Exhibit 4.31.13
SECOND AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT, dated as of May
30, 2001 (this "Amendment"), is made by and among Conseco, Inc., an Indiana
corporation (the "Company"), the various financial institutions signatory hereto
(the "Banks") and Bank of America, N.A. (formerly known as Bank of America
National Trust and Savings Association), a national banking association,
individually and as agent for the Banks (the "Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Banks and the Agent are party to that
certain Five-Year Credit Agreement, dated as of September 25, 1998 (as
heretofore amended, the "Credit Agreement") and the Loan Documents referred to
in the Credit Agreement;
WHEREAS, the Company and the Banks have agreed to amend the Credit
Agreement on the terms and conditions herein set forth.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement
(as amended hereby).
2. Amendment to Credit Agreement. Section 4.01 of the Appendix is
hereby amended by the addition of the following at the end:
"(n) Indebtedness of Conseco in an aggregate principal amount not to
exceed $750,000,000 in respect of bonds, dated prior to December 31,
2001, which bonds shall not have any principal amounts payable or
redeemable (except in common stock upon conversion) prior to May 30,
2005."
As so amended Section 4.01 shall be as set forth in Schedule I hereto.
3. Use of Proceeds. Notwithstanding any provisions of Article II of
the Appendix to the contrary, the net proceeds of any Indebtedness described in
Section 4.01(n) of the Appendix shall be applied first to the payment in full of
the Near Term Facilities, then for general corporate purposes.
4. Conditions to Effectiveness of this Amendment. This Amendment shall
become effective upon the satisfaction of the following conditions:
4.1 Executed Amendment. Receipt by the Agent of duly executed
counterparts of this Amendment from the Company and the Required Banks.
4.2 Amendments. An amendment with respect to the $766 Million
Credit Agreement and consents with respect to the D & O Facilities shall have
been entered into consistent herewith.
4.3 Resolutions; Incumbency. Receipt by the Agent of the
following documents:
(i) copies of the resolutions of the board of directors of the
Company authorizing the transactions contemplated hereby, certified as
of the date hereof by the Secretary or an Assistant Secretary of the
Company; and
(ii) a certificate of the Secretary or an Assistant Secretary of
the Company, dated as of the date hereof, certifying the names and
true signatures of the officers of the Company authorized to execute,
deliver and perform, as applicable, this Amendment, and all other
documents to be delivered by the Company hereunder.
4.4 Consent of CIHC. Receipt by the Agent of a consent of CIHC in
the form attached hereto.
5. Certain Representations and Warranties by the Company. In order to
induce the Banks and the Agent to enter into this Amendment, the Company
represents and warrants to the Banks and the Agent that:
5.1 Authority. The Company has the right, power and capacity and
has been duly authorized and empowered by all requisite corporate and required
shareholder action, if any, to enter into, execute, deliver and perform this
Amendment.
5.2 Validity. This Amendment has been duly and validly executed
and delivered by the Company and constitutes its legal, valid and binding
obligation, enforceable against the Company in accordance with its terms, except
as enforcement thereof may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law or
otherwise).
5.3 No Conflicts. The Company's execution, delivery and
performance of this Amendment do not and will not violate (i) its certificate or
articles of incorporation or by-laws, (ii) any law, rule, regulation, order,
writ, judgment, decree or award applicable to the Company or (iii) any
contractual obligation to which the Company is a party or to which the Company
or any of its properties are subject, except to the extent that any violations
as set forth in clauses (ii) or (iii) would not result in a Material Adverse
Effect.
5.4 Approvals. No authorization or approval or other action by,
and no notice to or filing or registration with, any Governmental Authority or
regulatory body (other than those which
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have been obtained and are in force and effect) is required in connection with
the Company's execution, delivery and performance of this Amendment.
5.5 Incorporated Representations and Warranties. All
representations and warranties contained in the Loan Documents are true and
correct in all material respects with the same effect as though such
representations and warranties had been made on and as of the date hereof and
the effective date hereof, except (i) as to any representations or warranties
which expressly related to an earlier date, in which event, such representations
and warranties are true in all material respects as of such date and (ii) except
that any amendments to such representations and warranties made pursuant to
Section 4.9(ii) of the First Amendment hereto shall be effective for the purpose
of this Section 5.5.
5.6 No Defaults. No Default or Event of Default exists after
giving effect to this Amendment.
