Exhibit 10.19
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FIRST AMENDMENT
to the
CREDIT AGREEMENT,
dated as of December 21, 1999,
among
EVEREST REINSURANCE HOLDINGS, INC.,
THE LENDERS NAMED HEREIN,
and
FIRST UNION NATIONAL BANK,
as Administrative Agent,
Lead Arranger:
FIRST UNION SECURITIES, INC.
Dated as of December 18, 2000
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EXHIBITS
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Exhibit A Form of Guarantor Consent
Exhibit B-1 Form of Opinion for Xxxxx, Xxxxx & Xxxxx
Exhibit B-2 Form of In-House Counsel Opinion
Exhibit B-3 Form of Opinion for Xxxxxxx, Xxxx & Xxxxxxx
SCHEDULES
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Schedule 1.1 Commitments
(i)
FIRST AMENDMENT
THIS FIRST AMENDMENT, dated as of December 18, 2000 (this "Amendment"),
is made in respect of the Credit Agreement, dated as of December 21, 1999 (the
"Credit Agreement"), among EVEREST REINSURANCE HOLDINGS, INC., as Borrower, the
financial institutions listed on the signature pages thereof or that become
parties thereto after the date thereof, as Lenders, and FIRST UNION NATIONAL
BANK, as Administrative Agent for the Lenders. Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Credit
Agreement, as amended by this Amendment. Unless otherwise specified, section
references herein refer to sections set forth in the Credit Agreement, as
amended by this Amendment.
The Lenders have agreed to temporarily increase the aggregate amount of
the Commitments, all upon the terms and conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, for themselves
and their successors and assigns, agree as follows:
ARTICLE I
AMENDMENT TO CREDIT AGREEMENT
1.1 Section 1.1 is hereby amended by adding the following definitions
thereto in appropriate alphabetical order:
"AMENDMENT FEE LETTER" shall mean the letter from First Union
to the Borrower, dated December 18, 2000, relating to certain fees
payable by the Borrower in respect of the First Amendment
"FIRST AMENDMENT" shall mean the First Amendment to the Credit
Agreement, dated as of December 18, 2000, among the Borrower, the
Lenders, and the Administrative Agent.
"FIRST AMENDMENT EFFECTIVE DATE" shall have the meaning given
to such term in the First Amendment.
"GUARANTOR CONSENT" shall mean the Guarantor Consent, in the
form of Exhibit A to the First Amendment, executed and delivered by
Everest Re Group, Ltd. on or prior to the First Amendment Effective
Date.
1.2 Section 1.1 is hereby further amended by replacing the following
definitions, as currently set forth therein, with the definitions as set forth
below:
"AGREEMENT" shall mean this Credit Agreement, as amended by
the First Amendment, and as further amended, modified or supplemented
from time to time.
"PARENT GUARANTY" shall mean the Guaranty Agreement, dated as
of February 24, 2000, made by the Guarantor in favor of the
Administrative Agent and the Lenders, as amended by the Guarantor
Consent, and as further amended, modified or supplemented from time to
time.
1.3 The definition of "Commitment" in Section 1.1 is hereby amended to read
in full as follows:
"COMMITMENT" shall mean, with respect to any Lender at any
time, the amount set forth opposite such Lender's name on Schedule 1.1
or, if such Lender has entered into one or more Assignment and
Acceptances, the amount set forth for such Lender at such time in the
Register maintained by the Administrative Agent pursuant to Section
10.7(b) as such Lender's Commitment, as such amount may be reduced at
or prior to such time pursuant to the terms hereof.
1.4 Section 2.4(b) is hereby amended by replacing the references therein to
the term "Closing Date" with the term "First Amendment Effective Date".
1.5 Section 2.5 is hereby amended by changing clause (c) thereof to clause
(d) and inserting as new clause (c) to read as follows:
(c) On April 16, 2001, the aggregate Commitments shall be automatically
and permanently reduced to $150,000,000.
1.6 Section 2.6(b) is hereby amended by inserting the parenthetical
phrase "(including, without limitation, in the event of a mandatory reduction
of the Commitments pursuant to Section 2.5(c))," after the words "at any time"
on the first line therein.
1.7 The Credit Agreement is hereby amended by adding (i) Schedule 1.1
thereto with the new Commitment amounts as set forth on SCHEDULE 1.1 attached
hereto and (ii) deleting the amounts and "Commitment" caption set forth on
the Lenders' signature pages thereto.
ARTICLE II
EFFECTIVENESS
This Amendment shall become effective on the date (the "FIRST AMENDMENT
EFFECTIVE DATE") when the last of the following conditions shall have been
satisfied:
(a) The Administrative Agent shall have received counterparts of this
Amendment, duly executed by the Borrower and the Lenders listed on SCHEDULE 1.1
attached hereto and in sufficient copies for each Lender.
(b) The Administrative Agent shall have received the following, each
dated as of the First Amendment Effective Date (unless otherwise specified) and,
except for the Notes, in sufficient copies for each Lender:
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(i) Notes for each Lender listed on SCHEDULE 1.1, in the amount
of such Lender's Commitment, in each case, duly completed in accordance
with the relevant provisions of Section 2.4 of the Credit Agreement as
amended by this Amendment;
(ii) the Guarantor Consent, duly completed and executed by
Everest Re Group, Ltd., in substantially the form of EXHIBIT A; and
(iii) the favorable opinions of (A) Xxxxx Xxxxx & Xxxxx, special
counsel to the Guarantor, in substantially the form of EXHIBIT B-1,
(B) Xxxxx Xxxxx, General Counsel of the Borrower, in substantially the
form of EXHIBIT B-2, and (C) Xxxxxxx, Xxxx & Xxxxxxx, Bermuda counsel
to the Guarantor, in substantially the form of EXHIBIT B-3.
(c) The Administrative Agent shall have received a certificate, signed
by the president, the chief financial officer, treasurer or comptroller
of the Borrower, in form and substance satisfactory to the Administrative
Agent, certifying that (i) all representations and warranties of the Borrower
contained in the Credit Agreement and the other Credit Documents are true and
correct in all material respects on and as of the First Amendment Effective
Date, both immediately before and after giving effect to this Amendment (except
to the extent any such representation or warranty is expressly stated to have
been made as of a specific date, in which case such representation or warranty
shall be true and correct in all material respects as of such date), (ii) no
Default or Event of Default has occurred and is continuing, both immediately
before and after giving effect to this Amendment, (iii) there are no insurance
regulatory proceedings pending or, to such individual's knowledge, threatened
against any Insurance Subsidiary in any jurisdiction that, if reasonably
possible (as defined under FASB 5) to be adversely determined, would be
reasonably likely to have a Material Adverse Effect, and (iv) both immediately
before and after giving effect to this Amendment, no Material Adverse Change
has occurred since December 31, 1999, and there exists no event, condition or
state of facts that could reasonably be expected to result in a Material Adverse
Change.
(d) Since December 31, 1999, both immediately before and after giving
effect to the consummation of the transactions contemplated by this Amendment,
there shall not have occurred any Material Adverse Change or any event,
condition or state of facts that could reasonably be expected to result in
a Material Adverse Change.
(e) The Borrower shall have paid (i) to First Union, on behalf of the
Lenders, the amendment fee described in the Amendment Fee Letter, on the terms,
in the amount and at the times set forth therein; and (ii) all other fees and
expenses of the Administrative Agent and the Lenders required hereunder or
under any other Credit Document to be paid on or prior to the First Amendment
Effective Date.
