FIRST AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.2
FIRST AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of the
24th day of April, 2007 (this “First Amendment”), is entered into among Platinum
Underwriters Holdings, Ltd., an exempted company incorporated in Bermuda (the “Borrower”),
various Subsidiary Credit Parties (as defined in the hereinafter defined Credit Agreement) party
hereto, the Lenders (as defined in the hereinafter defined Credit Agreement) party hereto, and
Wachovia Bank, National Association, as Administrative Agent (the “Administrative Agent”).
RECITALS
A. The Borrower, the Subsidiary Credit Parties, the Lenders and the Administrative Agent are
parties to that certain Amended and Restated Credit Agreement dated as of September 13, 2006 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”) providing for $400,000,000 Senior Credit Facilities. Capitalized terms used herein
without definition shall have the meanings given to them in the Credit Agreement as they may be
amended pursuant to this First Amendment.
B. The Borrower has requested certain amendments to the Credit Agreement and the
Administrative Agent and the Required Lenders have agreed to make such amendments on the terms and
conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO CREDIT AGREEMENT
1.1 Amendments to Section 1.1 Consisting of New Definitions. The following
definitions are hereby added to Section 1.1 of the Credit Agreement in appropriate alphabetical
order:
“First Amendment” shall mean the First Amendment and Waiver to Amended
and Restated Credit Agreement, dated as of April ___, 2007, among the Borrower, the
Subsidiary Credit Parties party thereto, the Lenders party thereto, and the
Administrative Agent.
“First Amendment Effective Date” shall mean the date upon which the
conditions to the effectiveness of the First Amendment set forth in Article II
thereof are satisfied or waived in accordance with their terms.
1.2 Amendments to delete Platinum UK as a Subsidiary Credit Party. As of the First
Amendment Effective Date but subject to the terms and conditions herein, Platinum Re (UK) Limited,
a company incorporated in England and Wales, will be removed as a Subsidiary Credit Party under the
Credit Agreement. Accordingly, the defined term “Platinum UK” shall be deleted from the Credit
Agreement at such time and the definitions of “Account Party”, “Borrower”, “Insurance Subsidiary”,
“Subsidiary Credit Party”, and Sections 1.5(a), 1.5(b) and 2.16(e) of the Credit Agreement shall be
amended by deleting any reference to Platinum UK therein at such time.
ARTICLE II
CONDITIONS OF EFFECTIVENESS
This First Amendment shall become effective as of the date (the “First Amendment Effective
Date”) when, and only when, each of the following conditions precedent shall have been
satisfied:
(a) The Administrative Agent shall have received, dated as of the First Amendment Effective
Date, an executed counterpart hereof from each of the Credit Parties and the Required Lenders;
(b) Since December 31, 2006 through the First Amendment Effective Date, there has not occurred
(i) any Material Adverse Effect, or (ii) any event, condition or state of facts that would
reasonably be expected to have such a Material Adverse Effect;
(c) Platinum UK shall have cash collateralized in the manner set forth in Section 3.8 of the
Credit Agreement or otherwise made credit support arrangements satisfactory to Wachovia in respect
of Irrevocable Standby Letter of Credit Number SM217773W (hereinafter, the “Existing Letter of
Credit”) issued for the account of Platinum UK by Wachovia on January 10, 2006 (as amended on
December 26, 2006) for the benefit of Euler Hermes ACI in the stated amount of $77,631; and
(d) The Administrative Agent shall have received such other documents, certificates, opinions,
and instruments, including without limitation the necessary board resolutions to effectuate the
Scheme of Operations, in connection with the transactions contemplated hereby as it shall have
reasonably requested.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Credit Parties (solely as to itself and its Subsidiaries) represents and warrants
to the Administrative Agent, the Fronting Banks and the Lenders as follows:
(a) Each of the representations and warranties set forth in the Credit Agreement and in the
other Credit Documents shall be true and correct in all material respects on and as of the First
Amendment Effective Date, 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
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specific date, in which case such representation or warranty shall be true and correct in all
material respects as of such date); and
(b) As of the First Amendment Effective Date, (i) other than the Existing Letter of Credit, no
Letters of Credit or Loans are outstanding for the account of Platinum UK; (ii) all fees, interest
or other amounts payable under the Credit Agreement or the other Credit Documents by Platinum UK
have been paid in full and (iii) no other Obligations of Platinum UK remain outstanding.
