CREDIT AGREEMENT
Dated as of August 31, 1995
among
CONSECO, INC.,
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO,
THE CHASE MANHATTAN BANK, N.A. and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as Documentation Agents,
THE BANK OF NEW YORK, THE BANK OF TOKYO TRUST,
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
DEUTSCHE BANK AG, NEW YORK BRANCH,
DRESDNER BANK, ING CAPITAL CORPORATION,
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., NATIONSBANK OF
GEORGIA, N.A., SHAWMUT BANK CONNECTICUT, N.A.,
and SOCIETE GENERALE,
as Managing Agents
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
Arranged By
BA SECURITIES, INC.
The following Table of Contents has been inserted for convenience only and does
not constitute a part of this Agreement.
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.....................................................................
1.1 Certain Defined Terms.............................................................................
1.2 Other Definitional Provisions.....................................................................
1.3 Accounting and Financial Determinations...........................................................
SECTION 2. THE COMMITMENTS AND THE LOANS.......................................................................
2.1 Commitment........................................................................................
2.2 Types of Loans....................................................................................
2.3 Procedure for Borrowing...........................................................................
2.4 Funding Reliance..................................................................................
2.5 Conversion and Continuation Elections............................................................
2.6 Repayment of Loans................................................................................
2.7 Loan Accounts; Record Keeping.....................................................................
SECTION 3. INTEREST AND FEES, ETC..............................................................................
3.1 Interest Rates....................................................................................
3.2 Default Interest Rate.............................................................................
3.3 Interest Payment Dates............................................................................
3.4 Setting and Notice of Rates.......................................................................
3.5 Computation of Fees and Interest..................................................................
3.6 Fees..............................................................................................
SECTION 4. PAYMENTS AND PREPAYMENTS............................................................................
4.1 Voluntary Termination or Reduction of
Commitments...................................................................................
4.2 Optional Prepayments..............................................................................
4.3 Mandatory Prepayments.............................................................................
4.4 Payments by the Borrower..........................................................................
4.5 Application of Prepayments........................................................................
4.6 Sharing of Payments...............................................................................
4.7 Setoff............................................................................................
4.8 Net Payments......................................................................................
4.9 Mandatory Reduction in the Commitments............................................................
SECTION 5. CHANGES IN CIRCUMSTANCES............................................................................
5.1 Increased Costs...................................................................................
5.2 Change in Rate of Return..........................................................................
5.3 Basis for Determining Interest Rate Inadequate or
Unfair........................................................................................
5.4 Changes in Law Rendering Certain Loans Unlawful...................................................
5.5 Funding Losses....................................................................................
5.6 Right of Banks to Fund Through Other Offices......................................................
5.7 Discretion of Banks as to Manner of Funding.......................................................
5.8 Replacement of Banks..............................................................................
5.9 Conclusiveness of Statements; Survival of
Provisions....................................................................................
SECTION 6. COLLATERAL AND OTHER SECURITY.......................................................................
6.1 Collateral Documents..............................................................................
6.2 Application of Proceeds from Collateral...........................................................
6.3 Further Assurances................................................................................
6.4 Release of Shared Collateral......................................................................
SECTION 7. REPRESENTATIONS AND WARRANTIES......................................................................
7.1 Organization, etc.................................................................................
7.2 Authorization.....................................................................................
7.3 No Conflict.......................................................................................
7.4 Governmental Consents.............................................................................
7.5 Validity..........................................................................................
7.6 Financial Statements..............................................................................
7.7 Material Adverse Change...........................................................................
7.8 Litigation and Contingent Obligations.............................................................
7.9 Liens.............................................................................................
7.10 Pension and Welfare Plans........................................................................
7.11 Investment Company Act...........................................................................
7.12 Public Utility Holding Company Act...............................................................
7.13 Taxes............................................................................................
7.14 Accuracy of Information..........................................................................
7.15 Environmental Warranties.........................................................................
7.16 Proceeds.........................................................................................
7.17 Insurance........................................................................................
7.18 Securities Laws..................................................................................
7.19 Governmental Authorizations......................................................................
7.20 Business Locations; Trade Names..................................................................
7.21 Solvency.........................................................................................
7.22 Insurance Licenses...............................................................................
7.23 Compliance with Laws.............................................................................
7.24 No Default.......................................................................................
7.25 Pledged Shares...................................................................................
7.26 Mergers..........................................................................................
7.27 Margin Regulations...............................................................................
7.28 Tranche B Indebtedness...........................................................................
7.29 Conseco Corporate Structure......................................................................
7.30 Significant Subsidiaries.........................................................................
7.31 BLHC a Subsidiary................................................................................
SECTION 8. AFFIRMATIVE COVENANTS...............................................................................
8.1 Reports, Certificates and Other Information.......................................................
8.2 Corporate Existence; Foreign Qualification........................................................
8.3 Books, Records and Inspections....................................................................
8.4 Insurance.........................................................................................
8.5 Taxes and Liabilities.............................................................................
8.6 Pension Plans and Welfare Plans...................................................................
8.7 Compliance with Laws..............................................................................
8.8 Maintenance of Permits............................................................................
8.9 Environmental Compliance..........................................................................
8.10 BLHC a Subsidiary................................................................................
SECTION 9. NEGATIVE COVENANTS..................................................................................
9.1 Limitation on Indebtedness........................................................................
9.2 Liens.............................................................................................
9.3 Consolidation, Merger, etc........................................................................
9.4 Asset Disposition, etc............................................................................
9.5 Other Agreements..................................................................................
9.6 Business Activities...............................................................................
9.7 Change of Location or Name........................................................................
9.8 Transactions with Affiliates......................................................................
9.9 Dividends, etc....................................................................................
9.10 Investments......................................................................................
9.11 Senior Notes and Senior Note Documents...........................................................
9.12 BLHC a Subsidiary................................................................................
SECTION 10. FINANCIAL COVENANTS ...............................................................................
10.1 Minimum Surplus..................................................................................
10.2 Shareholders' Equity.............................................................................
10.3 Debt to Total Capitalization.....................................................................
10.4 Risk-Based Capital...............................................................................
10.5 Cash Coverage Ratio..............................................................................
10.6 Best Rating......................................................................................
SECTION 11. CONDITIONS..........................................................................................
11.1 Initial Loans....................................................................................
11.2 All Loans........................................................................................
11.3 Tranche B Loans..................................................................................
SECTION 12. EVENTS OF DEFAULT AND THEIR EFFECT.................................................................
12.1 Events of Default................................................................................
12.2 Effect of Event of Default.......................................................................
SECTION 13. THE AGENT..........................................................................................
13.1 Authorization and Action.........................................................................
13.2 Liability of the Administrative Agent............................................................
13.3 Administrative Agent and Affiliates..............................................................
13.4 Bank Credit Decision.............................................................................
13.5 Indemnification..................................................................................
13.6 Successor Agent..................................................................................
13.7 Duties of Documentation Agents and Managing
Agents........................................................................................
SECTION 14. ASSIGNMENTS AND PARTICIPATIONS.....................................................................
14.1 Assignments......................................................................................
14.2 Participations...................................................................................
14.3 Disclosure of Information........................................................................
14.4 Foreign Transferees..............................................................................
SECTION 15. MISCELLANEOUS......................................................................................
15.1 Waivers and Amendments...........................................................................
15.2 Failure to Consent...............................................................................
15.3 Notices..........................................................................................
15.4 Payment of Costs and Expenses....................................................................
15.5 Indemnity........................................................................................
15.6 Subsidiary References............................................................................
15.7 Captions.........................................................................................
15.8 GOVERNING LAW....................................................................................
15.9 Counterparts.....................................................................................
15.10 SUBMISSION TO JURISDICTION; WAIVER OF VENUE.....................................................
15.11 Service of Process..............................................................................
15.12 Successors and Assigns..........................................................................
15.13 WAIVER OF JURY TRIAL............................................................................
SCHEDULES AND EXHIBITS
SCHEDULES
---------
SCHEDULE A Merchant Banking Investments
SCHEDULE 1.1 List of Servicing Agreements
SCHEDULE 2.1 Banks and Percentages
SCHEDULE 7.4 Governmental Consents
SCHEDULE 7.8 Litigation
SCHEDULE 7.10 ERISA
SCHEDULE 7.13 Tax Matters
SCHEDULE 7.17 Insurance
SCHEDULE 7.20 Business Locations; Trade Names
SCHEDULE 7.22 Licenses
SCHEDULE 7.26 Merger Consummation
SCHEDULE 7.30 Significant Subsidiaries
SCHEDULE 9.1 Indebtedness
SCHEDULE 9.2 Liens
SCHEDULE 9.6 Lines of Business
SCHEDULE 9.8 Transactions with Affiliates
SCHEDULE 9.10 Investments
EXHIBITS
--------
EXHIBIT A Form of Tranche A Note
EXHIBIT B Form of Tranche B Note
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Continuation/Conversion Notice
EXHIBIT E-1 Form of Borrower Non-Shared Pledge Agreement
EXHIBIT E-2 Form of Borrower Shared Pledge Agreement
EXHIBIT E-3 Form of MDSCG Pledge Agreement
EXHIBIT E-4 Form of New CIHC Pledge Agreement
EXHIBIT F Form of Assignment of Servicing Agreements
EXHIBIT G Form of Compliance Certificate
EXHIBIT H Form of Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, general
counsel to the Borrower and its Subsidiaries
(including BLHC)
EXHIBIT I-1 Form of Officer's Certificate (Borrower)
EXHIBIT I-2 Form of Officer's Certificate (New CIHC)
EXHIBIT I-3 Form of Officer's Certificate (MDSCG)
EXHIBIT I-4 Form of Officer's Certificate (BNL)
EXHIBIT I-5 Form of Officer's Certificate (CCM)
EXHIBIT I-6 Form of Officer's Certificate (CMCI)
EXHIBIT J Form of Servicing Agreements
EXHIBIT K Form of Assignment Agreement
EXHIBIT L Form of Confidentiality Letter
EXHIBIT M Form of CCPI Merger Agreement
EXHIBIT N Form of Excess Cash Flow Certificate
EXHIBIT O Form of Funding Loss Formula
EXHIBIT P Form of New CIHC Assumption Agreement
EXHIBIT Q Conseco Corporate Structure (Post-Closing)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of August 31, 1995 (the
"Effective Date"), among CONSECO, INC., an Indiana corporation (the "Borrower"),
the several financial institutions from time to time party to this Agreement
(herein, together with any Eligible Assignees thereof, collectively called the
"Banks" and each individually, a "Bank"), THE CHASE MANHATTAN BANK, N.A. and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as documentation agents for the
Banks (herein in such capacity, together with any successors thereto in such
capacity, collectively called the "Documentation Agents" and each individually
called a "Documentation Agent"), THE BANK OF NEW YORK, THE BANK OF TOKYO TRUST
COMPANY, CREDIT LYONNAIS CAYMAN ISLAND BRANCH, DEUTSCHE BANK AG, NEW YORK
BRANCH, DRESDNER BANK, ING CAPITAL CORPORATION, THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH, NATIONSBANK OF GEORGIA, N.A., SHAWMUT BANK
CONNECTICUT, N.A. and SOCIETE GENERALE, as managing agents (herein in such
capacity together with successors thereto in such capacity, collectively called
the "Managing Agents" and each individually called a "Managing Agent"), and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as administrative
agent for the Banks (herein in such capacity, together with any successors
thereto in such capacity, called the "Administrative Agent").
Background
WHEREAS, the Banks have agreed to make Loans (as hereinafter defined)
on a revolving basis to the Borrower upon the terms and subject to the
conditions set forth in this Agreement;
WHEREAS, the proceeds of the Loans shall be used (a) to purchase all of
the outstanding common stock of CCP Insurance, Inc., an Indiana corporation
("CCPI"), not currently owned by the Borrower or its Subsidiaries, (b) to pay
the Indebtedness to be Refinanced (as hereinafter defined), (c) to refinance
certain other Indebtedness (as hereinafter defined) of the Borrower used to
finance the acquisition of common stock of BLHC (as hereinafter defined), and
(d) for general working capital purposes;
WHEREAS, the Borrower and CCPI have entered into that certain Agreement
and Plan of Merger, dated as of May 19, 1995, in the form of Exhibit M hereto
(as the same may be amended or modified on or before the Closing Date (the "CCPI
Merger Agreement"), whereby CCPI shall be merged with and into the Borrower
concurrently with the initial Borrowing (as hereinafter defined) and the
separate corporate existence of CCPI shall cease and the Borrower shall continue
as the surviving corporation under the laws of the State of Indiana (the "CCPI
Merger");
WHEREAS, prior to the initial Borrowing (a) GARCO Holding Corporation,
a Delaware corporation and a Wholly-Owned Subsidiary of CCPI ("GARCO Holding"),
will be merged with and into CCPI and the separate corporate existence of GARCO
Holding will cease and CCPI shall continue as the surviving corporation under
the laws of the State of Indiana (the "GARCO Merger"), (b) the Borrower will
contribute all of the capital stock of CIHC, Incorporated, a Delaware
corporation (f/k/a KC Acquisition Corporation) and a Wholly-Owned Subsidiary of
the Borrower (the "New CIHC"), to Old CIHC (as hereinafter defined), (c) Old
CIHC shall contribute all of its assets and liabilities (other than the capital
stock of CCPI owned by Old CIHC and the CIHC Preferred Stock (as hereinafter
defined)) to New CIHC (the "CIHC Contribution"), and (d) Old CIHC shall be
merged with and into the Borrower and the separate corporate existence of Old
CIHC shall cease and the Borrower shall continue as the surviving corporation
under the laws of the State of Indiana (the "CIHC Merger") ;
WHEREAS, concurrently with the initial Borrowing the Borrower shall
contribute to New CIHC (i) all of the capital stock of Jefferson National Life
Insurance Company of Texas, a Texas corporation ("JNL-TX"), (ii) all of the
capital stock of Bankers Life Holding Corporation, a Delaware corporation
("BLHC"), owned by the Borrower and (iii) the Surplus Debenture (as hereinafter
defined) (collectively, the "Conseco Contribution"), in each case subject to the
Lien of the Banks, and the holders of the Senior Notes, if any (as hereinafter
defined); and
WHEREAS, as security for the Loans and in consideration for the Banks'
consent to the CCPI Merger, the CIHC Merger, the CIHC Contribution and the
Conseco Contribution, (a) the Borrower shall, inter alia, pledge or cause to be
pledged to the Administrative Agent, for the benefit of the Banks and, to the
extent set forth herein, the holders of the Senior Notes, (i) all of the capital
stock of each of the Wholly-Owned Subsidiaries of the Borrower (as hereinafter
defined) to the extent not prohibited by the Applicable Insurance Code relating
to any Insurance Subsidiary (each as hereinafter defined), (ii) all of the
capital stock of BLHC owned by the Borrower and its Subsidiaries (including
BLHC) and (iii) concurrently with the CCPI Merger, all of the capital stock of
JNL-TX and GARCO Equity Sales, Inc., a Texas corporation ("GES") and the Surplus
Debenture, (b) Marketing Distribution Systems Consulting Group, Inc., a Delaware
corporation ("MDSCG") shall, inter alia, pledge to the Administrative Agent, for
the benefit of the Banks, all of the capital stock of each of its Wholly-Owned
Subsidiaries, (c) New CIHC shall assume the obligations of the Borrower under
the Borrower Shared Pledge Agreement and the Borrower Non-Shared Pledge
Agreement (each as hereinafter defined) with respect to the assets of the
Borrower constituting Collateral (as hereinafter defined) contributed to New
CIHC pursuant to the Conseco Contribution, and shall, inter alia, pledge to the
Administrative Agent, for the benefit of the Banks and the holders of the Senior
Notes, all of the capital stock of BLHC owned by New CIHC, all of the capital
stock of BNL, all of the capital stock of JNL-TX, and all of the membership
interest of CLLC owned by New CIHC and the Surplus Debenture and (d) each of the
Borrower, Bankers National Life Insurance Company, a Texas stock insurance
corporation ("BNL"), Conseco Capital Management, Inc., a Delaware corporation
("CCM"), and Conseco Mortgage Capital, Inc., a Delaware corporation ("CMCI"),
shall grant a security interest to the Administrative Agent, for the benefit of
the Banks, in all of its right, title and interest in, to and under the
Servicing Agreements (as hereinafter defined) to which they are a party.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Adjusted Capital" shall mean, as to any Insurance Subsidiary, as of
any date, the total amount shown on line 27, page 23, column 1 of the Annual
Statement of such Insurance Subsidiary, or an amount determined in a consistent
manner for any date other than one as of which an Annual Statement is prepared.
