time, and such performance and compliance shall remain in
effect at the Effective Time.
3.2 OFFICERS' CERTIFICATES.
The Noteholders shall have received from each of the Company and the
Parent
(a) a certificate signed by the President, any
Vice-President or the Treasurer of such Person, substantially in the
form of Exhibit B hereto, with respect to the matters therein set
forth, and
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(b) a certificate signed on behalf of such Person by the
Secretary or an Assistant Secretary of such Person, substantially in
the form of Exhibit C hereto, with respect to the matters therein set
forth.
3.3 FEES AND EXPENSES.
The Company shall have paid the fees and disbursements of the
Noteholders special counsel reflected in a statement of such counsel rendered to
the Company.
3.4 PROCEEDINGS SATISFACTORY.
All proceedings taken in connection herewith and all documents and
papers relating thereto shall be satisfactory to the Noteholders and their
special counsel. The Noteholders and their special counsel shall have received
copies of such documents and papers as they may reasonably request in connection
therewith, all in form and substance satisfactory to the Noteholders and their
special counsel.
4. REPRESENTATIONS AND WARRANTIES
The Company and the Parent represent, warrant and covenant as of the
date hereof and as of the Effective Time:
(A) Each of the representations and warranties contained
in the 1998 Note Purchase Agreement and each of the other documents
executed or delivered in connection therewith are true and correct as
of the date hereof.
(B) No Default or Event of Default has occurred or is
continuing, nor does any event or condition exist that, upon the
execution and delivery of this Agreement and the effectiveness of the
Amendments, would constitute a Default or an Event of Default.
(C) The execution and delivery of this Agreement by the
Company and the Parent have been duly authorized by all requisite
corporate action on the part of the Company and the Parent and will not
violate any provisions of law, any order, judgment or decree of any
court or other agency of government, or the organizational documents of
the Company or the Parent, or any other agreement or instrument to
which the Company or the Parent is a party, or by which the Company or
the Parent is bound.
(D) Each of the Company and the Parent shall take any and
all such actions and execute any and all such instruments and documents
as are reasonably requested for the purpose of effectuating this
Agreement.
(E) Neither this Agreement nor any financial statements
and other certificates provided to the Noteholders pursuant to the
provisions of the Existing Note Purchase Agreement, nor any other
written statement furnished by or on behalf of the Company or the
Parent to the Noteholders in connection with the proposal and
negotiation of the Amendments contain any untrue statement of a
material fact or omit a material fact
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necessary to make the statements contained therein not misleading.
There is no fact relating to any event or circumstance that has
occurred or arisen since the last day of the fiscal year of the Company
most recently ended that either the Company or the Parent has disclosed
to the Noteholders in writing that has had or, so far as the Company
can now reasonably foresee, could reasonably be expected to have a
material adverse effect on the business, condition (financial or
otherwise) or operations of the Company or the Parent.
(F) Neither the nature of the Company or the Parent, or
of their respective businesses or Properties, nor any relationship
between the Company or the Parent and any other Person, nor any
circumstance in connection with the execution and delivery of this
Agreement, is such as to require an order, consent, approval, license,
authorization or validation of, or filing, recording, registration or
qualification with, any Governmental Authority on the part of the
Company or the Parent as a condition to the execution, delivery or
performance of this Agreement or the Amended Note Purchase Agreement,
or the legality, validity, binding effect or enforceability of this
Agreement or the Amended Note Purchase Agreement.
(G) The obligations of the Company and the Parent set
forth in this Agreement, the Amended Note Purchase Agreement, the Notes
and other Financing Documents are valid, binding and enforceable in
accordance with their respective terms, except as such enforceability
may be: (i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium, or other similar laws affecting
the enforceability of creditors' rights generally and (ii) subject to
the availability of equitable remedies.
5. SURVIVAL
All warranties, representations, certifications and covenants made by
any of the Company or the Parent in this Agreement or in any certificate or
other instrument delivered by either of them or on their behalf under this
Agreement shall be considered to have been relied upon by the Noteholders and
shall survive the execution of this Agreement, regardless of any investigation
made by or on behalf of the Noteholders. All statements in any such certificate
or other instrument shall constitute warranties and representations of the
Company and the Parent under this Agreement.
6. GOVERNING LAW
THIS AGREEMENT SMALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
7. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
[Remainder of page intentionally left blank. Next page is
signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives under seal, all as of the
day and year first above written.
ALLEGHANY CORPORATION
By_/s/ Xxxxx X. Cuming_______________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
ALLEGHANY PROPERTIES, INC.
By_/s/ Xxxxx X. Cuming_________________
Name: Xxxxx X. Xxxxxx
Title: President
HARTFORD LIFE INSURANCE COMPANY
BY: HARTFORD INVESTMENT SERVICES, INC.,
ITS AGENT AND ATTORNEY-IN-FACT
By_/s/ Xxxxx Roberts_____________________
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
TRANSAMERICA LIFE INSURANCE & ANNUITY
COMPANY
By_/s/ Xxxx X. Xxxxxxxxx _________________
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
TRANSAMERICA OCCIDENTAL LIFE INSURANCE
COMPANY
By_/s/ Xxxx X. Casparian__________________
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
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UNITED OF OMAHA LIFE INSURANCE COMPANY
By_/s/ Xxxxx X. Xxxxxxxx, Xx._______________
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: First Vice President
MUTUAL OF OMAHA INSURANCE COMPANY
By_/s/ Xxxxx X. Xxxxxxxx, Xx._______________
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: First Vice President
THE LINCOLN NATIONAL LIFE INSURANCE COMPANY
BY: LINCOLN NATIONAL INVESTMENT
MANAGEMENT COMPANY, ITS
ATTORNEY-IN-FACT
By_/s/ Xxxxxxx X. Powell___________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KNIGHTS OF COLUMBUS
By_/s/ Xxxxxx X. Xxxx _____________________
Name: Xxxxxx X. Xxxx
Title: Assistant Supreme Secretary
WOODMEN ACCIDENT AND LIFE COMPANY
By_/s/ A.M. McCray_________________________
Name: A.M. XxXxxx
Title: Senior Director, Securities
Investments and Assistant
Treasurer
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EXHIBIT A
AMENDMENTS TO EXISTING NOTE PURCHASE AGREEMENT
1. AMENDMENT OF SECTION 7 OF THE EXISTING NOTE PURCHASE AGREEMENT. Section
7 of the Existing Note Purchase Agreement is deleted in its entirety and the
following substituted in lieu thereof:
"7. COVENANTS
Each of the Parent and the Company covenants that on and after
the Closing Date and so long as any of the Notes shall be outstanding:
7.1 PAYMENT OF TAXES AND CLAIMS.
Each of the Parent and the Company will, and the Company will
cause SPHI to, pay before they become delinquent,
(a) all taxes, assessments and governmental
charges or levies imposed upon it or its Property, and
(b) all claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like
Persons that, if unpaid, might result in the creation of a
Lien upon its Property,
provided, that items of the foregoing description need not be paid
(i) while being contested in good faith
and by appropriate proceedings as long as adequate
book reserves have been established and maintained
and exist with respect thereto, and
(ii) so long as the title of the Parent,
the Company or SPHI, as the case may be, to, and its
right to use, such Property, is not materially
adversely affected thereby.