6. Miscellaneous. The parties hereto hereby further agree as follows:
6.1 Further Assurances. Each of the parties hereto hereby agrees
to do such further acts and things and to execute, deliver and acknowledge such
additional agreements, powers and instruments as any other party hereto may
reasonably request which are required to carry into effect the purposes of this
Amendment and the Credit Agreement, as amended hereby.
6.2 Payment of Costs and Expenses. The Company agrees to pay on
demand all expenses of the Agent (including the fees and out-of-pocket expenses
of counsel to the Agent) in connection with the negotiation, preparation,
execution and delivery of this Amendment.
6.3 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
6.4 Counterparts. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures of
all of the parties were on a single counterpart, and it shall not be necessary
in making proof of this Amendment to produce more than one such counterpart.
6.5 Headings. Headings used in this Amendment are for convenience
of reference only and shall not affect the construction of this Amendment.
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IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered as of the date first above written.
CONSECO, INC.
By: /s/
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Title:
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S-1
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
BANK OF AMERICA, N.A., as Agent
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
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S-2
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
BANK OF AMERICA, N.A., as a Bank
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
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S-3
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
AG CAPITAL FUNDING PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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S-4
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
NATIONAL CITY BANK OF INDIANA
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
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S-5
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
OPPENHEIMERFUNDS, INC.
(HARBOURVIEW)
By:
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Title:
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S-6
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
BANK OF TOKYO-MITSUBISHI LTD.
By: /s/ Xxxxx X. Xxxx, Xx.
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Title: Vice President
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S-7
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
THE CHASE MANHATTAN BANK
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
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S-8
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
HARBOURVIEW CDO II, LTD.
By:
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Title:
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S-9
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: SVP
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S-10
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
KZH CNC LLC
c/o Chase Manhattan Bank
By: /s/ Xxxxx Xxxx
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Title: Authorized Agent
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S-11
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Xxxxx X. Dell'Aquila
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Title: Vice President
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S-12
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
BEAR XXXXXXX INVESTMENT PRODUCTS
By:
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Title:
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S-13
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
U.S. BANK NATIONAL ASSOCIATION
By: /s/
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Title: Vice President
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S-14
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ Xxxxx X.X. Xxxxxx
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Title: Vice President
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S-15
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
NORDDEUTSCHE LANDESBANK
GIROZENTRA
By: /s/ Xxxxxxx X. Xxxxxx
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Title: SVP
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S-16
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
DEUTSCHE BANC XXXX XXXXX
By:
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Title:
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S-17
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Title: Authorized Signatory
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S-18
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
SOCIETE GENERALE
By:
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Title:
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S-19
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
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Title: Senior Vice President
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S-20
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
EVENT PARTNERS DEBT ACQUISITION, LLC
By:
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Title:
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S-21
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
XXXXXXX SACHS & CO.
By:
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Title:
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S-22
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
FRANKLIN FLOATING RATE TRUST
By:
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Title:
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S-23
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
SUNTRUST BANK
By: /s/ Xxxxx Xxxxxxxxxx
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Title: Director
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S-24
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
XXXXXX SYNDICATED LOAN FUNDING
TRUST
By:
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Title:
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S-25
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
SILVER OAK CAPITAL, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Authorized Signatory
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S-26
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
CIBC, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Executive Director
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S-27
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
XXXXX FARGO BANK
By: /s/
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Title: Senior Vice President
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S-28
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
WINGED FOOT FUNDING TRUST
By:
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Title:
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S-29
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
THE BANK OF NEW YORK
By: /s/ J. Xxxxx Xxxxxx, Jr.
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Title: Vice President
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S-30
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxx Xxxxx
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Title: Director
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S-31
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Title: Senior Vice President
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S-32
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
FIRSTAR BANK, N.A.
