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Exhibit 10.32
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of December 31, 2000
(this "Amendment"), amends the Credit Agreement, dated as of March 17, 1999 (the
"Credit Agreement"), among Phoenix Investment Partners, Ltd. (the "Company"),
Phoenix Home Life Mutual Insurance Company (the "Guarantor"), Bank of America,
N.A. (formerly known as Bank of America National Trust and Savings Association),
as Administrative Agent (the "Agent"), Deutsche Bank AG, New York Branch, as
Syndication Agent, The Bank of New York, as Documentation Agent and certain
financial institutions (the "Banks"). Terms defined in the Credit Agreement are,
unless otherwise defined herein or the context otherwise requires, used herein
as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement,
which provides for the Banks to extend certain credit facilities to the Company
from time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects and to consent to certain payments, as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENT. Effective as of the date hereof, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.9 below.
1.1 Change of Control. The definition of "Change of Control" in Section
1.1. of the Credit Agreement is hereby amended to state in its
entirety as follows:
"Change of Control" means
(a) the acquisition by any Person, or two or more Persons acting in
concert, of beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
20% or more of the voting power of the Guarantor, except an acquisition by the
Parent pursuant to a Demutualization; or
(b) the failure of the Guarantor or the Parent to own either directly
or indirectly, free and clear of all Liens or other encumbrances, at least 51%
of the outstanding shares of the voting stock and of the capital stock of the
Company on a fully diluted basis.
1.2 Termination Date. The definition of "Termination Date" in Section 1.1
of the Credit Agreement is hereby amended to state in its entirety as follows:
"Termination Date" means the earliest to occur of:
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(a) March 16, 2004;
(b) any date as of which the Company shall not be a Subsidiary of the
Guarantor; and
(c) the date on which the Commitments terminate in accordance with the
provisions of this Agreement.
1.3 Total Debt to Capital Ratio. The definition of "Total Debt to
Capital Ratio" in Section 1.1 of the Credit Agreement is hereby amended to state
in its entirety as follows:
"Total Debt to Capital Ratio" means the ratio for the Company,
on a consolidated basis in accordance with GAAP, of its
Indebtedness to the sum of its Indebtedness plus its
Shareholders' Equity. For the purpose of the calculations of
Indebtedness for this ratio, Indebtedness shall be reduced by
an amount equal to the sum of (i) lesser of (A) 50% of any
outstanding Subordinated Debt (the "Exchanged Debt") which has
been exchanged for Subordinated Debt from preferred stock
outstanding on the Closing Date and (B) $40,000,000 plus (ii)
50% of outstanding Intercompany Subordinated Debt, other than
Exchanged Debt.
1.4 Definitions. Section 1.1 of the Credit Agreement is hereby amended
by the addition of the following definitions in proper alphabetical order:
"Demutualization" shall mean a transaction or series of
transactions pursuant to which the Guarantor is converted into
a stock life insurance company pursuant to Section 7312 of the
New York Insurance Law as amended from time to time, the
corporate existence of the Guarantor continues, the Guarantor
becomes a wholly-owned Subsidiary of the Parent and the
financial condition of the Guarantor does not differ
materially from its financial condition immediately prior to
giving effect to the Demutualization.
"Intercompany Subordinated Debt" means Subordinated Debt of
the Company payable to the Parent or any other Affiliate of
the Company. Without limiting this definition, the terms of
the Intercompany Subordinated Debt shall not permit any
payments in respect of such Intercompany Subordinated Debt so
long as any Obligations remain outstanding and unpaid or the
Commitments have not been terminated.
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"Parent" shall mean a corporation of which the Guarantor
becomes a direct or indirect wholly-owned Subsidiary as part
of the Demutualization and which is itself not a Subsidiary of
any other Person.
1.5 Demutualization. Article VI of the Credit Agreement is hereby
amended by adding the following Section 6.13 at the end.
Section 6.13. Demutualization. The Guarantor shall promptly
notify the Administrative Agent (which shall in turn notify
the Banks) of the consummation of the Demutualization with
such notice to specify any change in the name of the Guarantor
which is incident thereto and the name of the Parent. After
consummation of the Demutualization, all references herein and
in the Notes and any other instruments or documents executed
and delivered pursuant hereto to Phoenix Home Life Mutual
Insurance Company shall without further action be deemed
references to the new or changed name of the Guarantor.
1.6 Mergers, Consolidations and Sales of Assets. Subsection 7.2(b) of
the Credit Agreement is hereby amended by inserting the words "or the Parent"
after the word "Guarantor" where it appears for the last time in the last
sentence of that Subsection.
1.7 Intercompany Subordinated Debt. Section 7.4 of the Credit Agreement
is hereby amended by the deletion of the word "and" at the end of clause (d),
the numbering of clause (e) as clause (f) and the insertion of the following as
new clause (e):
"(e) Intercompany Subordinated Indebtedness"
1.8 Restricted Payment. Section 7.10 of the Credit Agreement is hereby
amended to state in its entirety as follows:
Section 7.10 . Restricted Payments. The Guarantor shall not,
suffer or permit any Subsidiary to, and the Company shall not,
declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities to
its policy holders or shareholders, except that:
(a) the Guarantor and its Insurance Subsidiaries may pay
policy holder dividends;
(b) the Guarantor may pay cash dividends permitted by law
without regulatory approval, so long as after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing;
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(c) the Company or the Guarantor may make dividends and
distributions, payable solely in common stock;
(d) the Company may in any fiscal quarter pay cash dividends
and repurchase stock not in excess of its income in such fiscal
quarter, so long as after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing; and
(e) Any Subsidiary of the Guarantor (other than the Company)
may pay in any fiscal quarter cash dividends, so long as after giving
effect thereto, no Default or Event of Default shall have occurred and
be continuing.