ARTICLE IV
ACKNOWLEDGEMENT AND CONFIRMATION OF THE CREDIT PARTIES
Each of the Credit Parties hereby confirms and agrees that, after giving effect to this First
Amendment, the Credit Agreement and the other Credit Documents remain in full force and effect and
enforceable against the Credit Parties in accordance with their respective terms and shall not be
discharged, diminished, limited or otherwise affected in any respect, and represents and warrants
to the Lenders that it has no knowledge of any claims, counterclaims, offsets, or defenses to or
with respect to its obligations under the Credit Documents, or if such Credit Party has any such
claims, counterclaims, offsets, or defenses to the Credit Documents or any transaction related to
the Credit Documents, the same are hereby waived, relinquished, and released in consideration of
the execution of this First Amendment. This acknowledgement and confirmation by the Credit Parties
is made and delivered to induce the Administrative Agent, the Fronting Banks and the Lenders to
enter into this First Amendment, and each of the Credit Parties acknowledges that the
Administrative Agent, the Fronting Banks and the Lenders would not enter into this First Amendment
in the absence of the acknowledgement and confirmation contained herein.
ARTICLE V
EXISTING LETTER OF CREDIT
Notwithstanding the removal of Platinum UK as a Credit Party as of the First Amendment
Effective Date, the obligations of the Lenders to make payments to the Administrative Agent for the
account of Platinum UK with respect to the Existing Letter of Credit and the obligation of Platinum
UK to reimburse with respect to any L/C Disbursement under the Existing Letter of Credit, and any
fees, expenses, indemnities and other obligations owing, due or payable in respect thereof, remain
in full force and effect and enforceable against such parties and shall not be discharged,
diminished, limited or otherwise affected in any respect as a result of this First Amendment. The
Borrower acknowledges and agrees that its obligations under Section 11.1(b) and Article XII of the
Credit Agreement in respect of the Existing Letter of Credit remain in full force and effect. The
Borrower and Platinum UK agree to use their commercially reasonable best efforts to promptly cause
the Existing Letter of Credit to be returned by the beneficiary thereof to the Administrative Agent
for cancellation and that the Administrative Agent is authorized to deliver a notice of nonrenewal
to the beneficiary of the Existing Letter of Credit at any time after the First Amendment Effective
Date.
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ARTICLE VI
WAIVER
The Borrower has notified the Lenders of its determination to renew the business of Platinum
UK into Platinum Bermuda retroactive to January 1, 2007 and to conduct a run-off of the business of
Platinum UK in accordance with the Platinum Re (UK) Scheme of Operations approved by the Financial
Services Authority in the United Kingdom to take effect as of June 30, 2007 (the “Scheme of
Operations”). The Scheme of Operations includes the following elements: (i) a loss portfolio
transfer of the net retained liabilities of Platinum UK to Platinum Bermuda, such loss portfolio to
be 100% collateralized; and (ii) the repatriation of the surplus or excess capital of Platinum UK.
Accordingly, in consideration of the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Required Lenders hereby agree to
waive any noncompliance with or breach of any provision of the Credit Agreement, any Default or
Event of Default under the Credit Agreement that has arisen or may hereafter arise solely as a
result of the implementation of the Scheme of Operations in accordance with its terms or the sale
of the stock or assets of Platinum UK, provided that any surplus or excess capital that is
transferred out of Platinum UK by way of a share buyback or dividend or other distribution by
Platinum UK and/or proceeds from the sale of Platinum UK or its assets shall be transferred through
or from Platinum UK’s parent, Platinum Regency Holdings, to the Borrower or a Subsidiary thereof,
subject to the receipt of any applicable regulatory approval (the Borrower hereby agreeing to
forthwith exercise commercially reasonable efforts to take all actions permitted by law and
necessary to obtain any such approval). The waiver 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 waiver of any Default or Event of Default except as expressly
set forth herein.