7.2 MAINTENANCE OF PROPERTIES; CORPORATE EXISTENCE;
ETC..2 MAINTENANCE OF PROPERTIES; CORPORATE
EXISTENCE; ETC.
Each of the Parent and the Company will, and the Company will
cause SPHI to,
(a) PROPERTY -- maintain, preserve and keep its
Property in good condition, ordinary wear and tear excepted,
and make all necessary renewals, replacements, additions,
betterments and improvements thereto, except where the failure
to do so (i) could not reasonably be expected to have a
Material Adverse Effect and (ii) is in conformity with the
marketing strategy of the Company (A) to maximize proceeds
from the sale of Real Estate Assets or (B) to sell the Real
Exhibit A-1
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Estate Assets on an "as is" basis;
(b) INSURANCE -- maintain, with financially
sound and reputable insurers, insurance with respect to its
Property and business against such casualties and
contingencies, of such types (including, without limitation,
insurance with respect to losses arising out of Property loss
or damage, public liability, business interruption, larceny,
workers' compensation, embezzlement or other criminal
misappropriation) and in such amounts as is customary in the
case of corporations of established reputations engaged in the
same or a similar business and similarly situated, it being
understood that the Parent, the Company and SPHI may
self-insure against hazards and risks with respect to which,
and in such amounts as, the Parent, the Company or SPHI in
good faith determines to be prudent and consistent with sound
financial and business practice;
(c) FINANCIAL RECORDS -- keep accurate and
complete books of records and accounts in which full and
correct entries shall be made of all its business transactions
and which will permit the provision of accurate and complete
financial statements in accordance with GAAP, and the Parent
will cause each other Subsidiary to keep accurate and complete
books of records and accounts in which full and correct
entries shall be made of all its business transactions and
which will permit the provision of accurate and complete
financial statements in accordance with GAAP, to the extent
required by the provisions of Section 8.1(a);
(d) CORPORATE EXISTENCE AND RIGHTS -- do or
cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights (charter
and statutory) and franchises, subject to Section 7.9, except
where the failure to do so could not reasonably be expected to
have a Material Adverse Effect; and
(e) COMPLIANCE WITH LAW -- be in compliance with
all laws, ordinances or governmental rules or regulations to
which it is subject (including, without limitation, any
Environmental Protection Law) and obtain any licenses,
certificates, permits, franchises or other governmental
authorizations necessary to the ownership of its Properties or
to the conduct of its business if such non-compliance or
failure to obtain could reasonably be expected to have a
Material Adverse Effect or materially adversely affect the
ability of the Parent, the Company or SPHI to conduct in the
future the business it conducts at the time of such violation
or failure to obtain.
Exhibit A-2
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7.3 PAYMENT OF NOTES AND MAINTENANCE OF OFFICE.
The Company will punctually pay, or cause to be paid, the
principal of and interest (and Make-Whole Amount, if any) on, the
Notes, as and when the same shall become due according to the terms
hereof and of the Notes, and will maintain an office at the address of
the Company set forth in Section ERROR! REFERENCE SOURCE NOT FOUND.
where notices, presentations and demands in respect hereof or of the
Notes may be made upon it. Such office will be maintained at such
address until such time as the Company shall notify the holders of the
Notes in writing of any change of location of such office, which will
in any event be located within the United States of America.
7.4 PENSION PLANS.
(a) COMPLIANCE. Each of the Parent and the
Company will, and will cause each ERISA Affiliate to, at all
times with respect to each Pension Plan, make timely payment
of contributions required to meet the minimum funding standard
set forth in ERISA or the IRC with respect thereto, and to
comply with all other applicable material provisions of ERISA
and the IRC.
(b) RELATIONSHIP OF VESTED BENEFITS TO PENSION
PLAN ASSETS. The Parent or an ERISA Affiliate will contribute
sufficient amounts to each Pension Plan so that the present
value of all employee benefits vested under each Pension Plan
at any time will not exceed, by more than Two Million Five
Hundred Thousand Dollars ($2,500,000), the assets of such
Pension Plan allocable to such vested benefits at such time,
in each case determined pursuant to Section 7.4(c).
(c) VALUATIONS. All assumptions and methods used
to determine the actuarial valuation of vested employee
benefits under Pension Plans and the present value of assets
of Pension Plans will be reasonable in the good faith judgment
of the Parent, the Company or the actuary engaged by the
Parent or the Company, as the case may be, and will comply
with all requirements of law.
(d) PROHIBITED ACTIONS. Each of the Parent and
the Company will not, and will not permit any ERISA Affiliate
to:
(i) engage in any "prohibited
transaction" (as such term is defined in section 406
of ERISA or section 4975 of the IRC) that would
result in the imposition of a material tax or
penalty;
(ii) incur with respect to any Pension
Plan any material "accumulated funding deficiency"
(as such term is defined in section 302 of ERISA),
whether or not waived;
(iii) terminate any Pension Plan in a
manner that could result in
Exhibit A-3
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the imposition of a Lien on the Property of the
Parent, the Company or any Subsidiary pursuant to
section 4068 of ERISA or the creation of any
liability under section 4062 of ERISA;
(iv) fail to make any payment required
by section 515 of ERISA; or
(v) at any time be an "employer" (as
such term is defined in section 3 of ERISA) required
to contribute to any Multiemployer Plan or a
"substantial employer" (as such term is defined in
section 4001 of ERISA) required to contribute to any
Multiple Employer Pension Plan if, at such time, it
could reasonably be expected that the Parent, the
Company or any Subsidiary will incur withdrawal
liability in respect of such Multiemployer Plan or
Multiple Employer Pension Plan
if the aggregate amount of the taxes, penalties, funding
deficiencies, interest or other amounts and any other
liabilities in respect of any of the foregoing could
reasonably be expected to have a Material Adverse Effect.
7.5 LINE OF BUSINESS.
The Company will not, and will not permit SPHI to, engage in
any business other than the ownership, operation and disposition of
Real Estate Assets and activities reasonably related thereto.
7.6 INDEBTEDNESS.
(a) TOTAL INDEBTEDNESS. The Company will not,
and will not permit SPHI to, incur or in any manner be or
become liable in respect of any Indebtedness, on and after the
Closing Date, except
(i) Indebtedness evidenced by the
Notes,
(ii) Indebtedness evidenced by the 1998
Notes, and
(iii) an additional amount of
Indebtedness of the Company and SPHI, determined on a
consolidated basis for such Persons, not exceeding
Ten Million Dollars ($10,000,000) in the aggregate at
any time outstanding.
