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EXHIBIT 4.2(d)
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of February 26, 1997, between XXXXXXX LIFE,
INC., a corporation duly organized and validly existing under the laws of the
State of Missouri (together with its successors and assigns, the "Company");
each of the banks that is a signatory hereto (individually, a "Bank" and,
collectively, the "Banks"); and THE CHASE MANHATTAN BANK, as administrative
agent for the Banks (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
The Company, the Banks and the Administrative Agent are party to an
Amended and Restated Credit Agreement dated as of July 6, 1995, amended and
restated as of December 27, 1996 (the "Credit Agreement"). The parties hereto
desire to amend the Credit Agreement in certain respects, and accordingly the
parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used but not otherwise
defined herein have the meanings given them in the Credit Agreement.
Section 2. Amendments. Subject to Section 4 hereof, but effective
as of the date hereof, the Credit Agreement shall be amended as follows:
2.01. Section 1.01 of the Credit Agreement shall be amended by
adding the following new definitions (to the extent not already included in
said Section 1.01) and inserting the same in the appropriate alphabetical
locations and amending in their entirety the following definitions (to the
extent already included in said Section 1.01), as follows:
"Additional Acquisition" shall mean any transaction, or any series
of related transactions, consummated after the date of this Agreement
(other than the Acquisition, the KL Transactions and the OSL/IGL
Transactions), by which the Company and/or one or more of its Subsidiaries
(in one transaction or as the most recent transaction in a series of
related transactions) (a) acquires any block of business or going business
or all or substantially all of the Property of any Person (or division or
operating unit thereof), whether through purchase of assets, merger or
otherwise, (b) directly or indirectly acquires control of at least a
majority (in number of votes) of the securities of a corporation which
have ordinary voting power for the election of directors or (c) directly
or indirectly acquires control of a 50% or more ownership interest in any
partnership, joint venture (including a joint venture in corporate form)
or other non-corporate business entity.
"OSL/IGL Transactions" shall mean the transactions contemplated by
the Stock Purchase Agreement dated as of January 21, 1997 (the "GSLIC
Stock Purchase Agreement") between Farmers Group, Inc. ("Farmers") and
Great Southern Life Insurance Company ("GSLIC"), and related agreements,
including (a) the acquisition by GSLIC from Farmers of all of the
outstanding capital stock of each of The Ohio State Life Insurance
Company, an Ohio corporation ("OSL") and Investors Guaranty Life Insurance
Company, a California corporation ("IGL" and, together with OSL,
"OSL/IGL") for the sum of approximately $330,000,000 plus an amount equal
to the
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Actual Net Income of OSL and IGL (as defined in the GSLIC Stock Purchase
Agreement), (b) the purchase by Farmers from OSL/IGL of the Transferred
Assets (as defined in Section 5.17 of the GSLIC Stock Purchase Agreement),
(c) certain reinsurance arrangements between each of OSL and IGL and
Employers Reassurance Corporation, a Kansas corporation ("ERC"), pursuant
to which ERC will reinsure on a 100% coinsurance basis (subject to
existing reinsurance agreements) all of the insurance and annuity business
of OSL and IGL, as described in the letter agreement dated January 21,
1997 between ERC and GSLIC, (d) certain retrocession agreements between
ERC and GSLIC pursuant to which GSLIC will reinsure (subject to existing
reinsurance agreements) on a 70% modified coinsurance basis, the insurance
and annuity business of OSL and IGL, and (e) ERC will place the assets
received from OSL and IGL pursuant to the transactions referred to in (c)
in escrow for the benefit of GSLIC to secure ERC's obligations to GSLIC
arising in connection with the transactions referred to in (d).
2.02. Section 3.03(b)(i) of the Credit Agreement is hereby amended
to read in its entirety as follows:
"(i) Dispositions. Without limiting the obligations of the Company
to obtain the consent of the Majority Banks for any Disposition not
otherwise permitted under this Agreement, as promptly as practicable after
the end of each fiscal year but in no event later than March 15 of the
subsequent fiscal year, the amount of the Commitments shall be reduced by,
and/or the Company shall prepay the Loans in, an amount equal to the
aggregate amount of any Disposition Proceeds (other than Disposition
Proceeds arising from (v) Dispositions by GSSW Limited Partnership, (w)
Dispositions of ownership interests in GSSW Limited Partnership, (x)
Dispositions of capital stock of Loyalty Life Insurance Company, (y)
Dispositions of partnership interests (or of their underlying properties)
previously held by GSSW Limited Partnership and transferred to the Company
in connection with the redemption of its ownership interests in GSSW
Limited Partnership and (z) Dispositions related to the OSL/IGL
Transactions) received by the Company or any of its Subsidiaries during
such fiscal year in excess of $3,000,000 (rounded upward to the nearest
$1000)."
2.03. Section 8.05 of the Credit Agreement is amended by deleting
"and" at the end of clause (e) thereof, substituting "; and" for the period at
the end of clause (f) thereof and inserting new clause (g) immediately after
clause (f) thereof, to read as follows:
"(g) the Company and its Subsidiaries may consummate the OSL/IGL
Transactions;"
2.04. The last sentence of Section 8.08 of the Credit Agreement is
amended by adding at the end thereof the following:
"or (C) Investments contemplated by the OSL/IGL Transaction."
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2.05. The proviso in Section 8.15 of the Credit Agreement is
amended in its entirety to read as follows:
"provided that the Company will not, and will not permit any of the
Subsidiaries of the Company to, Guarantee obligations of any Subsidiary of
the Company under any Surplus Relief Reinsurance Contract."
Section 3. Representations and Warranties. The Company hereby
represents and warrants to the Banks and the Administrative Agent that the
representations and warranties set forth in Section 7 of the Credit Agreement
are true and complete on the date hereof as if made on and as of the date
hereof and as if each reference in such representations and warranties to the
Credit Agreement included reference to this Amendment No. 1.
Section 4. Conditions Precedent. As provided in Section 2 above,
the amendments to the Credit Agreement set forth in said Section 2 shall become
effective as of the date hereof, subject to the conditions precedent that
counterparts of this Amendment No. 1, shall have been duly executed and
delivered by the Company, each of the Banks and the Administrative Agent and
FHC shall have executed and delivered its consent hereto as provided on the
signature pages hereof.
Section 5. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 may be executed in any number of counterparts, all of which taken
together shall constitute one and the same amendatory instrument and any of the
parties hereto may execute this Amendment No. 1 by signing any such counterpart
and sending the same by telecopier, mail messenger or courier to the
Administrative Agent or counsel to the Administrative Agent. This Amendment
No. 1 shall be governed by, and construed in accordance with, the law of the
State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed as of the day and year first above written.
XXXXXXX LIFE, INC.
By______________________________
Title:
Amendment Xx. 0
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XXX XXXXX
XXX XXXX XX XXX XXXX
By_________________________________
Title:
BANK ONE, TEXAS, N.A.
By_________________________________
Title:
THE CHASE MANHATTAN BANK
By_________________________________
Title:
COMMERCE BANK, N.A.
By_________________________________
Title:
FIRST BANK NATIONAL ASSOCIATION
By_________________________________
Title:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By_________________________________
Title:
Amendment Xx. 0
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XXXXX XXXXXXXX XXXX
By_________________________________
Title:
Amendment No. 1
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THE ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By_________________________________
Title:
Amendment Xx. 0
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XXXXXXX
Xx its signature below, FHC consents to the forgoing Amendment No. 1.
FINANCIAL HOLDING CORPORATION
By_________________________________
Title:
Amendment No. 1
