EXHIBIT 10(C)
AMENDMENT NO. 2 TO CREDIT AGREEMENT AND WAIVER
This Amendment (this "Amendment") is entered into as of July 30, 1999 by
and among White Mountains Insurance Group, Inc., a Delaware corporation,
formerly known as Fund American Enterprises Holdings, Inc., (the "Borrower"),
The First National Bank of Chicago, individually and as agent ("Agent"), and
the other financial institutions signatory hereto (the "Lenders").
RECITALS
A. The Borrower, the Agent and the Lenders are party to that certain
$35,000,000 Second Amended and Restated Credit Agreement dated as of February
24, 1999 (as amended, the "Credit Agreement"). Unless otherwise specified
herein, capitalized terms used in this Amendment shall have the meanings
ascribed to them by the Credit Agreement.
B. The Borrower, the Agent and the undersigned Lenders wish to amend the
Credit Agreement on the terms and conditions set forth below.
Now, therefore, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Upon the Effective Date (as
defined below), the Credit Agreement shall be amended as follows:
(a) ARTICLE I is amended by deleting the definitions of
"Borrower" and "Unfunded Liability" and replacing each in its entirety
to read as follows:
"`Borrower' means White Mountains Insurance Group, Inc., a
Delaware corporation, formerly known as Fund American Enterprises
Holdings, Inc., and its successors and assigns"
"`Unfunded Liability' means the amount (if any) by which the
present value of all vested and unvested accrued benefits under a
Single Employer Plan exceeds the fair market value of assets
allocable to such benefits, all determined as of the then most
recent valuation date for such Plans and valued on a basis
consistent with that used to prepare the Borrower's annual audited
financial statements."
(b) SECTION 5.10 is amended by deleting the first sentence in
such section and replacing it in its entirety to read as follows:
"Except as disclosed on SCHEDULE 5.10 or as otherwise disclosed by
the Borrower in writing to the Lenders, neither the Borrower nor
any other member of the Controlled Group maintains any Single
Employer Plans, and no Single Employer Plan has any Unfunded
Liability."
(c) SECTION 6.22(b) is amended by deleting the second
reference contained therein to the dollar amount of "$500,000" and
replacing it with a reference to the dollar amount of "$1,000,000".
(d) SCHEDULE 5.10 is amended in its entirety and replaced with
SCHEDULE 5.10 attached hereto.
2. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants that:
(a) The execution, delivery and performance by the Borrower of
this Amendment has been duly authorized by all necessary corporate
action and that this Amendment is a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its
terms, except as the enforcement thereof may be subject to the effect of
any applicable bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditors' rights generally;
(b) After giving effect to this Amendment, each of the
representations and warranties contained in the Credit Agreement is true
and correct in all material respects on and as of the date hereof as if
made on the date hereof; and
(c) After giving effect to this Amendment, no Default or
Unmatured Default has occurred and is continuing.
3. EFFECTIVE DATE. This Amendment shall become effective upon the
execution and delivery hereof by the Borrower, the Agent and the Required
Lenders (without respect to whether it has been executed and delivered by all
the Lenders); provided that SECTION 1 hereof shall not become effective until
the date (the "Effective Date") when the following additional conditions have
also been satisfied:
(a) a certificate, executed by the Secretary or Assistant
Secretary of the Borrower, certifying (i) an attached copy of the
Borrower's Board of Directors' resolutions authorizing and directing any
changes to the Borrower's Articles of Incorporation to effect a change
in its corporate name and (ii) that there have been no amendments,
supplements or modifications to any of the Articles of Incorporation,
Bylaws or certificate of incumbency of the Borrower delivered to the
Agent on February 24, 1999, or attached copies of such amendments,
supplements or modifications; and
(b) such other documents as the Agent, any Lender or their
counsel may have reasonably requested.
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In the event the Effective Date has not occurred on or before July 31,
1999, SECTION 1 hereof shall not become operative and shall be of no
force or effect.
4. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
(a) Except as specifically amended above, the Credit Agreement
and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Agent
or any Lender under the Credit Agreement or any Loan Document, nor
constitute a waiver of any provision of the Credit Agreement or any Loan
Document, except as specifically set forth herein. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement
to "this Agreement", "hereunder", "hereof", "herein" or words of similar
import shall mean and be a reference to the Credit Agreement as amended
hereby.
5. COSTS AND EXPENSES. The Borrower hereby affirms its obligations
under Section 9.7 of the Credit Agreement to reimburse the Agent for all
reasonable costs, internal charges and out-of-pocket expenses paid or
incurred by the Agent in connection with the preparation, negotiation,
execution and delivery of this Amendment, including but not limited to the
attorneys' fees and time charges of attorneys for the Agent with respect
thereto.
6. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION
105/5-1 ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
7. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but
all such counterparts shall constitute one and the same instrument.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date and year first above written.
WHITE MOUNTAINS INSURANCE GROUP, INC.
By:
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Name:
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO,
Individually and as Agent
By:
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Print Name:
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Title:
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Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
First Vice President
Fax No.: (000) 000-0000
Tel. No.: (000) 000-0000
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FLEET NATIONAL BANK
By:
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Print Name:
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Title:
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Address: Xxx Xxxxxxx Xxxxxx-XXXXX00X
Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxxx
Vice President
Fax No.: (000) 000-0000
Tel. No.: (000) 000-0000
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FIRST UNION NATIONAL BANK
By:
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Print Name:
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Title:
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Address: 0000 Xxxxxxxx Xxxxxx, XX0000
Xxxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx XxXxxxxxxxx
Fax No.: 000-000-0000
Tel. No.: 000-000-0000
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XXXXXXXX XXXX XX,
Xxx Xxxx and/or Cayman Islands Branch
By:
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Print Name:
-----------------------------
Title:
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By:
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Print Name:
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Title:
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Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx
Fax No.: 000-000-0000
Tel. No.: 000-000-0000
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ABN AMRO BANK N.V.
By:
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Print Name:
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Title:
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By:
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Print Name:
-----------------------------
Title:
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Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Fax No.: 000-000-0000
Tel. No.: 000-000-0000
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