(b) INDEBTEDNESS COVERAGE. The Company will not
at any time permit the ratio of
(i) Qualified Indebtedness Coverage
Assets at such time to
(ii) the sum of
Exhibit A-4
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(A) the aggregate of all Indebtedness
of the Company and SPHI at such time, determined on a
consolidated basis for such Persons, plus
(B) Scheduled Interest Payments at such
time, plus
(C) the amount of Operating Expenses
that the Company and SPHI would be permitted to incur
on such date pursuant to Section 7.8, plus
(D) if such time is on or after the
date the last Real Estate Asset is sold and prior to
the first date of the establishment of the Defeasance
Trust pursuant to Section 7.15, the Make-Whole Amount
in respect of the Notes and the 1995 Notes at such
time
to be less than 1.0 to 1.0.
7.7 RESTRICTED INVESTMENTS AND RESTRICTED PAYMENTS.
The Company will not, and will not permit SPHI to, make any
Restricted Investment and the Company will not declare or make, or
become obligated to declare or make, any Restricted Payment (except for
the Permitted Extraordinary Dividend), unless:
(a) immediately after, and after giving effect
to, such Restricted Investment or such Restricted Payment, as
the case may be, the aggregate amount of all Restricted
Investments of the Company and SPHI at such time plus all
Restricted Payments declared, made or obligated to be declared
or made by the Company on and after the Closing Date would not
exceed the sum of
(i) Excess Cumulative Net Proceeds at
such time, plus
(ii) the greater of
(A) Zero Dollars ($0) and
(B) the result of
(1) Cumulative
Non-Essential
Contributions at
such time minus
(2) the Transfer
Contribution
Amount at such
time;
(b) immediately prior to, immediately after, and
after giving effect to,
Exhibit A-5
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such Restricted Investment or such Restricted Payment, as the
case may be, the ratio of
(i) Qualified Restricted Payment Assets
at such time to
(ii) the aggregate of all Indebtedness
of the Company and SPHI at such time
would not be less than 2.0 to 1.0; and
(c) at the time of such declaration, making or
becoming obligated and immediately before, and after giving
effect to, such Restricted Investment or such Restricted
Payment and any concurrent transactions, no Default or Event
of Default exists or would exist.
Notwithstanding the requirements of clause (b) above and
provided that the requirements of clauses (a) and (c) above have been
satisfied, a cash dividend may be declared by the Company in respect of
its capital stock in an amount, when added to the aggregate of other
cash dividends made by the Company after the Closing Date (other than
the Permitted Extraordinary Dividend) that does not exceed the
aggregate amount of Cumulative Non-Essential Contributions at such time
minus the Transfer Contribution Amount at such time.
7.8 OPERATING EXPENSES.
The Company will not, and will not permit SPHI to:
(a) incur any Operating Expense unless Cumulative
Operating Expenses at such time would not exceed the sum of
(i) Forty Million Dollars ($40,000,000), plus
(ii) Operating Expense Contributions at such
time; or
(b) permit, at any time, the sum of
(i) Cumulative Operating Expenses at such time
minus Operating Expense Contributions at such time, plus
(ii) the aggregate amount outstanding on all
Seller Notes at such time
to exceed Ninety Million Dollars ($90,000,000).
7.9 MERGER AND CONSOLIDATION.
Exhibit A-6
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The Company will not, and will not permit SPHI to, merge into,
consolidate with, or sell, lease, transfer or otherwise dispose of all
or substantially all of its Property (except as permitted under Section
7.10) to, any other Person or permit any other Person to consolidate
with or merge into it (except that SPHI may merge into or consolidate
with the Company if the Company is the surviving corporation); provided
that the foregoing restriction does not apply to the merger or
consolidation of the Company with, or the sale, lease, transfer or
other disposition by the Company of all or substantially all of its
Property to, another corporation, if:
(a) the Company is the surviving corporation
that results from such merger or consolidation; and
(b) immediately prior to, and immediately after
the consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist.
7.10 TRANSFERS OF PROPERTY.10 TRANSFERS OF PROPERTY.
The Company will not, and will not permit SPHI to, sell, lease
as lessor, transfer or otherwise dispose of any Property (collectively,
"Transfers") (provided that "Transfers" shall not include transfers of
cash for the purpose of paying Operating Expenses, interest, principal
or Make-Whole Amount, if any, relating to the Notes and any other
Indebtedness, Restricted Payments to the Parent and Permitted
Investments), except:
(a) Transfers of Property, other than Real
Estate Assets, if the sum of
(i) the book value of such Property at
the time of such Transfer, plus
(ii) the aggregate book value of all
other Property of the Company and SPHI, other than
Real Estate Assets, that has been the subject of a
Transfer (in each case measured at the time of the
Transfer of such Property) during the period
commencing on the Closing Date and ended at the time
of such Transfer,
would be less than Two Hundred Thousand Dollars ($200,000),
provided that the Company will not Transfer any shares of the
stock (or any warrants, rights or options to purchase stock or
other Securities exchangeable for or convertible into stock)
of SPHI;
(b) any Transfer of Real Estate Assets for cash
consideration or Seller Notes, or a combination of cash
consideration and Seller Notes, so long as the aggregate
amount outstanding with respect to all Seller Notes does not
exceed Fifty Million Dollars ($50,000,000) and if either of
the following conditions would be satisfied with respect to
such Transfer:
Exhibit A-7
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(i) the Transfer Consideration with
respect to such Transfer is at least equal to the
Designated Disposition Value of the Real Estate Asset
which is the subject of such Transfer, or
(ii) the sum of
(A) the Transfer Consideration
with respect to such Transfer, plus
(B) the aggregate Transfer
Consideration received by the Company and
SPHI with respect to all other Real Estate
Assets that have been the subject of a
Transfer on and after the Closing Date, plus
(C) Cumulative Non-Essential
Contributions at such time
would exceed the aggregate Designated Disposition
Values of all Real Estate Assets that have been the
subject of Transfers (in each case measured at the
time of such Transfer) on and after the Closing Date;
and
(c) immediately prior to, and immediately after
the consummation of any such Transfer, and after giving effect
thereto, no Default or Event of Default exists or would exist.
7.11 PURCHASE OBLIGATION OF THE PARENT.
The Parent will purchase Real Estate Assets, selected by the
Parent and for cash consideration equal to the Designated Disposition
Value of such Real Estate Assets, in an amount sufficient to provide
the Company with net cash proceeds, as necessary, to pay
(a) the principal of and interest (and
Make-Whole Amount, if any) on, the Notes, and any amounts due
under Section 9.2(e) as and when the same shall become due
according to the terms hereof and of the Notes (including,
without limitation, the terms of Section 5.3), or
(b) Operating Expenses due and payable at such
time.