"Administrative Agent" - see Preamble.
"Administrative Agent's Office" shall mean ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other address designated by the
Administrative Agent (or any successor agent) to the Borrower and the Banks from
time to time.
"Affected Bank" - see Section 5.4.
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, owns, holds, controls, is controlled by or is under
common control with such Person(including all beneficial control as a trustee,
guardian or other fiduciary). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managing general partners; or (b)
to direct or cause the direction of the management and policies of such Person
whether through the ownership of voting securities, membership interests, by
contract or otherwise.
"Agents" shall mean, collectively, the Administrative Agent, the
Documentation Agents, and the Managing Agents.
"Agreement" shall mean this Credit Agreement, as amended or modified.
"Amounts Available for Dividends" shall mean, without duplication, (a)
the maximum amount of dividends the Insurance Subsidiaries are permitted to pay
under the Applicable Insurance Code of their respective state of domicile
without necessitating approval of the applicable Department minus (b) any
amounts required to be retained by any applicable Insurance Subsidiary to comply
with Sections 10.1 and 10.4 hereof.
"Annual Statement" shall mean, as to any Insurance Subsidiary, the
annual financial statement of such Insurance Subsidiary as required to be filed
with the applicable Department, together with all exhibits or schedules filed
therewith, prepared in conformity with SAP. References to amounts on particular
exhibits, schedules, lines, pages and columns of the Annual Statement are based
on the format promulgated by the NAIC for 1994 Life, Accident and Health
Insurance Company Annual Statements. If such format is changed in future years
so that different information is contained in such items or they no longer
exist, it is understood that the reference is to information consistent with
that reported in the referenced item in the 1994 Annual Statement of such
Insurance Subsidiary.
"Applicable Insurance Code" shall mean, as to any Insurance Subsidiary,
the insurance code of any state where such Insurance Subsidiary is domiciled or
doing insurance business and any successor statute of similar import, together
with the regulations thereunder, as amended or otherwise modified and in effect
from time to time. References to sections of the Applicable Insurance Code shall
be construed to also refer to successor sections.
"Arranger" shall mean BA Securities, Inc., a Delaware
corporation.
"Assignment Agreement" - see Section 14.1.
"Assumption Agreement" shall mean the New CIHC Assumption Agreement.
"Average Life" shall mean, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (a) the sum of
the products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness multiplied
by the amount of such scheduled principal payment by (b) the sum of all such
scheduled principal payments.
"Banks" or "Bank" - see Preamble.
"Bank of America $140 Million Credit Agreement" shall mean the Credit
Agreement, dated as of April 19, 1994, among the Borrower, the lenders party
thereto, Bank of America Illinois (as successor to Continental Bank N.A.), as
agent, First Union National Bank of North Carolina and Citicorp USA, Inc., as
co- agents and Bank of America Illinois, as administrative agent.
"Bank of America $110 Million Credit Agreement" shall mean the Credit
Agreement, dated as of December 9, 1994, as amended, among the Borrower, the
lenders party thereto and Bank of America Illinois, as administrative agent.
"Bank Default" shall mean (a) the refusal (which has not been
retracted) of a Bank to make available its Percentage of any Loans when required
hereunder or (b) a Bank having notified the Administrative Agent and/or the
Borrower that it does not intend to comply with its obligations under Section
2.1 to the extent required thereunder.
"Base Rate" shall mean, for any day, the higher of (a) 0.50% per annum
above the latest Federal Funds Effective Rate and (b) the rate of interest in
effect for such day as publicly announced from time to time by BofA in San
Francisco, California, as its "reference rate." The "reference rate" is a rate
set by BofA based upon various factors including BofA's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in the reference rate announced by BofA shall
take effect at the opening of business on the date specified in the public
announcement of such change.
"Base Rate Loan" shall mean a Loan that bears interest based on the
Base Rate.
"Base Rate Margin" - see Section 3.1(d).
"Benefit Program" shall mean any non-qualified deferred compensation
program including, without limitation, any employee stock option program,
employee restricted stock program or other similar forms of employee benefit
programs.
"BLC" shall mean Bankers Life & Casualty Company, an Illinois insurance
corporation.
"BLHC" - see fifth recital.
"BNL" - see sixth recital.
"BofA" - see Preamble.
"Borrower" - see Preamble.
"Borrower Non-Shared Pledge Agreement" - see Section 6.1(a).
"Borrower Shared Pledge Agreement" - see Section 6.1(b).
"Borrowing" shall mean a borrowing hereunder consisting of Tranche A
Loans or Tranche B Loans of the same Type made to the Borrower on the same day
by the Banks under Section 2, and, with respect to Offshore Rate Loans, having
the same Interest Period.
"Borrowing Date" shall mean any date on which a Borrowing occurs under
Section 2.3.
"BSL" shall mean Beneficial Standard Life Insurance Company, a
California corporation.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, shall mean such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Calculation Period" shall mean, with respect to any ratio or
calculation, the period for which such ratio or calculation is being calculated.
"Capital and Surplus" shall mean, as to any Insurance Subsidiary, as of
any date, the total amount shown on line 38, page 3, column 1 of the Annual
Statement of such Insurance Subsidiary, or an amount determined in a consistent
manner for any date other than one as of which an Annual Statement is prepared.
"Capitalized Lease Liabilities" shall mean, with respect to any Person,
all monetary obligations of such Person under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as a capitalized lease, and,
for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Cash Collateral Account" shall mean the deposit account, account
number 72-71484 or any replacement thereof, maintained in the name of, and
subject to the sole dominion and control of, the Administrative Agent for the
benefit of the Banks and, to the extent set forth herein, the holders of the
Senior Notes, for the purpose of holding Net Proceeds from a Disposition or Sale
that the Borrower elects, in accordance with Section 4.4(a), not to immediately
apply to the Liabilities or, to the extent required under the Indentures, the
Conseco Senior Note Obligations and the CCPI Senior Note Obligations.
"Cash Coverage Ratio" shall mean, for any Calculation Period, the ratio
of (a) (i) Amounts Available for Dividends directly to the Borrower from the
Insurance Subsidiaries, plus (ii) interest paid by JNL-TX with respect to the
Surplus Debenture, plus (iii) Net Cash Available from the Non-Insurance
Subsidiaries, plus (iv) the amount of Taxes paid or accrued but unpaid to the
Borrower under the Tax Sharing Agreement, plus (v) management and other fees
received by the Borrower under the Servicing Agreements or otherwise, plus (vi)
the Borrower's Investment Income received in cash, minus (vii) the amount of
Taxes paid or accrued but unpaid by the Borrower, minus (viii) cash operating
expenses of the Borrower, minus (ix) capital expenditures of the Borrower, minus
(x) principal and interest payments made or interest accrued but unpaid on
intercompany loans by the Borrower and its Subsidiaries, minus (xi) dividends
paid, in cash, to BNL by Old CIHC on the CIHC Preferred Stock to the extent
permitted by this Agreement, minus (xii) the amount paid, in cash, for
repurchases of the Borrower's capital stock from Net Proceeds received from the
sale of Merchant Banking Investments to the extent permitted by this Agreement,
in each case for the immediately preceding four (4) consecutive Fiscal Quarters;
provided that for the Fiscal Quarters ending December 31, 1995, March 31, 1996
and June 30, 1996 the foregoing shall be calculated for the immediately
preceding one (1), two (2) and three (3) consecutive Fiscal Quarters,
respectively, to (b) Fixed Charges for the immediately preceding four (4)
consecutive Fiscal Quarters; provided that for the Fiscal Quarters ending
December 31, 1995, March 31, 1996 and June 30, 1996 the foregoing shall be
calculated for the immediately preceding one (1), two (2) and three (3)
consecutive Fiscal Quarters, respectively.
"Cash Equivalents" shall mean (a) securities with maturities of one (1)
year or less from the date of determination issued or fully guaranteed or
insured by the United States Government, or any instrumentality or agency
thereof, (b) certificates of deposit, eurodollar time deposits, overnight bank
deposits, bankers' acceptances and repurchase agreements of any Bank or any
other commercial bank whose unsecured long-term debt obligations are rated at
least "BBB-" by Standard & Poor's, "Baa-3" by Moody's, "BBB-" by Duff & ▇▇▇▇▇▇,
"BBB-" by Fitch Investors Services, Inc. or "NAIC 2" by the NAIC having
maturities of six (6) months or less from the date of determination and (c)
commercial paper having maturities of six (6) months or less from the date of
determination rated at least "A-2" by Standard & Poor's, "P-2" by Moody's, "D-2"
by Duff & ▇▇▇▇▇▇, "F-2" by Fitch Investors Services, Inc. or "NAIC 2" by the
NAIC, or carrying an equivalent rating by a nationally recognized rating agency,
if all of the named rating agencies cease publishing ratings of investments.
"CCM" - see sixth recital.
"CCPI" shall mean CCP Insurance, Inc., an Indiana corporation.
"CCPI Indenture" shall mean the Indenture, dated as of December 15,
1994, between CCPI and LTCB Trust Company, as trustee, as the same may be
amended or modified in accordance with the terms of this Agreement.
"CCPI Merger" - see third recital.
"CCPI Merger Agreement" - see third recital.
"CCPI Merger Documents" shall mean the CCPI Merger Agreement and the
other agreements and instruments pursuant to which the CCPI Merger is
consummated, as the same may be amended or modified or supplemented in
accordance with this Agreement.
"CCPI Senior Note Obligations" shall mean the Obligations (as defined
in the CCPI Indenture) of CCPI with respect to the Securities (as defined in the
CCPI Indenture).
"CCPI Senior Notes" shall mean the 10-1/2% Senior Notes due 2004 of
CCPI to be assumed by the Borrower pursuant to the Merger, as the same may be
amended or modified in accordance with the terms of this Agreement.
"CCP II" shall mean Conseco Capital Partners II, L.P., a Delaware
limited partnership.
"CCP II Partnership Agreement" shall mean the Agreement of Limited
Partnership, dated as of January 26, 1994, among CCP II, as general partner, and
the limited partners set forth on Schedule A thereto, as in effect on the date
hereof.
"CCPM" - see sixth recital.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System List.
"Change in Control" shall be deemed to have occurred at such times as:
(a) any Person, or two or more Persons, acting in concert, directly or
indirectly acquire after the Closing Date beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange commission under the
Securities Exchange Act of 1934, as amended) of 30% or more of the outstanding
shares of voting stock of the Borrower or (b) individuals who as of the
Effective Date constitute the Borrower's Board of Directors (together with any
new director whose election by the Borrower's Board of Directors or whose
nomination for election by the Borrower's stockholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved), for any reason, cease to constitute a
majority of the directors at any time then in office.
"Charges" - see Section 4.8.
"CIHC Contribution" - see fourth recital.
"CIHC Merger" - see fourth recital.
"CIHC Preferred Stock" shall mean $900,000,000 stated value of Old
CIHC's Preferred Stock, par value $.001 per share.
"Closing Date" shall mean the date on which all conditions precedent
set forth in Section 11 are satisfied or waived by all Banks or with respect to
the payment of any fee payable hereunder, waived by the Person entitled to
receive such payment.
"CMCI" - see sixth recital.
"CMO Derivative Investments" shall mean Z bonds, floaters/inverse
floaters, PAC II, PAC III, Ioettes, support bonds, Interest Only Investments,
Principal Only Investments, residuals, inverse IO's and super floaters.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder, or, as the context requires, applicable
provisions of prior laws.
"Collateral" shall mean all of the collateral security described or
provided for in Section 6 together with all property and/or rights on or in
which a Lien is now or hereafter granted by any Person to the Administrative
Agent (or to any agent, trustee or other party acting on behalf of the
Administrative Agent) for the benefit of the Banks and, to the extent set forth
in Section 6, the holders of the Senior Notes, pursuant to the Pledge
Agreements, the Service Assignment or any other instruments or documents
provided for herein or delivered hereunder or in connection herewith.
"Collateral Percentage" shall mean the percentage corresponding to the
fraction, (a) in the case of the Liabilities, the numerator of which is equal to
the Liabilities and the denominator of which is equal to the sum of the
Liabilities, the Conseco Senior Note Obligations, and the CCPI Senior Note
Obligations, (ii) in the case of the Conseco Senior Notes, the numerator of
which is equal to the Conseco Senior Note Obligations and the denominator of
which is equal to the sum of the Liabilities, the Conseco Senior Note
Obligations, and the CCPI Senior Note Obligations and (iii) in the case of the
CCPI Senior Notes, the numerator of which is equal to the CCPI Senior Note
Obligations and the denominator of which is equal to the sum of the Liabilities,
the Conseco Senior Note Obligations, and the CCPI Senior Note Obligations.
"Commitment Reduction Date" - see Section 2.6(a).
"Commitments" shall mean, collectively, the Tranche A Commitments and
the Tranche B Commitments.
"Compliance Certificate" - see Section 8.1.5.
"Conseco Contribution" - see fifth recital.
"Conseco Indenture" shall mean the Indenture, dated as of February 18,
1993, between Conseco, Inc. and Shawmut Bank Connecticut, National Association,
as trustee, as the same may be amended or modified in accordance with the terms
of this Agreement.
"Conseco Preferred Stock" shall mean the $283,500,000 stated value of
the Borrower's Series D Preferred Stock, no par value.
"Conseco Senior Note Obligations" shall mean the Obligations (as
defined in the Conseco Indenture) of the Borrower with respect to the Securities
(as defined in the Conseco Indenture).
"Conseco Senior Notes" shall mean the 8-1/8% Senior Notes due 2003 of
the Borrower, as the same may be amended or modified in accordance with the
terms of this Agreement.
"Contingent Obligation" shall mean any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the debt,
obligation or other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person; provided, that the
obligations of any Person under Reinsurance Agreements and Surplus Relief
Reinsurance Agreements shall not be deemed Contingent Obligations of such
Person. The amount of any Person's liability with respect to any Contingent
Obligation shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum outstanding principal amount, if
larger) of the debt, obligation or other liability outstanding thereunder.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Controlled Group" shall mean all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under section 414(b) or section
414(c) of the Code or section 4001 of ERISA. For purposes of this definition,
the term the Borrower shall be deemed to include any and all Subsidiaries of the
Borrower and the term Subsidiary shall be deemed to include BLHC.
"Conversion/Continuation Date" shall mean any date on which, under
Section 2.5, the Borrower (a) converts Loans of one Type to another Type, or (b)
continues as Offshore Rate Loans of the same Type, but with a new Interest
Period, Offshore Rate Loans having Interest Periods expiring on such date.
"Credit Tenant Loans" shall mean mortgage loans which are made
primarily in reliance on the credit standing of a major tenant (which is an
Investment Grade Tenant), structured with an assignment of the rental payments
to the lender with real estate property pledged as collateral in the form of a
first lien.
"Default" shall mean any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Defaulting Bank(s)" shall mean any Bank(s) with respect to which a
Bank Default is in effect.
"Department" shall mean, with respect to any Insurance Subsidiary, the
Governmental Authority of such Insurance Subsidiary's state of domicile with
whom such Insurance Subsidiary is required to file its Annual Statement.
"Disposition" - see Section 4.3(a).
"Documentation Agent(s)" - see Preamble.
"Dollars" and the sign "$" shall mean lawful money of the United States
of America.
"Duff & ▇▇▇▇▇▇" shall mean Duff & ▇▇▇▇▇▇ Credit Rating Co., Inc.
"Effective Date" shall mean the date of this Agreement as set forth in
the Preamble.
"Eligible Assignee" shall mean any bank, pension fund, mutual fund,
investment fund or other financial institution (other than an insurance company
or any Affiliate of an insurance company except those to which the Borrower
consents).
