FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT, dated as of May
18, 1999 (this "First Amendment and Waiver"), is made in respect of the Credit
Agreement dated December 30, 1998 (as amended hereby, the "Credit Agreement"),
among PXRE CORPORATION, a Delaware corporation with its principal offices in
Edison, New Jersey (the "Borrower") the banks and financial institutions listed
on the signature pages thereof or that become parties thereto after the date
thereof (collectively the "Lenders"), and FIRST UNION NATIONAL BANK, as agent
for the Lenders (in such capacity, the "Agent"). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Credit
Agreement.
RECITALS
A. The Borrower and the Agent agree to change the Applicable Margin
Percentage for LIBOR Loans to reflect a pricing increase at each of Levels I
through V of 1/8%.
B. The parties desire to remove the arbitration provision in the Credit
Agreement and substitute therefor a waiver of jury trial provision and to change
the governing law of the Credit Agreement from the laws of North Carolina to the
laws of New York.
C. The Borrower has requested that the Lenders waive a violation by the
Borrower of the Credit Agreement, and the Lenders have agreed to effect such
waiver 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 Amendment to SECTION 1.1. The matrix set forth in the definition of
"Applicable Margin Percentage" in SECTION 1.1 of the Credit Agreement shall be
deleted in its entirety and the following shall be substituted therefor as of
the date hereof and such substitution will have no effect prior to the date
hereof:
Applicable Margin
Moody's / Applicable Margin Applicable Margin Percentage for
Standard & Poor's Percentage for Percentage for Unutilized
Level Rating Base Rate Loans LIBOR Loans Commitments Fee
- --------------------------------------------------------------------------------------------------------------------
I A3 / A- or above 0.0% 0.750% 0.175%
II Baa1 / BBB+ 0.0% 0.875% 0.200%
III Baa2 / BBB 0.0% 1.000% 0.250%
IV Baa3 / BBB- 0.0% 1.125% 0.300%
V Less than Baa3 / BBB-
0.5% 1.625% 0.500%
1.2 Amendment to SECTION 10.3. SECTION 10.3 of the Credit Agreement
shall be deleted in its entirety and the following SECTION 10.3 substituted
therefor:
10.3 Governing Law; Consent to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
THE PARTIES HERETO HEREBY DECLARE THAT IT IS THEIR INTENTION THAT THIS
AGREEMENT SHALL BE REGARDED AS MADE UNDER THE LAWS OF THE STATE OF NEW
YORK AND THAT THE LAWS OF SAID STATE SHALL BE APPLIED IN INTERPRETING
ITS PROVISIONS IN ALL CASES WHERE LEGAL INTERPRETATION SHALL BE
REQUIRED. EACH OF THE PARTIES HERETO AGREES (A) THAT THIS AGREEMENT
INVOLVES AT LEAST $250,000; AND (B) THAT THIS AGREEMENT HAS BEEN
ENTERED INTO BY THE PARTIES HERETO IN EXPRESS RELIANCE UPON N.Y.
GENERAL OBLIGATIONS LAW 'SS' 5-1401. NOTWITHSTANDING THE FOREGOING
CHOICE OF LAW, THE BORROWER HEREBY CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF ANY STATE COURT WITHIN MECKLENBURG COUNTY, NORTH
CAROLINA OR ANY FEDERAL COURT LOCATED WITHIN THE WESTERN DISTRICT OF
THE STATE OF NORTH CAROLINA FOR ANY PROCEEDING INSTITUTED HEREUNDER OR
UNDER ANY OF THE OTHER CREDIT DOCUMENTS, OR ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS, OR
ANY PROCEEDING TO WHICH THE AGENT OR ANY LENDER OR THE BORROWER IS A
PARTY, INCLUDING ANY ACTIONS BASED UPON, ARISING OUT OF, OR IN
CONNECTION WITH ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT OR ANY LENDER OR THE
BORROWER. THE BORROWER IRREVOCABLY AGREES TO BE BOUND
(SUBJECT TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY JUDGMENT RENDERED OR
RELIEF GRANTED THEREBY AND FURTHER WAIVES ANY OBJECTION THAT IT MAY
HAVE BASED ON LACK OF JURISDICTION OR IMPROPER VENUE OR FORUM NON
CONVENIENS TO THE CONDUCT OF ANY SUCH PROCEEDING. THE BORROWER CONSENTS
THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL
DIRECTED TO IT AT ITS ADDRESS SET FORTH HEREINBELOW, AND SERVICE SO
MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT
THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS,
PROPER POSTAGE PREPAID AND PROPERLY ADDRESSED. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF THE AGENT OR ANY LENDER TO
BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER IN THE COURTS OF
ANY OTHER JURISDICTION.