Exhibit A-8
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7.12 TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit SPHI to, enter into
any material transaction or material arrangement, including, without
limitation, the purchase, sale or exchange of Property or the rendering
of any service, with any Affiliate, except the sales contemplated by
Section 7.11 or in the ordinary course of and pursuant to the
reasonable requirements of the Company's or SPHI's business and upon
fair and reasonable terms no less favorable to the Company or SPHI than
would be obtained in a comparable arm's-length transaction with a
Person not an Affiliate.
7.13 LIENS.
(a) NEGATIVE PLEDGE. The Company will not, and
will not permit SPHI to, cause or permit to exist, or agree or
consent to cause or permit to exist in the future (upon the
happening of a contingency or otherwise), any of its Property,
whether now owned or hereafter acquired, to be subject to a
Lien except:
(i) Liens described in Part 7.13(a)(i)
of Annex 3;
(ii) Liens
(A) arising from judicial
attachments and judgments,
(B) securing appeal bonds or
supersedeas bonds, and
(C) arising in connection with
court proceedings (including, without
limitation, surety bonds and letters of
credit or any other instrument serving a
similar purpose),
provided that (1) such Liens are fully released
within sixty (60) days of their creation or the
execution or other enforcement of such Liens is
effectively stayed, (2) the claims secured thereby
are being contested in good faith and by appropriate
proceedings and (3) adequate book reserves in
accordance with GAAP shall have been established and
maintained and shall exist with respect thereto;
(iii) Liens incurred or deposits made in
the ordinary course of business to secure the
performance of letters of credit, bids, tenders,
sales contracts, leases, statutory obligations,
construction obligations, bonds and assessments or
improvements, surety and performance bonds (of a type
other than set forth in Section 7.13(a)(ii)) and
other similar obligations not incurred in connection
with the borrowing of money, the obtaining of
advances or the payment of the deferred purchase
price of Property, provided that, after giving effect
to any enhancement in value and use of other Property
related to such Property as a result of such Lien,
(1) such
Exhibit A-9
16
Liens do not in the aggregate materially detract from
the value of such Property and (2) the title of the
Company or SPHI to, and its right to use, such
Property, is not materially adversely affected
thereby;
(iv) Liens incurred or deposits made in
the ordinary course of business in connection with
workers' compensation, unemployment insurance, social
security and other like laws;
(v) Liens securing Property taxes,
assessments or governmental charges or levies or the
claims or demands of materialmen, mechanics,
carriers, warehousemen, vendors, landlords and other
like Persons, provided that the payment thereof is
not at the time required by Section 7.1; and
(vi) Liens in the nature of
reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions or encumbrances
affecting real Property, provided that such
exceptions and encumbrances do not in the aggregate
detract from the value of such Property or interfere
with the use of such Property in the ordinary conduct
of the business of the Company and SPHI in a manner
that has or could reasonably be expected to have a
Material Adverse Effect.
(b) EQUAL AND RATABLE LIEN; EQUITABLE LIEN. In
case any Property shall be subjected to a Lien in violation of
this Section 7.13, the Company will forthwith make or cause to
be made, to the fullest extent permitted by applicable law,
provision whereby the Notes will be secured equally and
ratably with all other obligations secured thereby pursuant to
such agreements and instruments as shall be approved by the
Required Holders, and the Company will cause to be delivered
to each holder of a Note an opinion of independent counsel to
the effect that such agreements and instruments are
enforceable in accordance with their terms, and in any such
case the Notes shall have the benefit, to the full extent
that, and with such priority as, the holders of Notes may be
entitled under applicable law, of an equitable Lien on such
Property securing the Notes. Such violation of this Section
7.13 will constitute an Event of Default hereunder, whether or
not any such provision is made pursuant to this Section
7.13(b).
(c) FINANCING STATEMENTS. The Company will not,
and will not permit SPHI to, sign or file a financing
statement under the Uniform Commercial Code of any
jurisdiction that names the Company or SPHI as debtor, or sign
any security agreement authorizing any secured party
thereunder to file any such financing statement, except, in
any such case, a financing statement filed or to be filed to
perfect or protect a security interest that the Company or
SPHI is entitled to create, assume or incur, or permit to
exist, under the foregoing provisions of this Section 7.13 or
to evidence for informational purposes a lessor's interest in
Property leased
Exhibit A-10
17
to the Company or SPHI.
7.14 PRIVATE OFFERING
Neither the Parent nor the Company will, nor will they permit
any Person acting on their behalf to, offer the Notes or any part
thereof or any similar Securities for issue or sale to, or solicit any
offer to acquire any of the same from, any Person so as to bring the
issuance and sale of the Notes within the provisions of section 5 of
the Securities Act."
7.15 DEFEASANCE
(a) ESTABLISHMENT OF DEFEASANCE TRUST. If at any
time neither the Company nor SPHI holds any Real Estate
Assets, the Company shall contemporaneously with the sale of
last Real Estate Asset and upon written notice (the "Trust
Notice") to the holders of Notes then outstanding, establish a
trust (the "Defeasance Trust"), solely in favor of all holders
of Notes then outstanding, and irrevocably and absolutely
assign, transfer, and convey to, and deposit into, said
Defeasance Trust an amount of United States Governmental
Obligations having interest and principal payments sufficient,
in the opinion of independent certified public accountants of
the Company expressed in a written certification thereof
delivered to the holders of the Notes, to pay in full all
remaining principal and interest payments, as the same shall
fall due, in respect of all Notes then outstanding. Anything
to the contrary contained herein notwithstanding, the Company
may, at its sole discretion and at any time upon the delivery
of a Trust Notice to the holders of Notes then outstanding,
elect to establish a Defeasance Trust.
