EXHIBIT 4.6
FIRST AMENDMENT
FIRST AMENDMENT (this "AMENDMENT"), dated as of August 8, 2000, to the
Senior Credit Agreement, dated as of June 13, 2000 (as the same may be further
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Southwestern Life Holdings, Inc. (the "Borrower"), the
Lenders party thereto, ING (U.S.) Capital, LLC, as Administrative Agent (the
"Administrative Agent").
RECITALS
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into the Credit Agreement and the Borrower and the Majority Lenders have
agreed to amend a provision of the Credit Agreement as more fully set forth
below.
THEREFORE, in consideration of the foregoing and the covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Borrower, the
Administrative Agent and the Lenders signatory hereto, hereby agree as follows:
1. Amendment to Credit Agreement.
The definition of "Consolidated Net Income" in Section 1.1 of the Credit
Agreement is hereby amended in its entirety as follows:
"'Consolidated Net Income' shall mean the sum of the pre-tax statutory
income of each Insurance Subsidiary (other than Pacific Life) as set forth
on Line 29 of the quarterly or annual, as applicable, Statutory Statement
of such Insurance Subsidiary."
2. Effectiveness. This Amendment shall not be effective until such time as
the Borrower and as many Lenders as may be necessary to comprise the "Majority
Lenders" have indicated their consent by the execution and delivery of the
signature pages hereof to the Administrative Agent.
3. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that:
(a) the execution, delivery and performance of this Amendment have been
duly authorized by all necessary action on the part of the Borrower. The
execution, delivery and performance by the Borrower of this Amendment and the
consummation of the transactions contemplated by this Amendment do not and will
not (a) violate any provision of any law or governmental rule or regulation
applicable to the Borrower, the organizational documents of the Borrower, or any
order, judgment or decree of any court or other agency of governmental binding
on the Borrower, (b) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any material contract of the Borrower, (c) result in or require the
creation or imposition of any Lien upon any of the properties or assets of the
Borrower or any of its Subsidiaries, or (d) require the approval of the
shareholders of the Borrower or any approval or consent of any Person under any
contract, except for such approvals or consents which will be obtained on or
before the date hereof and disclosed in writing to the Lenders and except for
any such approvals or consents the failure of which to obtain will not have a
Material Adverse Change;
(b) this Amendment has been duly executed and delivered by the Borrower and
is the legally valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its respective terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles relating
to enforceability;
(c) on or as of the date hereof, (i) before giving effect to this Amendment
and the transactions contemplated hereunder, no Default or Event of Default has
occurred and is continuing (other than with respect to Section 8.10) and (ii)
after giving effect to this Amendment and the transactions contemplated
hereunder, no Default or Event of Default has occurred and is continuing ; and
(d) the representations and warranties of the Borrower contained in the
Credit Agreement and the Related Documents are true and correct on and as of the
date hereof as if made on and as of the date hereof, except to the extent such
representations and warranties expressly relate to a specific date.
4. Status of Credit Agreement and Documents. This Amendment is limited
solely for the purposes and to the extent expressly set forth herein, and,
except as expressly modified hereby, the terms, provisions and conditions of the
Credit Agreement and Related Documents and the Liens granted thereunder shall
continue in full force and effect and are hereby ratified and confirmed in all
respects.
5. Counterparts. This Amendment may be executed in any number of
counterparts all of which, taken together, shall constitute one Amendment. In
making proof of this Amendment, it shall only be necessary to produce the
counterpart executed and delivered by the party to be charged.
6. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms used in this Amendment have the meanings provided in the Credit
Agreement.
7. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF
THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
SOUTHWESTERN LIFE HOLDINGS, INC.
By:/s/Xxxxx X. Commons
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Name: Xxxxx X. Commons
Title: Sr. Vice President and
Chief Financial Officer
ING (U.S.)
CAPITAL LLC, as Administrative Agent and a Lender
By:/s/Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Associate
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:/s/Xxxxxx X. Xxxxxxxx, XX
-----------------------------
Name: Xxxxxx X. Xxxxxxxx, XX
Title: Assistant Vice President
By:/s/Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By:/s/Xxxxx X. X'Xxxxx
-----------------------------
Name: Xxxxx X. X'Xxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:
-----------------------------
Name:___________________________
Title:__________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/Xxxxxxx Xxxxxxxx, Xx.
-----------------------------
Name: Xxxxxxx Xxxxxxxx, Xx.
Title: Authorized Signatory