(f) The Administrative Agent shall have received a Compliance
Worksheet, duly completed and certified by the chief financial officer of the
Borrower and in form and substance satisfactory to the Administrative Agent,
demonstrating compliance with the financial covenants set forth in Sections 6.1
through 6.3 of the Credit Agreement, determined on a pro forma basis as of
December 18, 2001, after giving effect to the Amendment and the consummation
of the transactions contemplated hereby.
3
(g) The Administrative Agent and each Lender shall have received such
other documents, certificates, and instruments in connection with this Amendment
and the other transactions contemplated hereby as it shall have reasonably
requested.
On the First Amendment Effective Date, the Credit Agreement will be
automatically amended as set forth herein. On and after the First Amendment
Effective Date, the rights and obligations of the parties hereto shall be
governed by the Credit Agreement as amended by this Amendment; PROVIDED, that
the rights and obligations of the parties hereto with respect to the period
prior to the First Amendment Effective Date shall continue to be governed by the
terms of the Credit Agreement.
ARTICLE III
GENERAL
3.1 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
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.
3.2 NOTES PREVIOUSLY DELIVERED ON THE CLOSING DATE. The Notes issued and
delivered by the Borrower to the Lenders on the First Amendment Effective Date
will renew, amend, rearrange and restate, and will not be in novation, discharge
or satisfaction of, the corresponding Notes issued and delivered on the Closing
Date.
3.3 APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS (EXCLUDING NEW YORK GENERAL OBLIGATIONS LAW ss.5-1401). THE
PARTIES HERETO HEREBY DECLARE THAT IT IS THEIR INTENTION THAT THIS AMENDMENT
SHALL BE REGARDED AS MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND THAT THE
LAWS OF SAID STATE SHALL BE APPLIED IN INTERPRETING ITS PROVISIONS IN ALL CASES
WHERE LEGAL INTERPRETATION SHALL BE REQUIRED. EACH OF THE PARTIES HERETO AGREES
(A) THAT THIS AMENDMENT INVOLVES AT LEAST $250,000; AND (B) THAT THIS AMENDMENT
HAS BEEN ENTERED INTO BY THE PARTIES HERETO IN EXPRESS RELIANCE UPON NEW YORK
GENERAL OBLIGATIONS LAW ss. 5-1401.
3.4 COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
3.5 HEADINGS. The headings of this Amendment are for the purposes of
reference only and shall not affect the construction of this Amendment.
[signatures appear on the following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
EVEREST REINSURANCE HOLDINGS, INC.
By: /S/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President, Chief
Financial Officer and Comptroller
(signatures continued)
SIGNATURE PAGE TO
FIRST AMENDMENT
FIRST UNION NATIONAL BANK, as
Administrative Agent and as a Lender
By: /S/ XXXXXX X. XXXXXXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
(signatures continued)
SIGNATURE PAGE TO
FIRST AMENDMENT
BANK ONE, NA, as a Lender
By: /S/ XXXXXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
(signatures continued)
SIGNATURE PAGE TO
FIRST AMENDMENT
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCHES, as a Lender
By: /S/ XXXXXXX X. XXXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
By: /S/ XXXX X. XXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
(signatures continued)
SIGNATURE PAGE TO
FIRST AMENDMENT
ROYAL BANK OF CANADA, as a Lender
By: /S/ XXXXXXXXX XXXX
--------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Senior Manager
(signatures continued)
SIGNATURE PAGE TO
FIRST AMENDMENT
THE CHASE MANHATTAN BANK, as a Lender
By: /S/ XXXXXXXX XXXXXX
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
SIGNATURE PAGE TO
FIRST AMENDMENT
Exhibit A
GUARANTOR CONSENT
December 18, 2000
First Union National Bank, as Administrative Agent
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx XxXxxxxxxxx
Re: First Amendment, dated as of December 18, 2000 (the "FIRST AMENDMENT"),
among Everest Reinsurance Holdings, Inc., as Borrower, First Union
National Bank, as Administrative Agent, and the Lenders party thereto,
which amends the Credit Agreement, dated as of December 21, 1999 (the
"CREDIT AGREEMENT"), among the Borrower, and the Lenders party thereto.
Ladies and Gentlemen:
The undersigned, as a Guarantor, has executed the Parent Guaranty as of
February 24, 2000, for the benefit of the Administrative Agent and the Lenders,
and for the benefit of the Borrower, guaranteeing the Guaranteed Obligations (as
defined in the Guaranty) and undertaking the Total Obligations (as defined in
the Guaranty). Capitalized terms not defined herein shall have the meanings
given to such terms in the Credit Agreement.
The Guarantor hereby acknowledges that it has requested that the
Administrative Agent and the Lenders agree to amend the Credit Agreement so as
to temporarily increase the Commitments in the aggregate principal amount up to
$235,000,000, and make other changes to the Credit Agreement, all as set forth
in the First Amendment. The agreement of the Guarantor made herein is to induce
the Administrative Agent and the Lenders to enter into the First Amendment, and
the Guarantor acknowledges that the Lender would not enter into the First
Amendment in the absence of the agreement of the Guarantor contained herein.
The Guarantor hereby agrees as follows:
(i) the Guarantor approves of and consents to the terms and conditions of the
First Amendment, as an amendment to the Credit Agreement;
(ii) the Guarantor agrees that its obligations under the Guaranty and the
other Credit Documents, as the case may be, shall (A) remain in full
force and effect, (B) not be diminished as a result of the execution
of the First Amendment, and (C) include any and all additional Guaranteed
Obligations (as defined in the Guaranty) incurred under, or as a result
of, this First Amendment;
(iii) the Guarantor waives any defense to its guaranty liability occasioned by
the First Amendment (including without limitation the increase of the
Commitments as contemplated thereby); and
(iv) the Guarantor confirms that its obligations under the Guaranty, and the
other Credit Documents, as the case may be, include, without limitation,
a guarantee of the payment of the Guaranteed Obligations (as defined in
the Guaranty and as increased as a result of the First Amendment) and
responsibility for the Total Obligations (as defined in the Guaranty
and as increased as a result of the First Amendment).
This Agreement shall be governed by and construed in accordance with
the internal laws and judicial decisions of the State of New York. The
agreements contained herein shall be effective as of the effective date of the
First Amendment.
Very truly yours,
EVEREST RE GROUP, LTD.
By: /S/ XXXXXXX X. XXXXXXX
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Exhibit B-1
December 18, 2000
First Union National Bank,
as Administrative Agent
and the Lenders party to the
Credit Agreement referred to below
Re: EVEREST REINSURANCE HOLDINGS, INC.
Ladies and Gentlemen:
We have acted as special New York counsel to Everest Reinsurance
Holdings, Inc., a Delaware corporation (the "BORROWER"), in connection with the
First Amendment dated as of December 18, 2000 (the "AMENDMENT") to the Credit
Agreement dated as of December 21, 1999 (the "CREDIT AGREEMENT" and, as amended
by the Amendment, the "AMENDED CREDIT AGREEMENT") among the Borrower, the
financial institutions party thereto (the "LENDERS") and First Union National
Bank, as Administrative Agent (the "ADMINISTRATIVE AGENT"). We have also acted
as special New York counsel to Everest Re Group, Ltd., a Bermuda corporation
(the "GUARANTOR" and, together with the Borrower, the "CREDIT PARTIES"), in
connection with the Guarantor Consent dated as of December 18, 2000 (the
"CONSENT") made by the Guarantor in favor of the Administrative Agent with
respect to the Parent Guaranty dated as of February 24, 2000 made by the
Guarantor for the benefit of the Administrative Agent and the Lenders (the
"GUARANTY"). This opinion is furnished to you pursuant to Section II(b)(iii)(A)
of the Amendment.
