Exhibit 10.1
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT, dated as of the 25th day
of June, 2004 (this Eighth Amendment), is made among SELECTIVE INSURANCE GROUP,
INC., a New Jersey corporation with its principal offices in Branchville, New
Jersey (the Parent), SELECTIVE INSURANCE COMPANY OF AMERICA, a New Jersey
corporation with its principal offices in Branchville, New Jersey (SICA, and
collectively with the Parent, the Borrowers), and WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as First Union National Bank and hereinafter, the
Lender). Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Credit Agreement referred to below, as amended by
this Eighth Amendment. Unless otherwise specified, section references herein
refer to sections set forth in the Credit Agreement, as amended by this Eighth
Amendment.
RECITALS
A. The Borrowers and the Lender are parties to a Credit
Agreement, dated as of October 22, 1999 (as amended, the Credit Agreement),
providing for the availability of a revolving credit facility to the Borrowers
upon the terms and conditions set forth therein.
B. The Borrowers have requested an extension of the maturity
of such revolving credit facility, as more fully set forth herein, and the
Lender has agreed to such extension upon the terms and conditions set forth
herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for themselves
and their successors and assigns, agree as follows:
ARTICLE I
AMENDMENT TO CREDIT AGREEMENT
1.1 The following definitions are hereby added to Section 1.1
of the Credit Agreement in appropriate alphabetical order:
Eighth Amendment Fee Letter shall mean the letter from
Wachovia to the Parent, dated June 25, 2004, relating to certain fees
payable by the Parent in respect of the transactions contemplated by the
Eighth Amendment, as amended, modified or supplemented from time to
time.
Eighth Amendment shall mean the Eighth Amendment to Credit
Agreement, dated as of June 25, 2004.
1.2 The following definitions appearing in Section 1.1 of the
Credit Agreement are hereby amended and restated in their entirety as follows:
Agreement shall mean this Credit Agreement, as amended by the
First Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment, the Sixth Amendment, the Seventh
Amendment and the Eighth Amendment and as further amended, modified or
supplemented from time to time.
Maturity Date shall mean June 24, 2005 or such later date to
which the Maturity Date may be extended pursuant to Section 2.18.
1.3 Section 2.18 is hereby amended by replacing the references
therein to June 26, 2004 with June 24, 2005.
1.4 Section 6.1 is hereby amended by replacing the reference
therein to $390,000,000 with $480,000,000.
1.5 Section 6.2 of the Credit Agreement is amended and
restated as follows:
Section 6.2 Maximum Consolidated Debt to Total
Capitalization. The ratio of Consolidated Indebtedness to Consolidated
Total Capital as of any date of determination will not be greater than
30%.
ARTICLE II
EFFECTIVENESS
This Eighth Amendment shall become effective as of June 25, 2004
(the Eighth Amendment Effective Date) when, and only when, each of the following
conditions shall have been satisfied:
(a) The Lender shall have received the following, each dated
as of the Eighth Amendment Effective Date:
(i) an executed counterpart hereof from each of the Borrowers;
(ii) a certificate, signed by the president, the chief executive
officer or the chief financial officer of each of the Borrowers, in form
and substance reasonably satisfactory to the Lender, certifying that as
of the Eighth Amendment Effective Date, (i) each of the representations
and warranties of such Borrower contained in this Eighth Amendment, the
Credit Agreement and the other Credit Documents is true and correct on
and as of the Eighth Amendment Effective Date, both immediately before
and after giving effect to this Eighth Amendment, with the same effect
as if made on and as of such date (except to the extent any such
representation or warranty is expressly stated to have been made as of a
specific date, in which case such representation or warranty is true and
correct as of such date) and (ii) on and as of the Eighth Amendment
Effective Date, both immediately before and after giving effect to this
Eighth Amendment, no Default or Event of Default has occurred and is
continuing; and
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(iii) a certificate of the secretary or assistant secretary of each
Borrower, in form and substance reasonably satisfactory to the Lender,
certifying that (i) the articles or certificate of incorporation or
other comparable organizational documents and the bylaws or comparable
governing documents of such entity have not been amended since the
Seventh Amendment Effective Date (or, if and to the extent any of the
foregoing have been amended since such date, a statement to such effect,
attaching copies thereof) and (ii) that attached thereto is a true and
complete copy of resolutions adopted by the board of directors (or
similar governing body) of such Borrower, authorizing the execution,
delivery and performance of this Eighth Amendment.