"Environmental Claims" shall mean all claims, complaints, notices or
inquiries, however asserted or made, by any Governmental Authority or other
Person alleging potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment or threat to
public health, personal injury (including sickness, disease or death), property
damage, natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), cleanup, removal, remedial
or response costs, restitution, civil or criminal penalties, injunctive relief,
or other type of relief, resulting from or based upon the presence, placement,
discharge, emission or release (including intentional or unintentional,
negligent or non-negligent, sudden or non- sudden, accidental or non-accidental,
placement, spills, leaks, discharges, emissions or releases) of any Hazardous
Material at, in, or from property, whether or not owned by the Borrower.
"Environmental Laws" shall mean all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances, codes and
guidelines (including common law, consent decrees and administrative orders),
together with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authorities, in each case relating to environmental, health, safety and land use
matters; including CERCLA, the Clean Air Act, the Federal Water Pollution
Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource
Conservation and Recovery Act, the Toxic Substances Control Act, the Emergency
Planning and Community Right-to-Know Act and any other applicable laws of any
jurisdiction.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Eurocurrency Reserve Percentage" shall mean for any day for any
Interest Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Bank) under regulations issued from time to time by the FRB
for determining the maximum reserve required (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). Without limiting
the effect of the foregoing, the Eurocurrency Reserve Percentage shall reflect
any other reserves required to be maintained by the Administrative Agent against
(a) any category of liabilities that includes deposits by reference to which the
Offshore Rate (Reserve Adjusted) is to be determined, or (b) any category of
extensions of credit or other assets that includes Offshore Rate Loans. For
purposes of this Agreement, any Offshore Rate Loans hereunder shall be deemed to
be "Eurocurrency liabilities," as defined in Regulation D, and, as such, shall
be deemed to be subject to such reserve requirements without the benefit of, or
credit for, proration, exceptions or offsets which may be available to the
Administrative Agent from time to time under Regulation D. The Offshore Rate
(Reserve Adjusted) shall be adjusted automatically as to all Offshore Rate Loans
then outstanding as of the effective date of any change in the Eurocurrency
Reserve Percentage.
"Event of Default" - see Section 12.1.
"Excess Cash Flow" shall mean, for any Calculation Period, (a) (i)
Amounts Available for Dividends directly to the Borrower from the Insurance
Subsidiaries, plus (ii) interest paid by JNL- TX with respect to the Surplus
Debenture, plus (iii) Net Cash Available from the Non-Insurance Subsidiaries,
plus (iv) the amount of Taxes paid or accrued but unpaid to the Borrower under
the Tax Sharing Agreement, plus (v) management and other fees received by the
Borrower under the Servicing Agreements or otherwise, plus (vi) the Borrower's
Investment Income received in cash, minus (vii) the amount of Taxes paid or
accrued but unpaid by the Borrower, minus (viii) cash operating expenses of the
Borrower, minus (ix) capital expenditures of the Borrower, minus (x) principal
and interest payments made or accrued but unpaid on intercompany loans by the
Borrower and its Subsidiaries, minus (xi) dividends paid, in cash, to BNL by Old
CIHC on the CIHC Preferred Stock to the extent permitted by this Agreement,
minus (b) (i) Fixed Charges, (ii) dividends paid, in cash, on the Conseco
Preferred Stock and the Borrower's common stock to the extent permitted by this
Agreement and (iii) capital calls required to be made to CCP II by the Borrower
under the CCP II Partnership Agreement.
"Existing Conseco Credit Agreements" shall mean, collectively, (a) the
Bank of America $140 Million Credit Agreement and (b) the Bank of America $110
Million Credit Agreement.
"Exiting Bank" - see definition of Tranche B Termination Date.
"Extension Date(s)" shall mean, collectively, August 31, 1996 and
August 31, 1997.
"Federal Funds Effective Rate" shall mean, for any day, the rate set
forth in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, "H.15(519)") on the preceding Business Day
opposite the caption "Federal Funds (Effective)"; or, if for any relevant day
such rate is not so published on any such preceding Business Day, the rate for
such day will be the arithmetic mean as determined by the Administrative Agent
of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three leading
brokers of Federal funds transactions in New York City selected by the
Administrative Agent.
"Fee Letter" shall mean that certain letter, dated as of June 27, 1995,
between BofA and the Borrower.
"Fiscal Quarter" or "FQ" shall mean any fiscal quarter of a Fiscal Year.
"Fiscal Year" or "FY" shall mean any period of twelve consecutive
calendar months ending on December 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1994 Fiscal Year") refer to the
Fiscal Year ending on the December 31 occurring during such calendar year.
"Fixed Charges" shall mean (a) the Original Scheduled Payments for the
Calculation Period less the amount, if any, of prepayments pursuant to Sections
4.1, 4.3(a), (b) and (c) applied during the Calculation Period to reduce the
Original Scheduled Payment due during the Calculation Period, plus (b) interest
paid or, without duplication, accrued but unpaid on the Loans with respect to
such Calculation Period, plus (c) principal and interest paid or, without
duplication, accrued but unpaid on the Senior Notes during the Calculation
Period, plus (d) principal and interest paid or, without duplication, accrued
but unpaid on any Indebtedness set forth in clauses (a) and (b) of the
definition thereof during the Calculation Period.
"FRB" shall mean the Board of Governors of the Federal Reserve System,
and any Governmental Authority succeeding to any of its principal functions.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as from time to time in effect.
"GARCO" shall mean Great American Reserve Insurance Company,
a Texas corporation.
"GARCO Holding" - see fourth recital.
"GARCO Merger" - see fourth recital.
"GES" - see sixth recital.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Hazardous Material" shall mean: (a) any "hazardous substance," as
defined by CERCLA; (b) any "hazardous waste," as defined by the Resource
Conservation and Recovery Act, as amended; (c) any petroleum product; or (d) any
pollutant or contaminant or hazardous, dangerous or toxic chemical, material or
substance within the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste, substance or material, all
as amended or hereafter amended.
"Hedging Obligations" shall mean, with respect to the Borrower, all
liabilities of the Borrower under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements or agreements designed to
protect the Borrower against fluctuations in interest rates or currency exchange
rates.
"IBOR" shall mean the rate of interest per annum determined by the
Administrative Agent as the rate at which dollar deposits in the approximate
amount of BofA's Offshore Rate Loan for such Interest Period would be offered by
BofA's Grand Cayman Branch, Grand Cayman B.W.I. (or such other office as may be
designated for such purpose by BofA), to major banks in the offshore dollar
interbank market at their request at approximately 11:00 A.M. (New York City
time) two (2) Business Days prior to the commencement of such Interest Period.
"IMR/AVR" shall mean, as to any of the Insurance Subsidiaries at a
particular date, the interest maintenance reserve of such Insurance
Subsidiaries, computed in accordance with SAP as reported on line 11.4, page 3,
column 1 of the Annual Statement plus the asset valuation reserve of such
Insurance Subsidiary, computed in accordance with SAP as reported on line 24.1,
page 3, column 1 of the Annual Statement.
"Income Taxes" shall mean any Taxes in which the base is
measured by net income.
"Indebtedness" shall mean, with respect to any Person at any date,
without duplication: (a) all obligations of such Person for borrowed money or in
respect of loans or advances; (b) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments; (c) all obligations in
respect of letters of credit, whether or not drawn, and bankers' acceptances
issued for the account of such Person; (d) all Capitalized Lease Liabilities of
such Person; (e) all Hedging Obligations of such Person; (f) all obligations of
such Person to pay the deferred purchase price of property or services which are
included as liabilities in accordance with GAAP, and Indebtedness secured by a
Lien on property owned or being purchased by such Person (including Indebtedness
arising under conditional sales or other title retention agreements); (g) any
Indebtedness of a partnership in which such Person is a general partner; and (h)
all Contingent Obligations of such Person in connection with the foregoing.
"Indebtedness to be Refinanced" shall mean the Indebtedness of the
Borrower under the Existing Conseco Credit Agreements in an aggregate amount not
to exceed $250,000,000.
"Indemnified Parties" - see Section 15.5.
"Indentures" shall mean, collectively, the Conseco Indenture and the
CCPI Indenture.
"Insurance Subsidiary" shall mean any Subsidiary of the Borrower that
is authorized or admitted to carry on or transact one or more aspects of the
business of selling, issuing or underwriting insurance or reinsurance.
"Interest Payment Date" shall mean, as to any Loan other than a Base
Rate Loan, the last day of each Interest Period applicable to such Loan and, as
to any Base Rate Loan, the last Business Day of each calendar month and each
date such Loan is converted into another Type of Loan; provided, however, that
if any Interest Period for an Offshore Rate Loan exceeds three months, the date
that falls three months after the beginning of such Interest Period and after
each Interest Payment Date thereafter is also an Interest Payment Date.
"Interest Period" shall mean, as to any Offshore Rate Loan, the period
commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which such Loan is converted into or continued as an Offshore Rate Loan,
and ending on the date one, two, three or six months thereafter as selected by
the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation;
provided that:
(a) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless the result of
such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period
shall end on the preceding Business Day;
(b) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period; and
(c) no Interest Period for any Loan shall extend
beyond the maturity date of such Loan.
"Investment" shall mean any investment in any Person, whether by means
of share purchase, capital contribution, loan, time deposit or otherwise.
"Investment Grade Securities" shall mean (a) (i) non-equity securities
which are rated "BBB-" or better by Standard & Poor's, "Baa-3" or better by
Moody's, "BBB-" or better by Duff & ▇▇▇▇▇▇, or "NAIC 2" or better by the NAIC
and (ii) municipal bonds which are rated "SP-2" or better by Standard & Poor's,
"Baa-3" or "MIG4" or better by Moody's, "BBB-" or better by Duff & ▇▇▇▇▇▇ or
"NAIC 2" or better by the NAIC, or, in each case, carrying an equivalent rating
by a nationally recognized rating agency, if all of the named rating agencies
cease publishing ratings of investments, and (b) direct mortgage loans which are
secured by leases from Investment Grade Tenants.
"Investment Grade Tenant" shall mean any entity which has securities
outstanding that qualify as Investment Grade Securities.
"Investment Income" shall mean, (a) as to any Person which is an
Insurance Subsidiary as of any date, the amount reported on line 4, page 4,
column 1 of the Annual Statement, or an amount determined in a consistent manner
for any date other than one as of which an Annual Statement is prepared but
exclusive of earnings of any Insurance Subsidiaries of such Person and, (b) as
to any Person which is not an Insurance Subsidiary, the amount of earnings of
such Person on Investments, net of expenses actually incurred in connection with
such Investments and taking into account realized gains and losses on such
Investments.
"JNL-TX" - see fifth recital.
"Lending Office" shall mean, with respect to any Bank, any office
designated by such Bank in its sole discretion beneath its signature hereto (or
in an Assignment Agreement) or otherwise from time to time by written notice to
the Borrower and the Administrative Agent, as a Lending Office for purposes
hereunder. A Bank may designate separate Lending Offices for the purposes of
making, maintaining or continuing Base Rate Loans or Offshore Rate Loans and,
with respect to Offshore Rate Loans, such Lending Office may be a foreign branch
or an Affiliate of such Bank or such Bank's holding company.
"Liabilities" shall mean all obligations of the Borrower to the Banks,
the Administrative Agent, the Documentation Agents, the Managing Agents or the
Arranger, howsoever created, arising or evidenced, whether direct or indirect,
joint or several, absolute or contingent, or now or hereafter existing, or due
or to become due, which arise out of or in connection with this Agreement, the
Notes, if any, or the other Loan Documents.
"Licenses" - see Section 7.22; individually, a "License."
"Lien" shall mean any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), claim or other priority or preferential arrangement of any kind or
nature whatsoever.
"Litigation" shall mean any litigation (including, without limitation,
any governmental proceeding or arbitration proceeding), tax audit or
investigative proceeding, claim, lawsuit, and/or investigation pending or
threatened against or involving the Borrower or any of its Subsidiaries
(including BLHC) or any of its or their businesses or operations.
"Loans" shall mean, collectively, the Tranche A Loans and the Tranche B
Loans.
"Loan Documents" shall mean, collectively, this Agreement, the Notes,
if any, the Surplus Debenture, the Pledge Agreements, the Assumption Agreement,
the Service Assignment and any and all other documents or instruments furnished
or required to be furnished in connection with any of the foregoing, as the same
may be amended or modified in accordance with this Agreement.
"Managing Agent" or "Managing Agents" - see Preamble.
"Material Adverse Change" or "Material Adverse Effect" shall mean any
change, event, action, condition or effect which individually or in the
aggregate (a) impairs the validity or enforceability of this Agreement or any
other Loan Document, or (b) materially and adversely affects the consolidated
business, operations, financial prospects or condition of the Borrower and its
Subsidiaries taken as a whole, or (c) materially impairs the ability of the
Borrower, New CIHC, MDSCG, BNL, CCM or CMCI to perform its obligations under
this Agreement or any of the other Loan Documents to which it is a party, or (d)
materially adversely affects the perfection or priority of any Lien granted
under any of the Loan Documents.
"Material Litigation" or "Material Litigation Development" shall mean
any Litigation, or development in any Litigation, as the case may be, (a) which
seeks to enjoin, prohibit, discontinue or otherwise impacts the validity or
enforceability of this Agreement or any of the other Loan Documents or other
transactions contemplated hereby or thereby, or (b) which could be reasonably
expected to have a Material Adverse Effect.
"MDSCG" - see fifth recital.
"MDSCG Pledge Agreement" - see Section 6.1(c).
"Merchant Banking Investments" shall mean the Investments set forth on
Schedule A hereto to the extent permitted by Section 9.10, as such schedule may
be amended or modified from time to time.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and any
successor thereto.
"Multiemployer Pension Plan" shall mean a multiemployer plan as defined
in section 4001(a)(3) of ERISA to which the Borrower or any other Controlled
Group member may have liability.
"NAIC" shall mean the National Association of Insurance
Commissioners, or any successor organization.
"Net Cash Available" shall mean, without duplication, for any direct
Non-Insurance Subsidiary of the Borrower (a) Net Income of such Subsidiary plus
(b) any non-cash expenses of such Subsidiary deducted in determining Net Income
less (c) any non-cash income of such Subsidiary included in determining such Net
Income.
"Net Income" shall mean, for any Person for any Calculation Period, the
net income (or loss) of such Person for such period as determined in accordance
with GAAP.
"Net Proceeds" shall mean, with respect to any Disposition or Sale by
any Person, the aggregate amount of cash and readily marketable Cash Equivalents
received by such Person in respect of such Disposition or Sale minus the sum of
(a) reasonable costs and expenses (including costs of discontinuance and Taxes
other than Income Taxes) incurred in connection with such Disposition or Sale
and required to be paid in cash, (b) the estimated Income Tax to be paid by such
Person in connection with such Disposition or Sale and (c) for an Insurance
Subsidiary, the Statutory Carrying Value of the assets which were the subject of
the Disposition or Sale plus any amounts which the Department will not permit
such Insurance Subsidiary to pay out as a result of such Disposition or Sale.
Upon calculation of Net Proceeds, the Borrower shall deliver to the
Administrative Agent an accounting of the items deducted from the cash or Cash
Equivalents related to such Disposition or Sale pursuant to clauses (a), (b) and
(c). For purposes of this definition, the Net Proceeds received by any Person in
respect of any Disposition or Sale shall include such cash or Cash Equivalents
as may be received ("subsequent cash proceeds") by such Person at any time or
from time to time in connection with the sale, transfer, lease or other
disposition, or otherwise in respect of, any consideration other than cash or
readily marketable Cash Equivalents received by such Person in respect of such
Disposition or Sale, less the estimated Income Tax to be paid in connection with
the receipt of such subsequent cash proceeds that were not theretofore deducted
in computing Net Proceeds.
"New CIHC" - see fourth recital.
"New CIHC Assumption Agreement" shall mean the Assumption Agreement,
dated as of the date hereof, between New CIHC and the Administrative Agent,
substantially in the form of Exhibit P hereto, as the same may be amended or
modified from time to time.
"New CIHC Pledge Agreement" - see Section 6.1(f).
"Nonconsenting Bank" - see Section 15.2.
"Non-Insurance Subsidiary" shall mean any Subsidiary which is not an
Insurance Subsidiary.
"Notes" shall mean, collectively, the Tranche A Notes and the Tranche B
Notes.
