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EXHIBIT 4.2(c)
[Execution Copy]
AMENDED AND RESTATED CREDIT AGREEMENT
Amended and Restated Credit Agreement dated as of July 6,
1995, amended and restated as of December 27, 1996, 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 (together with its successors and assigns,
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").
W I T N E S S E T H:
WHEREAS, the Company, the Banks and the Administrative Agent
are party to a Credit Agreement dated as of July 6, 1995 (as heretofore
amended, the "Existing Credit Agreement"); and
WHEREAS, the parties hereto desire to amend and restate the
Existing Credit Agreement to, among other things, extend the Revolving Credit
Commitment Termination Date (as defined in the Existing Credit Agreement), the
Final Maturity Date (as defined in the Existing Credit Agreement) and amend
certain covenants;
NOW, THEREFORE, the parties hereto agree to amend the Existing
Credit Agreement as set forth herein and to restate the Existing Credit
Agreement to read in its entirety as set forth in the Existing Credit
Agreement, which is incorporated herein by reference, with the amendments
specified in Section 2 below:
Section 1. Definitions. Capitalized terms used but not
otherwise defined herein have the meanings given them in the Existing Credit
Agreement.
Section 2. Amendments. Subject to Section 4 hereof, the
Existing Credit Agreement is hereby amended as follows:
A. General. References in the Existing Credit Agreement to
the Credit Agreement (including indirect references) shall be deemed to be
references to the Existing Credit Agreement as amended and restated hereby. In
addition, (i) each reference in the Existing Credit Agreement to "The Chase
Manhattan Bank (National Association)" is amended to read "The Chase Manhattan
Bank", (ii) each reference in the Existing Credit Agreement to "Chase
Securities, Inc." is amended to read "Chase Securities Inc.", (iii) each
reference in the Existing Credit Agreement to "at account number
NYAO-DI-900-9-000002 maintained by the Administrative Agent with Chase at the
Principal Office" is amended to read "at an account designated by the
Administrative Agent" and (iv) the reference in the definition of "Adjusted
Fixed Charges" and the definition of "Cash Flow Dividend Amount"
Amended and Restated Credit Agreement
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in Section 1.01 of the Existing Credit Agreement to the "Company" shall mean
the Company and Xxxxxxx Services, Inc. as though they are a single entity.
B. Definitions. The following definitions in Section 1.01 of
the Existing Credit Agreement are amended to read in their entirety as follows:
"Affiliate Advances" shall have the meaning assigned to such
term in Section 8.09 hereof.
"Amendment Effective Date" shall mean the date upon which the
conditions specified in Section 4 of the Amended and Restated Credit
Agreement shall have been satisfied.
"Disposition Proceeds" shall mean, with respect to any
Disposition (the "Current Disposition"), (i) if the sum of the after-
tax net gain realized from all Dispositions occurring on or after the
date of the Amendment Effective Date (including the Current
Disposition) is not more than 10% of Net Worth as at the last day of
the fiscal quarter preceding the date of the Current Disposition, the
lesser of (a) the Proceeds thereof and (b) the after-tax net gain (if
any) realized from the Current Disposition and (ii) in all other
cases, the Proceeds thereof.
"Final Maturity Date" shall mean the Quarterly Date falling on
or nearest to the date six years after the Amendment Effective Date.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, limited partnership, joint
venture, trust, unincorporated organization, limited liability
company, other business entity or government (or any agency,
instrumentality or political subdivision thereof).
"Principal Office" shall mean the principal office of Chase,
located on the date hereof at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"Principal Payment Dates" shall mean six alternate (every
other) Quarterly Dates commencing with the Quarterly Date falling on
or nearest to the date six months after the Revolving Credit
Commitment Termination Date and ending with the Final Maturity Date.
"Revolving Credit Commitment Termination Date" shall mean the
Quarterly Date falling on or nearest to the date three years after the
Amendment Effective Date.
