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THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of February 9, 2001
(this "Amendment"), amends the Credit Agreement, dated as of August 14, 1997 (as
heretofore amended the "Credit Agreement"), among Phoenix Investment Partners,
Ltd. (formerly known as Phoenix Duff & ▇▇▇▇▇▇ Corporation) (the "Company"),
Phoenix Home Life Mutual Insurance Company (the "Guarantor"), Bank of America,
N.A. (formerly known as Bank of America National Trust and Savings Association),
as Syndication and Documentation Agent, The Bank of New York, as Administrative
Agent and certain financial institutions (the "Banks"). Terms defined in the
Credit Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement,
which provides for the Banks to extend certain credit facilities to the Company
from time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects, as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENT. Effective as of the date hereof, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.5 below.
1.1 EBITDA. The definition of "EBITDA" in Section 1.1 of the Credit
Agreement is hereby amended to state in its entirety as follows:
"EBITDA" means, with respect to the Company and its
Subsidiaries, as the end of any fiscal quarter for the four fiscal
quarters then ending, earnings before interest, taxes, depreciation and
amortization, calculated in accordance with GAAP; provided, that, for
any four fiscal quarter period in which the ▇▇▇▇▇ Acquisition shall
have occurred, EBITDA shall be calculated on a pro forma basis as if
such acquisition had occurred on the first day of such period; and
provided further that, for any calculation including the fiscal quarter
ended March 31, 2001, Privatization Expenses shall be added back to
earnings, to the extent deducted in calculating earnings.
1.2 Privatization Expenses. The following definition of "Privatization
Expenses" shall be added to Section 1.1 of the Credit Agreement in proper
alphabetical order:
"'Privatization Expenses' means expenses not to exceed
$55,000,000 in respect of payments in liquidation of outstanding
options on stock of the Company, expenses up to
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$52,000,000 resulting from the conversion or payment of subordinated
debentures and miscellaneous other privatization expenses up to
$15,000,000. All such expenses must be incurred between January 1, 2001
and February 20, 2001 to constitute Privatization Expenses."
1.3 Shareholders' Equity. The definition of "Shareholders' Equity" in
Section 1.1 of the Credit Agreement shall be amended to state in its entirety as
follows:
"Shareholders' Equity' means shareholders' equity determined
in accordance with GAAP plus Privatization Expenses, to the extent
Privatization Expenses were deducted in calculating Shareholders'
Equity."
1.4 Total Debt to Capital Ratio. Section 9.3 of the Credit Agreement is
hereby amended to state in its entirety as follows:
"9.3 Total Debt to Capital Ratio. The Company shall maintain a Total
Debt to Capital Ratio of not in excess of the following percentages at
any time during the following period:
Percentage Periods
58.5% January 1, 2001 through September 28, 2001
52.5% September 29, 2001 and thereafter."
1.5 Senior Debt to EBITDA Ratio. Section 9.4 of the Credit Agreement is
hereby amended to state in its entirety as follows:
"9.4 Senior Debt to EBITDA Ratio. The Company shall maintain a Senior
Debt to EBITDA Ratio of not in excess of the following amounts during
the following periods:
Amount Periods
3.0 to 1 January 1, 2001 through September 28, 2001
2.0 to 1 September 29, 2001 and thereafter."
SECTION 2 CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 3 shall have
been satisfied, and notice thereof shall have been given by the Administrative
Agent to the Company, the Guarantor and the Banks.
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2.1 Receipt of Documents. The Administrative Agent shall have received
all of the following documents duly executed, dated the date hereof or such
other date as shall be acceptable to the Administrative Agent, and in form and
substance satisfactory to the Agent:
(a) Amendment. This Amendment, duly executed by the Company,
the Guarantor, the Administrative Agent and the Majority Banks.