In connection with delivering this opinion to you, we have examined
originals or copies, certified or otherwise identified to our satisfaction as
being true copies, of (i) the Credit Agreement, (ii) the Guaranty, (iii) the
Amendment, (iv) the Consent and (v) the notes of the Borrower referred to in
Section II (b)(i) of the Amendment (the "NEW NOTES"). The items referred to in
clauses (i) through (v) above are called the "DOCUMENTS" and the items referred
to in clauses (iii) through (v) above are called the "AMENDMENT DOCUMENTS".
Capitalized terms used but not otherwise expressly defined herein shall have the
same meanings as set forth in the Amended Credit Agreement.
For purposes of this opinion, "APPLICABLE LAW" means the General
Corporation Law of the State of Delaware, and those laws and regulations of the
United States of America and the State of New York that, in our experience,
would normally be applicable to general business corporations which are not
engaged in regulated business activities and to transactions of the type
contemplated by the Amended Credit Agreement (but without our having made any
special investigation as to any other law), but excluding (A) all laws of the
type described in paragraph (D)(6) below and (B) any law, rule, regulation,
ordinance, code or similar provision of law of any county, municipality or
similar political subdivision or any agency or instrumentality thereof; provided
that we express no opinion as to any law the violation of which would not have
a material adverse effect on the ability of the Borrower to perform its
obligations under the Amended Credit Agreement and the New Notes or the ability
of the Guarantor to perform its obligations under the Guaranty.
We also have examined originals, or copies certified or otherwise
identified to our satisfaction as being true copies, of such agreements,
corporate records, certificates of public officials and other documents as we
have deemed necessary as a basis for the opinions hereinafter expressed. As to
questions of fact material to such opinions, we have, when such facts were not
independently established by us, relied upon certificates of the Credit Parties
or their officers or of public officials.
In our examination of the documents referred to above, we have assumed
the authenticity of all such documents submitted to us as originals, the
conformity to the originals of all such documents submitted to us as copies, the
genuineness of all signatures, and the legal capacity and power of, and due
authorization, execution and delivery of the Amended Credit Agreement and the
Guaranty by, all parties other than the Credit Parties. Further, we have assumed
that the Amended Credit Agreement and the Guaranty constitute the legal, valid
and binding obligations of all parties thereto other than the Credit Parties. We
have also assumed the truth of all representations and warranties of the
Borrower in the Amended Credit Agreement.
In expressing the opinions set forth below, we have assumed that (a)
each Credit Party is a corporation validly existing under the laws of its
jurisdiction of incorporation, (b) the Borrower has the corporate power and
authority to execute and deliver the Amendment and the New Notes and perform its
obligations under the Amended Credit Agreement and the New Notes, (c) the
Guarantor has the corporate power and authority to execute, deliver and perform
its obligations under the Documents to which it is a party, (d) the execution
and delivery by the Borrower of the Amendment and the New Notes, and the
performance by the Borrower of its obligations under the Amended Credit
Agreement and the New Notes, have been duly authorized by all necessary
corporate action on the part of the Borrower, (e) the execution and delivery by
the Guarantor of the Documents to which it is a party, and the performance by
the Guarantor of its obligations thereunder, have been duly authorized by all
necessary corporate action on the part of the Guarantor, (f) each Credit Party
has duly executed and delivered the Documents to which it is a party and (g) the
execution, delivery and performance by the Credit Parties of the Documents do
not violate any law, rule or regulation applicable to the Credit Parties (other
than Applicable Law).
On the basis of, and in reliance upon, the foregoing, and subject to
the qualifications contained herein, we are of the opinion that:
1. The execution and delivery by each Credit Party of the Amendment
Documents to which it is a party do not violate any Applicable Law. The
performance by the Borrower of its obligations under the Amended Credit
Agreement and the New Notes do not violate any Applicable Law.
2. The Amended Credit Agreement and the New Notes constitute the
legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their terms.
3. No consent, approval, authorization or other action by, notice
to, or registration or filing with, any New York or Delaware
Governmental Authority under Applicable Law is required as a condition
to or otherwise in connection with the execution and delivery by any
Credit Party of the Amendment Documents to which it is a party or the
borrowings by the Borrower under the Amended Credit Agreement.
The opinions set forth above are subject to the following
qualifications and limitations:
(A) Our opinions are subject to the effect of any applicable
bankruptcy, insolvency, fraudulent conveyance, equitable subordination,
reorganization, readjustment of debt, moratorium or similar laws
affecting creditors' rights generally.
(B) Our opinions are subject to the effect of general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law) and by
limitations on the availability of specific performance, injunctive
relief or other equitable remedies.
(C) We express no opinion as to the enforceability, under
certain circumstances, of provisions imposing penalties or forfeitures,
late payment charges or an increase in interest rate upon delinquency
in payment or the occurrence of a default.
(D) We express no opinion as to:
(1) the existence of any Person's ownership rights in or
title to any property;
(2) the validity, perfection, enforceability or priority
of any Lien on any property;
(3) any agreement by any Credit Party to submit to the
jurisdiction of a particular court, waive jury trial or
appoint an agent for acceptance of service of process;
(4) any provision of the Documents purporting to waive
any objection to the laying of venue or any claim that an
action or proceeding has been brought in an inconvenient
forum;
(5) any provision of the Documents which authorizes
or permits any purchaser of a participation interest from any
party to set off or apply any deposit or property or any
indebtedness with respect to any participation interest;
(6) compliance with, or any governmental or regulatory
filing, approval, authorization, license, consent or notice
registration or filing required by or under, any (i) Federal
or state environmental law, (ii) Federal or state antitrust
law, (iii) Federal or state taxation law, (iv) Federal or
state worker health or safety, zoning or permitting or land
use matter, (v) Federal or state patent, trademark or
copyright statute, rule or regulation, (vi) statutory or other
requirement relating to the disposition of hazardous waste or
environmental protection, (vii) Federal or state receivership
or conservatorship law, (viii) securities registration or
antifraud provisions under any Federal or state securities
law, (ix) Federal or state labor or employment law, (x)
Federal or state employee benefits or pension law or (xi)
insurance law;
(7) the effect of the law of any jurisdiction (other
than New York) wherein the Lender may be located or wherein
the enforcement of any Document may be sought that limits the
rates of interest legally chargeable or collectible; and
(8) any provision of the Documents (i) restricting
access to legal or equitable remedies, (ii) purporting to
establish evidentiary standards, (iii) purporting to appoint
any Person as the attorney-in-fact of any other Person, (iv)
which provides that the Documents may only be amended,
modified or waived in writing or (v) stating that all rights
or remedies of any party are cumulative and may be enforced in
addition to any other right or remedy and that the election of
a particular remedy does not preclude recourse to one or more
remedies.
(E) We note that the enforceability of the Documents may be
limited or rendered ineffective if the Administrative Agent or the
Lenders fail to act in good faith and in a commercially reasonable
manner in seeking to exercise their rights and remedies thereunder.