1.3 Amendment to SECTION 10.4. SECTION 10.4 of the Credit Agreement
shall be deleted in its entirety and the following SECTION 10.4 substituted
therefor:
10.4 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED
UNDER APPLICABLE LAW, EACH OF THE BORROWER, THE LENDERS AND THE AGENT
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATED TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
ARTICLE II
WAIVER
The Borrower has made available to the Agent and the Lenders certain
preliminary financial information with respect to the fiscal quarter ended March
31, 1999. Based upon such preliminary financial information, the Borrower has
acknowledged that one of its Subsidiaries, Transnational Insurance Company
("Transnational"), has failed to comply with the provisions of Section 7.5(c)
(Investments) of the Credit Agreement as of the last day of the fiscal quarter
ended March 31, 1999, and such noncompliance is continuing as of the date
hereof. As a consequence of such noncompliance, an Event of Default has
occurred and is continuing under the Credit Agreement. The Borrower has
requested that the Lenders temporarily waive, until June 30, 1999, any Default
or Event of Default arising from any failure of Transnational to comply with
the provisions of SECTION 7.5(c) and the Lenders have agreed to provide
such waiver on the terms and conditions set forth herein.
Accordingly, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Lenders hereby agree to waive the Default temporarily until
June 30, 1999. The Borrower understands that the waiver of the Default by the
Lenders set forth herein is temporary in effect and will expire on June 30,
1999; and the Borrower further understands that on June 30, 1999, all of the
requirements of SECTIONS 7.5(c) of the Credit Agreement that have been
temporarily waived as provided herein (and not further waived or modified prior
to such time) shall, without any further action by or notice to or from the
Agent or any Lender, be in full force and effect, and unless such noncompliance
shall have been cured, the Agent and the Lenders shall have all of the rights
and remedies provided to them under the Credit Agreement, the other Credit
Documents, applicable law or otherwise with respect to any and all such
requirements as though no waiver had been granted hereunder.
If any Default or Event of Default (other than with respect to the
Specified Default being waived as specifically described hereinabove) should
occur and be continuing under the Credit Agreement, the Agent and the Lenders
will be under no obligation to forbear the exercise of their rights and
remedies under the Credit Agreement, the other Credit Documents, applicable law
or otherwise. The waiver of the Lenders set forth herein 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 or a waiver of
any Default or Event of Default except as expressly set forth herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby certifies and warrants to the Agent and the Lenders
that (a) after giving effect to the amendments and waiver effected hereby, each
of the representations and warranties contained in ARTICLE IV of the Credit
Agreement and in the other Credit Documents are true and correct in all material
respects on the date hereof with the same effect as though made on the date
hereof, both immediately before and after giving effect to this Amendment
(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 shall be true and correct as of such specified date), and (b) after
giving effect to the amendments and waiver effected hereby, no Default or Event
of Default shall have occurred and be continuing on the date hereof.
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
First Amendment and Waiver. 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.
4.2 Applicable Law. This First Amendment and Waiver shall be governed
by and construed in accordance with the internal laws and judicial decisions of
the State of New York.
4.3 Counterparts. This First Amendment and Waiver 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.
4.4 Headings. The headings of this First Amendment and Waiver are for
the purposes of reference only and shall not affect the construction of this
First Amendment and Waiver.
4.5 Effectiveness. This First Amendment and Waiver shall be deemed
fully effective when executed by each of the parties hereto.
[signatures appear on the following page]
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
and Waiver to be executed by their duly authorized officers all as of the day
and year first above written.
PXRE CORPORATION
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
FIRST UNION NATIONAL BANK, as Agent, and
as a Lender
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
(signatures continued)
THE FIRST NATIONAL BANK OF CHICAGO
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
FLEET NATIONAL BANK
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Joinder Agreement") is made this 18th day
of May, 1999, by FLEET NATIONAL BANK (the "New Lender"). Reference is made to
the Credit Agreement, dated as of December 30, 1998 (as amended, modified,
supplemented or restated from time to time, the "Credit Agreement"), by and
among PXRE Corporation (the "Borrower"), certain banks and other financial
institutions from time to time parties thereto (the "Lenders"), and First Union
National Bank, as Agent. Unless otherwise defined herein, terms defined in the
Credit Agreement are used herein with the same meaning.
The New Lender hereby agrees as follows:
1. JOINDER AGREEMENT. Subject to the terms and conditions hereof and of
the Credit Agreement, the New Lender hereby agrees to become a Lender under the
Credit Agreement with a Commitment of NINE MILLION DOLLARS AND NO/100 DOLLARS
($9,000,000). After giving effect to this Joinder Agreement and the Additional
Financing adjustment required under SECTION 2.19 of the Credit Agreement, the
New Lender's Commitment and the aggregate outstanding principal amounts of the
Loans owing to the New Lender will be as set forth in Item 4 of Annex I attached
hereto.
2. NEW LENDER REPRESENTATIONS. The New Lender (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the Financial
Statements and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Joinder
Agreement, (ii) agrees that it will, independently and without reliance upon the
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement, (iii) appoints and
authorizes the Agent to take such action as Agent on its behalf under the Credit
Documents, and to exercise such powers and to perform such duties, as are
specifically delegated to or required of the Agent by the terms thereof,
together with such other powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender, and (vi) specifies as its address for payments and
notices the office set forth beneath its name on its signature page hereto.
3. EFFECTIVE DATE. Following the execution of this Joinder Agreement by
the New Lender, an executed original hereof, together with all attachments
hereto, shall be delivered to the Agent. The effective date of this Joinder
Agreement (the "Effective Date") shall be the date of execution hereof by the
Borrower, the Agent and the New Lender. Prior to the execution of this Joinder
Agreement by the Borrower, the New Lender shall have the right to cancel this
Joinder Agreement by written notice to the Borrower and the Agent in accordance
with Section 10.5 of the Credit Agreement, in which event this Joinder Agreement
shall be null and void and of no further effect. As of the Effective Date, the
Lender shall be a party to the Credit Agreement and, to the extent provided in
this Joinder Agreement, shall have the rights and obligations of a Lender
thereunder and under the other Credit Documents.
4. GOVERNING LAW. This Joinder Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
(without regard to the conflicts of laws principles thereof).
5. ENTIRE AGREEMENT. This Joinder Agreement, together with the Credit
Agreement and the other Credit Documents, embody the entire agreement and
understanding between the parties hereto and supersede all prior agreements and
understandings of the parties, verbal or written, relating to the subject matter
hereof.
6. SUCCESSORS AND ASSIGNS. This Joinder Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their successors
and assigns.
7. COUNTERPARTS. This Joinder Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all of which
shall together constitute one and the same instrument.
[signatures on following page]
2
IN WITNESS WHEREOF, the parties have caused this Joinder Agreement to
be executed by their duly authorized officers as of the date first above
written.
FLEET NATIONAL BANK
By: ______________________________
Name: ______________________________
Title: ______________________________
Accepted this 18th day of May, 1999:
FIRST UNION NATIONAL BANK, as Agent
By: ______________________________
Name: ______________________________
Title: ______________________________
Consented and agreed to:
PXRE CORPORATION, as the Borrower
By: ______________________________
Name: ______________________________
Title: ______________________________
3
ANNEX I
1. Borrower: PXRE Corporation
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of December 30, 1998, among the Borrower,
certain Lenders from time to time parties thereto and First Union
National Bank, as Agent.
3. Date of Joinder Agreement: May 18, 1999
4. Amounts (as of date of Additional Financing adjustment pursuant to
Section 2.19 of the Credit Agreement):
Aggregate for all Existing Share of New New Lender's Share after
Lenders Lender by Assignment Additional Financing
----------------- --------------------- -------------------------
Commitment $75,000,000 $10,000,000 $19,000,000
Outstanding Loans $50,000,000 $6,666,666.67 $12,666,666.67
5. Addresses for Payments and Notices:
New Lender: For Funding/Notices:
--------------------
Fleet National Bank
777 Main Street
CT MO 0250
Hartford, CT 06115
Attention: Mark E. Vickery
Telephone: (860)-986-7934
Telecopy: (860)-986-1264
Reference: PXRE Corporation
For Loan and Fee Payments:
--------------------------
Fleet National Bank
777 Main Street
CT MO 0250
Hartford, CT 06115
Attention: Mark E. Vickery
Telephone: (860)-986-7934
Telecopy: (860)-986-1264
Reference: PXRE Corporation
6. Effective Date: May 18, 1999 (in accordance with Section 3).
JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Joinder Agreement") is made this 18th day
of May, 1999, by CREDIT LYONNAIS NEW YORK BRANCH (the "New Lender"). Reference
is made to the Credit Agreement, dated as of December 30, 1998 (as amended,
modified, supplemented or restated from time to time, the "Credit Agreement"),
by and among PXRE Corporation (the "Borrower"), certain banks and other
financial institutions from time to time parties thereto (the "Lenders"), and
First Union National Bank, as Agent. Unless otherwise defined herein, terms
defined in the Credit Agreement are used herein with the same meaning.
The New Lender hereby agrees as follows:
1. JOINDER AGREEMENT. Subject to the terms and conditions hereof and of
the Credit Agreement, the New Lender hereby agrees to become a Lender under the
Credit Agreement with a Commitment of SIXTEEN MILLION DOLLARS AND NO/100 DOLLARS
($16,000,000). After giving effect to this Joinder Agreement and the Additional
Financing adjustment required under SECTION 2.19 of the Credit Agreement, the
New Lender's Commitment and the aggregate outstanding principal amounts of the
Loans owing to the New Lender will be as set forth in Item 4 of Annex I attached
hereto.
2. NEW LENDER REPRESENTATIONS. The New Lender (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the Financial
Statements and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Joinder
Agreement, (ii) agrees that it will, independently and without reliance upon the
Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement, (iii) appoints and
authorizes the Agent to take such action as Agent on its behalf under the Credit
Documents, and to exercise such powers and to perform such duties, as are
specifically delegated to or required of the Agent by the terms thereof,
together with such other powers as are reasonably incidental thereto, (iv)
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender, and (vi) specifies as its address for payments and
notices the office set forth beneath its name on its signature page hereto.
3. EFFECTIVE DATE. Following the execution of this Joinder Agreement by
the New Lender, an executed original hereof, together with all attachments
hereto, shall be delivered to the Agent. The effective date of this Joinder
Agreement (the "Effective Date") shall be the date of execution hereof by the
Borrower, the Agent and the New Lender. Prior to the execution of this Joinder
Agreement by the Borrower, the New Lender shall have the right to cancel this
Joinder Agreement by written notice to the Borrower and the Agent in accordance
with Section 10.5 of the Credit Agreement, in which event this Joinder Agreement
shall be null and void and of no further effect. As of the Effective Date, the
Lender shall be a party to the Credit Agreement and shall have the rights and
obligations of a Lender thereunder and under the other Credit Documents.
4. GOVERNING LAW. This Joinder Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
(without regard to the conflicts of laws principles thereof).
5. ENTIRE AGREEMENT. This Joinder Agreement, together with the Credit
Agreement and the other Credit Documents, embody the entire agreement and
understanding between the parties hereto and supersede all prior agreements and
understandings of the parties, verbal or written, relating to the subject matter
hereof.
6. SUCCESSORS AND ASSIGNS. This Joinder Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their successors
and assigns.
7. COUNTERPARTS. This Joinder Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which, when so executed and delivered, shall be an original, but all of which
shall together constitute one and the same instrument.
[signatures on following page]
2
IN WITNESS WHEREOF, the parties have caused this Joinder Agreement to
be executed by their duly authorized officers as of the date first above
written.
CREDIT LYONNAIS NEW YORK BRANCH
By: ______________________________
Name: ______________________________
Title: ______________________________
Accepted this 18th day of May, 1999:
FIRST UNION NATIONAL BANK, as Agent
By: ______________________________
Name: ______________________________
Title: ______________________________
Consented and agreed to:
PXRE CORPORATION, as the Borrower
By: ______________________________
Name: ______________________________
Title: ______________________________
3
ANNEX I
1. Borrower: PXRE Corporation
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of December 30, 1998, among the Borrower,
certain Lenders from time to time parties thereto and First Union
National Bank, as Agent.
3. Date of Joinder Agreement: May 18, 1999
4. Amounts (as of date of Additional Financing adjustment pursuant to
Section 2.19 of the Credit Agreement):
Aggregate
for all New Lender's
Lenders Share
---------- ------------
Commitment $75,000,000 $16,000,000
Outstanding Loans $50,000,000 $10,666,666.67
5. Addresses for Payments and Notices:
New Lender: For Funding/Notices:
--------------------
Credit Lyonnais New York Branch
William McIlwain
1301 Avenue of the Americas
New York, NY 10019
Telephone: (212) 261-7794
Telecopy: (212) 2601-3401 or -3438
Reference: PXRE Corporation
For Loan and Fee Payments:
--------------------------
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019
Telephone: (212) 261-7794
Telecopy: (212) 2601-3401 or -3438
Attention: K. Mackey
Reference: PXRE Corporation
6. Effective Date: May 18, 1999 (in accordance with Section 3).
ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE (this "Assignment and Acceptance") is
made this 18th day of May, 1999, by and between FIRST UNION NATIONAL BANK (the
"Assignor") and FLEET NATIONAL BANK (the "Assignee"). Reference is made to the
Credit Agreement, dated as of December 30, 1998 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), among PXRE
CORPORATION (the "Borrower"), certain banks and other financial institutions
from time to time parties thereto (the "Lenders"), and First Union National
Bank, as Agent for the Lenders (the "Agent"). Unless otherwise defined herein,
capitalized terms used herein without definition shall have the meanings given
to them in the Credit Agreement.
The Assignor and the Assignee hereby agree as follows:
1. Assignment and Assumption. Subject to the terms and conditions
hereof, the Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, without recourse to the Assignor
and, except as expressly provided herein, without representation or warranty by
the Assignor, the interest as of the Effective Date (as hereinafter defined) in
and to all of the Assignor's rights and obligations under the Credit Agreement
and the other Credit Documents (in its capacity as a Lender thereunder)
represented by the percentage interest specified under the heading "Assigned
Share" in Item 4 of Annex I (such assigned interest, the "Assigned Share"),
including, without limitation, the Assigned Share of all rights and obligations
of the Assignor with respect to its Commitment, Note and Loans.
2. The Assignor. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder,
that such interest is free and clear of any adverse claim, and that as of the
date hereof the amount of its Commitment and outstanding Loans is as set forth
in Item 4 of Annex I, (ii) except as set forth in clause (i) above, makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement, any other Credit Document or any other instrument or document
furnished pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Credit
Document or any other instrument or document furnished pursuant thereto, and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or any of its Subsidiaries or
the performance or observance by the Borrower or any of its Subsidiaries of any
of their respective obligations under the Credit Agreement, any other Credit
Document or any other instrument or document furnished pursuant thereto.
3. The Assignee. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance, (ii) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements most recently required
to have been delivered under SECTIONS 5.1 and 5.2 of the Credit Agreement and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance,
(iii) agrees that it will, independently and without reliance upon the Agent,
the Assignor or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement, (iv)
confirms that it is an Eligible Assignee, (v) appoints and authorizes the Agent
to take such actions as agent on its behalf under the Credit Agreement and the
other Credit Documents, and to exercise such powers and to perform such duties,
as are specifically delegated to the Agent by the terms thereof, together with
such other powers and duties as are reasonably incidental thereto, and (vi)
agrees that it will perform in accordance with their respective terms all of
the obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender. [To the extent legally entitled to do so, the
Assignee will deliver to the Agent, as and when required to be delivered under
the Credit Agreement, duly completed and executed originals of the applicable
tax withholding forms described in SECTION 2.17(d) of the Credit Agreement].(1)
4. Effective Date. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, an executed original hereof,
together with all attachments hereto, shall be delivered to each of the Agent
and the Borrower (and also to the Agent, the processing fee referred to in
SECTION 10.7(a) of the Credit Agreement). The effective date of this Assignment
and Acceptance (the "Effective Date") shall be the earlier of (i) the date of
acceptance hereof by the Agent and the Borrower or (ii) the date, if any,
designated as the Effective Date in Item 5 of Annex I (which date shall be not
less than five (5) Business Days after the date of execution hereof by the
Assignor and the Assignee). As of the Effective Date, (y) the Assignee shall be
a party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, shall have the rights and obligations of a Lender thereunder and
under the other Credit Documents, and (z) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights (other than
rights under the provisions of the Credit Agreement and the other Credit
Documents relating to indemnification or payment of fees, costs and expenses, to
the extent such rights relate to the time prior to the Effective Date) and be
released from its obligations under the Credit Agreement and the other Credit
Documents.
5. Payments; Settlement. On or prior to the Effective Date, in
consideration of the sale and assignment provided for herein and as a condition
to the effectiveness of this Assignment and Acceptance, the Assignee will pay to
the Assignor an amount (to be confirmed between the Assignor and the Assignee)
that represents the Assigned Share of the principal amount of the Loans made by
the Assignor and outstanding on the Effective Date (together, if and to the
extent the Assignor and the Assignee so elect, with the Assigned Share of any
related accrued but unpaid interest, fees and other amounts). From and after the
Effective Date, the Agent will make all payments required to be made by it under
the Credit Agreement in respect of the interest assigned hereunder (including,
without limitation, all payments of principal, interest and fees in respect of
the Assigned Share of the Assignor's Commitment and Loans assigned hereunder)
directly to the Assignee. The Assignor and the Assignee shall be responsible for
making between themselves all
- -------------
(1) Insert if the Assignee is organized under the laws of a jurisdiction
outside the United States.
appropriate adjustments in payments due under the Credit Agreement in respect of
the period prior to the Effective Date. All payments required to be made
hereunder or in connection herewith shall be made in Dollars by wire transfer of
immediately available funds to the appropriate party at its address for payments
designated in Annex I.
6. Governing Law. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the internal laws of the State of New York
(without regard to the conflicts of laws principles thereof).
7. Entire Agreement. This Assignment and Acceptance, together with the
Credit Agreement and the other Credit Documents, embody the entire agreement and
understanding between the parties hereto and supersede all prior agreements and
understandings of the parties, verbal or written, relating to the subject matter
hereof.
8. Successors and Assigns. This Assignment and Acceptance shall be
binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns.
9. Counterparts. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which, when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Acceptance to be executed by their duly authorized officers as of the date first
above written.
ASSIGNOR:
FIRST UNION NATIONAL BANK
By: _______________________________
Name: _______________________________
Title: _______________________________
ASSIGNEE:
FLEET NATIONAL BANK
By: _______________________________
Name: _______________________________
Title: _______________________________
Accepted this 18th day of May, 1999:
FIRST UNION NATIONAL BANK, as Agent
By: _______________________________
Name: _______________________________
Title: _______________________________
Consented and agreed to:
PXRE CORPORATION
By: _______________________________
Name: _______________________________
Title: _______________________________
ANNEX I
1. Borrower: PXRE Corporation
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of December 30, 1998, among PXRE
Corporation, certain Lenders from time to time parties thereto, and
First Union National Bank, as Agent.
3. Date of Assignment and Acceptance: May 18, 1999.
4. Amounts:
Assigned Share
after
Aggregate Additional
for Assignor Assigned Share Financing
------------------------------------------------------------
(a) Commitment $50,000,000 $10,000,000 $19,000,000
(b) Loans $50,000,000 $ 6,666,666.67 $12,666,666.67
5. Effective Date: May 18, 1999
6. Addresses for Payments:
Assignor: First Union National Bank
301 South College Street
Charlotte, NC 28288-0608
Attention: Syndications
Telephone: (704) 383-4097
Telecopy: (704)-383-6037
Reference: PXRE Corporation
Assignee: Fleet National Bank
777 Main Street CT MO 0250
Hartford, CT 06115
Attention: Mark E. Vickery
Telephone: (860)-986-7934
Telecopy: (860)-986-1264
Reference: PXRE Corporation
7. Addresses for Notices:
Assignor: First Union National Bank
301 South College Street
Charlotte, NC 28288-0608
Attention: Syndications
Telephone: (704) 383-4097
Telecopy: (704)-383-6037
Assignee: Fleet National Bank
777 Main Street CT MO 0250
Hartford, CT 06115
Attention: Mark E. Vickery
Telephone: (860)-986-7934
Telecopy: (860)-986-1264
Reference: PXRE Corporation
8. Lending Office of Assignee:
Fleet National Bank
777 Main Street CT MO 0250
Hartford, CT 06115
Attention: Mark E. Vickery
Telephone: (860)-986-7934
Telecopy: (860)-986-1264
Reference: PXRE Corporation
ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE (this "Assignment and Acceptance") is
made this 18th day of May, 1999, by and between FIRST UNION NATIONAL BANK (the
"Assignor") and THE FIRST NATIONAL BANK OF CHICAGO (the "Assignee"). Reference
is made to the Credit Agreement, dated as of December 30, 1998 (as amended,
modified or supplemented from time to time, the "Credit Agreement"), among
PXRE CORPORATION (the "Borrower"), certain banks and other financial
institutions from time to time parties thereto (the "Lenders"), and First Union
National Bank, as Agent for the Lenders (the "Agent"). Unless otherwise defined
herein, capitalized terms used herein without definition shall have the meanings
given to them in the Credit Agreement.
The Assignor and the Assignee hereby agree as follows:
1. Assignment and Assumption. Subject to the terms and conditions
hereof, the Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, without recourse to the Assignor
and, except as expressly provided herein, without representation or warranty by
the Assignor, the interest as of the Effective Date (as hereinafter defined) in
and to all of the Assignor's rights and obligations under the Credit Agreement
and the other Credit Documents (in its capacity as a Lender thereunder)
represented by the percentage interest specified under the heading "Assigned
Share" in Item 4 of Annex I (such assigned interest, the "Assigned Share"),
including, without limitation, the Assigned Share of all rights and obligations
of the Assignor with respect to its Commitment, Note and Loans.
2. The Assignor. The Assignor (i) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it hereunder,
that such interest is free and clear of any adverse claim, and that as of the
date hereof the amount of its Commitment and outstanding Loans is as set forth
in Item 4 of Annex I, (ii) except as set forth in clause (i) above, makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement, any other Credit Document or any other instrument or document
furnished pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Credit
Document or any other instrument or document furnished pursuant thereto, and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or any of its Subsidiaries or
the performance or observance by the Borrower or any of its Subsidiaries of any
of their respective obligations under the Credit Agreement, any other Credit
Document or any other instrument or document furnished pursuant thereto.
3. The Assignee. The Assignee (i) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance, (ii) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements most recently required
to have been delivered under SECTIONS 5.1 and 5.2 of the Credit Agreement and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance,
(iii) agrees that it will, independently and without reliance upon the Agent,
the Assignor or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Agreement, (iv) confirms that it
is an Eligible Assignee, (v) appoints and authorizes the Agent to take such
actions as agent on its behalf under the Credit Agreement and the other Credit
Documents, and to exercise such powers and to perform such duties, as are
specifically delegated to the Agent by the terms thereof, together with such
other powers and duties as are reasonably incidental thereto, and (vi) agrees
that it will perform in accordance with their respective terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender. [To the extent legally entitled to do so, the
Assignee will deliver to the Agent, as and when required to be delivered under
the Credit Agreement, duly completed and executed originals of the applicable
tax withholding forms described in SECTION 2.17(d) of the Credit Agreement].(1)
4. Effective Date. Following the execution of this Assignment and
Acceptance by the Assignor and the Assignee, an executed original hereof,
together with all attachments hereto, shall be delivered to each of the Agent
and the Borrower (and also to the Agent, the processing fee referred to in
SECTION 10.7(a) of the Credit Agreement). The effective date of this Assignment
and Acceptance (the "Effective Date") shall be the earlier of (i) the date of
acceptance hereof by the Agent and the Borrower or (ii) the date, if any,
designated as the Effective Date in Item 5 of Annex I (which date shall be not
less than five (5) Business Days after the date of execution hereof by the
Assignor and the Assignee). As of the Effective Date, (y) the Assignee shall be
a party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, shall have the rights and obligations of a Lender thereunder and
under the other Credit Documents, and (z) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights (other than
rights under the provisions of the Credit Agreement and the other Credit
Documents relating to indemnification or payment of fees, costs and expenses, to
the extent such rights relate to the time prior to the Effective Date) and be
released from its obligations under the Credit Agreement and the other Credit
Documents.