(b) DISCHARGE. Provided that
(i) the Defeasance Trust, the trustee
thereof and the terms and conditions (as well as the
form and substance) of the indenture whereby the
Defeasance Trust shall have been established shall be
reasonably satisfactory to all holders of Notes then
outstanding (as evidenced by their written consent
thereto),
(ii) the purchase price of the United
States Governmental Obligations to be deposited into
the Defeasance Trust shall have been fully paid by
the Company, and such United States Governmental
Obligations shall have been so deposited into the
Defeasance Trust (and each holder of Notes then
outstanding shall have received written verification
thereof by the trustee of the Defeasance Trust) and
shall, as so deposited, be unencumbered by any Lien
and sufficient to pay all principal and interest to
fall due on the Notes then outstanding as provided in
Section 5.1 and in the Notes,
Exhibit A-11
18
(iii) the Company shall have (1) paid in
full all fees, costs and expenses of the trustee of
the Defeasance Trust and of all holders of Notes then
outstanding incurred in connection with the
preparation of the trust indenture and the
establishment of the Defeasance Trust, including,
without limitation, all reasonable attorney's fees
and disbursements, and (2) prepaid in full any and
all fees, costs and expenses of the trustee of the
Defeasance Trust for the entire term of the
Defeasance Trust,
(iv) the Company shall have no
continuing legal or equitable interest in the
Defeasance Trust or the United States Governmental
Obligations deposited into the Defeasance Trust
(other than a reversionary interest in any such
United States Governmental Obligations, or the
proceeds therefrom, remaining after the full, final
and indefeasible payment of all Notes and all
interest thereon) and shall have no right to direct
or instruct the trustee of the Defeasance Trust, or
to remove such trustee, or to otherwise require such
trustee to take any action with respect to such
United States Governmental Obligations or otherwise,
(v) no Event of Default shall have
occurred and be continuing at the time of such
deposit,
(vi) the Company shall have delivered
the Trust Notice to all holders of Notes then
outstanding and a legal opinion of counsel to the
Company, reasonably satisfactory to all holders of
Notes then outstanding (as evidenced by their written
approval thereof), stating, among other things which
any holder of Notes then outstanding may reasonably
request, that (1) the Defeasance Trust is validly
created and duly constituted and that the sole
beneficiaries thereof are the holders of Notes then
outstanding, (2) the United States Governmental
Obligations deposited therein were validly
contributed to the Defeasance Trust and constitute a
legal and valid res of the Defeasance Trust, (3) the
Company's actions in creating the Defeasance Trust
and contributing the United States Governmental
Obligations thereto were duly authorized and valid,
(4) the Company, as the settlor of the Defeasance
Trust, has no right, title or interest in and to the
Defeasance Trust or the res thereof (other than a
reversionary interest in any United States
Governmental Obligations or the proceeds thereof
remaining after the full, final and indefeasible
payment of all Notes and all interest thereon) and
has no power of direction, or right of removal, with
respect to the trustee of the Defeasance Trust, (5)
all fees, costs and expenses of the trustee for the
entire term of the Defeasance Trust have been prepaid
in full and (6) the creation of the Defeasance Trust
and the depositing of the United States Governmental
Obligations therein shall not, for IRC purposes with
respect to any holder of Notes then outstanding,
result in a taxable event whereby (x) such holder may
become liable to pay a tax on any gain deemed to have
arisen with respect to such transaction or
Exhibit A-12
19
(y) such holder shall have been deemed to have
suffered a loss with respect to such transaction and
(7) such holder will be subject to Federal income tax
on the same amount, in the same manner and at the
same times as would be the case if the Notes were
paid in the accordance with their terms and the terms
of this Agreement and such defeasance and discharge
were not to occur;
(vii) all principal, interest costs,
expenses and other sums due and payable under the
this Agreement to the holders of Notes outstanding on
the date the Defeasance Trust is created shall have
been paid in full; and
(viii) the Company shall have delivered to
the holders of Notes then outstanding an opinion of
independent certified public accountants of the
Company, reasonably satisfactory to such holders,
stating that (i) the amount of United States
Government Obligations deposited in the Defeasance
Trust are sufficient to pay in full all remaining
principal and interest payments, as the same shall
fall due, in respect of all Notes then outstanding
and (ii) under GAAP the creation of the Defeasance
Trust and the depositing of the United States
Governmental Obligations therein shall not result,
with respect to any such holder, in an exchange of
the Note or Notes of such holder for all or part of
such United States Governmental Obligations which
exchange would result in a gain or loss being
realized by such holder under GAAP in respect of such
transaction,
then and in that case, all financial and restrictive covenants
in respect of the Company set forth in Section 7 (other than
this Section 7.15) of this Agreement shall be discharged;
provided, however, if the contribution to the Defeasance Trust
of any United States Governmental Obligations is invalidated,
declared to be fraudulent or preferential, set aside, or if
any such United States Governmental Obligations are required
to be returned or redelivered to the Company, or any
custodian, trustee, receiver or any other Person under any
bankruptcy act, state or federal law, common law or equitable
cause, then, to the extent of such invalidation, return or
redelivery, the financial and restrictive covenants set forth
in Section 7 of this Agreement shall be revived and restored.
As used in this Section 7.15, the term "United States
Governmental Obligations" shall mean any direct obligation of, or
obligation guaranteed by, the United States of America, or any agency
controlled or supervised by or acting as instrumentality of the United
States of America pursuant to authority granted by the Congress of the
United States of America, so long as such obligation or guarantee shall
have the benefit of the full faith and credit of the United States of
America which shall have been pledged pursuant to authority granted by
the Congress of the United States of America.
Exhibit A-13
20
7.16 PERFORMANCE OF AGREEMENT.
The Parent shall not cause or permit the Company or SPHI to
take any action, or fail to take any action, which would result in a
violation of any term or condition of this Agreement.
2. AMENDMENT OF SECTION 8.1 OF THE EXISTING NOTE PURCHASE AGREEMENT.
Subsections (iii) and (v) of clause (c) of Section 8.1 of the Existing Note
Purchase Agreement are deleted in their entirety and the following are
respectively substituted in lieu thereof:
"(III) ERISA -- promptly upon becoming aware of the
occurrence of any
(A) "reportable event" (as such term is defined
in section 4043 of ERISA) and the regulations thereunder, for
which notice thereof has not been waived pursuant to such
regulations, or
(B) "prohibited transactions" (as such term is
defined in section 406 or section 4975 of the IRC)
in connection with any Pension Plan or any trust created thereunder if
the liability to the Parent, the Company or any ERISA Affiliate, taken
together with any other such liabilities could reasonably be expect to
have a Material Adverse Effect, a written notice specifying the nature
thereof, what action the Parent or the Company, as the case may be, is
taking or proposes to take with respect thereto, and, when known, any
action taken by the IRS, the DOL or the PBGC with respect thereto;"
. . .
"(V) OTHER ERISA NOTICES -- prompt written notice of and,
where applicable, a description of
(A) any notice from the PBGC in respect of the
commencement of any proceedings pursuant to section 4042 of
ERISA to terminate any Pension Plan or for the appointment of
a trustee to administer any Pension Plan,
(B) any distress termination notice delivered to
the PBGC under section 4041 of ERISA in respect of any Pension
Plan, and any determination of the PBGC in respect thereof,
(C) the placement of any Multiemployer Plan in
reorganization status under Title IV of ERISA,
(D) any Multiemployer Plan becoming "insolvent"
(as such term is defined in section 4245 of ERISA) under Title
IV of ERISA,
Exhibit A-14
21
(E) the whole or partial withdrawal of the
Parent or the Company or any ERISA Affiliate from any
Multiemployer Plan and the withdrawal liability incurred in
connection therewith, and
(F) the withdrawal of the Parent or the Company
or any ERISA Affiliate from any Multiple Employer Pension Plan
and the withdrawal liability under ERISA incurred in
connection therewith;
and, in each of the cases specified in this clause (v), where the
effect of any such notice, condition or event or of any event or
condition related thereto would reasonably be expected to have a
Material Adverse Effect;"
3. AMENDMENT OF SECTION 10.1 OF THE EXISTING NOTE PURCHASE AGREEMENT.
(a) AMENDMENT TO EXISTING DEFINITIONS. Section 10.1 of the
Existing Note Purchase Agreement is hereby amended by deleting the definitions
of "Closing Date," "Cumulative Operating Expenses," "Designated Disposition
Value," "Downgrade Event," "Excess Cumulative Net Proceeds," "Multiple Employer
Pension Plan," "Pension Plan," "Person," "Qualified Indebtedness Coverage
Assets," "Qualified Restricted Payment Assets," "Real Estate Loans" and
"Scheduled Interest Payments" and the following definitions are substituted
respectively in lieu thereof:
"CLOSING DATE -- means December 11, 1998."