Without limiting the generality of the foregoing, we note that a court
might hold that a technical and nonmaterial default under the
Documents does not give rise to a right of the Administrative Agent or
the Lenders to exercise certain remedies including, without limitation,
acceleration.
(F) We express no opinion as to the enforceability of the
indemnification provisions of the Documents insofar as said provisions
contravene public policy or might require indemnification or payments
to any Person with respect to any litigation determined adversely to
such Person, or any loss, cost or expense arising out of the gross
negligence or willful misconduct of such Person or any violation by
such Person of statutory duties, general principles of equity or public
policy.
(G) No opinion is rendered herein as to the effect of any law
relating to the legal or regulatory status of the Administrative Agent
or any Lender.
(H) We express no opinion as to the enforceability of any
choice of law provision to the extent such provision is to be enforced
by a court other than a New York State court or a federal court located
in the State of New York sitting with jurisdiction based on diversity
of citizenship.
Members of our firm are members of the State Bar of New York. This
opinion is limited to the law of the State of New York, the federal laws of the
United States, and the General Corporation Law of the State of Delaware. The
opinions expressed herein are limited in all respects to the law existing on the
date hereof. In rendering this opinion, we do not undertake to advise you of any
change in law or fact that may occur after the date hereof.
This opinion is furnished by us to you solely for your benefit and
solely with respect to the Documents upon the understanding that we are not
hereby assuming any professional responsibility to any other Person. This
opinion may not be relied upon by you for any other purpose and may not be
relied upon by any other Person for any purpose, in each case without our prior
written consent; notwithstanding the foregoing, assignees of the Lender
permitted under the Credit Agreement may rely on this opinion as if it had been
addressed to them. The opinions expressed in this letter are limited to the
matters set forth herein, and no other opinion should be inferred beyond the
matters expressly stated herein.
Very truly yours,
XXXXX, XXXXX & XXXXX
Exhibit B-2
December 18, 2000
First Union National Bank,
as Administrative Agent and the
Lenders to the Credit Agreement
referred to below
Re: EVEREST REINSURANCE HOLDINGS, INC.
Ladies and Gentlemen:
I am General Counsel for Everest Reinsurance Holdings, Inc., a Delaware
corporation (the "Borrower"), and have represented the Borrower in connection
with the First Amendment dated as of December 18, 2000 (the "Amendment") to the
Credit Agreement dated as of December 21, 1999 (the "Credit Agreement" and, as
amended by the Amendment, the "Amended Credit Agreement") among the Borrower,
the financial institutions party thereto (the "Lenders") and First Union
National Bank, as Administrative Agent (the "Administrative Agent"). I have also
represented Everest Re Group, Ltd., a Bermuda corporation (the "Guarantor" and,
together with the Borrower, the "Credit Parties"), in connection with the
Guarantor Consent dated as of December 18, 2000 (the "Consent") with respect to
the Parent Guaranty dated as of February 24, 2000 (the "Guaranty") made by the
Guarantor in favor of the Administrative Agent and the Lenders. Capitalized
terms used herein and not defined have the meanings assigned in the Amended
Credit Agreement. This opinion is furnished to you pursuant to Section
II(b)(iii)(B) of the Amendment.
In that connection I have examined (i) the Credit Agreement, (ii) the
Guaranty, (iii) the Amendment, (iv) the Consent and (v) the notes of the
Borrower referred to in Section II(b)(i) of the Amendment (the "New Notes"). The
items referred to in clauses (i) through (v) above are called the "Credit
Documents" and the items referred to in clauses (iii) through (v) above are
called the "Amendment Documents." I have also examined such other documents as I
have deemed necessary for purposes of rendering the opinions herein. In my
examination of such documents, I have assumed the authenticity of all such
documents submitted to me as originals, the genuineness of all signatures (other
than those of the Credit Parties on the Credit Documents), and the conformity to
the originals of such documents submitted to me as copies.
Based upon the foregoing, it is my opinion that:
1. The Borrower (i) is a corporation validly existing and in good
standing under the laws of the jurisdiction of its incorporation and (ii) is
duly qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the nature of its business or the ownership of its
properties requires it to be so qualified, except for such jurisdictions in
which the failure to be so qualified would not be reasonably likely to have a
Material Adverse Effect.
2. The Borrower has full corporate power and authority to execute and
deliver the Amendment Documents to which it is a party, to perform its
obligations under the Amended Credit Agreement and the New Notes, to own and
hold its property and to engage in its business as currently conducted.
3. The Borrower has taken all necessary corporate action to execute and
deliver each of the Amendment Documents to which it is a party and to perform
its obligations under the Amended Credit Agreement and the New Notes. The
Borrower has validly executed and delivered each Amendment Document to which it
is a party.
4. The execution and delivery by the Borrower of the Amendment
Documents to which it is a party and compliance by it with the terms of the
Amended Credit Agreement and the New Notes do not violate any provision of its
certificate of incorporation or by-laws or any Requirement of Law applicable to
it.
5. The execution and delivery by each Credit Party of the Amendment
Documents to which it is a party, the performance by the Guarantor of the
Consent and the performance by the Borrower of its obligations under the Amended
Credit Agreement and the New Notes do not (i) to my knowledge, result in a
breach of or constitute (with notice, lapse of time or both) a default under any
material indenture, agreement or other instrument to which it is a party, by
which it or any of its properties is bound or to which it is subject, (ii)
result in or require the creation or imposition of any Lien upon any of its
properties or assets or (iii) violate any applicable law, rule or regulation of
the State of New Jersey.
6. No consent, approval, authorization or other action by, notice to,
or registration or filing with, any Governmental Authority of the State of New
Jersey or Delaware or other Person is required as a condition to or otherwise in
connection with (i) the execution and delivery by either Credit Party of the
Amendment Documents to which it is a party, (ii) the performance by the
Guarantor of its obligations under the Consent or (iii) the performance by the
Borrower of its obligations under the Amended Credit Agreement and the New
Notes.
7. Except as disclosed in the Guarantor's 1999 Form 10-K and as
supplemented in written disclosure to the Lender delivered prior to execution of
the Amendment by the Borrower, there are no actions, investigations, suits or
proceedings pending or, to my knowledge threatened, at law, in equity or in
arbitration, before any court, other Governmental Authority or other Person, (i)
against or affecting the Credit Parties, any of their respective Subsidiaries or
any of their respective properties that, if reasonably possible (within the
meaning of FASB 5) to be adversely determined, would have a Material Adverse
Effect, or (ii) that questions the validity of the Credit Documents.
8. If, notwithstanding the express selection of New York law as the
governing law of the Amended Credit Agreement, a New Jersey court or a federal
court sitting in New Jersey were to apply New Jersey law to the Amended Credit
Agreement, the Amended Credit Agreement constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance with its terms.
The opinions set forth above are subject to the following
qualifications and limitations:
(A) My opinions are subject to the effect of any applicable
bankruptcy, insolvency, fraudulent conveyance, equitable subordination,
reorganization, readjustment of debt, moratorium or similar laws
affecting creditors' rights generally.
(B) My opinions are subject to the effect of general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether considered in a proceeding in equity or at law) and by
limitations on the availability of specific performance, injunctive
relief or other equitable remedies.
(C) I express no opinion as to the enforceability, under
certain circumstances, of provisions imposing penalties or forfeitures,
late payment charges or an increase in interest rate upon delinquency
in payment or the occurrence of a default.
(D) I express no opinion as to:
(1) the existence of any Person's ownership rights in or
title to any property;
(2) the validity, perfection, enforceability or priority
of any Lien on any property;
(3) any agreement by any Credit Party to submit to the
jurisdiction of a particular court, waive jury trial or
appoint an agent for acceptance of service of process;
(4) any provision of the Credit Documents purporting
to waive any objection to the laying of venue or any claim
that an action or proceeding has been brought in an
inconvenient forum;
(5) any provision of the Credit Documents which authorizes
or permits any purchaser of a participation interest from any
party to set off or apply any deposit or property or any
indebtedness with respect to any participation interest;
(6) the effect of the law of any jurisdiction (other
than New Jersey) wherein the Lender may be located or wherein
the enforcement of any Credit Document may be sought that
limits the rates of interest legally chargeable or
collectible; and
(7) any provision of the Credit Documents (i) restricting
access to legal or equitable remedies, (ii) purporting to
establish evidentiary standards, (iii) purporting to appoint
any Person as the attorney-in-fact of any other Person, (iv)
which provides that the Credit Documents may only be amended,
modified or waived in writing or (v) stating that all rights
or remedies of any party are cumulative and may be enforced in
addition to any other right or remedy and that the election of
a particular remedy does not preclude recourse to one or more
remedies.
(E) I note that the enforceability of the Credit Documents may
be limited or rendered ineffective if the Administrative Agent or the
Lenders fail to act in good faith and in a commercially reasonable
manner in seeking to exercise their rights and remedies thereunder.
Without limiting the generality of the foregoing, I note that a court
might hold that a technical and nonmaterial default under the Credit
Documents does not give rise to a right of the Administrative Agent or
the Lenders to exercise certain remedies including, without limitation,
acceleration.
(F) I express no opinion as to the enforceability of the
indemnification provisions of the Credit Documents insofar as said
provisions contravene public policy or might require indemnification or
payments to any Person with respect to any litigation determined
adversely to such Person, or any loss, cost or expense arising out of
the gross negligence or willful misconduct of such Person or any
violation by such Person of statutory duties, general principles of
equity or public policy.
(G) No opinion is rendered herein as to the effect of any law
relating to the legal or regulatory status of the Administrative Agent
or any Lender.
This opinion is limited to the laws of the State of New Jersey, the
federal laws of the United States and the General Corporation Law and insurance
laws of the State of Delaware.
This opinion may not be used or relied upon by or published or
communicated to any Person other than the addressees hereof and permitted
Assignees for any purpose whatsoever, without my prior written consent in each
instance.
Very truly yours,
Xxxxx X. Xxxxx
Exhibit B-3
18 December 2000
First Union National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
XXX
(As Administrative Agent
and as a Lender)
and
to those banks and financial
institutions whose names and
addresses appear in the
Schedule attached hereto
Dear Sirs
EVEREST RE GROUP, LTD. (THE "COMPANY")
We have acted as special legal counsel in Bermuda to the Company in connection
with the guaranty issued by the Company in favour of First Union National Bank,
as administrative agent for the Lenders (as defined below) (the "Agent") of
certain obligations of Everest Reinsurance Holdings, Inc. (the "Borrower") under
the Credit Agreement (defined below).
For the purposes of giving this opinion, we have examined the following
documents:
(i) the executed Credit Agreement (the "Credit Agreement") dated as of 21
December, 1999 made among the Borrower, the Agent, and the banks and
financial institutions listed on the Schedule attached hereto (the
"Lenders");
(ii) the executed Parent Guaranty (the "February 2000 Guaranty") dated as of
24 February, 2000, made by the Company in favour of the Agent and the
Lenders;
(iii) the First Amendment to the Credit Agreement dated as of 18 December,
2000, (the "First Amendment") among the Borrower, the Agent and the
Lenders; and
(iv) the Guarantor Consent to the First Amendment (the "Consent") dated as
of 18 December, 2000, made by the Company in favour of the
Administrative Agent and the Lenders (together, the Consent and the
February Guaranty the "Guaranty").
The Credit Agreement, the First Amendment and the Guaranty are herein sometimes
collectively referred to as the "Documents".
We have also reviewed and have relied upon copies of the memorandum of
association and the bye-laws of the Company, copies of minutes of meetings of
the Company's board of directors on 12 December 2000 (the "Minutes") and such
other documents and made such enquiries as to questions of Bermuda law as we
have deemed necessary in order to render the opinions set forth below.
We have assumed (a) the genuineness and authenticity of all signatures and the
conformity to the originals of all copies (whether or not certified) examined by
us and the authenticity and completeness of the originals from which such copies
were taken, (b) that where a document has been examined by us in draft form, it
will be or has been executed in the form of that draft, and where a number of
drafts of a document have been examined by us all changes thereto have been
marked or otherwise drawn to our attention, (c) the capacity, power and
authority of each of the parties to the Documents, other than the Company, to
enter into and perform its respective obligations under the Documents, (d) the
due execution and delivery of the Documents by each of the parties thereto, (e)
the accuracy and completeness of the recitals and all factual representations
made in the Documents and other documents reviewed by us, (f) that the
resolutions contained in the Minutes remain in full force and effect and have
not been rescinded or amended, (g) that the Company is entering into the
Guaranty pursuant to its business of a group holding company, (h) that there is
no provision of the law of any jurisdiction, other than Bermuda, which would
have any implication in relation to the opinions expressed herein, (i) the
validity and binding effect and enforceability under the laws of the State of
New York in the United States of America (the "Foreign Laws") of the Documents
which are expressed to be governed by such Foreign Laws in accordance with their
respective terms, (j) the validity and binding effect and enforceability under
the Foreign Laws of the choice of the Foreign Laws as the governing laws of the
Documents and of the submission by the Company pursuant to the Guaranty to the
jurisdiction of the courts sitting in the State of New York in the United States
of America (the "Foreign Courts"); and (k) that none of the parties to the
Documents, other than the Company, will perform their respective obligations
(other than enforcement obligations) under the Documents, in or from within
Bermuda.
The obligations of the Company under the Guaranty (a) will be subject to the
laws from time to time in effect relating to bankruptcy, insolvency,
liquidation, possessory liens, rights of set off, reorganisation, amalgamation,
moratorium or any other laws or legal procedures, whether of a similar nature or
otherwise, generally affecting the rights of creditors, (b) will be subject to
statutory limitation of the time within which proceedings may be brought, (c)
will be subject to general principles of equity and, as such, specific
performance and injunctive relief, being equitable remedies, may not be
available, (d) may not be given effect to by a Bermuda court, whether or not it
was applying the Foreign Laws, if and to the extent they constitute the payment
of an amount which is in the nature of a penalty and not in the nature of
liquidated damages. Notwithstanding any contractual submission to the
jurisdiction of specific courts, a Bermuda court has inherent discretion to stay
or allow proceedings in the Bermuda courts.
We express no opinion as to the enforceability of any provision of the Guaranty
which provides for the payment of a specified rate of interest on the amount of
a judgment after the date of judgment or which purports to xxxxxx the statutory
powers of the Company.
We have made no investigation of and express no opinion in relation to the laws
of any jurisdiction other than Bermuda. This opinion is to be governed by and
construed in accordance with the laws of Bermuda and is limited to and is given
on the basis of the current law and practice in Bermuda. This opinion is issued
solely for your benefit and is not to be relied upon by any other person, firm
or entity or in respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Company is duly incorporated, is existing and is in good standing
(meaning that it has not failed to make any filing with any Bermuda
governmental authority or to pay any Bermuda government fee or tax
which might make it liable to be struck off the Register of Companies)
under the laws of Bermuda.
