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Exhibit 10.35
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
SECOND AMENDMENT TO CREDIT AGREEMENT
To the Banks Party to the Credit
Agreement Identified Below
Gentlemen:
We refer to the Credit Agreement dated as of August 18, 1999 among
Phoenix Home Life Mutual Insurance Company, Bank of Montreal as Arranger and
Administrative Agent, Fleet National Bank as Documentation Agent and the Banks
party thereto as heretofore amended (the "Credit Agreement"), capitalized terms
used without definition below to have the meanings ascribed to them in the
Credit Agreement. Upon satisfaction of the conditions precedent to effectiveness
set forth below, the Credit Agreement shall be amended as hereinafter set forth:
Section 1. Amendments to Credit Agreement. The Credit Agreement shall
be amended as follows:
(a) (Introductory Sentence). The first sentence of the Credit
Agreement shall be amended by striking the lower case word "mutual"
therefrom.
(b) Section 4.2 (Financial Statements). Section 4.2 of the
Credit Agreement shall be amended by striking the date "December 31,
1998" wherever such date appears and substituting the date "December
31, 1999" therefor and by striking the date "March 31, 1999" wherever
such date appears and substituting the date "March 31, 2000" therefor.
(c) Section 6.12 (Year 2000 Assessment). The title and text of
Section 6.12 of the Credit Agreement shall be deleted and the following
shall be substituted therefor:
"Section 6.12. Demutualization. The Company shall promptly
notify the Administrative Agent (which shall in turn notify
the Banks) of the consummation of the Demutualization with
such notice to specify any change in the name of the Company
which is incident thereto and the name of the Parent. After
consummation of the Demutualization, all references herein and
in the Notes and any other instruments or documents executed
and delivered pursuant hereto to Phoenix Home Life Mutual
Insurance Company shall without further action be deemed
references to the new or changed name of the Company."
(d) Section 7.1 (Events of Default). Section 7.1(h) of the
Credit Agreement shall be amended and as so amended shall be restated
in its entirety to read as follows:
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"(h) A Change of Control occurs or the Company ceases (i)
prior to the Demutualization to be a mutual insurance company
owned by its policyholders or (ii) subsequent to the
Demutualization to be a New York stock life insurance company;
or"
(e) Section 8 (Definitions; Interpretation of Agreement).
Section 8.1 of the Credit Agreement shall be amended as follows:
"(i) The definition of the term "Company" shall be amended by
striking the lower case word "mutual" therefrom."
(ii) The definition of the term "Termination Date" shall be
amended and as so amended shall be restated in its entirety to
read as follows: "Termination Date" shall mean October 3,
2001."
(iii) Section 8.1 of the Credit Agreement shall be further
amended by adding the following additional definitions thereto
in proper alphabetical order:
"Change of Control" shall mean that, subsequent to the
Demutualization, (i) more than 30% of the issued and
outstanding Voting Stock of the Parent shall be owned or
controlled, either legally or beneficially, by any person,
firm or corporation or group of persons, firms or corporations
acting in concert or (ii) more than 30% in aggregate of the
issued and outstanding Voting Stock of the Company is owned,
either legally or beneficially, by persons, firms or
corporations other than the Parent."
"Demutualization" shall mean a transaction or series of
transactions pursuant to which the Company is converted into a
stock life insurance company pursuant to Section 7312 of the
New York Insurance Law as amended from time to time, the
corporate existence of the Company continues, the Company
becomes a wholly-owned Subsidiary of the Parent and the
financial condition of the Company does not differ materially
from its financial condition immediately prior to giving
effect to the Demutualization."
"Parent" shall mean a corporation of which the Company becomes
a direct or indirect wholly-owned subsidiary as part of the
Demutualization."
Section 2. Conditions Precedent to Effectiveness. This Second Amendment
to Credit Agreement shall become effective upon satisfaction to following
conditions precedent:
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(a) The Administrative Agent shall have received counterparts
hereof which, taken together, bear the signatures of the Company and
the Banks.
(b) The Administrative Agent shall have received a certificate
or certificates of the secretary, an assistant secretary or executive
vice president of the Company, satisfactory in form and substance to
the Administrative Agent, to the effect that the votes adopted by the
Investment Committee on July 16, 1992 have not been rescinded and
remain in effect, that the charter and by-laws of the Company have not
been amended from those attached to the certificate of Xxxx X. Xxxxx,
secretary of the Company, dated as of August 18, 1999 and heretofore
delivered to the Banks (except for amendments reasonably acceptable to
the Administrative Agent) and that the parties designated as authorized
to select banks and complete borrowing arrangements on behalf of the
Company as set forth in the certificate of Xxxxx X. Xxxxxxxx dated as
of August 18, 1999 and heretofore delivered to the Banks remain
designated so to do.
Section 3. Miscellaneous. Except as specifically amended hereby, all of
the terms, conditions and provisions of the Credit Agreement shall stand and
remain unchanged and in full force and effect. No reference to this Second
Amendment to Credit Agreement need be made in any instrument or document at any
time referring to the Credit Agreement, a reference to the Credit Agreement in
any of such to be deemed to be a reference to the Credit Agreement as amended
hereby. This Second Amendment to Credit Agreement may be executed in
counterparts and by separate parties hereto on separate counterparts, each to
constitute an original but all but one in the same instrument. This Second
Amendment to Credit Agreement shall be governed by and construed in accordance
with the internal laws of the state of New York.
Upon your acceptance hereof in the space provided for that purpose
below, this Agreement shall be a contract between us for the purposes
hereinabove set forth.
Executed and delivered as of this 14th day of September 2000.
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Its Vice President Treasurer
Accepted and agreed to as of the day and year last above written.
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BANK OF MONTREAL
By /s/ Brain X. Xxxxx
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Brain X. Xxxxx
Its Director
FLEET NATIONAL BANK
By /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Its Vice President
THE CHASE MANHATTAN BANK
By /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Its Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCHES
By /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Its Managing Director
By /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx
Its Vice President
KEYBANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Its Vice President
STATE STREET BANK AND TRUST COMPANY
By /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Its Vice President
SUN TRUST BANK, ATLANTA
By /s/ W. Xxxxx Xxxxxx
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W. Xxxxx Xxxxxx
Its Vice President