"Notice of Borrowing" shall mean a notice in substantially the form of
Exhibit C hereto.
"Notice of Conversion/Continuation" shall mean a notice in
substantially the form of Exhibit D hereto.
"Offshore Rate Loans" shall mean any portion of the Loans which bears
interest at a rate determined by reference to the Offshore Rate (Reserve
Adjusted).
"Offshore Rate Margin" - see Section 3.1(c).
"Offshore Rate (Reserve Adjusted)" shall mean, for any Interest Period,
with respect to Offshore Rate Loans comprising part of the same Borrowing, the
rate of interest per annum (rounded upward to the next 1/100th of 1%) determined
by the Administrative Agent as follows:
Offshore Rate IBOR
= -------------------------------------
(Reserve Adjusted) 1.00 - Eurocurrency Reserve Percentage
The Offshore Rate (Reserve Adjusted) shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any change in
the Eurocurrency Reserve Percentage.
"Old CIHC" shall mean, immediately prior to the CIHC Merger, Conseco
Investment Holding Company, a Delaware corporation, and, immediately after the
CIHC Merger, the Borrower.
"Original Scheduled Payments" shall mean the scheduled principal
payments required to be made on the Loans to reduce the Tranche A Loans to an
amount which does not exceed the Tranche A Commitments as reduced thereunder
under Section 2.6, without regard to any subsequent adjustment of such scheduled
payments by the Administrative Agent pursuant to the terms of this Agreement.
"Pension Plan" shall mean a Single Employer Pension Plan, or a
Multiemployer Pension Plan to which the Borrower or any other Controlled Group
member may have liability.
"Percentage" shall mean, relative to any Bank, the percentage set forth
opposite such Bank's name on Schedule 2.1 (or set forth in an Assignment
Agreement), as such Percentage may be adjusted from time to time pursuant to
Assignment Agreement(s) executed by such Bank and its Eligible Assignee and
delivered pursuant to Section 14.1.
"Permitted Liens" - see Section 9.2.
"Permitted Transactions" shall mean (a) mortgage-backed security
transactions in which an investor sells mortgage collateral, such as securities
issued by the Government National Mortgage Association and the Federal Home Loan
Mortgage Corporation for delivery in the current month while simultaneously
contracting to repurchase "substantially the same" (as determined by the Public
Securities Association and GAAP) collateral for a later settlement, (b)
transactions in which an investor lends cash to a primary dealer and the primary
dealer collateralizes the borrowing of the cash with certain securities, (c)
transactions in which an investor lends securities to a primary dealer and the
primary dealer collateralizes the borrowing of the securities with cash
collateral, and (d) transactions in which an investor makes loans of securities
to a broker dealer under an agreement requiring such loans to be continuously
secured by cash collateral or United States government securities.
"Person" shall mean any individual, sole proprietorship, partnership,
limited liability company, limited liability partnership, joint venture, trust,
unincorporated organization, association, corporation, institution, public
benefit corporation, entity or government (whether federal, state, county, city,
municipal or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
"Pledge Agreements" shall mean, collectively, the Borrower Non-Shared
Pledge Agreement, the Borrower Shared Pledge Agreement, the MDSCG Pledge
Agreement and the New CIHC Pledge Agreement.
"Process Agent" - see Section 15.11.
"Qualification" shall mean, with respect to any certificate covering
financial statements or any financial statements, a qualification to such
certificate or financial statements (such as a "subject to" or "except for"
statement therein) (a) resulting from a limitation on the scope of examination
of such financial statements or the underlying data, (b) as to the capability of
the Person whose financial statements are certified to continue operations as a
going concern, or (c) which could be eliminated by changes in financial
statements or notes thereto covered by such certificate (such as by the creation
of or increase in a reserve or a decrease in the carrying value of assets) and
which if so eliminated by the making of any such change and after giving effect
thereto would result in the occurrence of a Default, provided, that neither of
the following shall constitute a Qualification: (i) a consistency exception
relating to a change in accounting principles with which the independent public
accountants for the Person whose financial statements are being certified have
concurred; or (ii) a qualification relating to the outcome or disposition of
threatened Litigation, pending Litigation being contested in good faith, pending
or threatened claims or contingencies which cannot be determined with sufficient
certainty to permit such financial statements to not be qualified.
"Reference Departments" shall mean, collectively, the Department of the
State of California, the State of Illinois, the State of Missouri, the State of
Tennessee and the State of Texas.
"Regulation D" shall mean Regulation D (or any successor regulation)
promulgated by the FRB as from time to time in effect.
"Reinsurance Agreements" shall mean any agreement, contract, treaty,
certificate or other arrangement (other than a Surplus Relief Reinsurance
Agreement) by which any Insurance Subsidiary agrees to transfer or cede to
another insurer all or part of the liability assumed or assets held by it under
a policy or policies of insurance or under a reinsurance agreement assumed by
it. Reinsurance Agreements shall include, but not be limited to, any agreement,
contract, treaty, certificate or other arrangement (other than a Surplus Relief
Reinsurance Agreement) which is treated as such by the applicable Department or
Reference Department.
"Replaced Bank" - see Section 5.8.
"Replacement Bank" - see Section 5.8.
"Reportable Event" shall have the meaning assigned to such term in
ERISA.
"Required Banks" shall mean (a) Banks (other than a Defaulting Bank)
having at least 51% of the Commitments (excluding the Commitment of any
Defaulting Bank) or, if the Commitments have terminated or expired, 51% of the
aggregate principal amount of the Loans outstanding at such time (excluding the
Loans of any Defaulting Bank) or (b) for purposes of amending or modifying the
provisions of or waiving or curing a Default pursuant to Section 12.1.4 (as a
result of Section 9.8) or Section 12.1.9, Banks (other than a Defaulting Bank)
having at least 66-2/3% of the Commitments (excluding the Commitment of any
Defaulting Bank) or, if the Commitments have terminated or expired, 66-2/3% of
the aggregate principal amount of the Loans outstanding at such time (excluding
the Loans of any Defaulting Bank).
"Responsible Officer" shall mean, in the case of any Person, any of the
following officers of such Person: the chief executive officer; the president;
the chief financial officer; the chief operating officer; the chief investment
officer; the general counsel; the secretary; the treasurer or any vice
president. If any of the titles of the preceding officers of such corporate
Person are changed after the date hereof, the term "Responsible Officer" shall
thereafter mean any officer performing substantially the same functions as are
presently performed by one or more of the officers listed in the first sentence
of this definition.
"Risk-Based Capital" shall mean, with respect to any Insurance
Subsidiary, the ratio of Adjusted Capital of such Insurance Subsidiary to the
Company Action Level of such Insurance Company (as determined by the NAIC or the
applicable Department). In the event that there is a conflict between the
Risk-Based Capital formulas adopted by the NAIC and any applicable Department,
the calculation of the Department shall govern.
"Sale" - see Section 4.3(b).
"SAP" shall mean, as to any Insurance Subsidiary, the statutory
accounting practices prescribed or permitted by the Department.
"Scheduled Principal Payments" shall mean the principal payments
required by Section 4.9 to take into account reductions in the Commitments as
required by Section 2.6 and prepayments made in accordance with Sections 4.1 and
4.3 and reflected on a schedule delivered by the Administrative Agent to the
Borrower and each Bank.
"Senior Note Documents" shall mean the Conseco Indenture, the CCPI
Indenture, the Senior Notes and the other agreements and instruments pursuant to
which the Senior Notes were issued, as the same may be amended or modified or
supplemented in accordance with this Agreement.
"Senior Notes" shall mean, collectively, the Conseco Senior Notes and
the CCPI Senior Notes.
"Service Assignment" - see Section 6.1(e).
"Servicing Agreements" shall mean, collectively, those agreements set
forth on Schedule 1.1 hereto.
"Significant Subsidiary" shall mean any Subsidiary of the Borrower
with, after the elimination of intercompany accounts, (a) assets which
constituted at least 10% of the Borrower's consolidated total assets, or (b)
revenues which constituted at least 10% of the Borrower's consolidated total
revenues, or (c) net earnings which constituted at least 10% of the Borrower's
consolidated total net earnings, all as determined as of the date of the
Borrower's most recently prepared quarterly financial statements for the
12-month period then ended.
"Single Employer Pension Plan" shall mean a pension plan as such term
is defined in section 3(2) of ERISA, other than a multiemployer plan as defined
in section 4001(a)(3) of ERISA, to which the Borrower or any other Controlled
Group member may have liability, including any liability by reason of having
been a substantial employer within the meaning of section 4063 of ERISA at any
time during the preceding five years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Solvent", as to any Person on a particular date, shall mean that on
such date (a) the fair value of the property of such Person is greater than the
total amount of liabilities, including, without limitation, Contingent
Obligations, of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liabilities of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its assets and pay its debts
and other liabilities, Contingent Obligations and other commitments as they
mature in the normal course of business, (d) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature, and (e) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged. For the purposes of this definition,
in computing the amount of any Contingent Obligation at any time, it is intended
that such Contingent Obligation will be computed at the amount which, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group and any
successor thereto.
"Statutory Carrying Value" shall mean, as to an asset of any Insurance
Subsidiary, the value of such asset to be reflected in line 24, page 2, column 1
of the Annual Statement, or an amount determined in a consistent manner for any
date other than one as of which an Annual Statement is prepared.
"Statutory Liabilities" shall mean, with respect to any Insurance
Subsidiary as of any date, the amount reported on line 28, page 3, column 1 of
the Annual Statement of such Insurance Subsidiary, less IMR/AVR and less amounts
under the Surplus Debenture constituting Statutory Liabilities on the Annual
Statement, or an amount determined in a consistent manner for any date other
than one as of which an Annual Statement is prepared.
"Subsidiary" shall mean, as to any Person, any corporation,
partnership, limited liability corporation, limited liability partnership, joint
venture, trust, association or other unincorporated organization of which or in
which such Person and such Person's Subsidiaries own directly or indirectly 50%
or more of (a) the combined voting power of all classes of stock having general
voting power under ordinary circumstances to elect a majority of the board of
directors, if it is a corporation, (b) the capital interest or partnership
interest, if it is a partnership, joint venture or similar entity, or (c) the
beneficial interest, if it is a trust, association or other unincorporated
organization; provided that, except as otherwise expressly set forth in this
Agreement, BLHC shall not be considered a Subsidiary of the Borrower for
purposes of this Agreement; and provided, further, that with respect to any
Investment made by the Borrower in any Person in the ordinary course of business
solely for investment purposes, such Person shall not be considered a Subsidiary
of the Borrower for purposes of this Agreement if such Person is not integral to
the business or operations of the Borrower or any Significant Subsidiary and
such Investment is otherwise permitted by Section 9.10.
"Substitute Bank" - see Section 15.2.
"Surplus Debenture" shall mean the surplus debenture of JNL- TX dated
December 31, 1992 in the original principal amount of $283,000,000.
"Surplus Relief Reinsurance Agreements" shall mean any agreement
whereby any insurance company assumes or cedes business under a reinsurance
agreement that would be considered a "financing-type" reinsurance agreement as
determined in accordance with the Statement of Financial Accounting Standards
113 or any successor thereto.
"Tax Returns and Reports" shall mean all returns, reports and
information required to be filed with any Governmental Authority with regard to
Taxes.
"Tax Sharing Agreement" shall mean the tax sharing agreement dated
February 29, 1989 among the Borrower and certain of its Subsidiaries including
BLHC.
"Taxes" or "Tax" shall mean all taxes of any nature whatsoever and
however denominated, including, without limitation, retaliatory, income,
premium, withholding, guaranty fund and similar assessments, excise, import,
governmental fees, duties and all other charges, as well as additions to tax,
penalties and interest thereon, imposed by any Governmental Authority.
"Total Capitalization" shall mean (a) principal and accrued and unpaid
interest on all Indebtedness for borrowed money of the Borrower for which the
Borrower is directly liable and which is not a Contingent Obligation (calculated
excluding Permitted Transactions) plus (b) the Total Shareholders' Equity of the
Borrower.
"Total Shareholders' Equity" shall mean the 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).
"Tranche A Commitment" - see Section 2.1
"Tranche A Loan(s)" - see Section 2.1.
"Tranche A Note" shall mean a promissory note, substantially in the
form of Exhibit A hereto with blanks appropriately completed in conformity
herewith, evidencing the Tranche A Loans, or any promissory note or promissory
notes issued in substitution or replacement therefor.
"Tranche A Termination Date" shall mean the earliest of (a) February 1,
2001, (b) the date of termination in whole of the Commitments pursuant to
Section 4.1, 4.3 or 12.2, and (c) September 30, 1995 if the Closing Date has not
occurred.
"Tranche B Commitment" - see Section 2.1.
"Tranche B Loan(s)" - see Section 2.1.
"Tranche B Note" shall mean a promissory note, substantially in the
from of Exhibit B hereto with blanks appropriately completed in conformity
herewith, evidencing the Tranche B Loans, or any promissory note or notes issued
in substitution or replacement therefor.
"Tranche B Termination Date" shall mean the earlier of (a) August 31,
1999 (subject to extension as set forth below) or (b) the date of termination in
whole of the Commitments pursuant to Section 4.1, 4.3 or 12.2 and (c) September
30, 1995 if the Closing Date has not occurred; provided, that with respect to
clause (a) above, such date may be extended for one additional year on each
Extension Date (to August 31, 2000 and August 31, 2001, respectively) at the
option of the Borrower by giving the Administrative Agent written notice of such
election at least seventy (70) days prior to such Extension Date, unless:
(i) one or more of the Banks (each an "Exiting Bank"), after
receipt of notice from the Administrative Agent at least sixty (60)
days prior to each Extension Date, notifies the Administrative Agent at
least thirty (30) days prior to such Extension Date that such Exiting
Bank(s) shall not extend the maturity of its Tranche B Loans;
(ii) an Eligible Assignee cannot be found to replace such
Exiting Bank(s) on or before the relevant Extension Date after
reasonable efforts have been made by the Administrative Agent to find
such an Eligible Assignee, and
(iii) the Borrower elects not to reduce the Commitments
pursuant to Section 4.1, effective upon the Tranche B Termination Date
(or any extension thereof), in an amount equal to such Exiting Bank(s)'
Commitment.
Any assignment by an Exiting Bank to an Eligible Assignee hereunder shall be
subject to Section 14.1; provided that the effective date of such assignment
shall occur on or before the Tranche B Termination Date (or any extension
thereof) unless a later time is consented to by such Exiting Bank.
"Transferee" - see Section 14.3.
"Types of Loan" or "Type" - see Section 2.2. The Types of Loans under
this Agreement are as follows: Base Rate Loans and Offshore Rate Loans.
"UCC" shall mean the Uniform Commercial Code or comparable statute or
any successor statutes thereto, as in effect from time to time in the relevant
jurisdiction.
"U.S. Government Securities" shall mean obligations of, or obligations
guaranteed as to principal and interest by, the United States Government or
agency or instrumentality thereof.
"Welfare Plan" shall mean a "welfare plan," as such term is defined in
section 3(1) of ERISA to which the Borrower or any other Controlled Group member
may have liability.
"Wholly-Owned Subsidiary" shall mean any Person in which (other than
directors' qualifying shares required by law) 100% of the capital stock or other
ownership interests is owned, beneficially and of record, by such Person, or by
one or more other Wholly-Owned Subsidiaries of such Person, or both.
SECTION 1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the
above-defined meanings when used in any Loan Document, or any
certificate, report or other document made or delivered pursuant to
this Agreement, unless the context therein shall clearly otherwise
require.
(b) The words "hereof," "herein," "hereunder" and similar
terms when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(c) The words "amended or modified" when used in any Loan
Document shall mean with respect to such Loan Document as from time to
time, in whole or in part, amended, modified, supplemented, restated,
refinanced, refunded or renewed.
(d) In the computation of periods of time in this Agreement
from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means "to but
excluding."
SECTION 1.3 Accounting and Financial Determinations. For purposes of
this Agreement, unless otherwise specified or the context otherwise requires,
all accounting terms used in any Loan Document shall be interpreted, all
accounting determinations and computations hereunder or thereunder shall be
made, and all financial statements required to be delivered hereunder or
thereunder shall be prepared, in accordance with GAAP.
SECTION 2. THE COMMITMENTS AND THE LOANS
Subject to the terms and conditions of this Agreement and relying on
the representations and warranties herein set forth:
SECTION 2.1 Commitment. Each of the Banks, severally and for itself
alone, agrees, on the terms and conditions set forth herein, to make:
(a) Tranche A Loans. Loans (herein collectively called the
"Tranche A Loans" and individually called a "Tranche A Loan") to the Borrower on
a revolving basis from time to time from the Closing Date until the Tranche A
Termination Date in such Bank's Percentage of the aggregate amount of such
Tranche A Loans as the Borrower may request from all Banks. The aggregate
principal amount of the Tranche A Loans which any Bank shall be committed to
have outstanding to the Borrower shall not at any one time exceed the amount set
opposite such Bank's name on Schedule 2.1 and the aggregate principal amount of
the Tranche A Loans which all Banks shall be committed to have outstanding
hereunder to the Borrower shall not at any one time exceed $350,000,000. The
foregoing commitment of each Bank is herein called its "Tranche A Commitment"
and for all Banks the "Tranche A Commitments."
(b) Tranche B Loans. Loans (herein collectively called the
"Tranche B Loans" and individually called a "Tranche B Loan") to the Borrower on
a revolving basis from time to time from the Closing Date until the Tranche B
Termination Date in such Bank's Percentage of the aggregate amount of such
Tranche B Loans as the Borrower may request from all Banks. The aggregate
principal amount of the Tranche B Loans which any Bank shall be committed to
have outstanding to the Borrower shall not at any one time exceed the amount set
opposite such Bank's name on Schedule 2.1 and the aggregate principal amount of
the Tranche B Loans which all Banks shall be committed to have outstanding
hereunder to the Borrower shall not at any one time exceed $250,000,000. The
foregoing commitment of each Bank is herein called its "Tranche B Commitment"
and for all Banks the "Tranche B Commitments."
SECTION 2.2 Types of Loans. The Loans shall be denominated as Base Rate
Loans or Offshore Rate Loans (each being herein called a "Type" of Loan), as the
Borrower shall specify in the related Notice of Borrowing or the Notice of
Continuation/ Conversion pursuant to Section 2.5. Base Rate Loans and Offshore
Rate Loans may be outstanding at the same time, provided, that (a) in the case
of Offshore Rate Loans, not more than eight (8) different Interest Periods shall
be outstanding at any one time for all such Loans, and (b) the Borrower shall
specify Types of Loans and Interest Periods such that no payment or prepayment
of any principal on any Loan shall result in an interruption of any Interest
Period.
SECTION 2.3 Procedure for Borrowing.
(a) Each Borrowing shall be made upon the Borrower's
irrevocable written notice (or by telephone promptly confirmed in writing)
delivered to the Administrative Agent in the form of a Notice of Borrowing
(which notice must be received by the Administrative Agent prior to 9:00 A.M.
(San Francisco time) (i) three Business Days prior to the requested Borrowing
Date, in the case of Offshore Rate Loans, and (ii) on the requested Borrowing
Date, in the case of Base Rate Loans, specifying:
(A) the amount of such Borrowing, which
shall be in an aggregate minimum amount of $3,000,000 or any
integral multiple of $1,000,000 in excess thereof;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Loans comprising such
Borrowing; and
(D) with respect to any Borrowing comprised
of Offshore Rate Loans, the duration of the Interest Period
applicable to such Loans included in such notice. If the
Notice of Borrowing fails to specify the duration of the
Interest Period for any Borrowing comprised of Offshore Rate
Loans, such Interest Period shall be three months.
(b) The Administrative Agent will promptly notify each Bank of
its receipt of any Notice of Borrowing and of the amount of such Bank's
Percentage of that Borrowing.
(c) Each Bank will make the amount of its Percentage of each
Borrowing available to the Administrative Agent for the account of the Borrower
at the Administrative Agent's Office by 11:00 A.M. (San Francisco time) on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. The proceeds of all such Loans will then be made available
to the Borrower by the Administrative Agent by wire transfer in accordance with
written instructions provided to the Administrative Agent by the Borrower of
like funds as received by the Administrative Agent.
(d) After giving effect to any Borrowing, there may not be
more than eight (8) different Interest Periods in effect for all Borrowings.
SECTION 2.4 Funding Reliance. Unless the Administrative Agent shall
have been notified by telephone, confirmed in writing, by any Bank by 9:30 A.M.,
San Francisco time, on the relevant Borrowing Date that such Bank will not make
available the amount which would constitute its Percentage of the related
Borrowing, the Administrative Agent may assume, subject to the satisfactory
fulfillment by the Borrower of the conditions precedent set forth in Section 11,
that such Bank shall make such amount available to the Administrative Agent and,
in reliance upon such assumption the Administrative Agent may (but shall not be
required to) make available to the Borrower a corresponding amount. If and to
the extent that such Bank shall not make such amount available to the
Administrative Agent, such Bank and the Borrower severally agree to repay the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Administrative Agent made such
amount available to the Borrower to the date such amount is repaid to the
Administrative Agent, at the interest rate applicable at the time to the Type of
Loans comprising such Borrowing; provided that if such amount is repaid by the
Borrower and such Bank the Administrative Agent agrees to refund to the Borrower
any excess amount paid by the Borrower; and provided, further, that the
Borrower, upon the request of the Administrative Agent, agrees to return such
refund to the Administrative Agent, on demand, in the event the Administrative
Agent is legally required to return any amount received from such Bank.
SECTION 2.5 Conversion and Continuation Elections.
(a) As to any Loans comprising a Borrowing, the Borrower may,
upon irrevocable written notice to the Administrative Agent in accordance with
clause (b) below:
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable Interest
Period, in the case of Offshore Rate Loans, to convert any such Loans
(or any part thereof in an amount not less than $3,000,000, or that is
in an integral multiple of $1,000,000 in excess thereof) into any other
Type of Loans; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Offshore Rate Loans having Interest
Periods expiring on such day (or any part thereof in an amount not less
than $3,000,000, or that is in an integral multiple of $1,000,000 in
excess thereof);
provided, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $5,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Borrower to continue such Loans as, and convert such Loans into, Offshore
Rate Loans, as the case may be, shall terminate.
(b) The Borrower shall deliver a Notice of
Conversion/Continuation to be received by the Administrative Agent not later
than 9:00 A.M. (San Francisco time) at least (i) three Business Days in advance
of the Conversion/Continuation Date, if the Loans are to be converted into or
continued as Offshore Rate Loans; and (ii) one Business Day in advance of the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate
Loans, specifying:
(A) the proposed Conversion/Continuation
Date;
(B) the aggregate amount of Loans to be
converted or renewed;
(C) the Type of Loans resulting from the
proposed conversion or continuation; and
(D) in the case of conversions into Offshore
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans, the Borrower has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans or if any Default then
exists, the Borrower shall be deemed to have elected to convert such Offshore
Rate Loans into Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Administrative Agent will promptly notify each Bank of
its receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Borrower, the Administrative Agent will promptly notify each
Bank of the details of any automatic conversion. All conversions and
continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans with respect to which the notice was given held
by each Bank.
(e) Unless the Required Banks otherwise agree, during the
existence of a Default, the Borrower may not elect to have a Loan converted into
or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, there may not be more than eight (8) different Interest Periods in effect
for all Loans hereunder.
SECTION 2.6 Repayment of Loans.
(a) Tranche A Loans. Subject to the provisions of Sections
4.1, 4.3 and 4.5, the Tranche A Commitments shall be reduced on each date
set forth below (each a "Commitment Reduction Date"), commencing with the
Commitment Reduction Date occurring on April 1, 1997 to the Tranche A
Termination Date, in the principal amount set opposite such Commitment
Reduction Date:
Commitment Reduction Date Amount
------------------------- ------
April 1, 1997 $ 30,000,000
April 1, 1998 $ 50,000,000
April 1, 1999 $ 65,000,000
April 1, 2000 $ 65,000,000
February 1, 2001 $140,000,000
(b) Tranche B Loans. Subject to the provisions of Sections 4.1
and 4.3, the Tranche B Loans of each Bank shall be payable (and the Borrower
agrees to pay such Tranche B Loan) on the Tranche B Termination Date.
SECTION 2.7 Loan Accounts; Record Keeping.
(a) The Loans made by each Bank shall be evidenced by one or
more loan accounts or records maintained by such Bank in the ordinary course of
business and the Administrative Agent. The loan accounts or records maintained
by the Administrative Agent and each Bank shall be conclusive absent manifest
error of the amount of the Loans made by the Banks to the Borrower and the
interest and payments thereon; provided, that in the event of a conflict between
information recorded by the Administrative Agent and any Bank as to such Bank's
Loans, the records of the Administrative Agent absent manifest error shall
control. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligations of the Borrower hereunder or to pay
any amount owing with respect to the Loans.
(b) Upon the request of any Bank made through the
Administrative Agent, the Tranche A Loans and the Tranche B Loans made by such
Bank may be evidenced by one or more Tranche A Notes and Tranche B Notes,
respectively, instead of loan accounts. Each such Bank shall endorse on the
schedules annexed to its Note(s) the date, amount and maturity of each Loan made
by it and the amount of each payment of principal made by the Borrower with
respect thereto. Each such Bank is irrevocably authorized by the Borrower to
endorse its Note(s) and each Bank's record shall be conclusive absent manifest
error; provided, however, that the failure of a Bank to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any such Note to such
Bank.
SECTION 3. INTEREST AND FEES, ETC.
SECTION 3.1 Interest Rates. With respect to each Loan, the Borrower
hereby promises to pay interest on the unpaid principal amount thereof for the
period commencing on the date of such Loan until such Loan is paid in full, as
follows:
(a) At all times while such Loan or any portion thereof is a
Base Rate Loan, at a rate per annum equal to the Base Rate from time to
time in effect plus the Base Rate Margin (as hereinafter defined).
(b) At all times while such Loan or any portion thereof is an
Offshore Rate Loan, at a rate per annum equal to the Offshore Rate
(Reserve Adjusted) from time to time in effect plus the Offshore Rate
Margin (as hereinafter defined).
(c) For purposes hereof, the Offshore Rate Margin (the
"Offshore Rate Margin") shall be determined based on the higher of the
then current rating of the Borrower's Senior Notes by Moody's and
Standard & Poor's and the aggregate principal amount of the Loans then
outstanding as follows:
Aggregate Bank
Debt Outstanding Senior Notes Rating
---------------- --------------------
BBB/ BBB-/ ▇▇▇/ ▇▇/
▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇
---- ---- --- ---
or
above
-325,000,000 0.75% 1.00% 1.375% 1.50%
$325-450,000,000 1.00% 1.25% 1.50% 1.625%
>$450,000,000 1.25% 1.50% 1.625% 1.75%
provided, that if the difference between the two current ratings is
three (3) or more, the higher rating shall be reduced by one (1) rating
so long as the lowest rating is BB-/Ba3 or above. If the lowest rating
is B+/B1 or lower, the higher rating shall be reduced by two (2)
ratings.
Examples: BBB-/Ba2 = BBB-
BBB-/Ba3 = BB+
BBB-/B1 = BB
Any adjustment in the Offshore Rate Margin as a result of a
change in the principal amount of the Loans outstanding shall be
effective as of the date of any payment or Borrowing by the Borrower,
and any adjustment in the Offshore Rate Margin as a result of a change
in the rating of the Borrower's Senior Notes by Moody's and/or Standard
& Poor's shall be effective as of the effective date of the change in
such rating.
(d) For purposes hereof, the Base Rate Margin (the "Base Rate
Margin") shall be equal to the Offshore Rate Margin minus 1.25% per
annum; provided that in no event shall the Base Rate Margin be less
than zero (0).
SECTION 3.2 Default Interest Rate. Notwithstanding the provisions of
Section 3.1, in the event that any Default under Section 12.1.3 or any Event of
Default shall occur, the Borrower hereby promises to pay, automatically in the
case of a Default under Section 12.1.3 or upon demand therefor by the
Administrative Agent for any Event of Default, interest on the unpaid principal
amount of the Loans (and interest thereon to the extent permitted by law) for
the period commencing on the date of such Default or demand until such Loans are
paid in full or such Default or Event of Default is cured or waived in
accordance with Sections 12.2 and 15.1 at a rate per annum equal to the Base
Rate from time to time in effect (but not less than the Base Rate as at such
date of demand), plus the Base Rate Margin, plus 2% per annum.
SECTION 3.3 Interest Payment Dates. Interest on each Loan shall be paid
in arrears on each Interest Payment Date. Interest shall also be paid on the
date of any prepayment of Loans under Section 4.1 or Section 4.3 for the portion
of the Loans so prepaid and upon payment (including prepayment) in full thereof
and during the existence of any Event of Default, interest shall be paid on
demand of the Administrative Agent at the request or with the consent of the
Required Banks. After maturity, accrued interest on the Loans shall be payable
on demand.
SECTION 3.4 Setting and Notice of Rates. The applicable Offshore Rate
shall be determined by the Administrative Agent. Each determination of the
applicable Offshore Rate shall be conclusive and binding upon the parties
hereto, in the absence of demonstrable error. If the Administrative Agent is
unable to determine such a rate, the provisions of Section 5.3 shall apply. The
Administrative Agent shall, upon written request of the Borrower or any Bank,
deliver to the Borrower or such Bank a statement showing the computations used
by the Administrative Agent in determining any applicable Offshore Rate
hereunder.
SECTION 3.5 Computation of Fees and Interest. Fees and interest on
Offshore Rate Loans shall be computed for the actual number of days elapsed on
the basis of a 360-day year, and interest on Base Rate Loans shall be computed
for the actual number of days elapsed on the basis of a 365-day year. Each
determination of an interest rate by the Administrative Agent shall be
conclusive and binding on the Borrower and the Banks in the absence of manifest
error.
SECTION 3.6 Fees. The Borrower agrees to pay the following fees (all
such fees being nonrefundable):
(a) The Borrower agrees to pay the fees set forth in the Fee
Letter for the sole benefit of the Arranger and the Administrative
Agent;
(b) Without duplication, the Borrower agrees to pay to the
Administrative Agent, for the benefit of the Banks (other than a
Defaulting Bank) ratably according to their respective Percentage, on
the Closing Date a non-use fee on the Commitments equal to .1875% per
annum on $550,000,000 of the outstanding Commitments from June 13, 1995
to the Closing Date;
(c) Without duplication, the Borrower agrees to pay to the
Administrative Agent, for the benefit of the Banks (other than a
Defaulting Bank) ratably according to their respective Percentage, on
the Closing Date a non-use fee on the Commitments equal to .1875% per
annum on $50,000,000 of the outstanding Commitments from August 7, 1995
to the Closing Date; and
(d) Without duplication, the Borrower agrees to pay to the
Administrative Agent, for the benefit of the Banks (other than a
Defaulting Bank) ratably according to their respective Percentage, a
non-use fee on the average daily unused Commitments, payable quarterly
in arrears on the last Business Day of each Fiscal Quarter (commencing
with the first such date occurring after the Closing Date for the
period from the Closing Date through and including such date) and on
the Tranche A Termination Date and the Tranche B Termination Date at a
rate per annum equal to an amount determined based on the higher of the
then current rating of the Senior Notes by Moody's and Standard &
Poor's as follows:
Senior Notes Rating
-------------------
BB+/
Ba1
BBB/ BBB-/ or
▇▇▇▇, ▇▇▇▇ lower
----- ---- ----
or
above
0.20% 0.25% 0.375%
provided, that if the difference between the two current ratings is
three (3) or more, the higher rating shall be reduced by one (1) rating
so long as the lowest rating is BB-/Ba3 or above. If the lowest rating
is B+/B1 or lower, the higher rating shall be reduced by two (2)
ratings.
Examples: BBB-/Ba2 = BBB-
BBB-/Ba3 = BB+
BBB-/B1 = BB
Any adjustment in the non-use fee set forth in this clause (c)
as a result of a change in the rating of the Borrower's Senior Notes by
Moody's and/or Standard & Poor's shall be effective as of the effective
date of the change in such rating.