2. The Company has the necessary corporate power and authority to enter
into and perform its obligations under the Guaranty. The execution and
delivery of the Guaranty by the Company and the performance by the
Company of its obligations thereunder will not violate the memorandum
of association or bye-laws of the Company nor any applicable law,
regulation, order or decree in Bermuda.
3 The Company has taken all corporate action required to authorise its
execution, delivery and performance of the Guaranty. The Guaranty has
been duly executed on behalf of the Company. The Guaranty constitutes
the valid and binding obligation of the Company enforceable in
accordance with the terms thereof.
4. No order, consent, approval, licence, authorisation or validation of or
exemption by any government or public body or authority of Bermuda or
any sub-division thereof is required to authorise or is required in
connection with the execution, delivery, performance and enforcement of
the Guaranty.
5. It is not necessary or desirable to ensure the enforceability in
Bermuda of the Guaranty that it be registered in any register kept
by, or filed with, any governmental authority or regulatory body in
Bermuda. However, to the extent that the Guaranty creates a charge
over assets of the Company, it may be desirable to ensure the priority
in Bermuda of the charge that it be registered in the Register of
Charges in accordance with Section 55 of the Companies Xxx 0000. On
registration, to the extent that Bermuda law governs the priority of a
charge, such charge will have priority in Bermuda over any unregistered
charges, and over any subsequently registered charges, in respect of
the assets which are the subject of the charge. A registration fee o
BD$446 will be payable in respect of the registration.
While there is no exhaustive definition of a charge under Bermuda law,
a charge normally has the following characteristics:
(i) it is a proprietary interest granted by way of security which
entitles the chargee to resort to the charged property only
for the purposes of satisfying some liability due to the
chargee (whether from the chargor or a third party); and
(ii) the chargor retains an equity of redemption to have the
property restored to him when the liability has been
discharged.
However, as the Guaranty is expressed to be governed by the Foreign
Laws, the question of whether it would possess these particular
characteristics would be determined under the Foreign Laws.
6. Based solely on a search of the Register of Charges maintained by the
Registrar of Companies pursuant to Section 55 of the Companies Xxx 0000
conducted at 3:00 p.m. on 18 December, 2000 (which would not reveal
details of matters which have been lodged for registration but not
actually registered at the time of our search), there are [no] charges
registered on the assets of the Company.
7. Based solely upon a search of the Cause Book of the Supreme Court of
Bermuda conducted at 3:00 p.m. on 18 December, 2000 (which would not
reveal details of proceedings which have been filed but not actually
entered in the Cause Book at the time of our search), there are no
judgments against the Company, nor any legal or governmental
proceedings pending in Bermuda to which the Company is a party.
8. Based solely on a search of the public records in respect of the
Company maintained at the offices of the Registrar of Companies at 3:00
p.m. on 18 December, 2000 (which would not reveal details of matters
which have not been lodged for registration or have been lodged for
registration but not actually registered at the time of our search)
and a search of the Cause Book of the Supreme Court of Bermuda
conducted at 3:00 p.m. on 18 December, 2000 (which would not reveal
details of proceedings which have been filed but not actually entered
in the Cause Book at the time of our search), no steps have been, or
are being, taken in Bermuda for the appointment of a receiver or
liquidator to, or for the winding-up, dissolution, reconstruction or
reorganisation of, the Company, though it should be noted that the
public files maintained by the Registrar of Companies do not reveal
whether a winding-up petition or application to the Court for the
appointment of a receiver has been presented and entries in the Cause
Book may not specify the nature of the relevant proceedings.
9. The Guaranty will not be subject to ad valorem stamp duty or other
documentary tax in Bermuda in connection with its execution. There may
be filing and other fees payable in connection with enforcement
proceedings before a Bermuda court based on the Guaranty.
10. The choice of the Foreign Laws as the governing law of the Guaranty is
a valid choice of law and would be recognised and given effect to in
any action brought before a court of competent jurisdiction in Bermuda,
except for those laws:
(i) which such court considers to be procedural in nature;
(ii) which are revenue or penal laws; or
(iii) the application of which would be inconsistent with public
policy, as such term is interpreted under the laws of Bermuda.
The submission in the Guaranty to the jurisdiction of the
Foreign Courts is valid and binding upon the Company.
11. The courts of Bermuda would recognise as a valid judgment, a final and
conclusive judgment in personam obtained in the Foreign Courts against
the Company based upon the Guaranty under which a sum of money is
payable (other than a sum of money payable in respect of multiple
damages, taxes or other charges of a like nature or in respect of a
fine or other penalty) and would give a judgment based thereon provided
that:
(i) such courts had proper jurisdiction over the parties subject to
such judgment;
(ii) such courts did not contravene the rules of natural justice of
Bermuda;
(iii) such judgment was not obtained by fraud;
(iv) the enforcement of the judgment would not be contrary to the
public policy of Bermuda;
(v) no new admissible evidence relevant to the action is submitted
prior to the rendering of the judgment by the courts of
Bermuda; and
(vi) there is due compliance with the correct procedures under the
laws of Bermuda.
12. There is no income or other tax of Bermuda imposed by withholding or
otherwise on any payment to be made by the Company pursuant to the
Guaranty.
13. Neither the Agent nor the Lenders will be deemed to be resident,
domiciled or carrying on business in Bermuda by reason only of the
execution, performance and/or enforcement of the Guaranty by the Agent
or by the Lenders.
14. Each of the Agent and the Lenders has standing to bring an action or
proceedings before the appropriate courts in Bermuda for the
enforcement of the Guaranty. It is not necessary or advisable in order
for the Agent or the Lenders to enforce its respective rights under the
Guaranty, including the exercise of remedies thereunder, that it be
licensed, qualified or otherwise entitled to carry on business in
Bermuda.
15. The Company is not entitled to any immunity under the laws of Bermuda,
whether characterised as sovereign immunity or otherwise, from any
legal proceedings to enforce the Guaranty in respect of itself or its
property.
16. The obligations of the Company under the Guaranty will rank at least
pari passu in priority of payment with all other unsecured
unsubordinated indebtedness of the Company, other than indebtedness
which is preferred by virtue of any provision of the laws of Bermuda of
general application.
17. The Company has been designated as non-resident of Bermuda for the
purposes of the Exchange Control Act, 1972 and, as such, is free to
acquire, hold and sell foreign currency and securities without
restriction.
Yours faithfully,
Xxxxxxx Xxxx & Xxxxxxx
SCHEDULE
--------
Bank One, NA
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
XXX
Deutsche Bank AG
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
XXX
Royal Bank of Canada
Xxx Xxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000-0000
XXX
The Chase Manhattan Bank
Financial Institutions Group
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
Borrower's Taxpayer Identification No. 00-0000000
NOTE
$47,000,000 December 18, 2000
Charlotte, North Carolina
FOR VALUE RECEIVED, EVEREST REINSURANCE HOLDINGS, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
BANK ONE, NA (the "Lender"), at the offices of First Union National
Bank (the "Administrative Agent") located at One First Union Center, 301 South
College Street, Charlotte, North Carolina (or at such other place or places as
the Administrative Agent may designate), at the times and in the manner provided
in the Credit Agreement, dated as of December 21, 1999, as amended by the First
Amendment thereto (as further amended, modified or supplemented from time to
time, the "Credit Agreement"), among the Borrower, the Lenders from time to time
parties thereto, and First Union National Bank, as Administrative Agent, the
principal sum of
FORTY-SEVEN MILLION DOLLARS AND NO/100 ($47,000,000), or such lesser
amount as may constitute the unpaid principal amount of the Loans made by the
Lender, under the terms and conditions of this promissory note (this "Note") and
the Credit Agreement. The defined terms in the Credit Agreement are used herein
with the same meaning. The Borrower also unconditionally promises to pay
interest on the aggregate unpaid principal amount of this Note at the rates
applicable thereto from time to time and on the dates as provided in the Credit
Agreement.