By: /s/
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Title: Attorney-in-Fact
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S-33
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
COMERICA BANK
By: /s/
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Title: Senior Vice President
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S-34
[TO SECOND AMENDMENT TO CREDIT AGREEMENT]
SCHEDULE I
4.01 Limitation on Indebtedness. Conseco shall not, and shall not
permit any of its Subsidiaries to, incur or at any time be liable with respect
to, any Indebtedness, except:
(a) Permitted Swap Obligations and Permitted Transactions;
(b) Specified Junior Securities;
(c) Indebtedness of Conseco or any Subsidiary pursuant to (i) the
items set forth on Schedule 4.01(c) and (ii) extensions, renewals or
replacements thereof, provided that no such extension, renewal or
replacement shall increase the principal amount thereof, except to the
extent the increase would otherwise be permitted under this Section
4.01;
(d) Contingent Obligations of: (i) CIHC in respect of (A)
Conseco's obligations under any Facility, and (B) obligations of one
or more Conseco Finance Entities (I) in an aggregate amount not to
exceed $125,000,000 in respect of obligations to Xxxxxx or an
Affiliate thereof, (II) in an aggregate amount not to exceed
$125,000,000 in respect of cash management or a swing line credit
facility for the general corporate purposes of one or more of the
Conseco Finance Entities and (III) in an aggregate amount not to
exceed $50,000,000 incurred for general corporate purposes (so long
as, in each case, the documentation governing any such Contingent
Obligation (including any related subordination arrangement) is not at
any time materially more favorable to the beneficiaries thereof than
the Relevant CIHC Guaranty); (ii) Conseco in respect of any individual
borrower's obligations under any D&O Facility; (iii) any Conseco
Finance Entity relating to loans, leases, receivables, installment
contracts and other financial products originated, acquired or sold by
such Conseco Finance Entity or any other Conseco Finance Entity; and
(iv) Conseco or any Subsidiary in the ordinary course of business not
otherwise described above in an aggregate amount not to exceed at any
time (A) ten percent (10%) of Total Shareholders' Equity minus (B) the
aggregate amount of Conseco's Contingent Obligations under clause (ii)
of this paragraph at any time, provided that (I) Contingent
Obligations in respect of Indebtedness of the type described in clause
(a) or (b) of the definition thereof shall not be permitted by this
clause (iv) and (II) the documentation governing any contingent
Obligation of CIHC pursuant to this clause (iv) (including any related
subordination arrangement) shall not at any time be materially more
favorable to the beneficiaries thereof than the Relevant CIHC
Guaranty: provided, that in no event shall Conseco or any of its
Subsidiaries (other than a Conseco Finance Entity) have any Contingent
Obligations (including obligations as an account party) pursuant to
this paragraph (d) in respect of any Indebtedness incurred by or for
the benefit of any Conseco Finance Entity other than as specifically
permitted in clause(i)(B) above;
Schedule I-1
(e) Indebtedness (including Contingent Obligations) of any
Conseco Finance Entity to the extent that (i) neither Conseco nor any
Non-Finance Subsidiary is directly liable thereon, and (ii) neither
Conseco nor any Non-Finance Subsidiary has any Contingent Obligation
in respect of such Indebtedness (other than a Contingent Obligation of
CIHC permitted by Section 4.01(d)(i) above);
(f) Permitted Nonrecourse Indebtedness;
(g) secured Indebtedness, including, without limitation,
Capitalized Lease Liabilities and Purchase Money Debt, provided, that
(i) the aggregate outstanding principal amount of Indebtedness of this
type does not exceed at any time ten percent (10%) of Total
Shareholders' Equity at such time and (ii) such Indebtedness shall not
be secured by any Lien other than a Lien expressly permitted by
Section 4.02(i);
(h) Indebtedness among Conseco and its Subsidiaries (other than
Conseco Finance Entities);
(i) Indebtedness owing by any Conseco Finance Entity to the
extent the related Investment is permitted under Section 4.09(a);
(j) Indebtedness (other than for borrowed money) subject to Liens
permitted under Section 4.02(b), (d), (e) or (f);
(k) Indebtedness in respect of Surplus Debentures entered into by
an Insurance Subsidiary:
(l) unsecured Indebtedness of Conseco in an aggregate principal
amount not to exceed $100,000,000 at any time outstanding;
(m) Indebtedness in respect of the Facilities; and
(n) Indebtedness in an aggregate principal amount not to exceed
$750,000,000 in respect of bonds, dated on or prior to December 31,
2001, which bonds shall not have any principal amounts payable or
redeemable (except in common stock upon conversion) prior to May 30,
2005.
Schedule I-2
CONSENT
The undersigned hereby consents to the attached Second Amendment to
Five-Year Credit Agreement and reaffirms its obligations under the CIHC
Guaranty.
Dated: , 2001
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CIHC, Incorporated
By:
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Title:
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Schedule I-3