SECTION 4. PAYMENTS AND PREPAYMENTS
SECTION 4.1 Voluntary Termination or Reduction of Commitments. Subject
to Section 5.5, the Borrower may, upon not less than five (5) Business Days'
irrevocable prior written notice to the Administrative Agent (which shall
promptly advise each Bank thereof), terminate the Tranche A Commitments and/or
the Tranche B Commitments or permanently reduce the Tranche A Commitments and/or
Tranche B Commitments by an aggregate minimum amount of $1,000,000 or any
integral multiple of $1,000,000 in excess thereof; unless, after giving effect
thereto and to any prepayments of Loans made on the effective date thereof, the
then outstanding principal amount of the Loans would exceed the amount of the
aggregate Tranche A Commitments or Tranche B Commitments, as applicable, then in
effect. Once reduced in accordance with this Section, the Tranche A Commitments
and the Tranche B Commitments, to the extent terminated or permanently reduced,
may not be increased. Any reduction of the Tranche A Commitments shall be
applied to each Bank's Tranche A Commitment, pro rata, according to its
Percentage. Any reduction of the Tranche B Commitments shall be applied to each
Bank's Tranche B Commitment, pro rata, according to its Percentage.
SECTION 4.2 Optional Prepayments. Subject to Section 5.5, the Borrower
may, at any time or from time to time, upon not less than (a) three (3) Business
Days' irrevocable written notice with respect to Offshore Rate Loans and (b) one
(1) Business Day's irrevocable written notice with respect to Base Rate Loans,
to the Administrative Agent by 9:00 A.M. (San Francisco time), ratably prepay
the Loans in whole or in part, in minimum amounts of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof. Such notice of prepayment shall
specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid. The Administrative Agent will promptly notify each Bank of its receipt
of any such notice, and of such Bank's Percentage of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to each such date on the
amount prepaid and any amounts required pursuant to Section 5.5.
SECTION 4.3 Mandatory Prepayments. The Borrower shall make mandatory
prepayments of the Loans as follows:
(a) If, on any date, the Borrower or any of its Subsidiaries
shall sell, assign, lease, transfer, contribute, convey, issue or
otherwise dispose of, or grant options, warrants or other rights with
respect to, any of its assets (any of the foregoing being a
"Disposition") consisting of (i) Collateral, (ii) any Subsidiary of the
Borrower (other than a Disposition permitted under Section 9.4) or (iii)
a block of insurance business by any Insurance Subsidiary in one or a
series of related transactions with proceeds in excess of $25,000,000,
the Borrower shall promptly notify the Administrative Agent of such
Disposition, including the amount of Net Proceeds received by the
Borrower or any of its Subsidiaries in respect of such Disposition (and
the amount and other type of consideration so received) and an amount
equal to such Net Proceeds shall be promptly applied after the receipt
from time to time of such Net Proceeds to repay first, the principal
amount of the Tranche A Loans then outstanding (together with any
interest accrued thereon) and second, the principal amount of the
Tranche B Loans then outstanding (together with any interest accrued
thereon). To the extent the Net Proceeds of any such Disposition exceed
the amount of the Loans then outstanding (together with any interest
accrued thereon), or, at the time of such Disposition, the Loans shall
have been paid in full, such Net Proceeds shall be applied to repay any
remaining Liabilities. Notwithstanding anything to the contrary
contained in this clause (a), to the extent any such Disposition relates
to the Collateral pledged under the Borrower Shared Pledge Agreement or
the Borrower Non-Shared Pledge Agreement, the Net Proceeds received by
the Borrower from such Disposition shall be applied in the order set
forth in Sections 6.2(a), (b) and (c).
(b) If, on any date, the Borrower or any of its Subsidiaries
shall sell, issue or grant options, contingent interest rights, warrants
or other rights with respect to any of its equity or debt securities
(any of the foregoing being a "Sale") or related in any way to its
earnings or performance (other than (i) pursuant to a Pension Plan or
Benefit Program of the Borrower or such Subsidiary for the benefit of
their respective employees and (ii) equity or debt securities issued by
the Borrower to its Subsidiaries or such Subsidiaries to the Borrower or
to any other Subsidiary of the Borrower), the Borrower shall promptly
notify the Administrative Agent of such Sale, including the amount of
Net Proceeds received by the Borrower or any of its Subsidiaries in
respect of such Sale (and the amount and other type of consideration so
received) and an amount equal to such Net Proceeds shall be promptly
applied after the receipt from time to time of such Net Proceeds to
repay first, the principal amount of the Tranche A Loans then
outstanding (together with any interest accrued thereon) and second, the
principal amount of the Tranche B Loans then outstanding (together with
any interest accrued thereon). To the extent the Net Proceeds of any
such Sale exceed the amount of the Loans then outstanding (together with
any interest accrued thereon), or, at the time of such Sale, the Loans
shall have been paid in full, such Net Proceeds shall be applied to
repay any remaining Liabilities.
(c) On or before the one hundred twentieth (120) day after the
end of each Fiscal Year of the Borrower (and with respect to the Fiscal
Year ending December 31, 2000, on February 1, 2001), beginning with the
Fiscal Year ending December 31, 1997, the Borrower shall repay or cause
to be repaid the Loans in an amount equal to (i) 50% of Excess Cash Flow
for the Fiscal Year most recently ended less (ii) any optional
prepayments made pursuant to Section 4.1 during such period, or in the
one hundred twenty (120) day period occurring immediately after such
period prior to any prepayment being due hereunder. The proceeds of such
Excess Cash Flow payment shall be applied, first to the principal amount
of the Tranche A Loans then outstanding (together with interest accrued
thereon) and, second, to the principal amount of the Tranche B Loans
then outstanding (together with interest accrued thereon). To the extent
that the amount to be repaid pursuant to this clause (c) exceeds the
amount of the Loans then outstanding (together with any unpaid interest
accrued thereon) or, at the time of such repayment, the Loans shall have
been paid in full, the proceeds of such Excess Cash Flow shall be
applied to repay any remaining Liabilities. Notwithstanding anything to
the contrary contained in this clause (c), no Excess Cash Flow payment
shall be required after the Borrower has permanently reduced the
Commitments of the Banks pursuant to Section 4.1 or Section 4.9
(resulting from mandatory prepayments required by this Section 4.3) to
an aggregate amount equal to $350,000,000 or less; provided that for
purposes of this Section 4.3(c) only, any reduction in the Commitments
pursuant to Section 2.6 shall be excluded from any reduction in the
Commitments.
SECTION 4.4 Payments by the Borrower.
(a) All payments to be made by the Borrower shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Borrower shall be made to the
Administrative Agent for the account of the Banks at the Administrative Agent's
Office, and shall be made in Dollars and in immediately available funds, no
later than 10:30 A.M. (San Francisco time) on the date specified herein.
Notwithstanding the foregoing, in connection with a prepayment required by
Section 4.3, the Borrower may elect to deposit all of the Net Proceeds from a
Disposition or Sale into the Cash Collateral Account which funds, together with
any interest accrued thereon, shall be applied to the Loans by the
Administrative Agent on the first day when such funds may be applied without the
Borrower incurring costs under Section 5.5; provided that any Net Proceeds held
in the Cash Collateral Account shall continue to accrue interest hereunder (and
the Borrower agrees to pay such interest) at the then applicable interest rate
until applied to the Loans by the Administrative Agent. The Administrative Agent
will promptly distribute to each Bank its Percentage (or other applicable share
as expressly provided herein) of such payment in like funds as received. Any
payment received by the Administrative Agent later than 10:30 A.M. (San
Francisco time) shall be deemed to have been received on the following Business
Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Administrative Agent receives notice from the
Borrower prior to the date on which any payment is due to the Banks that the
Borrower will not make such payment in full as and when required, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date in immediately available funds and the
Administrative Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower has not made such
payment in full to the Administrative Agent, each Bank shall repay to the
Administrative Agent on demand such amount distributed to such Bank, together
with interest thereon at the Federal Funds Effective Rate for each day from the
date such amount is distributed to such Bank until the date repaid.
SECTION 4.5 Application of Prepayments. Any prepayment of the Loans in
accordance with Section 4.2 shall be applied to the Tranche A Loans and the
Tranche B Loans in such order as the Borrower may elect. Except as otherwise set
forth in this Agreement, any reduction in the Tranche A Commitments pursuant to
Sections 4.1 and 4.9 shall be applied to a reduction of the remaining Tranche A
Commitments, on a pro rata basis, prior to making any reduction on the Tranche B
Commitments; provided that after the Borrower has permanently reduced the
Commitments of the Banks pursuant to Section 4.1 or Section 4.9 to an aggregate
amount equal to $350,000,000 or less (excluding any reduction in the Commitments
pursuant to Section 2.6) any reduction of the Commitments shall be applied, at
the Borrower's election, to a reduction of the Tranche A Commitments, on a pro
rata basis, or to a reduction of the Tranche B Commitments.
SECTION 4.6 Sharing of Payments.
(a) If any Bank shall obtain any payment or other recovery
(whether voluntary, involuntary, by application of offset or otherwise)
on account of the Loans (other than pursuant to the terms of Section 5)
in excess of its pro rata share (based on its Percentage) of payments
and other recoveries obtained by all Banks of the Loans on account of
principal of and interest on the Loans, such Bank shall purchase from
the other Banks such participation in the Loans as shall be necessary to
cause such purchasing Bank to share the excess payment or other recovery
ratably with each of them; provided, however, that if all or any portion
of the excess payment or other recovery is thereafter recovered from
such purchasing Bank, the purchase shall be rescinded and each Bank
which has sold a participation to the purchasing Bank shall repay to the
purchasing Bank the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Bank's ratable
share (according to the proportion of (i) the amount of such selling
Bank's required repayment to the purchasing Bank to (ii) the total
amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total
amount so recovered.
(b) The Borrower agrees that any Bank so purchasing a participation
from another Bank pursuant to Section 4.6(a) may, to the fullest extent
permitted by law, exercise all its rights of payment (including pursuant to
Section 4.7) with respect to such participation as fully as if such Bank
were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other
similar law, any Bank receives a secured claim in lieu of a setoff to which
this Section applies, such Bank shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Banks entitled under this Section 4.6(b) to share in the
benefits of any recovery of such secured claim.
SECTION 4.7 Setoff. Each Bank shall, upon the occurrence of any Event of
Default under Section 12.1.1, the occurrence of a Default under Section 12.1.3,
or, with the consent of the Required Banks, upon the occurrence of any other
Event of Default, have the right to appropriate and apply to the payment of the
Liabilities owing to it (whether or not then due), and (as security for such
Liabilities) the Borrower hereby grants to each Bank a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Borrower then or thereafter maintained with such Bank. Any such appropriation
and application shall be subject to the provisions of Section 4.6. Each Bank
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Bank; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Bank under this Section 4.7 are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Bank may have.
SECTION 4.8 Net Payments. All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income, stamp
or other Taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, other than Taxes imposed on or
measured by any Bank's net income or receipts (such non-excluded items being
called "Charges"). In the event that any withholding or deduction from any
payment to be made by the Borrower hereunder is required in respect of any
Charges pursuant to any applicable law, rule or regulation, then the Borrower
will:
(a) pay directly to the relevant authority the
full amount required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority;
(c) pay to the Administrative Agent for the account of the Banks
such additional amount or amounts as are necessary to ensure that the
net amount actually received by each Bank will equal the full amount
such Bank would have received had no such withholding or deduction been
required; and
(d) if any Bank receives a refund in respect of any Taxes as to
which it has been indemnified by the Borrower or with respect to which
the Borrower (or any Person acting on behalf of the Borrower) has paid
additional amounts pursuant to this Section 4.8, it shall promptly repay
such refund (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower (or such Person acting on
behalf of the Borrower) under this Section 4.8 with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses of such
Bank or the Administrative Agent, as the case may be; provided, that the
Borrower, upon the request of such Bank or the Administrative Agent,
agrees to return such refund (together with any penalties, interest or
other charges due in connection therewith to the appropriate taxing
authority or other Governmental Authority) to such Bank or the
Administrative Agent in the event such Bank or the Administrative Agent
is required to pay or to return such refund to the relevant taxing
authority or other Governmental Authority.
Each Bank that is organized under the laws of a jurisdiction other than the
United States shall, prior to the due date of any payments under the Loans,
execute and deliver to the Borrower, on or about the first scheduled payment
date in each calendar year, a United States Internal Revenue Service Form 4224
or Form 1001, as may be applicable (or any successor form), appropriately
completed. Without prejudice to the survival of any other agreement of the
Borrower hereunder or any other document, the agreements of the Borrower
contained in this Section shall survive satisfaction of the Liabilities and
termination of this Agreement.
SECTION 4.9 Mandatory Reduction in the Commitments. Each repayment or
prepayment of the Tranche A Loans and the Tranche B Loans required pursuant to
Section 4.1, or 4.3 (a), (b) or (c) shall concurrently, permanently and
automatically ratably reduce the Tranche A Commitments and the Tranche B
Commitments, respectively, by the amount of such repayment or prepayment. If on
any date the aggregate principal amount of the Tranche A Loans or the Tranche B
Loans exceeds the Tranche A Commitments or the Tranche B Commitments, as the
case may be, the Borrower shall repay such Tranche A Loans and Tranche B Loans
(including interest accrued thereon) in an amount equal to such excess.
SECTION 5. CHANGES IN CIRCUMSTANCES
SECTION 5.1 Increased Costs. If (a) Regulation D, or (b) after the date
hereof, the adoption of any applicable law, rule or regulation, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or any
Lending Office of such Bank) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency,
(i) shall subject any Bank (other than a Defaulting Bank) (or
any Lending Office of such Bank) to any tax, duty or other charge with
respect to its Offshore Rate Loans, or its obligation to make Offshore
Rate Loans or shall change the basis of taxation of payments to any Bank
(other than a Defaulting Bank) of the principal of, or interest on, its
Offshore Rate Loans or any other amounts due under this Agreement in
respect of its Offshore Rate Loans or its obligation to make Offshore
Rate Loans (except for changes in the rate of Tax, other than Taxes
covered by Section 4.8, on the overall gross or net income of such Bank
or its Lending Office); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the FRB, but
excluding any reserve included in the determination of interest rates
pursuant to Section 3), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by,
any Bank (other than a Defaulting Bank) (or any Lending Office of such
Bank); or
(iii) shall impose on any Bank (other than a Defaulting Bank)
(or its Lending Office) any other condition affecting its Offshore Rate
Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D referred to above, to impose a cost on) such Bank (or any
Lending Office of such Bank) of making or maintaining any Offshore Rate Loan or
to reduce the amount of any sum received or receivable by such Bank (or the
Lending Office of such Bank) under this Agreement or under its Loans with
respect thereto, then within thirty (30) days after demand by such Bank (which
demand shall be accompanied by a statement setting forth in reasonable detail
the basis of such demand and the calculation of such additional amount), the
Borrower shall pay directly to such Bank such additional amount or amounts as
will compensate such Bank for such increased cost or such reduction. Each Bank
shall promptly, but in no event more than ninety (90) days after it has
knowledge thereof, notify the Borrower of any event occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this Section
5.1.
SECTION 5.2 Change in Rate of Return. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority affects or would affect the amount of capital
required or expected to be maintained by any Bank (other than a Defaulting Bank)
or any Person controlling such Bank, and such Bank reasonably determines that
the rate of return on its or such controlling Person's capital as a consequence
of the Loans made by such Bank (or any participating interest therein held by
such Bank) is reduced to a level below that which such Bank or such controlling
Person could have achieved but for the occurrence of any such circumstance,
then, in any such case the Borrower shall, within thirty (30) days after written
demand by such Bank to the Borrower, pay directly to such Bank additional
amounts sufficient to compensate such Bank or such controlling Person for such
reduction in rate of return. A statement of such Bank as to any such additional
amount or amounts (including calculations thereof in reasonable detail) shall,
in the absence of manifest error, be conclusive and binding on the Borrower. In
determining such amount, such Bank may use any method of averaging and
attribution that it shall deem reasonably applicable. Each Bank shall promptly,
but in no event more than ninety (90) days after it has knowledge thereof,
notify the Borrower of any event occurring after the date hereof, which will
entitle such Bank to compensation pursuant to this Section 5.2.