(b) The Borrowers shall have paid all fees and expenses
relating to the Eighth Amendment and the Credit Agreement which are due and
payable on the Eighth Amendment Effective Date, including (i) the unpaid balance
of all fees payable to the Lender pursuant to the Eighth Amendment Fee Letter
and (ii) all other fees and expenses of the Lender required hereunder or under
any other Credit Document to be paid on or prior to the Eighth Amendment
Effective Date (including reasonable fees and expenses of counsel) in connection
with this Eighth Amendment and the transactions contemplated hereby.
(c) Since December 31, 2003, both immediately before and
after giving effect to the Eighth Amendment, there shall not have occurred any
Material Adverse Change with respect to either Borrower or any event, condition
or state of facts that is reasonably likely to result in a Material Adverse
Change with respect to either Borrower.
(d) The Lender shall have received such other documents,
certificates, opinions, and instruments in connection with the Eighth Amendment
as it shall have reasonably requested.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers hereby represents and warrants to the Lender
that, after giving effect to this Eighth Amendment:
(a) Each of the representations and warranties of such
Borrower contained in the Credit Agreement is true and correct on and as of the
Eighth Amendment Effective Date with the same effect as if made on and as of the
Eighth Amendment Effective Date (except to the extent any such representation or
warranty is expressly stated to have been made as of a specific date, in which
case such representation or warranty is true and correct as of such date).
(b) On and as of the Eighth Amendment Effective Date and both
immediately before and after giving effect to the Eighth Amendment, no Default
or Event of Default has occurred and is continuing.
(c) Other than in connection with amendment set forth herein
to Section 6.2 of the Credit Agreement, the Borrowers have not amended, modified
or waived, or agreed to amend, modify or waive, any of the covenants,
representations or defaults contained in the Indebtedness referred to in clause
(b) of Section 7.2(iii) of the Credit Agreement in such a manner as to give the
Lender the right (but not the obligation) to have any or all of such different
or additional covenants, representations or defaults incorporated by reference
into the Credit Agreement.
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ARTICLE IV
GENERAL
4.1 Full Force and Effect. Except as expressly amended
hereby, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof on the date hereof. As used in the
Credit Agreement, hereinafter, hereto, hereof, and words of similar import
shall, unless the context otherwise requires, mean the Credit Agreement after
amendment by this Eighth Amendment. Any reference to the Credit Agreement or
any of the other Credit Documents herein or in any such documents shall refer to
the Credit Agreement and Credit Documents as amended hereby. This Eighth
Amendment is limited as specified and shall not constitute or be deemed to
constitute an amendment, modification or waiver of any provision of the Credit
Agreement except as expressly set forth herein. This Eighth Amendment shall
constitute a Credit Document under the terms of the Credit Agreement.
4.2 Expenses. The Borrowers agree on demand (i) to pay all
reasonable fees and expenses of counsel to the Lender and (ii) to reimburse the
Lender for all reasonable out-of-pocket costs and expenses, in each case, in
connection with the preparation, negotiation, execution and delivery of this
Eighth Amendment.
4.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (including
Sections 5-1401 and 5-1402 of the New York General Obligations Law, but
excluding all other choice of law and conflicts of law rules).
4.4 Counterparts. This Eighth Amendment may be executed in
two or more counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute but one instrument.
4.5 Construction. The headings of the various sections and
subsections of this Eighth Amendment have been inserted for convenience only and
shall not in any way affect the meaning or construction of any of the provisions
hereof.
4.6 Severability. To the extent any provision of this Eighth
Amendment is prohibited by or invalid under the applicable law of any
jurisdiction, such provision shall be ineffective only to the extent of such
prohibition or invalidity and only in any such jurisdiction, without prohibiting
or invalidating such provision in any other jurisdiction or the remaining
provisions of this Eighth Amendment in any jurisdiction.
4.7 Successors and Assigns. This Eighth Amendment shall be
binding upon, inure to the benefit of and be enforceable by the respective
successors and permitted assigns of the parties hereto.
