Exhibit 99.3
EIGHTH AMENDMENT AND WAIVER TO THE CREDIT AGREEMENT
EIGHTH AMENDMENT AND WAIVER TO THE CREDIT AGREEMENT (the "Eighth
Amendment"), dated as of March 28, 2003, among TRENWICK AMERICA CORPORATION, a
Delaware corporation (the "Borrower"), Trenwick Holdings LIMITED., a company
organized under the laws of the United Kingdom and TRENWICK UK HOLDINGS LIMITED,
a company organized under the laws of the United Kingdom (collectively, the
"Account Party"), the lending institutions from time to time party to the Credit
Agreement referred to below (each a "Bank" and, collectively, the "Banks"),
WACHOVIA BANK, NATIONAL ASSOCIATION (f/k/a First Union National Bank), as
Syndication Agent (the "Syndication Agent"), Fleet National Bank, as
Documentation Agent (the "Documentation Agent"), and JPMORGAN CHASE BANK (f/k/a
The Chase Manhattan Bank), as Administrative Agent (the "Administrative Agent").
Unless otherwise defined herein, capitalized terms used herein and defined in
the Credit Agreement referred to below are used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the Account Party, the Banks, the Syndication
Agent, the Documentation Agent and the Administrative Agent are party to a
Credit Agreement, dated as of November 24, 1999 and amended and restated as of
September 27, 2000 (as the same has been amended, modified or supplemented to,
but not including, the date hereof, the "Credit Agreement");
WHEREAS, Trenwick Group Ltd., a company organized under the laws of
Bermuda ("Holdings") and the Administrative Agent entered into a Holdings
Guaranty, dated as of September 27, 2000 (as the same has been amended, modified
or supplemented to, but not including, the date hereof, the "Holdings Guaranty")
in order to induce the Banks to make Loans to the Borrower and issue Letters of
Credit for the account of the Account Party and Guaranteed Creditors (and
Lending Affiliates thereof) to enter into Interest Rate Protection Agreements
and Other Hedging Agreements with the Borrower and/or the Account Party; and
WHEREAS, subject to the terms and conditions set forth below, the Banks
hereto wish to grant certain amendments to the Credit Agreement as provided
herein;
NOW, THEREFORE, it is agreed;
A. Waivers
1. The Banks hereby waive any Default or Event of Default that may
arise under the Credit Agreement solely as the result of the failure by Holdings
to comply with Section
3.22 of the Holdings Guaranty for the period from, and including, March 28,
2003, to and including March 31, 2003.
B. Amendments
1. Schedule I to the Credit Agreement is hereby amended by (x)
deleting the text "(i) a non-solicitation clause on terms reasonably
satisfactory to the Administrative Agent and (ii)" and (y) inserting the text
"(except for any terms and conditions that restrict any payment in such
Agreement to the extent that there is a Default or Event of Default at the time
of such payment or as a result thereof)" immediately following the text
"Executive Compensation Provisions", in each case in the definitions of "Binet
Employment Agreement", "▇▇▇▇▇▇ Agreement", "▇▇▇▇▇▇▇▇▇▇▇ Agreement", "▇▇▇▇▇▇▇▇
Employment Agreement", "▇▇▇▇▇▇ Agreement", "▇▇▇▇▇ Employment Agreement",
"▇▇▇▇▇▇▇▇ Employment Agreement" and "▇▇▇▇▇▇ Employment Agreement".
C. Miscellaneous Provisions
1. In order to induce the Banks to enter into this Eighth Amendment,
each of the Borrower and each Account Party hereby represent and warrant on
behalf of themselves and their respective Subsidiaries that (i) the
representations and warranties of Holdings contained in Section 2 of the
Holdings Guaranty are true and correct in all material respects on and as of the
Eighth Amendment Effective Date (as defined below) (except with respect to any
representations and warranties limited by their terms to a specific date, which
shall be true and correct in all material respects as of such date), and (ii)
there exists no Default or Event of Default under the Credit Agreement on the
Eighth Amendment Effective Date, in each case after giving effect to this Eighth
Amendment.
2. This Eighth Amendment is limited as specified and shall not
constitute an amendment, modification, acceptance or waiver of any other
provision of the Credit Agreement or any other Credit Document.
