FIRST AMENDMENT THIS AMENDMENT, dated as of March 10, 1997 (the "Amendment") relating to the Credit Agreement referenced below, by and among CONSECO, INC., an Indiana corporation (the "Borrower"), the several financial institutions from time to time...
FIRST AMENDMENT
THIS AMENDMENT, dated as of March 10, 1997 (the "Amendment") relating
to the Credit Agreement referenced below, by and among CONSECO, INC., an Indiana
corporation (the "Borrower"), the several financial institutions from time to
time party to the thereto, (herein, together with any Eligible Assignees
thereof, collectively called the "Banks" and each individually, a "Bank"), the
Managing Agents party thereto, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as syndication agent for and on behalf of the Banks, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, as documentation agent for and on behalf of the
Banks, and NATIONSBANK, N.A. (SOUTH), as administrative agent for and on behalf
of the Banks (the "Administrative Agent"). Terms used herein but not otherwise
defined herein shall have the meanings provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $1,400,000,000 credit facility has been extended to the
Borrower pursuant to the terms of that certain Credit Agreement dated as of
November 22, 1996 (as amended, modified or otherwise supplemented, the "Credit
Agreement") among the Borrower, the Banks , the Managing Agents party thereto,
Bank of America National Trust and Savings Association, as syndication agent for
and on behalf of the Banks, First Union National Bank of North Carolina, as
documentation agent for and on behalf of the Banks and the Administrative Agent;
WHEREAS, the Borrower has requested an amendment to the Credit
Agreement; and
WHEREAS, the Banks are willing to make such amendment,
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
A. The definition of Total Shareholders' Equity set forth in Section
901.1 of the Credit Agreement is amended in its entirety and replaced with the
following:
"Total Shareholders' Equity" shall mean the sum of (i) total
shareholders' equity of a Person as determined in accordance with GAAP
(calculated excluding unrealized gains (losses) of securities as determined in
accordance with FAS 115) and (ii) the redemption value or liquidation preference
(or if less, the purchase price), as applicable, of the ALHC Preferred Stock and
the TOPrS.
B. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules thereto) remain in full force and
effect.
1
C. The Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including without limitation the reasonable fees and expenses
of Xxxxx & Xxx Xxxxx, PLLC.
D. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
E. This Amendment, and the Credit Agreement as amended hereby, shall
be governed by and construed and interpreted in accordance with the laws of the
State of New York.
[Remainder of Page Intentionally Left Blank]
2
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: CONSECO, INC.
By:/S/XXXXXX X. XXXX
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
AGENTS AND BANKS: NATIONSBANK, N.A. (SOUTH),
as Administrative Agent and as a Bank
By:/S/XXXXXXX X. XXXX
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Bank Debt Specialist
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Syndication Agent
By:_________________________________
Name:
Title:
BANK OF AMERICA ILLINOIS
By:_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA, as
Documentation Agent and as a Bank
By:________________________________
Name:
Title:
THE BANK OF TOKYO - MITSUBISHI TRUST COMPANY,
as Managing Agent and as a Bank
By:/S/X. XXXXXXXX
--------------------------------
Name: X. Xxxxxxxx
Title: Vice President
THE BANK OF NEW YORK, as Managing Agent
and as a Bank
By:/S/XXXXXXX X. XXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
BANK ONE TEXAS, N.A., as Managing Agent
and as a Bank
By:/S/XXX X. XXXXXX
--------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as Managing Agent and as a Bank
By: /S/XXXXXXXXX XXXXX
-------------------------------
Name: Xxxxxxxxx Xxxxx
Title: First Vice President
DEUTSCHE BANK AG,
NEW YORK AND/OR
CAYMAN ISLANDS BRANCH, as Managing
Agent and as a Bank
By: /S/XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. XxXxxx
Title: Vice President
By: /S/XXXXXXX XXXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Vice President
4
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH, as Managing
Agent and as a Bank
By: /S/XXXXX X. XXXXX
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President and
Deputy General Manager
CANADIAN IMPERIAL BANK OF COMMERCE,
as Managing Agent and as a Bank
By: /S/XXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
CORESTATES BANK, NA, as Managing Agent
and as a Bank
By:
-----------------------------------
Name:
Title:
SANWA BANK, as Managing Agent
and as a Bank
By:/S/XXXXXXX X. XXXX
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
FLEET NATIONAL BANK, as Managing Agent
and as a Bank
By:/S/XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
5
SOCIETE GENERALE, as Managing Agent
and as a Bank
By:/S/XXXXX X. HOPE
-------------------------------
Name: Xxxxx X. Hope
Title: Vice President
COMERICA BANK, as Managing Agent
and as a Bank
By:/S/XXXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED, as Managing Agent
and as a Bank
By: /S/XXXXX X. XXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Joint General Manager
SUNTRUST BANK, as Managing Agent
and as a Bank
By: /S/XXXXX XXXXX
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By:/S/XXXX XXXXXXX
-------------------------------
Name: Xxxx Xxxxxxx
Title:
0
XXX XXXXX XXXX XX XXXXXXXX plc
By:/S/ X. XXXXXX
---------------------------
Name: X. Xxxxxx
Title: Vice President
THE MITSUBISHI TRUST AND BANKING CORPORATION
- CHICAGO BRANCH
By: /S/XXXXXXX XXXXXXXXX
---------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Chief Manager
THE YASUDA TRUST & BANKING CO., LTD., CHICAGO
BRANCH
By: /S/XXXXXX X. XXXX
---------------------------
Name: Xxxxxx X. Xxxx
Title: Deputy General Manager
BANQUE NATIONALE DE PARIS
By: /S/XXXX XXXXXXXXX
---------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
By: /S/XXXXXXXXX XXXXXX
---------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Assistant Vice President
STAR BANK, NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
7
CREDIT SUISSE
By:/S/XXXXXXXX X. XXXXX
---------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
By:/S/XXXXXXXX X. XXXXXXXXXXX
---------------------------
Name: Xxxxxxxx X. Xxxxxxxxxxx
Title: Associate
KEYBANK NATIONAL ASSOCIATION
By: /S/XXXXXX X. XXXXXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
NATIONAL CITY BANK
By: /S/XXXXX X. CABLE
-------------------------
Name: Xxxxx X. Cable
Title: Vice President/Senior Lending Officer
BAYERISCHE LANDESBANK GIROZENTRALE
By:/S/XXXXX XXXXXXXX
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
Manager Lending Division
By:/S/XXXX X'XXXXXXXX
-----------------------------
Name: Xxxx X'Xxxxxxxx
Title: Second Vice President
8
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO BRANCH
By: /S/J. XXXXXXX SHORTLY
-----------------------------
Name: J. Xxxxxxx Shortly
Title: Senior Vice President
By:/S/XXXX XXXXXX
-----------------------------
Name: Xxxx Xxxxxx
Title: Vice President
THE SAKURA BANK, LIMITED
By:/S/XXXXX XXXXX
-----------------------------
Name: Xxxxx Xxxxx
Title: Senior Manager
THE FIRST NATIONAL BANK OF CHICAGO
By:/S/XXXXXXXXX X. XXXXXXXX
----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
BANK OF MONTREAL
By: /S/X.X. XXXXXXX
---------------------------
Name: X.X. Xxxxxxx
Title: Director
U.S. NATIONAL BANK OF OREGON
By:/S/XXXXXXX X. XXXX
---------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
9
THE SUMITOMO BANK, LTD., CHICAGO BRANCH
By:/S/XXXXXXXX XXXXX
-------------------------
Name: Xxxxxxxx Xxxxx
Title: Joint General Manager
10