ARTICLE VII
MISCELLANEOUS
7.1 Governing Law. This First Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
7.2 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. 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 First 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 First Amendment shall constitute a Credit Document under the
terms of the Credit Agreement.
7.3 Expenses. The Borrower agrees on demand (i) to pay all reasonable fees and
expenses of counsel to the Administrative Agent, and (ii) to reimburse the Administrative Agent for
all reasonable out-of-pocket costs and expenses, in each case, in connection with the
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preparation, negotiation, execution and delivery of this First Amendment and the other Credit
Documents delivered in connection herewith.
7.4 Severability. To the extent any provision of this First 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 First Amendment in any jurisdiction.
7.5 Successors and Assigns. This First Amendment shall be binding upon, inure to the
benefit of and be enforceable by the respective successors and permitted assigns of the parties
hereto.
7.6 Construction. The headings of the various sections and subsections of this First
Amendment have been inserted for convenience only and shall not in any way affect the meaning or
construction of any of the provisions hereof.
7.7 Counterparts. This First Amendment 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. Delivery of an executed counterpart of a signature page of this First Amendment by
telecopy shall be effective as delivery of a manually executed counterpart of this First Amendment.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed by
their duly authorized officers as of the date first above written.
| PLATINUM UNDERWRITERS HOLDINGS, LTD. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | CFO | |||||
| PLATINUM UNDERWRITERS BERMUDA, LTD. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | Chief Executive Officer | |||||
| PLATINUM UNDERWRITERS REINSURANCE, INC. | ||||||
| By: | /s/ H. Xxxxxxxxx Xxxxxxxx | |||||
| Name: | H. Xxxxxxxxx Xxxxxxxx | |||||
| Title: | President | |||||
| PLATINUM RE (UK) LIMITED | ||||||
| By: | /s/ X. X. Xxxxxxx | |||||
| Name: | X. X. Xxxxxxx | |||||
| Title: | CEO & Managing Director | |||||
| PLATINUM UNDERWRITERS FINANCE, INC. | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxx | |||||
| Title: | CFO | |||||
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
| WACHOVIA BANK, NATIONAL | ||||||
| ASSOCIATION, as Administrative Agent, Fronting Bank and as a Lender | ||||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Name: | Xxxxx Xxxxx | |||||
| Title: | Director | |||||
| CITIBANK, N.A., as a Documentation Agent, Fronting Bank and a Lender | ||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||
| Name: | Xxxxxxx Xxxxxxxx | |||||
| Title: | Managing Director | |||||
| HSBC BANK USA, NATIONAL ASSOCIATION, as a Documentation Agent and a Lender | ||||||
| By: | /s/ Xxxxxxxx Xxxx | |||||
| Name: | Xxxxxxxx Xxxx | |||||
| Title: | Senior Vice President | |||||
| BAYERISCHE HYPO-UND VEREINSBANK AG, as a Documentation Agent and a Lender | ||||||
| By: | /s/ Xxxxxxxx Xxxx /s/ Xxxxxxx X. Xxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxx | |||||
| Title: | Director Director | |||||
| ING BANK N.V., LONDON BRANCH, as a Documentation Agent and a Lender | ||||||
| By: | /s/ X. Xxxxxx | |||||
| Name: | X. Xxxxxx | |||||
| Title: | Director | |||||
| By: | /s/ X. Xxxxx | |||||
| Name: | X. Xxxxx | |||||
| Title: | Managing Director | |||||
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
| COMERICA BANK, as a Lender | ||||||
| By: | /s/ Chaiphet Saipetch | |||||
| Name: | Chaiphet Saipetch | |||||
| Title: | Vice President | |||||
SIGNATURE PAGE TO
FIRST AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIRST AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
