FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of November 13, 2015, is entered into by and among XXXXXX CORPORATION, a Virginia corporation with its principal offices in Glen Allen, Virginia (the “Borrower”), XXXXXX BERMUDA LIMITED, a Bermuda company, XXXXXX GLOBAL REINSURANCE COMPANY (formerly Alterra Reinsurance USA Inc., a Delaware corporation, ALTERRA FINANCE LLC, a Delaware limited liability company, ALTERRA USA HOLDINGS LIMITED, a Delaware corporation, the Lenders (as hereinafter defined), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent.
RECITALS
A. The Credit Parties, the several lenders from time to time party thereto (the “Lenders”), and the Administrative Agent are party to the Credit Agreement, dated as of August 1, 2014 (as amended prior to the date hereof, the “Credit Agreement”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement as amended by this Amendment.
B. The Borrower has requested that the Required Lenders amend the Credit Documents 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 DOCUMENTS
1.1 Existing Defined Terms. Section 1.1 of the Credit Agreement is hereby amended by amending and restating the following defined terms:
““Excluded Subsidiary” shall mean Xxxxxx Ventures, Inc., a Virginia corporation, Xxxxxx CATCo Investment Management Ltd., a Bermuda company, or any other Subsidiary of the Borrower that
(i) is a Pledged Subsidiary;
(ii) (x) is acquired or formed by Borrower or a Subsidiary of Borrower on or after the Closing Date, (y) is not, or is formed for the purpose of acquiring another Person that is not, primarily engaged in the property and casualty insurance or property and casualty insurance-related businesses, and (z) is designated as an Excluded Subsidiary in the first Compliance Certificate under Section 6.3(a) following its formation or acquisition; or
(iii) is a Subsidiary of another Excluded Subsidiary.”
““Speculative Hedge” shall mean any Hedging Transaction entered into by the Borrower or its Subsidiaries (other than Xxxxxx CATCo Reinsurance Fund Ltd.) that is not a Non-Speculative Hedge.”
1.2 Deletion of Defined Terms. Section 1.1 of the Credit Agreement is hereby amended by deleting the following defined term: “Statutory Capital and Surplus”
1.3 Amendment to Section 9.1 (Events of Default). Section 9.1 of the Credit Agreement is hereby amended by amending and restating clauses (j) and (k) thereof:
“(j) Any one or more final judgments (other than a judgment incurred by an Insurance Subsidiary under or in connection with an insurance contract written in the ordinary course of business) for the payment of money involving an aggregate amount in excess of the Threshold Amount which is not adequately insured or indemnified against shall be rendered against the Borrower, any Subsidiary (other than an Excluded Subsidiary) or any of their respective properties and the same shall remain undischarged for a period of twenty (20) days during which time execution shall not be effectively stayed; or
(k) Any default shall be made in the payment or performance of any other obligation incurred in connection with any Indebtedness (other than Indebtedness incurred pursuant to this Agreement) of the Borrower or any Subsidiary (other than an Excluded Subsidiary) in excess of the Threshold Amount, if the effect of such default is to permit the holder of such Indebtedness (or a trustee on behalf of such holder) to cause it to become due prior to its stated maturity or any such Indebtedness becomes due prior to its stated maturity or shall not be paid when due; or”
1.4 Amendment to Exhibit C (Compliance Certificate). Attachment A to Exhibit C to the Credit Agreement is hereby amended by amending and restating footnote 2 on page 4 thereof:
“2 On any date of determination, the aggregate excess (if any) of all unrealized losses over all unrealized profits arising from Hedging Obligations with respect to Speculative Xxxxxx of Borrower and its Subsidiaries. “Unrealized losses” shall mean the fair market value of the cost to such Person of replacing or unwinding the Speculative Hedge giving rise to such Hedging Obligation as of the date of determination (assuming the Speculative Hedge were to be terminated as of that date and without giving effect to offset or other credit for any collateral securing such Speculative Hedge), and “unrealized profits” means the fair market value of the gain to such Person of replacing or unwinding such Speculative Hedge as of the date of determination (assuming such Speculative Hedge were to be terminated as of that date).”