"CUMULATIVE OPERATING EXPENSES -- means, at any time, the
aggregate amount of Operating Expenses of the Company and SPHI,
determined on a consolidated basis for such Persons, paid, or due and
payable, from and including the Closing Date to such time."
"DESIGNATED DISPOSITION VALUE -- means, at any time, with
respect to each Real Estate Asset, the amount set forth on Annex 4
pertaining to such Real Estate Asset, adjusted as follows: the
Designated Disposition Value shall, subject to the provisions of
Section 8.2(c), be reduced
(a) with respect to any Real Estate Property, on
a Pro-Rata Basis in the event that a portion or portions of
such Real Estate Property shall have been sold at or prior to
such time, or
(b) with respect to any Real Estate Loan, on a
dollar-for-dollar basis to the extent that principal
reductions shall have been made on such Real Estate Loan at or
prior to such time;
provided that in the case of any Real Estate Loan made by the Company
or SPHI in the form of a Seller Note, the net book value (determined in
accordance with GAAP) of such Seller Note shall in all cases be deemed
to be its Designated Disposition Value. As used herein, the term
"Pro-Rata Basis" means, with respect to any portion of any Real Estate
Exhibit A-15
22
Property sold, the relationship of such portion sold to the portion
retained by the Company on a basis which is reasonably related to the
respective fair market values of the portions sold and retained at the
time of such sale, provided that the sum of the Designated Disposition
Value assigned to the portion sold plus the Designated Disposition
Value assigned the portion retained shall equal the Designated
Disposition Value of such Real Estate Property prior to adjustment."
"DOWNGRADE EVENT -- means the existence or occurrence of any
one or more of the following conditions:
(a) the Parent shall have senior unsecured debt
obligations with an actual credit rating of lower than "BBB-"
by S&P or lower than "Baa3" by Xxxxx'x,
(b) the Parent shall have subordinated unsecured
debt obligations with an actual credit rating of lower than
"BB+" by S&P or lower than "Ba1" by Xxxxx'x or
(c) the Parent shall fail to have any unsecured
debt obligations with a credit rating issued by S&P or
Xxxxx'x, unless
(i) the Company shall have obtained,
and shall maintain on an ongoing basis, at its
expense, private letter ratings of the Notes of at
least "BBB-" from S&P and of at least "Baa3" from
Xxxxx'x, or an Issuer Credit Rating (or a comparable
rating) of the Parent of at least "BBB-" from S&P and
an Issuer Rating (or a comparable rating) of the
Parent of at least "Baa3" from Xxxxx'x and
(ii) Consolidated Net Worth shall, at
all times, be at least Eight Hundred Million Dollars
($800,000,000)."
"EXCESS CUMULATIVE NET PROCEEDS -- means, at any time, an
amount equal to the result of
(a) the aggregate net cash proceeds received by
the Company and SPHI from all Real Estate Assets sold, paid
down or repaid at or prior to such time minus
(b) the aggregate of the Designated Disposition
Values for such Real Estate Assets, in each case determined as
of the date of sale, pay down or repayment of such Real Estate
Asset."
"MULTIPLE EMPLOYER PENSION PLAN -- means any employee benefit
plan within the meaning of section 3(3) of ERISA (other than a
Multiemployer Plan), subject to Title IV of ERISA, constituting a
"single-employer plan" (as defined in section 4001 of ERISA) which has
two (2) or more "contributing sponsors" (as defined in section 4001 of
ERISA), at least
Exhibit A-16
23
two (2) of which are not under "common control" (as defined in section
4001 of ERISA) and to which the Parent, the Company or any ERISA
Affiliate contribute; provided that for purposes of this Agreement the
Chicago Title & Trust Pension Plan shall be deemed not to be a Multiple
Employer Pension Plan."
"PENSION PLAN -- means, at any time, any "employee pension
benefit plan" (as defined in section 3 of ERISA) maintained at such
time by the Parent, the Company or any ERISA Affiliate for employees of
the Parent, the Company or such ERISA Affiliate, excluding any
Multiemployer Plan, but including, without limitation, any Multiple
Employer Pension Plan; provided that for purposes of this Agreement the
Chicago Title & Trust Pension Plan shall be deemed not to be a Pension
Plan."
"PERSON -- means an individual, partnership, corporation,
limited liability company, trust, unincorporated organization, or a
government or agency or political subdivision thereof."
"QUALIFIED INDEBTEDNESS COVERAGE ASSETS -- means
(a) at any time, when the Company or SPHI holds Real
Estate Assets, the sum (without duplication) of
(i) the aggregate Allowable Value of all Real
Estate Assets held by the Company and SPHI at such time, plus
(ii) cash of the Company and SPHI at such time,
plus
(iii) Permitted Investments (other than cash and
Real Estate Assets) of the Company and SPHI at such time, and
(b) at any time, when neither the Company nor SPHI holds
any Real Estate Assets, cash of the Company and SPHI at such time.
As used in this definition:
Allowable Value -- means,
(i) with respect to each North Natomas
Property, the Designated Disposition Value of such
Real Estate Property at such time
(ii) with respect to each Real Estate
Loan which is a Seller Note, the net book value
(determined in accordance with GAAP) of such Seller
Note at such time, and
(iii) with respect to each of the other
Real Estate Assets not covered by subclause (i) or
subclause (ii) above, the lesser of
Exhibit A-17
24
(A) the Designated Disposition
Value of such Real Estate Asset at such time
and
(B) the net book value
(determined in accordance with GAAP) of such
Real Estate Asset at such time."
"QUALIFIED RESTRICTED PAYMENT ASSETS -- means, at any time,
the sum (without duplication) of
(a) the lesser of
(i) the aggregate Designated Disposition
Value of all Real Estate Assets held by the Company
and SPHI at such time and
(ii) the Reserve for Disposition at such
time plus
(A) in the case of all Real
Estate Assets held by the Company and SPHI
at such time other than the North Natomas
Properties, the aggregate net book value
(each as determined in accordance with GAAP)
of such Real Estate Assets, and
(B) in the case of the North
Natomas Properties, the aggregate Designated
Disposition Value of such Real Estate
Properties at such time,
plus
(b) cash of the Company and SPHI at such time,
plus
(c) Permitted Investments (other than cash and
Real Estate Assets) of the Company and SPHI at such time.
