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Exhibit 10.38
FOURTH CONSENT AND AMENDMENT TO CREDIT AGREEMENT
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FOURTH CONSENT AND AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of December 4, 1998, among AMERUS LIFE HOLDINGS, INC., an
Iowa corporation (the "Borrower"), the various Banks from time to time party to
the Credit Agreement referred to below (the "Banks"), BANK ONE, INDIANA, NA and
ABN AMRO BANK, N.V., as Co-Arrangers (the "Co-Arrangers") and THE CHASE
MANHATTAN BANK, as Administrative Agent (the "Administrative Agent"). All
capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, the Co-Arrangers and the
Administrative Agent are parties to a Credit Agreement, dated as of October 23,
1997 (as amended, modified or supplemented to the date hereof, the "Credit
Agreement");
WHEREAS, the Borrower has requested the Banks' consent to
effect the transactions described herein and has further requested that the
Banks agree to amend the Credit Agreement as herein provided; and
WHEREAS, the Banks have consented to the transactions
described herein and agreed to amend the Credit Agreement as herein provided
subject to the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Notwithstanding anything to the contrary contained in the
Credit Agreement, the Borrower may establish and administer an executive stock
purchase program pursuant to which the Borrower shall offer to employees of the
Borrower and its Subsidiaries the opportunity to purchase from the Borrower
treasury shares of the Borrower's common stock using either personal funds of
such employees or funds borrowed from a third-party financial institution, which
loans may be guaranteed by the Borrower; provided that at no time shall the
aggregate outstanding principal amount of loans guaranteed by the Borrower
pursuant to this paragraph 1 exceed $25,000,000. In addition, so long as no
Default or Event of Default exists or would result therefrom, notwithstanding
anything to the contrary contained in the Credit Agreement, and in addition to
any other funds available to the Borrower for such purpose, the Borrower may use
the proceeds received from the employees pursuant to the common stock purchases
described above in this paragraph 1, plus up to $30,000,000 in additional funds
of the Borrower, to make purchases of its common stock and/or convertible equity
units in the open market or otherwise.
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2. Section 7.03 of the Credit Agreement is hereby amended by
(i) deleting the word "and" after the semi-colon appearing at the end of clause
(q) thereof, (ii) replacing the period appearing at the end of clause (r)
thereof with the word "; and" and (ii) inserting the following new clause (s)
immediately following clause (r) thereof:
(s) Liens on property acquired pursuant to Permitted
Transactions.
3. Section 9 of the Credit Agreement is hereby amended by
deleting the definitions of "Capital Lease" and "Subsidiary" contained therein
and inserting the following new definitions, respectively, in lieu thereof:
"Subsidiary" of any Person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes having
by the terms thereof ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the
time stock of any class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency)
is at the time owned by such Person directly or indirectly through
Subsidiaries and (ii) any partnership, association, joint venture or
other entity in which such Person directly or indirectly through
Subsidiaries has more than a 50% equity or voting interest at the time.
Unless otherwise expressly provided, all references to "Subsidiary"
shall mean a Subsidiary of the Borrower, provided that, notwithstanding
the foregoing provisions of this definition, any grantor trust or
limited liability company established by the Borrower and/or its
Subsidiaries in order to effectuate the lease/leaseback transaction
with Linzer Elektrizitats-, Fernwarme- und Verkehrsbetriebe
Aktiengesellschaft ("ESG") with respect to a cogeneration facility in
Linz, Austria as described in the summary of terms and structure
delivered to the Administrative Agent and the Banks prior to the Fourth
Amendment Effective Date, and any trust or limited liability company
formed by the Borrower and/or its Subsidiaries after the Fourth
Amendment Effective Date to effectuate transactions with ESG or any
other Person in which the Indebtedness of the Borrower and its
Subsidiaries incurred in connection therewith is comprised solely of
(x) obligations which are non-recourse to the Borrower or any of its
Subsidiaries and (y) other obligations which are or will be 100%
defeased by U.S. Government obligations (each such transaction,
including the lease/leaseback with ESG, a "Permitted Transaction"),
shall not constitute Subsidiaries for purposes of this Agreement.
"Capital Lease" as applied to any Person, shall mean any lease
of any property (whether real, personal or mixed) by that Person as
lessee which, in conformity with GAAP, is, or is required to be,
accounted for as a capital lease on the balance sheet of such Person;
provided that, notwithstanding the foregoing, "Capital Lease" shall not
include any lease which is entered into solely to effect a Permitted
Transaction.
4. Section 9 of the Credit Agreement is hereby further amended
by inserting the following new definitions in appropriate alphabetical order:
"ESG" shall have the meaning provided in the definition of
"Subsidiary".
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"Permitted Transaction" shall have the meaning provided in the
definition of "Subsidiary".
5. Section 9 of the Credit Agreement is hereby further amended
by inserting, immediately prior to clause (x) appearing in the proviso to the
definition of "Indebtedness" appearing therein, the following new clause (w):
"(w) obligations of the Borrower or any of
its Subsidiaries described in clauses (x) or (y) of the
definition of "Subsidiary",
6. In order to induce the Banks to enter into this Amendment,
the Borrower hereby represents and warrants that (x) all representations and
warranties contained in Section 5 of the Credit Agreement are true and correct
in all material respects on and as of the Fourth Amendment Effective Date (as
defined below), both before and after giving effect to this Amendment (unless
such representations and warranties relate to a specific earlier date, in which
case such representations and warranties shall be true and correct as of such
earlier date) and (y) there exists no Default or Event of Default on the Fourth
Amendment Effective Date, both before and after giving effect to this Amendment.
7. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any provision of the Credit
Agreement or any other Credit Document except as expressly set forth herein.
8. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
9. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
10. This Amendment shall become effective as of the date
hereof on the date (the "Fourth Amendment Effective Date") when each of the
Borrower and the Required Banks shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have delivered (including by way
of facsimile transmission) the same to the Administrative Agent at its Notice
Office.
11. From and after the Fourth Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement after
giving effect to this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
AMERUS LIFE HOLDINGS, INC.
By /s/ Xxxxxxx X. Xxxxxxx
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Title: Senior Vice President
& Controller/Tresurer
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By /s/ Xxxxx Xxxxxxx
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Title: Vice President
BANK ONE, INDIANA, NA, Individually and as a
Co-Arranger
By /s/ Xxxxx X. Little
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Title: Vice President
ABN AMRO BANK N.V., Individually and as a
Co-Arranger
By /s/ Xxxxxx X. Xxxx
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Name: Vice President and Director
Title:
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BANK OF MONTREAL
By /s/ Xxxxxx X. Xxxxx
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Title: Director
BANK OF TOKYO MITSUBISHI TRUST COMPANY
By
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Title:
BANQUE NATIONALE DE PARIS
By /s/ Arnaud Xxxxxx xx Xxxxxx
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Title: EVP and General Manager
CIBC INC.
By /s/ Xxxxxx Xxxxxxx
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Title: Executive Director
CIBC Xxxxxxxxxxx Corp., as agent
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DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN
BRANCH
By
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Name:
Title:
Name:
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Title:
FIRST UNION NATIONAL BANK
By /s/ X. X. Xxxxxxxxxxx
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Title: Senior Vice President
FLEET NATIONAL BANK
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
MELLON BANK, N.A.
By /s/ Xxx X Xxxxxxxxx
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Title: Officer
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NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxxx Xxxxxx
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Title: Assistant Vice President
NORWEST BANK IOWA, NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxx, Xx.
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Title: Vice President
ROYAL BANK OF CANADA
By /s/ X. Xxxxxxxxxxx
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Title: Senior Vice President
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By
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Title:
