Exhibit 99.5
NINTH AMENDMENT AND WAIVER TO THE CREDIT AGREEMENT
NINTH AMENDMENT AND WAIVER TO THE CREDIT AGREEMENT (the "Ninth
Amendment"), dated as of April 8, 2003, among TRENWICK AMERICA CORPORATION, a
Delaware corporation (the "Borrower"), Trenwick Holdings LIMITED., a company
organized under the laws of the United Kingdom and TRENWICK UK HOLDINGS LIMITED,
a company organized under the laws of the United Kingdom (collectively, the
"Account Party"), the lending institutions from time to time party to the Credit
Agreement referred to below (each a "Bank" and, collectively, the "Banks"),
WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a First Union National Bank), as
Syndication Agent (the "Syndication Agent"), Fleet National Bank, as
Documentation Agent (the "Documentation Agent"), and JPMORGAN CHASE BANK (f/k/a
The Chase Manhattan Bank), as Administrative Agent (the "Administrative Agent").
Unless otherwise defined herein, capitalized terms used herein and defined in
the Credit Agreement referred to below are used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the Account Party, the Banks, the Syndication
Agent, the Documentation Agent and the Administrative Agent are party to a
Credit Agreement, dated as of November 24, 1999 and amended and restated as of
September 27, 2000 (as the same has been amended, modified or supplemented to,
but not including, the date hereof, the "Credit Agreement");
WHEREAS, Trenwick Group Ltd., a company organized under the laws of
Bermuda ("Holdings") and the Administrative Agent entered into a Holdings
Guaranty, dated as of September 27, 2000 (as the same has been amended, modified
or supplemented to, but not including, the date hereof, the "Holdings Guaranty")
in order to induce the Banks to make Loans to the Borrower and issue Letters of
Credit for the account of the Account Party and Guaranteed Creditors (and
Lending Affiliates thereof) to enter into Interest Rate Protection Agreements
and Other Hedging Agreements with the Borrower and/or the Account Party; and
WHEREAS, subject to the terms and conditions set forth below, the Banks
hereto wish to grant certain amendments to the Credit Agreement as provided
herein;
NOW, THEREFORE, it is agreed;
A. Waivers
1. The Banks hereby waive any Default or Event of Default that may arise
under the Credit Agreement solely as the result of the failure by Holdings to
deliver an unqualified opinion
from its accountants as to the status of Holdings and its Subsidiaries as a
going concern with respect to the annual financial statements of Holdings and
its Subsidiaries for the fiscal year ending December 31, 2002 as required
pursuant to Section 3.01(a) of the Holdings Guaranty.
2. The Banks hereby waive any Default or Event of Default that may arise
under the Credit Agreement solely as a result of Holdings' failure to provide to
the Banks the regulatory financial statements, opinions and other documents
(collectively, the "Regulatory Financial Documents") of LaSalle Re required
pursuant to Section 3.01(a)(ii) of the Credit Agreement within 90 days after the
close of the fiscal year of Holdings ending December 31, 2002, so long as the
Regulatory Financial Documents are delivered to the Banks no later than April
30, 2003.
3. The Banks hereby waive any Default or Event of Default that may arise
under the Credit Agreement solely as a result of the Borrower's failure to
provide to the Banks the monthly financial statements and other documents
(collectively, the "Monthly Financial Documents") required pursuant to Section
3.01(m) of the Credit Agreement within 30 days after the close of the fiscal
month of Holdings ending February 28, 2003, for the period from, and including,
March 30, 2003 to, and including, the Ninth Amendment Effective Date..
4. The Banks hereby waive any Default or Event of Default that may arise
under the Credit Agreement solely as a result of the failure by Holdings to
comply with Section 3.22 of the Holdings Guaranty for the period from, and
including, April 1, 2003 to, and including, the Ninth Amendment Effective Date.
5. The Banks hereby waive any Default or Event of Default that may arise
under the Credit Agreement solely as a result of the failure by Holdings to
comply with Section 4.16 of the Holdings Guaranty for the period from, and
including April 2, 2003 to, and including, the Ninth Amendment Effective Date.