This Note is one of the Notes referred to in the Credit Agreement and
is issued to evidence the Loans made by the Lender pursuant to the Credit
Agreement. All of the terms, conditions and covenants of the Credit Agreement
are expressly made a part of this Note by reference in the same manner and with
the same effect as if set forth herein at length, and any holder of this Note is
entitled to the benefits of and remedies provided in the Credit Agreement and
the other Credit Documents. Reference is made to the Credit Agreement for
provisions relating to the interest rate, maturity, payment, prepayment and
acceleration of this Note. This Note is hereby substituted for and replaces, as
to the Lender, the Note dated December 21, 1999 from Borrower to the Lender in
the original principal amount of $30,000,000 (the "Replaced Note"); PROVIDED,
HOWEVER, that Borrower acknowledges and agrees that, except as expressly
provided by the terms of this Note (including the original principal amount
hereof), the substitution for and replacement of the Replaced Note by this Note
shall not extinguish or otherwise affect any of Borrower's obligations to the
Lender under the Credit Agreement, whether or not evidenced by the Replaced
Note, including, without limitation, Borrower's obligation to pay interest
accrued prior to the date hereof under the Replaced Note.
In the event of an acceleration of the maturity of this Note, this Note
shall become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflict of laws
(excluding NEW YORK GENERAL OBLIGATIONS LAW ss.5-1401). The Borrower hereby
submits to the nonexclusive jurisdiction and venue of the federal and state
court located in Mecklenburg County, North Carolina or New York County, New
York, although the Lender shall not be limited to bringing an action in such
courts.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by its duly authorized corporate officer as of the day and year first
above written.
EVEREST REINSURANCE HOLDINGS, INC.
By:
---------------------------
Title:
2
Borrower's Taxpayer Identification No. 00-0000000
NOTE
$47,000,000 December 18, 2000
Charlotte, North Carolina
FOR VALUE RECEIVED, EVEREST REINSURANCE HOLDINGS, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
DEUTSCHE BANK AG (the "Lender"), at the offices of First Union National
Bank (the "Administrative Agent") located at One First Union Center, 301 South
College Street, Charlotte, North Carolina (or at such other place or places as
the Administrative Agent may designate), at the times and in the manner provided
in the Credit Agreement, dated as of December 21, 1999, as amended by the First
Amendment thereto (as further amended, modified or supplemented from time to
time, the "Credit Agreement"), among the Borrower, the Lenders from time to time
parties thereto, and First Union National Bank, as Administrative Agent, the
principal sum of
FORTY SEVEN MILLION DOLLARS AND NO/100 ($47,000,000), or such lesser
amount as may constitute the unpaid principal amount of the Loans made by the
Lender, under the terms and conditions of this promissory note (this "Note") and
the Credit Agreement. The defined terms in the Credit Agreement are used herein
with the same meaning. The Borrower also unconditionally promises to pay
interest on the aggregate unpaid principal amount of this Note at the rates
applicable thereto from time to time and on the dates as provided in the Credit
Agreement.
This Note is one of the Notes referred to in the Credit Agreement and
is issued to evidence the Loans made by the Lender pursuant to the Credit
Agreement. All of the terms, conditions and covenants of the Credit Agreement
are expressly made a part of this Note by reference in the same manner and with
the same effect as if set forth herein at length, and any holder of this Note is
entitled to the benefits of and remedies provided in the Credit Agreement and
the other Credit Documents. Reference is made to the Credit Agreement for
provisions relating to the interest rate, maturity, payment, prepayment and
acceleration of this Note. This Note is hereby substituted for and replaces, as
to the Lender, the Note dated December 21, 1999 from Borrower to the Lender in
the original principal amount of $30,000,000 (the "Replaced Note"); PROVIDED,
HOWEVER, that Borrower acknowledges and agrees that, except as expressly
provided by the terms of this Note (including the original principal amount
hereof), the substitution for and replacement of the Replaced Note by this Note
shall not extinguish or otherwise affect any of Borrower's obligations to the
Lender under the Credit Agreement, whether or not evidenced by the Replaced
Note, including, without limitation, Borrower's obligation to pay interest
accrued prior to the date hereof under the Replaced Note.
In the event of an acceleration of the maturity of this Note, this Note
shall become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflict of laws
(excluding NEW YORK GENERAL OBLIGATIONS LAW ss.5-1401). The Borrower hereby
submits to the nonexclusive jurisdiction and venue of the federal and state
court located in Mecklenburg County, North Carolina or New York County, New
York, although the Lender shall not be limited to bringing an action in such
courts.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by its duly authorized corporate officer as of the day and year first
above written.
EVEREST REINSURANCE HOLDINGS, INC.
By:
---------------------------
Title:
2
Borrower's Taxpayer Identification No. 00-0000000
NOTE
$47,000,000 December 18, 2000
Charlotte, North Carolina
FOR VALUE RECEIVED, EVEREST REINSURANCE HOLDINGS, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
ROYAL BANK OF CANADA (the "Lender"), at the offices of First Union
National Bank (the "Administrative Agent") located at One First Union Center,
301 South College Street, Charlotte, North Carolina (or at such other place or
places as the Administrative Agent may designate), at the times and in the
manner provided in the Credit Agreement, dated as of December 21, 1999, as
amended by the First Amendment thereto (as further amended, modified or
supplemented from time to time, the "Credit Agreement"), among the Borrower, the
Lenders from time to time parties thereto, and First Union National Bank, as
Administrative Agent, the principal sum of
FORTY SEVEN MILLION DOLLARS AND NO/100 ($47,000,000), or such lesser
amount as may constitute the unpaid principal amount of the Loans made by the
Lender, under the terms and conditions of this promissory note (this "Note") and
the Credit Agreement. The defined terms in the Credit Agreement are used herein
with the same meaning. The Borrower also unconditionally promises to pay
interest on the aggregate unpaid principal amount of this Note at the rates
applicable thereto from time to time and on the dates as provided in the Credit
Agreement.
This Note is one of the Notes referred to in the Credit Agreement and
is issued to evidence the Loans made by the Lender pursuant to the Credit
Agreement. All of the terms, conditions and covenants of the Credit Agreement
are expressly made a part of this Note by reference in the same manner and with
the same effect as if set forth herein at length, and any holder of this Note is
entitled to the benefits of and remedies provided in the Credit Agreement and
the other Credit Documents. Reference is made to the Credit Agreement for
provisions relating to the interest rate, maturity, payment, prepayment and
acceleration of this Note. This Note is hereby substituted for and replaces, as
to the Lender, the Note dated December 21, 1999 from Borrower to the Lender in
the original principal amount of $30,000,000 (the "Replaced Note"); PROVIDED,
HOWEVER, that Borrower acknowledges and agrees that, except as expressly
provided by the terms of this Note (including the original principal amount
hereof), the substitution for and replacement of the Replaced Note by this Note
shall not extinguish or otherwise affect any of Borrower's obligations to the
Lender under the Credit Agreement, whether or not evidenced by the Replaced
Note, including, without limitation, Borrower's obligation to pay interest
accrued prior to the date hereof under the Replaced Note.