C. Repayment of Loans The reference in Section 3.01 of the
Existing Credit Agreement to "eight" is hereby amended to read "six".
Amended and Restated Credit Agreement
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D. Mandatory Commitment Reductions and Prepayments. Section
3.03(b)(i) of the Existing 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 (w)
Dispositions by GSSW Limited Partnership, (x) Dispositions
of ownership interests in GSSW Limited Partnership, (y)
Dispositions of capital stock of Loyalty Life Insurance
Company and (z) 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) received by the Company or any of its
Subsidiaries during such fiscal year (rounded upward to the
nearest $1000)."
E. Prohibition of Fundamental Changes. Section 8.05 of the
Existing Credit Agreement is amended by deleting "and" at the end of clause (d)
thereof, substituting "; and" for the period at the end of clause (e) thereof
and inserting new clause (f) immediately after clause (e) thereof, to read as
follows:
"(f) the Company and its Subsidiaries may Dispose of (x)
ownership interests in GSSW Limited Partnership, (y) capital stock of
Loyalty Life Insurance Company and (z) capital stock of VLIC."
F. Investments. Section 8.08 of the Existing Credit
Agreement is amended as follows:
(1) clause (c) thereof is amended to read in its entirety as
follows:
"(c) Investments in Below Investment Grade Debt Instruments,
in shares of common and preferred stock, in limited partnership
interests in limited partnerships and limited liability partnerships
and in membership interests in limited liability companies (excluding
Investments permitted by Section 8.08(e)), so long as the aggregate
fair market value of all such Investments in Below Investment Grade
Debt Instruments, together with the aggregate book value of all such
Investments in shares of common and preferred stock, partnership
interests in limited partnerships and limited liability partnerships
and in membership interests in limited liability companies and the
aggregate fair market value of all interests in real property held by
the Company or any of its Subsidiaries, does not exceed 110% of Net
Worth as at the last day of the fiscal quarter of the Company most
recently ended;"
(2) clause (e) thereof is amended to read in its entirety as
follows:
Amended and Restated Credit Agreement
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"(e) Investments in Subsidiaries of the Company, in Argus
Health Systems, Inc., in College Insurance Group, Inc., in Hereford
LLP (which owns the Hereford Building, Kansas City, Missouri) and in
Investments held by Argus Health Systems, Inc. on December 23, 1996
and dividended by Argus Health Systems, Inc. to the Company or any of
its Subsidiaries; or Investments by any of the Insurance Companies
(other than United Fidelity) in limited partnership interests issued,
and in limited partnership interests and membership interests in
limited liability companies that have been distributed, by GSSW
Limited Partnership in an aggregate amount not to exceed $35,000,000;
(3) by deleting "and" at the end of clause (i) thereof,
inserting "and" at the end of clause (j) thereof and inserting clause
(k) immediately after clause (j), to read as follows:
"(k) additional Investments (other than Investments in
Volatile Derivative Instruments) up to but not exceeding $25,000,000
in the aggregate; provided that, Investments in any one Person and its
Subsidiaries and Affiliates shall not exceed $2,500,000 in the
aggregate;"
G. Dividend Payments. Section 8.09 of the Existing Credit
Agreement is amended by inserting the following sentence immediately following
the first two sentences of Section 8.09 thereof:
"Notwithstanding the forgoing, the Company may make loans and/or
advances to FHC and its Subsidiaries (" Affiliate Advances"); provided that the
aggregate amount of Dividend Payments made in any fiscal year pursuant to the
first two sentences of this Section 8.09, plus the aggregate amount of
Affiliate Advances made during such fiscal year, minus the aggregate amount of
Affiliate Advances repaid during such fiscal year, may not exceed an aggregate
amount equal to the Dividend Payments that may be made in such fiscal year
pursuant to the first two sentences of this Section 8.09."