6. The Banks hereby waive any Default or Event of Default that may arise
under the Credit Agreement solely as a result of the failure of the Account
Party to pay the Letter of Credit Fees due and payable on March 31, 2003 under
Section 3.01(c) of the Credit Agreement for the period from, and including March
31, 2003 to, and including, the Ninth Amendment Effective Date.
B. Amendments
1. Schedule I to the Credit Agreement is hereby amended by deleting the
date "April 1, 2003" appearing in the definition of "Consolidated Tangible Net
Worth" and inserting the date "August 1, 2003" in lieu thereof.
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2. The definition of "Credit Documents" appearing in Schedule I to the
Credit Agreement is hereby amended by inserting the text "and each Additional
Guaranty" at the end thereof.
3. The definition of "Credit Party" appearing in Schedule I to the Credit
Agreement is hereby amended to read in its entirety as follows:
"Credit Party" shall mean each U.S. Credit Party and each Foreign
Credit Party.
4. The definition of "Foreign Credit Party" appearing in Schedule I to the
Credit Agreement is hereby amended to read in its entirety as follows:
"Foreign Credit Party" shall mean Holdings, the Account Party and
each Foreign Subsidiary of Holdings which is party to a Subsidiary
Guaranty.
5. The definition of "Subsidiary Guaranty" appearing in Schedule I to the
Credit Agreement is hereby amended by (i) deleting the word "and" immediately
following the text "U.S. Subsidiary Guaranty" and inserting a comma in lieu
thereof and (ii) and inserting the text "and each Additional Guaranty"
immediately preceding the period at the end of said definition.
6. The definition of "U.S. Credit Party" appearing in Schedule I to the
Credit Agreement is hereby amended to read in its entirety as follows:
"U.S. Credit Party" shall mean the Borrower and each Subsidiary of
Holdings which is organized under the laws of the United States or any
State or territory thereof and is party to a Subsidiary Guaranty.
7. Section I of the Credit Agreement is hereby further amended by
inserting the following new defined term in the appropriate alphabetical order:
"Additional Guaranties" shall have the meaning provided in Section
3.17(c) of the Holdings Guaranty.
C. Miscellaneous Provisions
1. In order to induce the Banks to enter into this Ninth Amendment, each
of the Borrower and each Account Party hereby represent and warrant on behalf of
themselves and their respective Subsidiaries that (i) the representations and
warranties of Holdings contained in Section 2 of the Holdings Guaranty are true
and correct in all material respects on and as of the Ninth Amendment Effective
Date (as defined below) (except with respect to any representations and
warranties limited by their terms to a specific date, which shall be true and
correct in all material respects as of such date), and (ii) there exists no
Default or Event of Default under the Credit Agreement on the Ninth Amendment
Effective Date after giving effect to this Ninth Amendment.
2. This Ninth Amendment is limited as specified and shall not constitute
an amendment, modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
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3. THIS NINTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
4. This Ninth Amendment shall become effective on the date (the "Ninth
Amendment Effective Date") when each of the following conditions have been
satisfied:
(i) the Borrower, each Account Party and the Required Banks shall
have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of telecopier)
the same to the Administrative Agent;
(ii) the Account Party shall have paid to the Administrative Agent
for distribution to each Lender the Letter of Credit Fees due and payable
on March 31, 2003 pursuant to Section 3.01(c) of the Credit Agreement; and
(iii) Holdings and the Required Banks have consented to the Tenth
Amendment and Consent to the Holdings Guaranty, dated as of April 8, 2003;
provided that to the extent that the Second Supplemental Indenture, dated April
1, 2003, among the Borrower and the parties thereto, which shall be on the same
terms and conditions as the Draft Indenture (the "Second Supplemental
Indenture"), is not in full force and effect within one business day after the
effectiveness of this Ninth Amendment, this Ninth Amendment shall be rescinded
and shall be null and void with none of the consents, waivers or amendments
contained herein to have any effect whatsoever and with the Banks having the
same rights and remedies in connection with the Credit Documents as if this
Ninth Amendment was never effective.
5. From and after the Ninth Amendment Effective Date, all references in
the Credit Agreement and in the other Credit Documents shall be deemed to be
referenced to the Credit Agreement as modified hereby.
6. Holdings, the Borrower and each Account Party acknowledge and agree
that the execution and delivery by the Administrative Agent and the Banks of
this Ninth Amendment shall not be deemed (i) to create a course of dealing or
otherwise obligate the Administrative Agent or the Banks to forebear or execute
similar waivers, amendments or agreements under the same or similar
circumstances in the future, or (ii) to modify, relinquish or impair any right
of the Administrative Agent or the Banks to receive any indemnity or similar
payment from any Person or entity as a result of any matter arising from or
relating to this Ninth Amendment.
7. EACH CREDIT PARTY, ON BEHALF OF ITSELF, AND ALL PERSONS AND ENTITIES
CLAIMING BY, THROUGH, OR UNDER ANY ONE OR MORE OF THEM, HEREBY JOINTLY AND
SEVERALLY RELEASES, WAIVES AND FOREVER DISCHARGES THE ADMINISTRATIVE AGENT, EACH
BANK, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, ATTORNEYS, AGENTS, AFFILIATES,
REPRESENTATIVES AND SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "RELEASEES"), OF,
FROM, AND WITH RESPECT TO ANY AND ALL MANNER OF ACTION AND ACTIONS, CAUSE AND
CAUSES OF ACTIONS, SUITS, DISPUTES, CLAIMS AND DEFENSES, COUNTERCLAIMS AND/OR
LIABILITIES, CROSS CLAIMS, AND DEFENSES, THAT
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ARE KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, PAST OR PRESENT, ASSERTED OR
UNASSERTED, CONTINGENT OR LIQUIDATED, WHETHER OR NOT WELL FOUNDED IN FACT OR
LAW, WHETHER IN CONTRACT, IN TORT OR OTHERWISE, AT LAW OR IN EQUITY, BASED UPON,
RELATING TO OR ARISING OUT OF ANY AND ALL TRANSACTIONS, RELATIONSHIPS OR
DEALINGS WITH, OR LOANS MADE OR LETTERS OF CREDIT ISSUED TO THE BORROWER, THE
ACCOUNT PARTY OR THE OTHER GUARANTORS PURSUANT TO THE CREDIT DOCUMENTS PRIOR TO
THE DATE HEREOF WHICH THE BORORWER, THE ACCOUNT PARTY OR THE OTHER GUARANTORS
HAD, NOW HAVE OR MAY CLAIM TO HAVE AGAINST THE ADMINISTRATIVE AGENT, THE BANK OR
ANY OTHER RELEASEE.
8. The respective rights, powers and remedies of the Administrative Agent
and the Banks in the Credit Agreement and in the other Credit Documents are
cumulative and not exclusive of any right, power or remedy provided in the
Credit Documents, by law or equity and no failure or delay on the part of the
Administrative Agent or the Banks in the exercise of any right, power or remedy
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or remedy preclude any other or further exercise thereof, or
the exercise of any other right, power or remedy. Other than as set forth in
this Ninth Amendment, nothing contained in this Ninth Amendment or in any prior
communications between or among the Credit Parties, the Administrative Agent and
the Banks shall constitute a waiver or modification of any rights or remedies
that the Administrative Agents or the Banks may have under the Credit Documents
and applicable law. The Administrative Agent and the Banks expressly reserve and
preserve all of their rights and remedies available to them under the Credit
Documents, applicable law or otherwise.
* * *
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IN WITNESS WHEREOF, the undersigned have caused this Ninth Amendment to be
duly executed and delivered as of the date first above written.
TRENWICK AMERICA CORPORATION
By: /s/ David M. Finkelstein
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Name: David M. Finkelstein
Title: Vice President & Treasurer
TRENWICK HOLDINGS LIMITED
By: /s/ Alan L. Hunte
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Name: Alan L. Hunte
Title: Director
TRENWICK UK HOLDINGS LIMITED
By: /s/ Alan L. Hunte
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Name: Alan L. Hunte
Title: Director
TRENWICK GROUP LTD.
By: /s/ Alan L. Hunte
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Name: Alan L. Hunte
Title: Chief Financial Officer
[NAME OF LENDER]
By:
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Name:
Title:
[Signature Page to the Ninth Amendment and Waiver to the Credit Agreement]