5. Payments; Settlement. On or prior to the Effective Date, in
consideration of the sale and assignment provided for herein and as a condition
to the effectiveness of this Assignment and Acceptance, the Assignee will pay to
the Assignor an amount (to be confirmed between the Assignor and the Assignee)
that represents the Assigned Share of the principal amount of the Loans made by
the Assignor and outstanding on the Effective Date (together, if and to the
extent the Assignor and the Assignee so elect, with the Assigned Share of any
related accrued but unpaid interest, fees and other amounts). From and after the
Effective Date, the Agent will make all payments required to be made by it under
the Credit Agreement in respect of the interest assigned hereunder (including,
without limitation, all payments of principal, interest and fees in respect of
the Assigned Share of the Assignor's Commitment and Loans assigned hereunder)
directly to the Assignee. The Assignor and the Assignee shall be responsible for
making between themselves all
- ----------
(1) Insert if the Assignee is organized under the laws of a jurisdiction
outside the United States.
appropriate adjustments in payments due under the Credit Agreement in respect of
the period prior to the Effective Date. All payments required to be made
hereunder or in connection herewith shall be made in Dollars by wire transfer
of immediately available funds to the appropriate party at its address for
payments designated in Annex I.
6. Governing Law. This Assignment and Acceptance shall be governed by,
and construed in accordance with, the internal laws of the State of New York
(without regard to the conflicts of laws principles thereof).
7. Entire Agreement. This Assignment and Acceptance, together with the
Credit Agreement and the other Credit Documents, embody the entire agreement and
understanding between the parties hereto and supersede all prior agreements and
understandings of the parties, verbal or written, relating to the subject matter
hereof.
8. Successors and Assigns. This Assignment and Acceptance shall be
binding upon, inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns.
9. Counterparts. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which, when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Assignment and
Acceptance to be executed by their duly authorized officers as of the date first
above written.
ASSIGNOR:
FIRST UNION NATIONAL BANK
By: _______________________________
Name: _______________________________
Title: _______________________________
ASSIGNEE:
THE FIRST NATIONAL BANK OF CHICAGO
By: _______________________________
Name: _______________________________
Title: _______________________________
Accepted this 18th day of May, 1999:
FIRST UNION NATIONAL BANK, as Agent
By: _______________________________
Name: _______________________________
Title: _______________________________
Consented and agreed to:
PXRE CORPORATION
By: _______________________________
Name: _______________________________
Title: _______________________________
ANNEX I
1. Borrower: PXRE Corporation
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of December 30, 1998, among PXRE
Corporation, certain Lenders from time to time parties thereto, and
First Union National Bank, as Agent.
3. Date of Assignment and Acceptance: May 18, 1999.
4. Amounts:
Aggregate Assigned Assignee's Share
for Assignor Share after Additional
Financing
--------------------------------------------------------------
(a) Commitment $50,000,000 $19,000,000 $19,000,000
(b) Loans $50,000,000 $19,000,000 $12,666,666.67
5. Effective Date: May 18, 1999
6. Addresses for Payments:
Assignor: First Union National Bank
301 South College Street
Charlotte, NC 28288-0608
Attention: Syndications
Telephone: (704) 383-4097
Telecopy: (704)-383-6037
Reference: PXRE Corporation
Assignee: The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Attention: Lillian Arroyo
Telephone: (312)-732-2279
Telecopy: (312)-732-3246
Reference: PXRE Corporation
7. Addresses for Notices:
Assignor: First Union National Bank
301 South College Street
Charlotte, NC 28288-0608
Attention: Syndications
Telephone: (704) 383-4097
Telecopy: (704)-383-6037
Reference: PXRE Corporation
Assignee: The First National Bank of Chicago
153 West 51st Street
New York, NY 10019
Attention: Timothy Stambaugh
Telephone: (212)-373-1124
Telecopy: (212)-373-1439
or
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Attention: Gretchen Roetzer
Telephone: (312)-732-8068
Telecopy: (312)-732-6222
8. Lending Office of Assignee:
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Attention: Lillian Arroyo
Telephone: (312)-732-2279
Telecopy: (312)-732-3246
Reference: PXRE Corporation
SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT
THIS SECOND AMENDMENT AND WAIVER TO CREDIT AGREEMENT, dated as of June
25, 1999 (this "Second Amendment and Waiver"), is made in respect of the Credit
Agreement dated December 30, 1998 (as amended hereby, the "Credit Agreement"),
among PXRE CORPORATION, a Delaware corporation with its principal offices in
Edison, New Jersey (the "Borrower") the banks and financial institutions listed
on the signature pages thereof or that become parties thereto after the date
thereof (collectively the "Lenders"), and FIRST UNION NATIONAL BANK, as agent
for the Lenders (in such capacity, the "Agent"). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Credit
Agreement.