H. Transactions with Affiliates Section 8.18 of the Existing
Credit Agreement is amended by deleting "or" at the end of clause (c) thereof,
inserting "or" at the end of subsection (d) thereof and inserting new clause
(e) to read as follows:
"(e) make Affiliate Advances except to the extent permitted
under Section 8.09 hereof;"
I. Certain Obligations Respecting Subsidiaries. Section 8.19
of the Existing Credit Agreement is amended by adding the following at the end
thereof:
"Notwithstanding the foregoing provisions of this Section 8.19, the
Company and its Subsidiaries may Dispose of (x) ownership interests in
GSSW Limited Partnership, (y) capital stock of Loyalty Life Insurance
Company and (z) capital stock of VLIC."
Amended and Restated Credit Agreement
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J. Modifications of Certain Documents. Section 8.20 of the
Existing Credit Agreement is amended by adding the following at the end
thereof:
"Notwithstanding the foregoing provisions of this Section 8.20 the
Company and its Subsidiaries may prepay any of the Surplus Relief
Reinsurance Contracts listed in Schedule 6 in an aggregate amount per
fiscal year up to but not exceeding the lesser of (i) $5,000,000 and
(ii) the Cash Flow Dividend Amount for such fiscal year, it being
understood that any such prepayment will not affect the amount of
Dividend Payments that may be made under Section 8.09 hereof."
K. Amendment to Exhibit E, Schedule 3 and Schedule 7.
Exhibit E, Schedule 3 and Schedule 7 to the Existing Credit Agreement are
hereby deleted in their entirety and replaced by Exhibit A, Exhibit B and
Exhibit C, respectively, attached hereto.
L. Amendment to Exhibit F. Exhibit F to the Existing Credit
Agreement is hereby amended by substituting "Amended and Restated Credit
Agreement dated as of July 6, 1995, amended and restated as of December 27,
1996" for "Credit Agreement dated as of July 6, 1995".
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 Existing
Credit Agreement are, on the date hereof, and will be, on the date the
amendments contemplated by Section 2 hereof become effective, true and complete
as if made on and as of each such date and as if each reference in such
representations and warranties to the Credit Agreement included reference to
such agreement as amended by this Amended and Restated Credit Agreement.
Section 4. Conditions Precedent. The amendment and
restatement of the Existing Credit Agreement contemplated hereby is subject to
the conditions precedent that counterparts of this Amended and Restated Credit
Agreement, 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. Confirmation of Security. The Company hereby
agrees references in the Security Agreement to the Credit Agreement (including
indirect references) shall be deemed to be references to the Amended and
Restated Credit Agreement.
Section 6. Notices. The Applicable Lending Office and
initial address for notices under this Amended and Restated Credit Agreement
for each Bank is specified in the administrative questionnaire heretofore
returned by such Lender to the Administrative Agent.
Section 7. Miscellaneous. Except as herein provided, the
Existing Credit Agreement shall remain unchanged and in full force and effect.
This Amended
Amended and Restated Credit Agreement
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and Restated Credit Agreement 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 Amended and Restated
Credit Agreement 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 Amended and Restated Credit Agreement shall be
governed by, and construed in accordance with, the law of the State of New
York.
Amended and Restated Credit Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Credit Agreement to be duly executed as of the day and
year first above written.
XXXXXXX LIFE, INC.
By______________________________
Title:
Amended and Restated Credit Agreement
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THE BANKS
THE BANK OF NEW YORK
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:
Amended and Restated Credit Agreement
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FLEET NATIONAL BANK
By_________________________________
Title:
Amended and Restated Credit Agreement
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THE ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as Administrative Agent
By_________________________________
Title:
Amended and Restated Credit Agreement
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CONSENT
By its signature below, FHC agrees references in the Negative
Pledge Agreement to the Credit Agreement (including indirect references) shall
be deemed to be references to the Amended and Restated Credit Agreement.
