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EXHIBIT 10.2
AMENDMENT NO. 9
Dated as of June 25, 1999
to
CREDIT AGREEMENT
Dated as of March 12, 1997
PENNCORP FINANCIAL GROUP, INC., a Delaware corporation (the
"Company"), the lenders signatory to the Credit Agreement referred to below (the
"Banks"), the Managing Agents and the Co-Agents named therein (the "Agents") and
THE BANK OF NEW YORK, as administrative agent for the Banks (the "Administrative
Agent"), hereby agree as follows:
1. Credit Agreement. (a) Reference is hereby made to the Credit
Agreement, dated as of March 12, 1997, among the Company, the Banks, the Agents
and the Administrative Agent (as amended, modified or waived prior to the date
hereof, the "Credit Agreement"). Terms used in this Amendment (this "Amendment")
that are defined in the Credit Agreement and are not otherwise defined herein
are used herein with the meanings therein ascribed to them. The Credit Agreement
as modified by this Amendment is and shall continue to be in full force and
effect and is hereby in all respects confirmed, approved and ratified.
2. Amendment. Upon and after the Amendment No. 9 Effective Date (as
defined below), the Credit Agreement shall be amended as follows:
(a) Section 1.01 is hereby amended:
(i) to add, in alphabetical order, the following new
definitions:
"Amendment No. 9" shall mean Amendment No. 9, dated as of June
25, 1999, to the Agreement.
"Amendment No. 9 Effective Date" shall have the meaning
ascribed to that term in Amendment No. 9.
"Kivex Sale Contract" shall mean the Stock Purchase Agreement
Between Allegiance Telecom, Inc. and PennCorp Financial Services, Inc. dated
June 11, 1999 in the form attached as Schedule A to Amendment No. 9, as such
form may be amended or modified from time to time after the Amendment No. 9
Effective Date, provided that that any such amendment or modification was, in
the sound business judgment of the Company and its Board of Directors, in the
best interests of the Company, and provided further that any such amendment or
modification that reduced the aggregate
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cash consideration of $34,500,000 to be received by the Company was consented to
in writing by the Majority Banks; provided further that the net cash proceeds
received by the Company and applied to the prepayment of the Loans shall not be
less than $22,000,000; provided further that the reductions to the $34,500,000
of aggregate consideration shall be only as described on Schedule B to Amendment
No. 9, except that such reductions may be less than the amounts on such Schedule
B.
(ii) to amend the following existing definitions to
read as follows:
"Commitment Stepdown Date" shall mean the Amendment No. 9
Effective Date.
"Commitment" shall mean (i) the amount set opposite each
Bank's name on the signature pages of Amendment No. 9 under the caption "Initial
Commitment" and, on and after the Commitment Stepdown Date, the "Reduced
Commitment", or, in the case of a Bank that becomes a Bank pursuant to an
assignment, the amount of the assignor's Commitment assigned to such Bank (in
either case as the same may be terminated or reduced at any time or from time to
time pursuant to Section 2.04, canceled pursuant to Section 9 or increased or
reduced at any time or from time to time pursuant to assignments made in
accordance with Section 11.06) or (ii) as the context may require, the
obligation of each Bank to make RC Loans in an aggregate unpaid principal amount
not exceeding such amount.
"Kivex Sale" shall mean the sale of Kivex pursuant to the
Kivex Sale Contract.
"Reduced Commitment" shall mean, as applied to any Bank, the
amount at such time of such Bank's Commitment, minus the amount set forth
opposite such Bank's name under the caption "Reduction of Commitment" on the
signature pages hereof.
(b) Section 2.04(b)(iv) of the Credit Agreement shall be
amended and restated as follows:
"on the Commitment Stepdown Date, the Commitments shall be
reduced by the amounts set forth under the caption "Reduction
of Commitment" on the signature pages attached to Amendment
No. 9;"
(c) Section 3.03(c)(ii)(A)(4) of the Credit Agreement shall be
amended and restated as follows:
"$34,500,000 minus the permitted deductions set forth on
Schedule B to Amendment No. 9 but in no event less than
$22,000,000."