(b) Company Secretary's Certificate. A certificate of the
secretary or an assistant secretary of the Company, as to (i)
resolutions of the Board of Directors of the Company then in full force
and effect authorizing the execution, delivery and performance of this
Amendment and each other document described herein, and (ii) the
incumbency and signatures of those officers of the Company authorized
to act with respect to this Amendment and each other document described
herein.
(c) Guarantor Secretary's Certificate. A certificate of the
secretary or an assistant secretary of the Guarantor, as to (i)
resolutions of the Board of Directors of the Guarantor then in full
force and effect authorizing the execution, delivery and performance of
this Amendment and each other document described herein, and (ii) the
incumbency and signatures of those officers of the Guarantor authorized
to act with respect to this Amendment and each other document described
herein.
(d) Opinion of Counsel. An opinion, addressed to the
Administrative Agent and all Banks, from counsel to the Company and the
Guarantor, in form satisfactory to the Agent.
2.2 Compliance with Warranties, No Default, etc. Both before and after
giving effect to the effectiveness of this Amendment, the following statements
by the Company and the Guarantor shall be true and correct (and the Company and
the Guarantor, by their execution of this Amendment, hereby represent and
warrant to the Administrative Agent and each Bank that such statements are true
and correct as at such times):
(a) the representations and warranties set forth in Article
V of the Credit Agreement shall be true and correct with the same
effect as if then made (unless stated to relate solely to an earlier
date, in which case such representations and warranties shall be true
and correct as of such earlier date); and
(b) no Default or Event of Default, Guarantor Default or
Guarantor Event of Default shall have then occurred and be continuing.
2.3 Amendment Fee. The Company shall have paid each Bank an amendment
fee of $5.000 and shall, in addition, have paid the Administrative Agent for its
own account an amendment fee in the amount set forth in its fee letter dated the
date hereof.
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SECTION 3 REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Administrative Agent to enter into this Amendment, the Borrower and the
Guarantor hereby represent and warrant to the Administrative Agent and each Bank
as follows:
3.1 Due Authorization, Non-Contravention, etc. The execution, delivery
and performance by the Company and the Guarantor of this Amendment are within
the corporate powers of the Company and the Guarantor, have been duly authorized
by all necessary corporate action, and do not
(a) contravene the Organization Documents of the Company or
the Guarantor;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Company or the Guarantor; or
(d) result in, or require the creation or imposition of, any
Lien on any properties of the Company or the Guarantor.
3.2 Government Approval, Regulation, etc. No authorization or approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body or other Person is required for the due execution, delivery
or performance by the Company and the Guarantor of this Amendment.
3.3 Validity, etc. This Amendment constitutes the legal, valid and
binding obligations of the Company and the Guarantor enforceable in accordance
with its terms.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be
an amendment to the Credit Agreement, and the Credit Agreement; as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness of this
Amendment in accordance with its terms, all references to the Credit Agreement
in the Loan Documents or in any other document, instrument, agreement or writing
shall be deemed to refer to the Credit Agreement as amended hereby.
4.2 Payment of Costs and Expenses. The Company agrees to pay on demand
all expenses of the Agents (including the fees and out-of-pocket expenses of
counsel to the Agents) in connection with the negotiation, preparation,
execution and delivery of this Amendment.
4.3 Severability. Any provision of this Amendment which is prohibited
or unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
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4.4 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
4.5 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
4.7 Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
PHOENIX INVESTMENT PARTNERS, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EXECUTIVE VICE PRESIDENT AND
Title: CHIEF FINANCIAL OFFICER.
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PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: V.P. & Treasurer
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THE BANK OF NEW YORK, as
Administrative Agent and a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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BANK OF AMERICA, N.A., as
Syndication Agent, Documentation Agent
and a Bank
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Title: Principal
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FLEET NATIONAL BANK,
as a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ for ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Title: Portfolio Manager
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BANK OF MONTREAL,
as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
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▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇,
as a Bank
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
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W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
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▇-▇
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ AND TRUST COMPANY,
as a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
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▇-▇
▇▇
▇▇▇▇▇▇▇▇ BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES,
as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
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