FINANCIAL HOLDING CORPORATION
By_________________________________
Title:
Amended and Restated Credit Agreement
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EXHIBIT A
[Form of Compliance Certificate]
COMPLIANCE CERTIFICATE
[Date]
Re: Amended and Restated Credit Agreement dated as of July 6,
1995, amended and restated as of December 27, 1996 (the
"Credit Agreement"), between XXXXXXX Life, Inc. (the
"Company"), the lenders named therein, and The Chase Manhattan
Bank, as Administrative Agent
This Certificate is delivered pursuant to Section 8.01 of the
Credit Agreement. Terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement. This Certificate is
delivered with respect to the fiscal period of the Company ended
______________, 199__.
Annex 1 hereto sets forth, on and as of such date,
calculations necessary to determine whether the Company is in compliance with
Sections 8.08(c), 8.08(d), 8.08(e), 8.08(g), 8.08(k) and 8.09 through 8.15 of
the Credit Agreement as at, or for the relevant period ended on, said date.
Except as expressly identified on said Annex, the Company is in compliance with
said Sections. All references to Sections in said Annex are to Sections of the
Credit Agreement.
IN WITNESS WHEREOF, I have delivered this Certificate to the
Administrative Agent and the Banks in my capacity as _________________ of the
Company on this ______ day of ____________, 199__.
______________________________
Name:
Compliance Certificate
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ANNEX 1
XXXXXXX LIFE, INC.
COMPLIANCE CERTIFICATE
Fiscal Period Ended __________, 199__
(the "Reference Date")
SECTION 8.08(c)
(A) Aggregate fair market value, on the Reference Date, of $__________
all Investments in Below Investment Grade Debt
Instruments
(B) Aggregate book value, on the Reference Date, of all $__________
Investments in shares of common and preferred stock, in
limited partnership interests in limited partnerships and
limited liability partnerships and in membership
interests in limited liability companies (excluding
Investments permitted by Section 8.08(e) of the Credit
Agreement)
(C) Aggregate fair market value, on the Reference Date, of $_________
all interests in real property held by the Company or any
of its Subsidiaries
(D) Sum of (A), (B) and (C) $_________
(E) 110% of Net Worth on the Reference Date $_________
SECTION 8.08(d)
(A) Aggregate amount, on the Reference Date, of Investments $__________
in mortgage loans
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(B) Aggregate book value, on the Reference Date, of all $__________
Investments on the Reference Date in debt and equity
securities issued by any Person whose assets consist
principally of mortgage loans (unless the obligations of
such Person are fully guaranteed by the United States
of America or any instrumentality thereof)
(C) Sum of (A) and (B) $_________
(D) Aggregate book value, on the Reference Date, of the $_________
investment portfolio of the Company and its Subsidiaries
(determined on a consolidated basis in accordance with
GAAP), together with the aggregate amount of cash and
accrued investment income as of the Reference Date
(E) 30% of (D) $________
SECTION 8.08(e)
(A) Aggregate amount, on the Reference Date, of Investments $_________
by any of the Insurance Companies (other than United
Fidelity) in limited partnership interests issued, and in
limited partnership interests and membership interests in
limited liability companies that have been distributed,
by GSSW Limited Partnership
SECTION 8.08(g)
(A) Aggregate net book value, on the Reference Date, of $________
Investments in Z Bonds and PAC II instruments entered
into by the Company and/or any of its Subsidiaries
(B) Invested Assets of United Fidelity (determined on a $________
consolidated basis) on the Reference Date
(C) 25% of (B) $________
Annex 1 to Compliance Xxxxxxxxxxx
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(X) Xxxxxxxxx notional amount, on the Reference Date, of $________
Investments in "swap agreements" (within the meaning
given to such term in Section 101(53B) of the United
States Bankruptcy Code) entered into by the Company
and/or any of its Subsidiaries
(E) Aggregate net book value, on the Reference Date, of $________