1.9 Guaranty. Article XI of the Credit Agreement is hereby amended by
adding the following clauses (m) and (n) at the end:
(m) Guaranty. The obligations of the Guarantor under this
Agreement shall cease to be in full force and effect or the Guarantor or any
other Person shall directly or indirectly contest its enforceability.
(n) Parent Guaranty. Within five Business Days after any
Demutualization, the Parent shall fail to deliver a guaranty of the Obligations,
in form satisfactory to the Banks together with such resolutions, incumbency
certificates and opinions of counsel as the Administrative Agent may reasonably
request, or, thereafter, the Parent or any other Person shall directly or
indirectly contest the enforceability of such guaranty.
2 SECTION CONSENT The Banks hereby consent to payments in respect of
Subordinated Debt of the Company consisting of 6% Convertible Subordinated
Debentures due 2015 (so long as all payments made to the Guarantor in respect
thereof shall be made in Intercompany Subordinated Debt) and the cancellation of
certain stock options of the Company, notwithstanding any provisions of Sections
7.10 or 7.16 of the Credit Agreement to the contrary, so long as after giving
effect to such payments the Guarantor shall be the sole shareholder of the
Company.
3 SECTION CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 3 shall have
been satisfied, and notice thereof shall have been given by the Administrative
Agent to the Company, the Guarantor and the Banks.
3.1 Receipt of Documents. The Administrative Agent shall have received
all of the following documents duly executed, dated the date hereof or such
other date as shall be acceptable to the Administrative Agent, and in form and
substance satisfactory to the Administrative Agent:
(a) Amendment. This Amendment, duly executed by the Borrower,
the Guarantor, the Administrative Agent and the Majority
Banks.
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(b) Company Secretary's Certificate. A certificate of the
secretary or an assistant secretary of the Company, as to (i)
resolutions of the Board of Directors of the Company then in full force
and effect authorizing the execution, delivery and performance of this
Amendment and each other document described herein, and (ii) the
incumbency and signatures of those officers of the Company authorized
to act with respect to this Amendment and each other document described
herein.
(c) Guarantor Secretary's Certificate. A certificate of the
secretary or an assistant secretary of the Guarantor, as to (i)
resolutions of the Board of Directors of the Guarantor then in full
force and effect authorizing the execution, delivery and performance of
this Amendment and each other document described herein, and (ii) the
incumbency and signatures of those officers of the Guarantor authorized
to act with respect to this Amendment and each other document described
herein.
(d) Opinion of Counsel. An opinion, addressed to the
Administrative Agent and all Banks, from counsel to
the Company and the Guarantor, in form satisfactory to the
Administrative Agent.
3.2 Compliance with Warranties, No Default, etc. Both before and after
giving effect to the effectiveness of this Amendment, the following statements
by the Company and the Guarantor shall be true and correct (and the Company and
the Guarantor, by their execution of this Amendment, hereby represent and
warrant to the Administrative Agent and each Bank that such statements are true
and correct as at such times):
(a) the representations and warranties set forth in Article V
of the Credit Agreement shall be true and correct with the same effect
as if then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and
correct as of such earlier date); and
(b) no Default or Event of Default shall have then occurred
and be continuing.
SECTION 4 REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Administrative Agent to enter into this Amendment, the Borrower and the
Guarantor hereby represent and warrant to the Administrative Agent and each Bank
as follows:
4.1 Due Authorization, Non-Contravention, etc. The execution, delivery
and performance by the Company and the Guarantor of this Amendment are within
the corporate powers of the Company and the Guarantor, have been duly authorized
by all necessary corporate action, and do not
(a) contravene the Organization Documents of the Company or
the Guarantor;
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(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Company or the Guarantor; or
(c) result in, or require the creation or imposition of, any
Lien on any properties of the Company or the Guarantor.
4.2 Government Approval, Regulation, etc. No authorization or approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body or other Person is required for the due execution, delivery
or performance by the Company and the Guarantor of this Amendment.
4.3 Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of the Company and the Guarantor enforceable in
accordance with its terms.
SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be
an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness of this
Amendment in accordance with its terms, all references to the Credit Agreement
in the Loan Documents or in any other document, instrument, agreement or writing
shall be deemed to refer to the Credit Agreement as amended hereby.
5.2 Payment of Costs and Expenses. The Company agrees to pay on demand
all expenses of the Administrative Agent (including the fees and out-of-pocket
expenses of counsel to the Administrative Agent) in connection with the
negotiation, preparation, execution and delivery of this Amendment.
5.3 Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
5.4 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
5.5 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
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5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
5.7 Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
PHOENIX INVESTMENT PARTNERS, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Title: Chief Financial Officer
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PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President and Treasurer
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BANK OF AMERICA, N.A., as
Administrative Agent and a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
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▇-▇
▇▇
▇▇▇▇▇▇▇▇ BANK AG, New York Branch
as Syndication Agent and a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
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By: /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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THE BANK OF NEW YORK,
as Documentation Agent and a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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FLEET NATIONAL BANK,
as a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
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BANK OF MONTREAL,
as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
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▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇,
as a Bank
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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▇-▇
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ AND TRUST
COMPANY, as a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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