As used in this definition:
Reserve for Disposition -- means, at any time, the
lesser of
(i) Four Million Five Hundred
Thirty-One Thousand Three Hundred Seventy-Nine
Dollars ($4,531,379) and
(ii) the aggregate amount of reserves
for disposition reflected on Annex 4 and attributable
to Real Estate Assets other than the North Natomas
Properties owned by the Company and SPHI at such
time."
"REAL ESTATE LOANS -- means loans to be repaid to the Company
or SPHI,
Exhibit A-18
25
including, without limitation, loans in the form of Seller Notes, that
are secured by unimproved or improved land with no significant building
improvements, which loans are available for sale by the Company or
SPHI."
"SCHEDULED INTEREST PAYMENTS -- means, at any time, the sum of
(a) all future unpaid scheduled payments of
interest in respect of the Notes and the 1998 Notes at such
time plus
(b) the aggregate amount of all future unpaid
scheduled payments of interest in respect of all other
Indebtedness of the Company and SPHI outstanding at such time,
in each case without application of any "present value" discount
thereto and assuming for such calculation that all principal payments
on the Notes and such other Indebtedness will be paid in accordance
with the regularly scheduled terms."
(b) ADDITION OF NEW DEFINITIONS. Section 10.1 is amended by adding
the following definitions in their appropriate alphabetical order:
"1998 NOTES -- means the Company's 6.83% Senior Notes due
December 11, 2004 issued pursuant to those certain Note Purchase
Agreements, each dated December 11, 1998, among the Company, the Parent
and each of the purchasers identified on Annex 1 thereto."
"NORTH NATOMAS PROPERTIES -- means the Real Estate Properties
identified on Part 10.1 of Annex 3."
"PERMITTED EXTRAORDINARY DIVIDEND -- means the dividend by the
Company to the Parent, on or about the Closing Date, in the amount of
Thirty-Nine Million Five Hundred Thousand Dollar ($39,500,000)."
"QPAM EXEMPTION means Prohibited Transaction Class Exemption
84-14 issued by the United States Department of Labor."
(c) DELETION OF EXISTING DEFINITIONS -- Section 10.1 is hereby
amended by deleting the definition of "Cumulative Contributions" .
Exhibit A-19
26
EXHIBIT B
ALLEGHANY CORPORATION
CERTIFICATE OF OFFICERS
The undersigned, ________________ and ________________, each hereby
certifies that we are the _______________ and ______________ of ALLEGHANY
CORPORATION, a Delaware corporation (the "PARENT"), and that, as such, we have
access to its corporate records and are familiar with the matters herein
certified, and we are authorized to execute and deliver this Certificate in the
name and on behalf of the Parent, and that:
1. This certificate is being delivered pursuant to (a) Section 3.3(a)
of the separate Note Purchase Agreements (collectively, the "NOTE PURCHASE
AGREEMENT"), each dated as of December 11, 1998, among Alleghany Properties,
Inc. (the "COMPANY"), the Parent and each of the purchasers listed in Annex 1
thereto (the "PURCHASERS") and (b) Section 3.2(a) of the Third Amendment to Note
Purchase Agreement (the "THIRD AMENDMENT") dated as of December 11, 1998 among
the Company, the Parent and the holders of the 1995 Notes (the "1995
NOTEHOLDERS"). The terms used in this Certificate and not defined herein have
the respective meanings specified in the Note Purchase Agreement.
2. The warranties and representations contained in Section 2 of the
Note Purchase Agreement and Section 4 of the Third Amendment are in all material
respects true on the date hereof with the same effect as though made on and as
of the date hereof.
3. The Parent has performed and complied with all agreements and
conditions contained in the Note Purchase Agreement and the Third Amendment that
are required to be performed or complied with by the Parent prior to or on the
date hereof, and such performance and compliance remains in effect on the date
hereof.
4. _____________, from _____________ to the date hereof, inclusive, has
been and is the duly elected, qualified and acting Secretary of the Parent, and
the signature appearing on the Certificate of Secretary dated the date hereof
and delivered to each Purchaser and the 1995 Noteholders contemporaneously
herewith is his/her genuine signature.
27
IN WITNESS WHEREOF, we have executed this Certificate in the name and
on behalf of the Parent on December __, 1998.
ALLEGHANY CORPORATION
By:__________________________________
Name:__________________________
By:__________________________________
Name:__________________________
2
28
Exhibit B
ALLEGHANY PROPERTIES, INC.
CERTIFICATE OF OFFICER
The undersigned, ________________ and ________________, each hereby
certifies that we are the _______________ and ______________ of ALLEGHANY
PROPERTIES, INC., a Delaware corporation (the "COMPANY"), and that, as such, we
have access to its corporate records and are familiar with the matters herein
certified, and we are authorized to execute and deliver this Certificate in the
name and on behalf of the Company, and that:
1. This certificate is being delivered pursuant to (a) Section 3.3(b)
of the separate Note Purchase Agreements (collectively, the "NOTE PURCHASE
AGREEMENT"), each dated as of December 11, 1998, among the Company, Alleghany
Corporation (the "PARENT") and each of the purchasers listed in Annex 1 thereto
(the "PURCHASERS") and (b) Section 3.2(a) of the Third Amendment to Note
Purchase Agreement (the "THIRD AMENDMENT") dated as of December 11, 1998 among
the Company, the Parent and the holders of the 1995 Notes (the "1995
NOTEHOLDERS"). The terms used in this Certificate and not defined herein have
the respective meanings specified in the Note Purchase Agreement.
2. The warranties and representations contained in Section 2 of the
Note Purchase Agreement and Section 4 of the Third Amendment are in all material
respects true on the date hereof with the same effect as though made on and as
of the date hereof.
3. The Company has performed and complied with all agreements and
conditions contained in the Note Purchase Agreement and the Third Amendment that
are required to be performed or complied with by the Company prior to or on the
date hereof, and such performance and compliance remains in effect on the date
hereof.
4. _________________, from ______________ to the date hereof,
inclusive, has been and is the duly elected, qualified and acting Secretary of
the Company, and the signature appearing on the Certificate of Secretary dated
the date hereof and delivered to the Purchasers and the 1995 Noteholders
contemporaneously herewith is his genuine signature.
IN WITNESS WHEREOF, we have executed this Certificate in the name and
on behalf of the Company on December __, 1998.
ALLEGHANY PROPERTIES, INC.