SECTION 5.3 Basis for Determining Interest Rate Inadequate
or Unfair. If with respect to any Interest Period:
(a) deposits in Dollars (in the applicable amounts) are not
being offered to the Administrative Agent in the interbank eurodollar
market for such Interest Period, or the Administrative Agent otherwise
determines (which determination shall be conclusive and binding on all
parties) that by reason of circumstances affecting the interbank
eurodollar market adequate and reasonable means do not exist for
ascertaining the applicable Offshore Rate; or
(b) any Bank advises the Administrative Agent that the Offshore
Rate (Reserve Adjusted) as determined by the Administrative Agent, will
not adequately and fairly reflect the cost to such Bank of maintaining
or funding such Loan for such Interest Period, or that the making or
funding of Offshore Rate Loans has become impracticable as a result of
an event occurring after the date of this Agreement which in the opinion
of such Bank materially changes such Loans;
then, so long as such circumstances shall continue:
(i) the Administrative Agent shall promptly notify the Borrower
and the Banks thereof,
(ii) no Bank shall be under any obligation to make or convert
into Offshore Rate Loans so affected, and
(iii) on the last day of the then current Interest Period for
Offshore Rate Loans so affected, such Offshore Rate Loans shall, unless
then repaid in full, automatically convert to Base Rate Loans.
Notwithstanding the foregoing, the Administrative Agent and each Bank shall take
any reasonable actions available to it (including designation of a different
lending office), consistent with legal and regulatory restrictions, that will
avoid the need to take the steps described in this Section 5.3, which will not,
in the reasonable judgment of the Administrative Agent or such Bank, be
materially disadvantageous to the Administrative Agent or such Bank.
SECTION 5.4 Changes in Law Rendering Certain Loans Unlawful. In the
event that any change in (including the adoption of any new) applicable laws or
regulations, or any change in the interpretation of applicable laws or
regulations by any governmental or other regulatory body charged with the
administration thereof, should make it unlawful for a Bank or the Lending Office
of such Bank ("Affected Bank") to make, maintain or fund Offshore Rate Loans,
then (a) the Affected Bank shall promptly notify each of the other parties
hereto, (b) the obligation of all Banks to make or convert into Offshore Rate
Loans made unlawful for the Affected Bank shall, upon the effectiveness of such
event, be suspended for the duration of such unlawfulness, and (c) on the last
day of the current Interest Period for Offshore Rate Loans (or, in any event, if
the Affected Bank so requests, on such earlier date as may be required by the
relevant law, regulation or interpretation), the Offshore Rate Loans shall,
unless then repaid in full, automatically convert to Base Rate Loans.
Notwithstanding the foregoing, the Administrative Agent and each Bank shall take
any reasonable actions available to it (including designation of a different
Lending Office), consistent with legal and regulatory restrictions, that will
avoid the need to take the steps described in this Section 5.4, which will not,
in the reasonable judgment of the Administrative Agent or such Bank, be
materially disadvantageous to such Administrative Agent or such Bank.
SECTION 5.5 Funding Losses. The Borrower hereby agrees that upon demand
by any Bank to the Administrative Agent (which demand shall be made within three
(3) Business Days after receipt of notice of any payment or proposed payment by
the Borrower under this Agreement giving rise to indemnification under this
Section 5.5 and shall be accompanied by a statement setting forth in reasonable
detail using the methodology set forth in Exhibit O hereto) the Borrower will
indemnify such Bank against any loss or expense which such Bank may sustain or
incur (including, without limitation, any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such Bank
to fund or maintain Offshore Rate Loans), as reasonably determined by such Bank,
as a result of (a) any payment or prepayment or conversion of any Offshore Rate
Loans of such Bank on a date other than the last day of an Interest Period for
such Offshore Rate Loan, or (b) any failure of the Borrower to borrow on the
date of any Borrowing set forth in any Notice of Borrowing or (c) any failure of
the Borrower to convert or continue any portion of the Loans on a date specified
therefor in the Notice of Continuation/Conversion delivered pursuant to this
Agreement. For this purpose, all notices to the Administrative Agent pursuant to
this Agreement shall be deemed to be irrevocable.
SECTION 5.6 Right of Banks to Fund Through Other Offices. Each Bank may,
if it so elects, fulfill its commitment as to any Offshore Rate Loans by causing
any of its Lending Offices to make such Offshore Rate Loans; provided, that in
such event for the purposes of this Agreement, such Loan shall be deemed to have
been made by such Bank and the obligation of the Borrower to repay such Offshore
Rate Loan shall nevertheless be to such Bank and shall be deemed held by it, to
the extent of such Offshore Rate Loan, for the account of such branch or
affiliate.
SECTION 5.7 Discretion of Banks as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary, each Bank shall be entitled to
fund and maintain its funding of all or any part of its Loans in any manner it
sees fit, it being understood, however, that for the purposes of this Agreement
all determinations hereunder shall be made as if such Bank had actually funded
and maintained each Offshore Rate Loan during each Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Offshore Rate, as the
case may be, for such Interest Period.
SECTION 5.8 Replacement of Banks. If any Bank shall become affected by
any of the changes or events described in Section 5.1, 5.2 or 5.4 above (any
such Bank being hereinafter referred to as a "Replaced Bank") and shall petition
the Borrower for any increased cost or amounts thereunder, then in such case,
the Borrower may, upon at least five (5) Business Days' notice to the
Administrative Agent and such Replaced Bank, designate a replacement lender (a
"Replacement Bank") acceptable to the Administrative Agent in its reasonable
discretion, to which such Replaced Bank shall, subject to its receipt (unless a
later date for the remittance thereof shall be agreed upon by the Borrower and
the Replaced Bank) of all amounts owed to such Replaced Bank under Section 5.1
or 5.2 above, assign all (but not less than all) of its rights, obligations,
Loans and Commitment hereunder; provided, that all Liabilities (except
Liabilities which by the terms hereof survive the payment in full of the Loans
and termination of this Agreement) due and payable to the Replaced Bank shall be
paid in full as of the date of such assignment. Upon any assignment by any Bank
pursuant to this Section 5.8 becoming effective, the Replacement Bank shall
thereupon be deemed to be a "Bank" for all purposes of this Agreement and such
Replaced Bank shall thereupon cease to be a "Bank" for all purposes of this
Agreement and shall have no further rights or obligations hereunder (other than
pursuant to Sections 5.1, 5.2, 15.4 and 15.5 while such Replaced Bank was a
Bank). Notwithstanding any Replaced Bank's failure or refusal to assign its
rights, obligations, Loans and Commitment under this Section 5.8, the Replaced
Bank shall cease to be a "Bank" for all purposes of this Agreement and the
Replacement Bank substituted therefor upon payment to the Replaced Bank by the
Replacement Bank of all amounts set forth in this Section 5.8 without any
further action of the Replaced Bank.
SECTION 5.9 Conclusiveness of Statements; Survival of Provisions.
Determinations and statements of the Administrative Agent or any Bank pursuant
to Section 5.1 through Section 5.5 shall be conclusive absent demonstrable
error. The provisions of Sections 5.1, 5.2, 5.4, 5.5 and this Section 5.9 shall
survive termination of this Agreement.
SECTION 6. COLLATERAL AND OTHER SECURITY
SECTION 6.1 Collateral Documents. Concurrently with or prior to the
Closing Date, the Borrower shall:
(a) Borrower Non-Shared Pledge Agreement. Execute and deliver to
the Administrative Agent, for the benefit of the Banks, a pledge
agreement, substantially in the form of Exhibit E-1 hereto (herein, as
the same may be amended or modified, called the "Borrower Non-Shared
Pledge Agreement") covering, among other things, (i) all of the issued
and outstanding capital stock of BLHC owned by the Borrower and the
acquisition of which has been financed under the Existing Conseco Credit
Agreements and (ii) each indirect Wholly-Owned Subsidiary of the
Borrower not constituting a Significant Subsidiary (as defined in the
Indentures);
(b) Borrower Shared Pledge Agreement. Execute and deliver to the
Administrative Agent, for the benefit of the Banks and the holders of
the Senior Notes, a pledge agreement, substantially in the form of
Exhibit E-2 hereto (herein, as the same may be amended or modified,
called the "Borrower Shared Pledge Agreement") covering, among other
things, the issued and outstanding capital stock of each of the direct
Wholly-Owned Subsidiaries of the Borrower and each indirect Wholly-Owned
Subsidiary of the Borrower constituting a Significant Subsidiary (as
defined in the Indentures) (to the extent permitted by the Applicable
Insurance Code) and all of the issued and outstanding capital stock of
BLHC owned by the Borrower (other than the capital stock of BLHC pledged
under the Borrower Non-Shared Pledge Agreement);
(c) MDSCG Pledge Agreement. Cause MDSCG to execute and deliver
to the Administrative Agent, for the benefit of the Banks, a pledge
agreement, substantially in the form of Exhibit E-3 hereto (herein, as
the same may be amended or modified, called the "MDSCG Pledge
Agreement"), covering, among other things, all of the issued and
outstanding capital stock of each Wholly-Owned Subsidiary of MDSCG;
(d) New CIHC Assumption Agreement. In consideration of the
Banks' consent to the CIHC Contribution and the Conseco Contribution,
cause New CIHC to execute and deliver to the Administrative Agent the
New CIHC Assumption Agreement;
(e) Assignment of Documents. Execute and cause each of BNL, CCM
and CMCI to execute and deliver, an Assignment of Servicing Agreements,
substantially in the form of Exhibit F hereto (herein, as the same may
be amended or modified, called the "Service Assignment") of such party
in favor of the Administrative Agent for the benefit of the Banks.
(f) New CIHC Pledge Agreement. Cause New CIHC to execute and
deliver to the Administrative Agent, for the benefit of the Banks, a
pledge agreement, substantially in the form of Exhibit E-4 hereto
(herein, as the same may be amended or modified, called the "New CIHC
Pledge Agreement"), covering, among other things, all of the issued and
outstanding capital stock of JNL-TX and BNL, all of the capital stock of
BLHC owned by New CIHC, all of the membership interests of CLLC owned by
New CIHC and the Surplus Debenture.
SECTION 6.2 Application of Proceeds from Collateral.
(a) Non-Shared Collateral. All proceeds from the sale or
disposition of any of the Collateral (and/or all cash and Cash
Equivalents held as Collateral) under the Borrower Non-Shared Pledge
Agreement shall be applied by the Administrative Agent in the following
order:
First: to the payment of all of the reasonable
costs and expenses (including attorney's fees) of the
Administrative Agent actually incurred (whether or not such
costs and expenses are incurred by the Administrative Agent on
its own behalf or on behalf of the Banks) in connection with (i)
the administration, sale or disposition of such Collateral, and
(ii) the administration and enforcement of this Agreement and
the Borrower Non- Shared Pledge Agreement, to the extent that
such costs and expenses shall not have been reimbursed to the
Administrative Agent;
Second: to the payment in full of all the
Liabilities in such order as is consistent with this Agreement
(including the provisions of Section 6.2(c) of this Agreement)
and to the extent not addressed in this Agreement as the
Administrative Agent may determine from time to time in its sole
discretion such application to be made ratably among the Banks
according to the amount owing to each Bank; and
Third: the balance, if any, of such proceeds shall
be paid to the Borrower, its successors and assigns, or as a
court of competent jurisdiction may direct.
(b) Shared Collateral. All proceeds from the sale or disposition
of any Collateral (and/or all cash and Cash Equivalents held as
Collateral) (other than Collateral under the Borrower Non-Shared Pledge
Agreement) shall be applied by the Administrative Agent in the following
order:
First: to the payment of all of the reasonable
costs and expenses (including attorney's fees) of the
Administrative Agent actually incurred (whether or not such
costs and expenses are incurred by the Administrative Agent on
its own behalf or on behalf of the Banks or the holders of the
Senior Notes) in connection with (i) the administration, sale or
disposition of such Collateral, and (ii) the administration and
enforcement of this Agreement and the Borrower Shared Pledge
Agreement, to the extent that such costs and expenses shall not
have been reimbursed to the Administrative Agent;
Second: to the payment in full of all the
Liabilities, the Conseco Senior Note Obligations, and the CCPI
Senior Note Obligations, ratably, according to their respective
Collateral Percentages. In the case of the Liabilities, such
application shall be in such order as is consistent with this
Agreement (including the provisions of Section 6.2(c) of this
Agreement) and to the extent not addressed in this Agreement as
the Administrative Agent may determine from time to time in its
sole discretion, such application to be made ratably among the
Banks. In the case of the Conseco Senior Note Obligations and
the CCPI Senior Note Obligations, such application shall be
effected by delivery to the Trustee under the relevant
Indenture, of funds representing the Collateral Percentage of
the holders of the Conseco Senior Notes, on the one hand, and
the CCPI Senior Notes on the other hand; and
Third: the balance, if any, of such proceeds shall
be paid to the Borrower, its successors and assigns, or as a
court of competent jurisdiction may direct.
(c) Order of Application of Collateral among Liabilities.
Notwithstanding any provision to the contrary contained in this
Agreement or any of the other Loan Documents, as among the Banks (i) no
portion of the Collateral (other than the BLHC common stock) shall be
used to satisfy any of the Liabilities relating to the Tranche B Loans
until the payment in full of the Liabilities relating to the Tranche A
Loans (including accrued and unpaid interest thereon) and (ii) no
portion of the Collateral comprising the BLHC common stock shall be used
to satisfy any of the Liabilities relating to the Tranche A Loans until
the payment in full of the Tranche B Loans (including accrued and unpaid
interest thereon).
SECTION 6.3 Further Assurances. The Borrower agrees that upon request of
the Administrative Agent (a) it shall promptly deliver or cause to be delivered
to the Administrative Agent, in due form for transfer, all chattel paper,
instruments, securities and documents of title, if any, at any time representing
all or any of the Collateral, and (b) it shall forthwith execute and deliver or
cause to be executed and delivered to the Administrative Agent, in due form for
filing or recording (and pay the cost of filing or recording the same in all
public offices deemed necessary by the Administrative Agent), such further
assignment agreements, security agreements, pledge agreements, instruments,
consents, waivers, financing statements, stock or bond powers, searches,
releases, and other documents, and do such other acts and things, all as the
Administrative Agent may from time to time reasonably request to establish and
maintain to the satisfaction of the Administrative Agent a valid perfected Lien
on all Collateral (free of all other Liens except as permitted under this
Agreement and the other Loan Documents) to secure payment of the Liabilities
and, to the extent required under the Indentures, the Senior Notes.
SECTION 6.4 Release of Shared Collateral. Upon termination of the
Commitments and repayment in full of the Liabilities, the Lien of the
Administrative Agent on the Collateral shall be released by the Administrative
Agent, and such release shall automatically constitute a release of any Lien on
such Collateral in favor of the holders of the Senior Notes. Subject to Section
15.1, at the direction of the Required Banks, the Administrative Agent shall
release its Lien with respect to any of the Collateral as so directed by such
Banks, and such release shall automatically constitute a release of any Lien on
such Collateral in favor of the holders of the Senior Notes.
SECTION 7. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Banks to enter into this
Agreement and to make the Loans hereunder, the Borrower represents and warrants
to the Administrative Agent and to each of the Banks that:
SECTION 7.1 Organization, etc. The Borrower and each of its Subsidiaries
is a corporation or partnership duly organized, validly existing and in good
standing under the laws of the state of its incorporation or formation and each
of the Borrower and its Subsidiaries is duly qualified to transact business and
in good standing as a foreign corporation or partnership authorized to do
business in each jurisdiction where the nature of its business makes such
qualification necessary and failure to so qualify could reasonably be expected
to have a Material Adverse Effect.
SECTION 7.2 Authorization. Each of the Borrower, New CIHC, MDSCG, BNL,
CCM and CMCI (a) has the power to execute, deliver and perform this Agreement
and the other Loan Documents to which it is a party, and (b) has taken all
necessary action to authorize the execution, delivery and performance by it of
this Agreement and the other Loan Documents to which it is a party.