RECITALS
A. The Borrower and the Lenders agree to amend the definition in the
Credit Agreement of "Cash Equivalents" and to broaden the ability of the
Borrower to make certain investments of its assets.
B. The Borrower has requested that the Lenders waive a violation by the
Borrower of the Credit Agreement, and the Lenders have agreed to effect such
waiver 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 Amendment to SECTION 1.1. The definition of "Cash Equivalents" in
SECTION 1.1 of the Credit Agreement shall be amended by deleting clause (v)
thereof and substituting the following clause (v) therefor:
(v) money market funds at least 95% of the assets of which are
continuously invested in securities of the type described in clauses
(i) through (iv) above.
1.2 Amendment to SECTION 7.5(viii). SECTION 7.5(viii) of the Credit
Agreement shall be amended by deleting the word "and" at the end of clause (b),
deleting clause (c) thereof and substituting and adding the following clauses
(c) and (d) therefor:
(c) with respect to each Insurance Subsidiary's Investments,
other than those issued or unconditionally guaranteed by the United
States Government, the aggregate Investments of such Insurance
Subsidiary in the securities of any single issuer shall constitute at
all times no more than five percent (5%) of the Invested Assets of such
Insurance Subsidiary; and
(d) with respect to the Investments of the Borrower and the
non-Insurance Subsidiaries (other than Borrower's Investments of (A)
cash and Cash Equivalents and (B) up to $10,000,000 equity in Cat Bond
Investors, L.L.C.), (i) the aggregate of such Investments shall not
exceed six and one-half percent (6-1/2%) of Borrower's Consolidated Net
Worth, and (ii) the aggregate of such Investments in the securities of
any single issuer shall constitute at all times no more than one and
one-half percent (1-1/2%) of Consolidated Net Worth; and
1.3 Amendment to add SECTION 7.5(ix). SECTION 7.5(vii) of the Credit
Agreement shall be amended by deleting the word "and" and SECTION 7.5 shall be
amended to add the following SECTION 7.5(ix):
(ix) the Borrower's Investment in Cat Bond Investors, L.L.C. up to
$10,000,000.
ARTICLE II
WAIVER
The Borrower has made available to the Agent and the Lenders certain
preliminary financial information with respect to the fiscal quarter ended March
31, 1999. Based upon such preliminary financial information, the Borrower has
acknowledged that it has failed to comply with the provisions of SECTION 7.5(c)
(Investments) of the Credit Agreement (as in effect prior to this Second
Amendment and Waiver) as of the last day of the fiscal quarter ended March 31,
1999, and such noncompliance is continuing as of the date hereof. The Borrower
has requested that, in light of the amendments in ARTICLE I hereof, the Lenders
waive such noncompliance with SECTION 7.5(c) and the Lenders have agreed to
provide such waiver on the terms and conditions set forth herein.
Accordingly, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Lenders hereby agree to waive any noncompliance of the
Borrower with respect to SECTION 7.5(c) of the Credit Agreement to the extent
the Investments of the Borrower that caused such noncompliance would not have
been in violation of SECTION 7.5(c) of the Credit Agreement had the amendments
set forth in ARTICLE I of this Second Amendment and Waiver been in effect at the
time such
2
Investment had been made. This waiver is limited solely to the Investments of
the Borrower, and is not applicable to any Subsidiary of the Borrower.
The waiver of the Lenders set forth herein 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 or a waiver of any Default or
Event of Default except as expressly set forth herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby certifies and warrants to the Agent and the Lenders
that (a) after giving effect to the amendments and waiver effected hereby, each
of the representations and warranties contained in ARTICLE IV of the Credit
Agreement and in the other Credit Documents are true and correct in all material
respects on the date hereof with the same effect as though made on the date
hereof, both immediately before and after giving effect to this Amendment
(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 shall be true and correct as of such specified date), and (b) after
giving effect to the amendments and waiver effected hereby, no Default or Event
of Default shall have occurred and be continuing on the date hereof.
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
Second Amendment and Waiver. 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.
4.2 Applicable Law. This Second Amendment and Waiver shall be governed
by and construed in accordance with the internal laws and judicial decisions of
the State of New York.
4.3 Counterparts. This Second Amendment and Waiver 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.
4.4 Headings. The headings of this Second Amendment and Waiver are for
the purposes of reference only and shall not affect the construction of this
Second Amendment and Waiver.
4.5 Effectiveness. This Second Amendment and Waiver shall be deemed
fully effective when executed by each of the parties hereto.
3
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment and Waiver to be executed by their duly authorized officers all as of
the day and year first above written.
PXRE CORPORATION
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
FIRST UNION NATIONAL BANK, as Agent, and
as a Lender
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
(signatures continued)
4
THE FIRST NATIONAL BANK OF CHICAGO
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
FLEET NATIONAL BANK
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
5