In the event of an acceleration of the maturity of this Note, this Note
shall become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflict of laws
(excluding NEW YORK GENERAL OBLIGATIONS LAW ss.5-1401). The Borrower hereby
submits to the nonexclusive jurisdiction and venue of the federal and state
court located in Mecklenburg County, North Carolina or New York County, New
York, although the Lender shall not be limited to bringing an action in such
courts.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by its duly authorized corporate officer as of the day and year first
above written.
EVEREST REINSURANCE HOLDINGS, INC.
By:
---------------------------
Title:
2
Borrower's Taxpayer Identification No. 00-0000000
NOTE
$31,300,000 December 18, 2000
Charlotte, North Carolina
FOR VALUE RECEIVED, EVEREST REINSURANCE HOLDINGS, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
THE CHASE MANHATTAN BANK (the "Lender"), at the offices of First Union
National Bank (the "Administrative Agent") located at One First Union Center,
301 South College Street, Charlotte, North Carolina (or at such other place or
places as the Administrative Agent may designate), at the times and in the
manner provided in the Credit Agreement, dated as of December 21, 1999, as
amended by the First Amendment thereto (as further amended, modified or
supplemented from time to time, the "Credit Agreement"), among the Borrower, the
Lenders from time to time parties thereto, and First Union National Bank, as
Administrative Agent, the principal sum of
THIRTY-ONE MILLION THREE HUNDRED DOLLARS AND NO/100 ($31,300,000), or
such lesser amount as may constitute the unpaid principal amount of the Loans
made by the Lender, under the terms and conditions of this promissory note (this
"Note") and the Credit Agreement. The defined terms in the Credit Agreement are
used herein with the same meaning. The Borrower also unconditionally promises to
pay interest on the aggregate unpaid principal amount of this Note at the rates
applicable thereto from time to time and on the dates as provided in the Credit
Agreement.
This Note is one of the Notes referred to in the Credit Agreement and
is issued to evidence the Loans made by the Lender pursuant to the Credit
Agreement. All of the terms, conditions and covenants of the Credit Agreement
are expressly made a part of this Note by reference in the same manner and with
the same effect as if set forth herein at length, and any holder of this Note is
entitled to the benefits of and remedies provided in the Credit Agreement and
the other Credit Documents. Reference is made to the Credit Agreement for
provisions relating to the interest rate, maturity, payment, prepayment and
acceleration of this Note. This Note is hereby substituted for and replaces, as
to the Lender, the Note dated December 21, 1999 from Borrower to the Lender in
the original principal amount of $20,000,000 (the "Replaced Note"); PROVIDED,
HOWEVER, that Borrower acknowledges and agrees that, except as expressly
provided by the terms of this Note (including the original principal amount
hereof), the substitution for and replacement of the Replaced Note by this Note
shall not extinguish or otherwise affect any of Borrower's obligations to the
Lender under the Credit Agreement, whether or not evidenced by the Replaced
Note, including, without limitation, Borrower's obligation to pay interest
accrued prior to the date hereof under the Replaced Note.
In the event of an acceleration of the maturity of this Note, this Note
shall become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflict of laws
(excluding NEW YORK GENERAL OBLIGATIONS LAW ss.5-1401). The Borrower hereby
submits to the nonexclusive jurisdiction and venue of the federal and state
court located in Mecklenburg County, North Carolina or New York County, New
York, although the Lender shall not be limited to bringing an action in such
courts.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by its duly authorized corporate officer as of the day and year first
above written.
EVEREST REINSURANCE HOLDINGS, INC.
By:
---------------------------
Title:
2
Borrower's Taxpayer Identification No. 00-0000000
NOTE
$62,700,000 December 18, 2000
Charlotte, North Carolina
FOR VALUE RECEIVED, EVEREST REINSURANCE HOLDINGS, INC., a Delaware
corporation (the "Borrower"), hereby promises to pay to the order of
FIRST UNION NATIONAL BANK (the "Lender"), at the offices of First Union
National Bank (the "Administrative Agent") located at One First Union Center,
301 South College Street, Charlotte, North Carolina (or at such other place or
places as the Administrative Agent may designate), at the times and in the
manner provided in the Credit Agreement, dated as of December 21, 1999, as
amended by the First Amendment thereto (as further amended, modified or
supplemented from time to time, the "Credit Agreement"), among the Borrower, the
Lenders from time to time parties thereto, and First Union National Bank, as
Administrative Agent, the principal sum of
SIXTY TWO MILLION SEVEN HUNDRED DOLLARS AND NO/100 ($62,700,000), or
such lesser amount as may constitute the unpaid principal amount of the Loans
made by the Lender, under the terms and conditions of this promissory note (this
"Note") and the Credit Agreement. The defined terms in the Credit Agreement are
used herein with the same meaning. The Borrower also unconditionally promises to
pay interest on the aggregate unpaid principal amount of this Note at the rates
applicable thereto from time to time and on the dates as provided in the Credit
Agreement.
This Note is one of the Notes referred to in the Credit Agreement and
is issued to evidence the Loans made by the Lender pursuant to the Credit
Agreement. All of the terms, conditions and covenants of the Credit Agreement
are expressly made a part of this Note by reference in the same manner and with
the same effect as if set forth herein at length, and any holder of this Note is
entitled to the benefits of and remedies provided in the Credit Agreement and
the other Credit Documents. Reference is made to the Credit Agreement for
provisions relating to the interest rate, maturity, payment, prepayment and
acceleration of this Note. This Note is hereby substituted for and replaces, as
to the Lender, the Note dated December 21, 1999 from Borrower to the Lender in
the original principal amount of $40,000,000 (the "Replaced Note"); PROVIDED,
HOWEVER, that Borrower acknowledges and agrees that, except as expressly
provided by the terms of this Note (including the original principal amount
hereof), the substitution for and replacement of the Replaced Note by this Note
shall not extinguish or otherwise affect any of Borrower's obligations to the
Lender under the Credit Agreement, whether or not evidenced by the Replaced
Note, including, without limitation, Borrower's obligation to pay interest
accrued prior to the date hereof under the Replaced Note.
In the event of an acceleration of the maturity of this Note, this Note
shall become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, without regard to principles of conflict of laws
(excluding NEW YORK GENERAL OBLIGATIONS LAW ss.5-1401). The Borrower hereby
submits to the nonexclusive jurisdiction and venue of the federal and state
court located in Mecklenburg County, North Carolina or New York County, New
York, although the Lender shall not be limited to bringing an action in such
courts.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by its duly authorized corporate officer as of the day and year first
above written.
EVEREST REINSURANCE HOLDINGS, INC.
By:
---------------------------
Title:
2
SCHEDULE 1.1
------------
COMMITMENTS
LENDER COMMITMENT
------ ------------
First Union National Bank $ 62,700,000
Deutsche Bank $ 47,000,000
Royal Bank of Canada $ 47,000,000
Bank One $ 47,000,000
The Chase Manhattan Bank $ 31,300,000