3. THIS EIGHTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
4. This Eighth Amendment shall become effective on the date (the
"Eighth Amendment Effective Date") when each of the following conditions have
been satisfied:
(i) the Borrower, each Account Party and the Required Banks shall
have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of telecopier)
the same to the Administrative Agent; and
(ii) Holdings and the Required Banks have consented to the Ninth
Amendment to the Holdings Guaranty dated as of March 28, 2003.
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5. From and after the Eighth Amendment Effective Date, all references in
the Credit Agreement and in the other Credit Documents shall be deemed to be
referenced to the Credit Agreement as modified hereby.
6. Holdings, the Borrower and each Account Party acknowledge and agree
that the execution and delivery by the Administrative Agent and the Banks of
this Eighth Amendment shall not be deemed (i) to create a course of dealing or
otherwise obligate the Administrative Agent or the Banks to forebear or execute
similar waivers, amendments or agreements under the same or similar
circumstances in the future, or (ii) to modify, relinquish or impair any right
of the Administrative Agent or the Banks to receive any indemnity or similar
payment from any Person or entity as a result of any matter arising from or
relating to this Eighth Amendment.
7. EACH CREDIT PARTY, ON BEHALF OF ITSELF, AND ALL PERSONS AND ENTITIES
CLAIMING BY, THROUGH, OR UNDER ANY ONE OR MORE OF THEM, HEREBY JOINTLY AND
SEVERALLY RELEASES, WAIVES AND FOREVER DISCHARGES THE ADMINISTRATIVE AGENT, EACH
BANK, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, ATTORNEYS, AGENTS, AFFILIATES,
REPRESENTATIVES AND SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "RELEASEES"), OF,
FROM, AND WITH RESPECT TO ANY AND ALL MANNER OF ACTION AND ACTIONS, CAUSE AND
CAUSES OF ACTIONS, SUITS, DISPUTES, CLAIMS AND DEFENSES, COUNTERCLAIMS AND/OR
LIABILITIES, CROSS CLAIMS, AND DEFENSES, THAT ARE KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, PAST OR PRESENT, ASSERTED OR UNASSERTED, CONTINGENT OR LIQUIDATED,
WHETHER OR NOT WELL FOUNDED IN FACT OR LAW, WHETHER IN CONTRACT, IN TORT OR
OTHERWISE, AT LAW OR IN EQUITY, BASED UPON, RELATING TO OR ARISING OUT OF ANY
AND ALL TRANSACTIONS, RELATIONSHIPS OR DEALINGS WITH, OR LOANS MADE OR LETTERS
OF CREDIT ISSUED TO THE BORROWER, THE ACCOUNT PARTY OR THE OTHER GUARANTORS
PURSUANT TO THE CREDIT DOCUMENTS PRIOR TO THE DATE HEREOF WHICH THE BORORWER,
THE ACCOUNT PARTY OR THE OTHER GUARANTORS HAD, NOW HAVE OR MAY CLAIM TO HAVE
AGAINST THE ADMINISTRATIVE AGENT, THE BANK OR ANY OTHER RELEASEE.
8. The respective rights, powers and remedies of the Administrative Agent
and the Banks in the Credit Agreement and in the other Credit Documents are
cumulative and not exclusive of any right, power or remedy provided in the
Credit Documents, by law or equity and no failure or delay on the part of the
Administrative Agent or the Banks in the exercise of any right, power or remedy
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or remedy preclude any other or further exercise thereof, or
the exercise of any other right, power or remedy. Other than as set forth in
this Eighth Amendment, nothing contained in this Eighth Amendment or in any
prior communications between or among the Credit Parties, the Administrative
Agent and the Banks shall constitute a waiver or modification of any rights or
remedies that the Administrative Agents or the Banks may have under the Credit
Documents and applicable law. The Administrative Agent and the Banks expressly
reserve and preserve all of their rights and remedies available to them under
the Credit Documents, applicable law or otherwise.
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IN WITNESS WHEREOF, the undersigned have caused this Eighth Amendment to
be duly executed and delivered as of the date first above written.
TRENWICK AMERICA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
TRENWICK HOLDINGS LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
TRENWICK UK HOLDINGS LIMITED
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
TRENWICK GROUP LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
[NAME OF LENDER]
By:
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Name:
Title:
[Signature Page to the Eighth Amendment and Waiver to the Credit Agreement]