By:__________________________________
Name:________________________
By:__________________________________
Name:________________________
29
Exhibit C
ALLEGHANY CORPORATION
CERTIFICATE OF SECRETARY
I, ___________________, hereby certify that I am the duly elected,
qualified and acting Secretary of ALLEGHANY CORPORATION (the "PARENT"), a
Delaware corporation, and that, as such, I have access to its corporate records
and am familiar with the matters herein certified, and I am authorized to
execute and deliver this Certificate in the name and on behalf of the Parent,
and that:
1. This Certificate is being delivered pursuant to (a) Section 3.3(c)
of the separate Note Purchase Agreements (collectively, the "NOTE PURCHASE
AGREEMENT"), each dated as of December 11, 1998, among Alleghany Properties,
Inc. (the "COMPANY"), the Parent and each of the purchasers listed on Annex 1
thereto (collectively, the "PURCHASERS") and (b) Section 3.2(b) of the Third
Amendment to Note Purchase Agreement (the "THIRD AMENDMENT") dated as of
December 11, 1998 among the Company, the Parent and the holders of the 1995
Notes. The capitalized terms used in this Certificate and not defined herein
have the respective meanings specified in the Note Purchase Agreement.
2. Attached hereto as Attachment A is a true and correct copy of
resolutions adopted by the Executive Committee of the Board of Directors of the
Parent on ____________, and such resolutions set forth in Attachment A hereto
were duly adopted by said Executive Committee and are in full force and effect
on and as of the date hereof, not having been amended, altered or repealed, and
such resolutions are filed with the records of the Executive Committee.
3. The Note Purchase Agreement and the Third Amendment were executed
and delivered by the Parent pursuant to and in accordance with the resolutions
set forth in Attachment A hereto and said document as executed is substantially
in the form approved by the Executive Committee of the Parent as aforementioned.
4. Attached hereto as Attachment B is a true, correct and complete copy
of the bylaws of the Parent as in full force and effect on and as of the date
hereof, which bylaws have been in full effect in said form at all times from
_______________ to the date hereof, inclusive, without modification or amendment
in any respect.
5. Each of the persons named on Attachment C is and has been a duly
elected, qualified and acting officer of the Parent holding the office or
offices set forth below opposite his or her name on Attachment C from
________________ to the date hereof, inclusive.
6. The signature appearing opposite the name of each such person set
forth on Attachment C is his or her genuine signature.
7. Attached hereto as Attachment D is a long-form good standing
certificate in respect of the Parent from the State of Delaware which
certificate
(a) lists all corporate documents filed with the Secretary of
State of Delaware on or prior to the date hereof in respect of the
Parent,
(b) has attached copies of such documents,
30
(c) bears the certification of the Secretary of State of
Delaware, and
(d) is true, correct and complete.
8. There have been no amendments or supplements to or restatements of
the Certificate of Incorporation of the Parent since ______________.
IN WITNESS WHEREOF, I have hereunto set my hand on December __, 1998.
ALLEGHANY CORPORATION
Secretary
_____________________________________
2
31
ATTACHMENT A
Resolutions of the Parent
[To be supplied by the Parent]
3
32
ATTACHMENT B
Bylaws of the Parent
[To be supplied by the Parent]
4
33
ATTACHMENT C
Authorized Officers and Specimen Signatures
[To be supplied by the Parent]
5
34
ATTACHMENT D
Long Form Good Standing Certificate
[To be supplied by the Parent]
6
35
Exhibit C
ALLEGHANY PROPERTIES, INC.
CERTIFICATE OF SECRETARY
I, __________, hereby certify that I am the duly elected, qualified and
acting Secretary of ALLEGHANY PROPERTIES, INC. (the "COMPANY"), a Delaware
corporation, and that, as such, I have access to its corporate records and am
familiar with the matters herein certified, and I am authorized to execute and
deliver this Certificate in the name and on behalf of the Company, and that:
1. This Certificate is being delivered pursuant to (a) Section 3.3(d) of
the separate Note Purchase Agreements (collectively, the "NOTE PURCHASE
AGREEMENT"), each dated as of December 11, 1998, among the Company, Alleghany
Corporation (the "PARENT") and each of the purchasers listed on Annex 1 thereto
(collectively, the "PURCHASERS") and (b) Section 3.2(b) of the Third Amendment
to Note Purchase Agreement (the "THIRD AMENDMENT") dated as of December 11,
1998 among the Company, the Parent and the holders of the 1995 Notes. The
capitalized terms used in this Certificate and not defined herein have the
respective meanings specified in the Note Purchase Agreement.
2. Attached hereto as Attachment A is a true and correct copy of the
resolutions, and the preamble thereto, of the Board of Directors of the Company
adopting resolutions on ____________, and such resolutions were duly adopted by
said Board of Directors and are in full force and effect on and as of the date
hereof, not having been amended, altered or repealed, and such resolutions are
filed with the records of the Board of Directors.
3. The documents listed below were executed and delivered by the Company
pursuant to and in accordance with the resolutions set forth in Attachment A
hereto and said documents as executed are substantially in the form approved by
the Board of Directors of the Company as aforementioned:
(a) the Note Purchase Agreement providing for, among other things,
the issuance and sale by the Company and the purchase by the Purchasers of
the Company's 6.83% Senior Notes due December 11, 2004 (the "Notes");
(b) the Notes; and
(c) the Third Amendment.
4. Attached hereto as Attachment B is a true, correct and complete copy
of the bylaws of the Company as in full force and effect on and as of the date
hereof, which bylaws have been in full effect in said form at all times from
__________ to the date hereof, inclusive, without modification or amendment in
any respect.
5. Each of the persons named on Attachment C is and has been a duly
elected, qualified and acting officer of the Company holding the office or
offices set forth below his or her name on Attachment C from _____________ to
the date hereof, inclusive.
6. The signature appearing opposite the name of each such person set
forth on Attachment C is his or her genuine signature.
36
7. Attached hereto as Attachment D is a long-form good standing certificate
in respect of the Company from the State of Delaware which certificate
(a) lists all corporate documents filed with the Secretary of State
of Delaware on or prior to the date hereof in respect of the Company,
(b) has attached copies of such documents,
(c) bears the certification of the Secretary of State of
Delaware, and
(d) is true, correct and complete.
1. There have been no amendments or supplements to or restatements of the
Certificate of Incorporation of the Company since _______________.
IN WITNESS WHEREOF, I have hereunto set my hand on December __, 1998.
ALLEGHANY PROPERTIES, INC.
Secretary
------------------------------------
37
ATTACHMENT A
Resolutions of the Company
[To be supplied by the Company]
3
38
ATTACHMENT B
Bylaws of the Company
[To be supplied by the Company]
4
39
ATTACHMENT C
Authorized Officers and Specimen Signatures
[To be supplied by the Company]
5
40
ATTACHMENT D
Long Form Good Standing Certificate
[To be supplied by the Company]
6