[signatures appear on the following pages]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Eighth Amendment
to be executed by its duly authorized officer as of the Eighth Amendment
Effective Date.
SELECTIVE INSURANCE GROUP, INC.
By: /s/ Jennifer W. DiBerardino
Name: Jennifer W. DiBerardino
Title: AVP, Assistant Treasurer
SELECTIVE INSURANCE COMPANY OF AMERICA
By: /s/ Jennifer W. DiBerardino
Name: Jennifer W. DiBerardino
Title: VP, Assistant Treasurer
(signatures continue)
SIGNATURE PAGE TO
EIGHTH AMENDMENT
WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly known as First Union National Bank)
By: /s/ Kimberly Shaffer
Name: Kimberly Shaffer
Title: Director
SIGNATURE PAGE TO
EIGHTH AMENDMENT
CERTIFICATE OF SECRETARY
OF
SELECTIVE INSURANCE GROUP, INC.
I, Michele N. Schumacher, hereby certify that I am the duly elected, qualified
and acting Secretary of Selective Insurance Group, Inc. a New Jersey corporation
(the Company), 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 Section
2.3 of the Eighth Amendment to Credit Agreement (Credit Agreement), dated as of
June 25, 2004. The terms used in this Certificate and not defined herein have
the respective meanings specified in the Credit Agreement, as amended.
2. Since October 22, 1999, there has been no amendment to
the Articles of Incorporation of the Company.
3. Since November 6, 2001, there has been no amendment to
the Bylaws of the Company.
4. The following resolution was duly adopted by unanimous
written consent of the Board of Directors of the Company effective on the 27th
day of June, and said resolution has not been amended or rescinded and is in
full force and effect:
RESOLVED, that the Chairman and Chief Executive Officer,
Senior Vice President-Chief Financial Officer,
Comptroller, or such other officer as they may designate,
are hereby authorized and directed to obtain loans on
behalf of the Company from the WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as First Union National Bank)
(the Lender) in an amount not to exceed Thirty Million and
00/100 ($30,000,000) Dollars. The said officers and each
of them, be and are hereby authorized and directed to do
all things which may be necessary or proper for carrying
out this Resolution, including but not limited to the
following:
(1) To obligate this Company in such amounts, at such
rates of interest, and on such other terms and
conditions as they shall deem proper;
(2) To execute and deliver to the Lender all such
written instruments as may be required by the
Lender;
(3) To pay, extend or renew such obligations, and to
reborrow from time to time, subject to the
provisions of this Resolution, any of the amounts
repaid on any loan made pursuant hereto.
RESOLVED, FURTHER, that the provisions of this Resolution
shall remain in full force and effect until a certified
copy of a duly adopted resolution effecting a rescission
or amendment of this Resolution shall be furnished to said
Lender; and it is
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed
the Seal of the company this 25th day of June 2005.
By: /s/ Michele N. Schumacher
Name: Michele N. Schumacher
Title: Vice President, Corporate Secretary &
Corporate Governance Officer
CERTIFICATE OF SECRETARY
OF
SELECTIVE INSURANCE COMPANY OF AMERICA
I, Michele N. Schumacher, hereby certify that I am the duly elected, qualified
and acting Secretary of Selective Insurance Company of America, a New Jersey
corporation (the Company), 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 Section
2.3 of the Eighth Amendment to Credit Agreement (Credit Agreement), dated as of
June 25, 2004. The terms used in this Certificate and not defined herein have
the respective meanings specified in the Credit Agreement, as amended.
2. Since October 22, 1999, there has been no amendment to
the Articles of Incorporation of the Company.
3. Since November 6, 2001, there has been no amendment to
the Bylaws of the Company.
4. The following resolution was duly adopted by unanimous
written consent of the Board of Directors of the Company effective on the
27thday of June, and said resolution has not been amended or rescinded and is in
full force and effect:
RESOLVED, that the Chairman and Chief Executive Officer,
Senior Vice President-Chief Financial Officer,
Comptroller, or such other officer as they may designate,
are hereby authorized and directed to obtain loans on
behalf of the Company from the WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly known as First Union National Bank)
(the Lender) in an amount not to exceed Thirty Million and
00/100 ($30,000,000) Dollars. The said officers and each
of them, be and are hereby authorized and directed to do
all things which may be necessary or proper for carrying
out this Resolution, including but not limited to the
following:
(1) To obligate this Company in such amounts, at such
rates of interest, and on such other terms and
conditions as they shall deem proper;
(2) To execute and deliver to the Lender all such
written instruments as may be required by the
Lender;
(3) To pay, extend or renew such obligations, and to
reborrow from time to time, subject to the
provisions of this Resolution, any of the amounts
repaid on any loan made pursuant hereto.