(d) Section 8.01(r) of the Credit Agreement shall be amended
and restated in its entirety as follows: "within two Business Days of the
Closing, as that term is defined in the Kivex Sale Contract, documentation, in
form and substance satisfactory to Ernst & Young LLP, evidencing and accounting
for all of the deductions to the aggregate gross cash consideration of
$34,500,000.
3. Waiver. The Banks hereby waive compliance with Section 8.06(c) of
the Credit Agreement to the extent that any non-compliance results solely from
the sale of Kivex, pursuant to the Kivex Sale Contract.
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4. Representations and Warranties. In order to induce the Banks to
agree to amend the Credit Agreement, the Company hereby represents and warrants
as follows:
(a) The Company has the power, and has taken all necessary
action (including, if a corporation, any necessary stockholder action) to
authorize it, to execute, deliver and perform in accordance with its terms this
Amendment. This Amendment has been duly executed and delivered by the Company
and is a legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally. The
execution, delivery and performance in accordance with its respective terms by
the Company of this Amendment do not and (absent any change in any Applicable
Law or applicable Contract) will not (i) require any Governmental Approval or
any other consent or approval, including any consent or approval of the
stockholders of the Company, other than Governmental Approvals and other
consents and approvals that have been obtained, are final and not subject to
review on appeal or to collateral attack, are in full force and effect and, in
the case of any such consents or approvals required under any Applicable Law or
Contract as in effect on the Amendment No. 9 Effective Date, are listed on
Schedule 3(a) or (ii) violate, conflict with, result in a breach of, constitute
a default under, or result in or require the creation of any Lien (other than
the Security Interest) upon any assets of any such Person under, (A) any
Contract to which any such Person is a party or by which any such Person or any
of its properties may be bound or (B) any Applicable Law.
(b) The copy of the Kivex Sale Contract attached as Schedule A
hereto (i) is in substantially the form approved by the Company's Board of
Directors at the meeting of the Board of Directors of the Company held on June
13, 1999, (ii) is in the form to be executed by the parties, and (iii) has not
been amended or modified subsequent to its having been furnished to the
Administrative Agent and prior to the Amendment No. 9 Effective Date, except by
amendments and modifications of which the Banks have been furnished copies.
(c) The amount of actual deductions to the net cash proceeds
of the Kivex Sale made pursuant to items numbered one through five on Schedule B
to this Amendment No. 9 were each required to be made by the written instruction
of the Applicable Regulatory Insurance Authority.
(d) Each of the foregoing representations and warranties shall
constitute representations and warranties subject to Section 9(d) of the Credit
Agreement and shall be made at and as of the Amendment No. 9 Effective Date.
5. Conditions to Effectiveness; Amendment No. 9 Effective Date. This
Amendment No. 9 shall be effective as of the date first written above, but shall
not become effective as of such date until the time (such time, the "Amendment
No. 9 Effective Date") as:
(a) this Amendment No. 9 has been executed and delivered by
the Company, each of the Banks and the Administrative Agent;
(b) the Closing, as that term is defined in the Kivex Sale
Contract shall have occurred on or before June 30, 1999;
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(c) the Buyer, as that term is defined in the Kivex Sale
Contract, shall have transferred by wire transfer at least $22,000,000 to a
specified account at The Bank of New York;
(d) the Company has paid to the Administrative Agent for the
account of each Bank a non-refundable fee in an amount equal to 0.125% of such
Bank's Commitment; and
(e) all amounts payable pursuant to Section 11.03 of the
Credit Agreement for which invoices have been delivered to the Company on or
prior to such date, have been paid in full.
6. Governing Law. This Amendment No. 9 shall be governed by, and
construed in accordance with, the law of the State of New York.
7. Counterparts. This Amendment No. 9 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Amendment No. 9 by
signing any such counterpart.
[REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 9 to be duly executed as of the day and year first above written. Execution
and delivery by the Banks of this Amendment No. 9 shall constitute their consent
to the execution and delivery of the Kivex Sale Contract required by the Credit
Agreement.
PENNCORP FINANCIAL GROUP, INC.
By: /s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title: President and CEO
THE BANK OF NEW YORK, as
Administrative Agent, Collateral Agent and
as a Bank
$28,617,777.84 Initial Commitment
$ 522,222.22 Reduction of Commitment
By: /s/ XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as a Managing
Agent and as a Bank
$25,573,333.33 Initial Commitment
$ 466,666.67 Reduction of Commitment
By: /s/ XXXXXXXX X. XXXX
Name: Xxxxxxxx X. Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as a Managing Agent and as a Bank
$25,573,333.33 Initial Commitment
$ 466,666.67 Reduction of Commitment
By: /s/ XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. Xxxxxxxx
Title: First Vice President
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NATIONSBANK, N.A., as a Managing
Agent and as a Bank
$25,573,333.33 Initial Commitment
$ 466,666.67 Reduction of Commitment
By: /s/ XXXXXXX X. XXXXXXXXXXX, XX
Name: Xxxxxxx X. Xxxxxxxxxxx, XX
Title: Managing Director
FLEET NATIONAL BANK, as a
Co-Agent and as a Bank
$28,008,888.88 Initial Commitment
$ 511,111.11 Reduction of Commitment
By: /s/ XXXXXX X. XXXXXXXXX
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President
MELLON BANK, N.A., as a Co-Agent
and as a Bank
$21,920,000.00 Initial Commitment
$ 400,000.00 Reduction of Commitment
By: /s/ XXXX X. XXXX
Name: Xxxx X. Xxxx
Title: Vice President
BANK OF MONTREAL, as a Co-Agent
and as a Bank
$18,266,666.67 Initial Commitment
$ 333,333.33 Reduction of Commitment
By: /s/ XXXXXX X. XxXXXX
Name: Xxxxxx X. XxXxxx
Title: Director
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CIBC INC., as a Co-Agent and as a Bank
$18,266,666.67 Initial Commitment
$ 333,333.33 Reduction of Commitment
By: /s/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Executive Director
CIBC World Markets Corp., As Agent
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Co-Agent
and as a Bank
$18,266,666.67 Initial Commitment
$ 333,333.33 Reduction of Commitment
By: /s/ XXXX XXX-XXXXXXXX
Name: Xxxx Xxx-Xxxxxxxx
Title: Vice President
By: /s/ XXXXXX X. XXXXXXXX, XX
Name: Xxxxxx X. Xxxxxxxx, XX
Title: Assistant Vice President
SUNTRUST BANK, CENTRAL FLORIDA
NATIONAL ASSOCIATION
$12,177,777.76 Initial Commitment
$ 222,222.22 Reduction of Commitment
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
$12,177,777.76 Initial Commitment
$ 222,222.22 Reduction of Commitment
By: /s/ XXXXXX X. XXXXXXXXXXX
Name: Xxxxxx x. Xxxxxxxxxxx
Title: Senior Vice President
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BANK ONE TEXAS, NA
$12,177,777.77 Initial Commitment
$ 222,222.22 Reduction of Commitment
By: /s/ XXXXXXX X. XXXXXXXX
Name: Xxxxxxx X. Xxxxxxxx
Title: Officer
BEAR XXXXXXX & CO., INC.
$21,311,111.10 Initial Commitment
$ 388,888.89 Reduction of Commitment
By: /s/ XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Senior Managing Director
XX XXXXX SECURITIES CORPORATION
$3,044,444.44 Initial Commitment
$ 55,555.56 Reduction of Commitment
By: /s/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: Director
ING (U.S.) CAPITAL CORPORATION
$3,044,444.44 Initial Commitment
$ 55,555.56 Reduction of Commitment
By: /s/ XXXX XXXXXXXX
Name: Xxxx Xxxxxxxx
Title: Senior Associate