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ARTICLE II
CONDITIONS OF EFFECTIVENESS
2.1 The amendments set forth in Article I shall become effective as of the date (the “Amendment Effective Date”) when, and only when, the Administrative Agent shall have received an executed counterpart of this Amendment from the Credit Parties and the Required Lenders.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Each Credit Party (solely as to itself and its Subsidiaries) represents and warrants to the Administrative Agent, the Lenders and the Issuing Banks on and as of the Amendment Effective Date, that: (i) it has taken all necessary action to authorize the execution, delivery and performance of this Amendment, (ii) this Amendment has been duly executed and delivered by such Credit Party and constitutes such Credit Party’s legal, valid and binding obligations, enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor relief laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies, (iii) no consent, approval, authorization or order of, or filing, registration or qualification with, any court or Governmental Authority or third party is required in connection with the execution, delivery or performance by such Credit Party of this Amendment, (iv) the representations and warranties set forth in Article V of the Credit Agreement are true and correct as of the date hereof except for those which expressly relate to an earlier date, (v) after giving effect to this Amendment, no event has occurred and is continuing which constitutes a Default or an Event of Default, (vi) the Security Documents continue to create a valid security interest in, and Lien upon, all right, title and interest of each Account Party in and to the Collateral purported to be pledged by it thereunder and described therein, superior to and prior to the rights of all third persons and subject to no other Liens except as specifically permitted under the Credit Documents and (vii) the Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.
ARTICLE IV
ACKNOWLEDGEMENT AND CONFIRMATION
4.1 Each party to this Amendment hereby confirms and agrees that, after giving effect to this Amendment, the Credit Agreement and the other Credit Documents to which it is a party remain in full force and effect and enforceable against such party in accordance with their respective terms and shall not be discharged, diminished, limited or otherwise affected in any respect.
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ARTICLE V
MISCELLANEOUS
5.1 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA (WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF)
5.2 Credit Document. 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 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 the other Credit Documents as amended hereby. This Amendment is limited to the matters expressly set forth herein, 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 Amendment shall constitute a Credit Document under the terms of the Credit Agreement.
5.3 Expenses. The Credit Parties shall pay all reasonable and documented fees and expenses of counsel to the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment.
5.4 Severability. To the extent any provision of this 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 Amendment in any jurisdiction.
5.5 Successors and Assigns. This Amendment shall be binding upon, inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.
5.6 Construction. The headings of the various sections and subsections of this Amendment have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof.
5.7 Counterparts; Integration. This Amendment may be executed and delivered via facsimile or electronic mail with the same force and effect as if an original were executed and may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures hereto were upon the same instrument. This Amendment constitutes the entire contract among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers as of the date first above written.
XXXXXX CORPORATION
By: | /s/ Xxxx X. Xxxxxxx |
Name: | Xxxx X. Xxxxxxx |
Title: | Executive Vice President and Chief Financial Officer |
XXXXXX BERMUDA LIMITED
By: | /s/ Xxxx X. Xxxxxxx |
Name: | Xxxx X. Xxxxxxx |
Title: | Chief Financial Officer |
XXXXXX GLOBAL REINSURANCE COMPANY
By: | /s/ Xxxx X. Xxxxxxx |
Name: | Xxxx X. Xxxxxxx |
Title: | Vice President and Chief Financial Officer |
ALTERRA USA HOLDINGS LIMITED
By: | /s/ Xxxx X. Xxxxxxx |
Name: | Xxxx X. Xxxxxxx |
Title: | Vice President, Chief Financial Officer and Treasurer |
ALTERRA FINANCE LLC
By: | /s/ Xxxx X. Xxxxxxx |
Name: | Xxxx X. Xxxxxxx |
Title: | Chief Financial Officer and Treasurer |
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Swingline Lender, a Fronting Bank and as a Lender
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: | Managing Director |
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
CITIBANK, N.A., as a Lender
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: | Managing Director and Vice President |
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BARCLAYS BANK PLC, as a Lender
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: | Director |
(Executed in New York)
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: | Vice President |
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
SunTrust Bank, as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: | Director |
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
Branch Banking & Trust Company, as a Lender
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: | Senior Vice President |
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
The Northern Trust Company, as a Lender
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: | 2VP |
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: | Vice President |
SIGNATURE PAGE TO
FIRST AMENDMENT TO CREDIT AGREEMENT