RESOLVED, FURTHER, that the provisions of this Resolution
shall remain in full force and effect until a certified
copy of a duly adopted resolution effecting a rescission
or amendment of this Resolution shall be furnished to said
Lender; and it is
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the Seal of
the company this 25th day of June 2005.
By: /s/ Michele N. Schumacher
Name: Michele N. Schumacher
Title: Vice President, Corporate Secretary &
Corporate Governance Officer
OFFICER'S CERTIFICATE
SELECTIVE INSURANCE COMPANY OF AMERICA
THIS CERTIFICATE is delivered pursuant to Section 2.1 of the Eighth
Amendment to Credit Agreement, dated as of June 25, 2004.(the Amendment), among
SELECTIVE INSURANCE GROUP, INC. (Parent), SELECTIVE INSURANCE COMPANY OF AMERICA
(SICA, and collectively with the Parent, the Borrowers) and WACHOVIA BANK,
NATIONAL ASSOCIATION (formerly known as First Union National Bank) (the Lender).
The Borrowers and the Lender are parties to a Credit Agreement, dated as of
October 22, 1999 (as amended, the Credit Agreement), providing for the
availability of a revolving credit facility to the Borrowers upon the terms and
conditions set forth therein. Capitalized terms used herein without definition
shall have the meanings given to them in the Credit Agreement as amended by the
Eighth Amendment.
The undersigned hereby certifies that (i) each of the
representations and warranties of SICA contained in the Eighth Amendment, the
Credit Agreement and the other Credit Documents is true and correct on and as of
the Eighth Amendment Effective Date and after giving effect to the Eighth
Amendment with the same effect as if made on and as of such date (except to the
extent any such representation or warranty is expressly stated to have been made
as of a specific date, in which case such representation or warranty is true and
correct as of such date), and (ii) on and as of the Eighth Amendment Effective
Date, both immediately before and after giving effect to the Eighth Amendment,
no Default or Event of Default has occurred and is continuing.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Officer's
Certificate this 25th day of June, 2004.
By: /s/ Gregory E. Murphy
Name: Gregory E. Murphy
Title: Chairman and CEO
OFFICER'S CERTIFICATE
SELECTIVE INSURANCE GROUP, INC.
THIS CERTIFICATE is delivered pursuant to Section 2.1 of the Eighth
Amendment to Credit Agreement, dated as of June 25, 2004 (the Amendment), among
SELECTIVE INSURANCE GROUP, INC. (Parent), SELECTIVE INSURANCE COMPANY OF AMERICA
(SICA, and collectively with the Parent, the Borrowers) and WACHOVIA BANK,
NATIONAL ASSOCIATION (formerly known as First Union National Bank) (the Lender).
The Borrowers and the Lender are parties to a Credit Agreement, dated as of
October 22, 1999 (as amended, the Credit Agreement), providing for the
availability of a revolving credit facility to the Borrowers upon the terms and
conditions set forth therein. Capitalized terms used herein without definition
shall have the meanings given to them in the Credit Agreement as amended by the
Eighth Amendment.
The undersigned hereby certifies that (i) each of the
representations and warranties of Parent contained in the Eighth Amendment, the
Credit Agreement and the other Credit Documents is true and correct on and as of
the Eighth Amendment Effective Date and after giving effect to the Eighth
Amendment with the same effect as if made on and as of such date (except to the
extent any such representation or warranty is expressly stated to have been made
as of a specific date, in which case such representation or warranty is true and
correct as of such date), and (ii) on and as of the Eighth Amendment Effective
Date, both immediately before and after giving effect to the Eighth Amendment,
no Default or Event of Default has occurred and is continuing.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Officer's Certificate this 25th day of June, 2004.
By: /s/ Gregory E. Murphy
Name: Gregory E. Murphy
Title: Chairman and CEO