Investments in all other Volatile Derivative Instruments
entered into by the Company and/or any of its
Subsidiaries
(F) Surplus, on the Reference Date, of Great Southern Life $________
Insurance Company
(G) 25% of (F) $________
SECTION 8.08(k)
(A) Aggregate amount of additional Investments (other than $________
Investments in Volatile Derivative Instruments)
SECTION 8.09
(A) Cash Flow Dividend Amount on the Reference Date $________
(B) Carry-Over Amount on the Reference Date $________
(C) Aggregate amount of Dividend Payments made during the $________
portion of the fiscal year of the Company ended on the
Reference Date
(D) Sum of (A) and (B) $________
(E) Management Fee Base Amount on the Reference Date $________
(F) Sum of (B), (E) and $7,500,000 $________
Annex 1 to Compliance Certificate
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(G) Consolidated Adjusted Surplus on the date of the making $________
or declaration of any Dividend Payment, the making or
declaration of which occurred during the period from but
not including the immediately preceding Reference Date to
and including the Reference Date
(H) Affiliate Advances during the portion of the fiscal year $________
of the Company ended on the Reference Date
(I) Aggregate amount of Dividend Payments made during the $________
portion of the fiscal year of the Company ended on the
Reference Date pursuant to the first two sentences of
Section 8.09
(J) Affiliate Advances repaid during the portion of the $________
fiscal year of the Company ended on the Reference Date
(K) Sum of (H) and (I) minus (J) $________
(L) Aggregate amount of the Lifetime Dividend Amount $________
distributed during the period from and including the
Closing Date to and including the Reference Date
SECTION 8.10
(A) Total Indebtedness on the Reference Date $________
(B) Net Worth on the Reference Date $________
(C) Consolidated Leverage Ratio on the Reference Date equals ___ to 1
the ratio of (A) to (B)
Annex 1 to Compliance Certificate
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SECTION 8.11
(A) Total Adjusted Capital (as defined by the NAIC) of each $________
Insurance Company on the Reference Date
(B) Authorized Control Level Risk-Based Capital (as defined $________
by the NAIC) for such Insurance Company on the Reference
Date
(C) Risk-Based Capital Ratio for such Insurance Company on ___ to 1
the Reference Date equals the ratio of (A) to (B)
SECTION 8.12
(A) Adjusted Consolidated Statutory Earnings on the Reference $_________
Date
(B) Adjusted Fixed Charges on the Reference Date $_________
(C) Adjusted Consolidated Statutory Earnings to Adjusted ___ to 1
Fixed Charges Ratio on the Reference Date equals the
ratio of (A) to (B)
SECTION 8.13
(A) Aggregate amount of Capital Expenditures made during the $_________
portion of the fiscal year of the Company ended on the
Reference Date
(B) Aggregate amount of Capital Expenditures made during the $_________
period from and including the date of the Credit
Agreement to and including the Reference Date
SECTION 8.14 [To be calculated on any Reference Date that is the last day of any fiscal year of the
Company]
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(A) Surplus of United Fidelity and its Subsidiaries on the $_________
Reference Date
(B) AVR of United Fidelity and its Subsidiaries on the $_________
Reference Date
(C) Sum of (A) and (B) $_________
(D) the amount of Outstanding Surplus Relief for United $_________
Fidelity and its Subsidiaries on the Reference Date
(E) (C) minus (D) $_________
SECTION 8.15
(A) Outstanding Surplus Relief, on the Reference Date, under $_________
additional Surplus Relief Reinsurance Contracts in
respect of the book of business of United Fidelity and
its Subsidiaries
(B) Outstanding Surplus Relief, on the Reference Date, under $_________
additional Surplus Relief Reinsurance Contracts in
respect of the business of VLIC
Annex 1 to Compliance Certificate
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EXHIBIT B
Schedule 3 to the Credit Agreement
Subsidiaries and Investments
[To be completed by the Company]
Schedule 3
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EXHIBIT C
[To be completed by the Company]