SECTION 7.3 No Conflict. The execution, delivery and performance by each
of the Borrower, New CIHC, MDSCG, BNL, CCM and CMCI of this Agreement and the
other Loan Documents to which it is a party does not and will not (a) contravene
or conflict with any provision of any law, statute, rule or regulation, (b)
contravene or conflict with, result in any breach of, or constitute a default
under, any material agreement or instrument binding on the Borrower or any of
its Subsidiaries (including, without limitation, any writ, judgment, injunction
or other similar court order), (c) result in the creation or imposition of or
the obligation to create or impose any Lien (except for Permitted Liens) upon
any of the property or assets of the Borrower or any of its Subsidiaries or (d)
contravene or conflict with any provision of the articles of incorporation or
by-laws of the Borrower, New CIHC, MDSCG, BNL, CCM or CMCI.
SECTION 7.4 Governmental Consents. Except as have been obtained and as
set forth on Schedule 7.4, no material order, consent, approval, hearing or
filing, license, authorization or validation of, or filing, recording or
registration with or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required in connection with the execution,
delivery and performance by the Borrower, New CIHC, MDSCG, BNL, CCM or CMCI of
this Agreement or the other Loan Documents to which it is a party.
SECTION 7.5 Validity. Each of the Borrower, New CIHC, MDSCG, BNL, CCM
and CMCI has duly executed and delivered this Agreement and the other Loan
Documents to which it is a party, and each of such documents to which it is a
party constitutes or upon execution and delivery will constitute the legal,
valid and binding obligation of the Borrower, New CIHC, MDSCG, BNL, CCM and CMCI
enforceable in accordance with its terms subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting creditors'
rights generally and (b) general equitable principles, including without
limitation, concepts of good faith and fair dealing, materiality, fraudulent
transfer and reasonableness (regardless of whether considered in a proceeding in
equity or at law).
SECTION 7.6 Financial Statements. The Borrower's audited consolidated
financial statements for the Fiscal Year ended December 31, 1994 and its
unaudited consolidated financial statements for the Fiscal Quarter ended March
31, 1995, copies of which have been furnished to each Bank, have been prepared
in conformity with GAAP applied on a basis consistent with that of the preceding
Fiscal Year, and accurately present the financial condition of the Borrower and
its Subsidiaries at such dates and the results of operations for the periods
then ended.
SECTION 7.7 Material Adverse Change. No Material Adverse Change has
occurred since December 31, 1994.
SECTION 7.8 Litigation and Contingent Obligations. No Material
Litigation is pending or, to the best of Borrower's knowledge, threatened except
as set forth (including estimates of the Dollar amounts involved) in Schedule
7.8. The Borrower and its Subsidiaries have no material Contingent Obligations
other than as provided for or disclosed on Schedule 7.8.
SECTION 7.9 Liens. None of the assets of the Borrower or any of its
Subsidiaries is subject to any Lien, except for Permitted Liens.
SECTION 7.10 Pension and Welfare Plans.
(a) Except as set forth on Schedule 7.10, during the
twelve-consecutive-month period prior to the Effective Date and prior to
the Closing Date, no steps have been taken by the Borrower or any other
Controlled Group member (i) to terminate or completely or partially
withdraw from any Pension Plan or (ii) terminate any Welfare Plan, which
termination could be reasonably expected to give rise to a liability of
the Borrower or any other Controlled Group member in excess of
$10,000,000 for any Controlled Group member (other than the Borrower) or
in excess of $50,000,000 for the Borrower, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to
a Lien exceeding $10,000,000 on behalf of any Controlled Group member
(other than the Borrower) or $50,000,000 on behalf of the Borrower under
section 302(f) of ERISA and no contribution failure in excess of
$10,000,000 has occurred on behalf of any Controlled Group member (other
than the Borrower) or in excess of $50,000,000 on behalf of the
Borrower;
(b) except as set forth on Schedule 7.10, to the best of the
Borrower's knowledge, no condition exists, or event or transaction has
occurred, with respect to any Pension Plan which might result in the
incurrence by the Borrower or any other member of the Controlled Group
of any liability, fine, Tax or penalty which could be reasonably
expected to have a Material Adverse Effect;
(c) except as set forth on Schedule 7.10, neither the Borrower
nor any other member of the Controlled Group has any vested or
contingent liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage described
in Part 6 of Title I of ERISA;
(d) except as set forth on Schedule 7.10, with respect to each
Pension Plan maintained or contributed to by the Borrower or any other
Controlled Group member which is intended to qualify under section 401
of the Code, a favorable determination letter has been received from the
Internal Revenue Service stating that such Pension Plan so qualifies and
nothing has occurred since the date of issuance of such determination
letter which would cause any such Pension Plan to cease to qualify under
section 401 of the Code;
(e) no Pension Plan maintained by the Borrower or any other
member of the Controlled Group is a "multi-employer plan" as defined in
section 4001 of ERISA; and
(f) except as disclosed in Schedule 7.10, no Pension Plan
maintained by or contributed to by the Borrower or any other member of
the Controlled Group and subject to section 302 of ERISA or section 412
of the Code has incurred an accumulated funding deficiency as defined in
section 302(a)(2) of ERISA and section 412(a) of the Code in excess of
$10,000,000 on behalf of any Controlled Group member (other than the
Borrower) or in excess of $50,000,000 on behalf of the Borrower, whether
or not waived.
SECTION 7.11 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 7.12 Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "holding company," or a "subsidiary company" of
a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 7.13 Taxes.
(a) Except as set forth on Schedule 7.13, the Borrower and each
of its Significant Subsidiaries have filed all material Tax Returns and
Reports required by law to have been filed by them and have paid or
provided adequate reserves for all Taxes thereby shown to be owing,
except any such Taxes which are being diligently contested in good faith
by appropriate proceedings and for which adequate reserves have been
established and are being maintained in accordance with GAAP. Except as
set forth on Schedule 7.13, there is no ongoing audit or, to the
Borrower's knowledge, other governmental investigation of the tax
liability of the Borrower or any of its Significant Subsidiaries and
there is no unresolved claim by a taxing authority concerning the
Borrower's or any of the Significant Subsidiaries' tax liability, for
any period for which returns have been filed or were due. The liability
stated for Taxes as of December 31, 1994 in the financial statements
described in Section 7.6 is sufficient in all material respects for all
Taxes as of such date.
(b) All life insurance reserves shown as such on federal tax
returns (other than individual annuity contracts) of each of the
Insurance Subsidiaries qualify as life insurance reserves under section
816(b) of the Code or under former section 801(b) of the Code.
(c) All current Reinsurance Agreements among the Insurance
Subsidiaries and their respective Affiliates have, at all times, been
conducted on an arm's-length basis.
(d) Each of the Insurance Subsidiaries is a life insurance
company as defined in section 816 of the Code.
SECTION 7.14 Accuracy of Information. All factual information heretofore
or contemporaneously furnished by or on behalf of the Borrower or any of its
Subsidiaries in writing to the Administrative Agent or any Bank for purposes of
or in connection with this Agreement or any transaction contemplated hereby is,
and all other such factual information hereafter furnished by or on behalf of
the Borrower or its Subsidiaries to the Administrative Agent or any Bank will
be, true and accurate in every material respect on the date as of which such
information is dated or certified and, except as such information speaks solely
as of a particular date, such information is not, or shall not be, as the case
may be, incomplete by omitting to state any material fact necessary to make such
information not misleading.
SECTION 7.15 Environmental Warranties.
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its Subsidiaries
have been, and continue to be, owned or leased by the Borrower and its
Subsidiaries in material compliance with all Environmental Laws, except
where failure to so comply could not be reasonably expected to have a
Material Adverse Effect;
(b) there have been no past, and there are no pending or
threatened, Environmental Claims, except where such Environmental Claims
could not reasonably be expected to have a Material Adverse Effect;
(c) there have been no releases of Hazardous Materials at, on or
under any property now or previously owned or leased by the Borrower or
any of its Subsidiaries that, individually or in the aggregate, have
had, or could reasonably be expected to have, a Material Adverse Effect;
(d) the Borrower and each of its Subsidiaries have been issued
and are in material compliance with all permits, certificates,
approvals, licenses and other authorizations relating to environmental
matters and necessary or desirable for their businesses except where
failure to comply could not be reasonably expected to have a Material
Adverse Effect;
(e) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or proposed for listing
(with respect to owned property only) on the National Priorities List
pursuant to CERCLA, on the CERCLIS or on any similar state list of sites
requiring investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or
previously owned or leased by the Borrower or any of its Subsidiaries
that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect;
(g) neither the Borrower nor any of its Subsidiaries have
directly transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of federal,
Governmental Authority or local enforcement actions or other
investigations which may lead to material claims against the Borrower or
any of its Subsidiaries for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the
Borrower or any of its Subsidiaries that, individually or in the
aggregate, could be reasonably expected to have a Material Adverse
Effect; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower or any of its Subsidiaries
which, with the passage of time, or the giving of notice or both, would
give rise to liability under any Environmental Law, except where such
liability could not be reasonably expected to have a Material Adverse
Effect.
SECTION 7.16 Proceeds.
(a) Tranche A Loans. The proceeds of the Tranche A Loans will be used
(i) to purchase all of the outstanding common stock of CCPI not currently owned
by the Borrower or its Subsidiaries, and (ii) for general working capital
purposes. None of the proceeds of the Tranche A Loans will be used, either
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of "purchasing or carrying margin stock" within the meaning of
Regulations G and U of the FRB, as amended from time to time.
(b) Tranche B Loans. The proceeds of the Tranche B Loans will be used
(i) to pay the Indebtedness to be Refinanced, (ii) to refinance certain other
Indebtedness of the Borrower used to finance the acquisition of common stock of
BLHC, and (iii) for general working capital purposes.
SECTION 7.17 Insurance. Schedule 7.17 hereto sets forth a true and
correct summary of all insurance carried by the Borrower. The properties and
business of the Borrower and its Subsidiaries are insured against casualties and
contingencies (other than normal life insurance risk) for its benefit under
policies issued by insurers of recognized responsibility in such amounts as is
customary in the case of similar businesses. No notice of any pending or
threatened cancellation or material premium increase has been received by the
Borrower with respect to any of such insurance policies. The Borrower is in
substantial compliance with all conditions contained in such insurance policies.
SECTION 7.18 Securities Laws. Neither the Borrower nor, to the best of
Borrower's knowledge, any of its Affiliates, nor anyone acting on behalf of any
such Person, has directly or indirectly offered any interest in the Loans or any
other Liabilities for sale to, or solicited any offer to acquire any such
interest from, or has sold any such interest to, any Person that would subject
the issuance or sale of the Loans or any other Liabilities to registration under
the Securities Act of 1933, as amended.
SECTION 7.19 Governmental Authorizations. The Borrower and each of its
Subsidiaries have all licenses, franchises, permits and other governmental
authorizations necessary for all businesses presently carried on by them
(including ownership and leasing of the real and personal property owned and
leased by them), except where failure to obtain such licenses, franchises,
permits and other governmental authorizations could not reasonably be expected
to have a Material Adverse Effect.
SECTION 7.20 Business Locations; Trade Names. Schedule 7.20 lists each
of the locations where the Borrower and each of its Significant Subsidiaries
(after giving effect to the GARCO Merger, the CCPI Merger, the CIHC Merger, the
CIHC Contribution and the Conseco Contribution) maintains an office, a place of
business or any records together with each partnership, corporate, fictitious or
trade name under or by which the Borrower or any of its Significant Subsidiaries
conducts its business.
SECTION 7.21 Solvency. On a consolidated basis, the Borrower is and,
after consummation of this Agreement and after giving effect to all Indebtedness
incurred by the Borrower in connection herewith, will be, Solvent.
SECTION 7.22 Insurance Licenses. Schedule 7.22 lists all of the
jurisdictions in which each of the Insurance Subsidiaries hold licenses
(including, without limitation, licenses or certificates of authority from
applicable insurance departments), permits or authorizations to transact
insurance and reinsurance business (collectively, the "Licenses"). Except as set
forth on Schedule 7.22, to the best of Borrower's knowledge after due inquiry of
the Responsible Officers of the respective Insurance Subsidiaries, no such
License is the subject of a proceeding for suspension or revocation or any
similar proceedings, there is no sustainable basis for such a suspension or
revocation, and no such suspension or revocation is threatened by any Department
which, in either case could reasonably be expected to have a Material Adverse
Effect. Schedule 7.22 indicates that line or lines of insurance which the
Insurance Subsidiaries are permitted to be engaged in with respect to each
License therein listed. The Insurance Subsidiaries do not transact any insurance
business, directly or indirectly, in any state or jurisdiction other than those
enumerated on Schedule 7.22 hereto, where such business requires any license,
permit, governmental approval, consent or other authorization.
SECTION 7.23 Compliance with Laws. None of the Borrower or its
Subsidiaries is in violation of any law, ordinance, rule, regulation, order,
policy, guideline or other requirement of any Governmental Authority, if the
effect of such violation could reasonably be expected to have a Material Adverse
Effect and, to the best of the Borrower's knowledge, no such violation has been
alleged and each of the Borrower and each of its Subsidiaries (a) has filed in a
timely manner all reports, documents and other materials required to be filed by
it with any Governmental Authority, if such failure to so file could reasonably
be expected to have a Material Adverse Effect; and the information contained in
each of such filings is true, correct and complete in all material respects and
(b) has retained all records and documents required to be retained by it
pursuant to any law, ordinance, rule, regulation, order, policy, guideline or
other requirement of any Governmental Authority, if the failure to so retain
such records and documents could reasonably be expected to have a Material
Adverse Effect.
SECTION 7.24 No Default. None of the Borrower or its Subsidiaries is in
default under any agreement or instrument to which the Borrower or such
Subsidiary is a party or by which any of their respective properties or assets
is bound or affected, which default might reasonably be expected to have a
Material Adverse Effect.
SECTION 7.25 Pledged Shares. All of the shares of capital stock pledged
to the Administrative Agent pursuant to the terms of the Pledge Agreements are
duly authorized and validly issued and are fully paid and non-assessable. The
shares of capital stock pledged by the Borrower pursuant to the Borrower Shared
Pledge Agreement and the Borrower Non-Shared Pledge Agreement represent and will
continue to represent all of the issued and outstanding capital stock of BLHC
owned by the Borrower. All of the shares of BLHC pledged to the Administrative
Agent, for the benefit of the Banks, under the Borrower Non-Shared Pledge
Agreement represent shares of BLHC which pursuant to Sections 10.7(iv) and/or
10.7(vii) of the Conseco Indenture and the CCPI Indenture have been pledged to
secure the financing of the acquisition of such shares, and the Lien of the
Administrative Agent thereon constitutes a Lien pursuant to Sections 10.7(iv)
and/or 10.7(vii) of the Conseco Indenture and the CCPI Indenture.
SECTION 7.26 Mergers. The Borrower has furnished (or will have furnished
as of the Closing Date) to each Bank a true and correct copy of the CCPI Merger
Documents and each other document or instrument executed in connection
therewith. On the Closing Date:
(a) the CCPI Merger will have been concurrently consummated in
accordance with the terms of the CCPI Merger Agreement, and each other
document and instrument executed in connection therewith without
material modification or waiver of any such terms; and
(b) except as set forth on Schedule 7.26, all consents and
approvals of, and filings and registrations with, and all other actions
in respect of, all Persons (including all governmental agencies,
authorities or instrumentalities and the holders of the Senior Notes
under the Indentures) required in order to make or consummate the CCPI
Merger will have been obtained, given, filed or taken and shall be in
full force and effect, and all required waiting periods will have
elapsed;
SECTION 7.27 Margin Regulations. Neither the Borrower nor any Subsidiary
of the Borrower is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation G or Regulation U of the FRB).
SECTION 7.28 Tranche B Indebtedness. The Indebtedness with respect to
the Tranche B Loans represents a resetting and renewal of the Indebtedness of
the Borrower to finance the acquisition by the Borrower of the shares of stock
of BLHC pledged hereunder.
SECTION 7.29 Conseco Corporate Structure. Immediately following the
consummation of the GARCO Merger, the CCPI Merger, the CIHC Merger, the CIHC
Contribution and the Conseco Contribution, the corporate structure of the
Borrower and its Subsidiaries shall be as set forth in Exhibit Q hereto.
SECTION 7.30 Significant Subsidiaries. Set forth on Schedule 7.30 hereto
is a complete and accurate list of each Significant Subsidiary (as defined in
the Indentures) of the Borrower after giving effect to the GARCO Merger, the
CCPI Merger, the CIHC Merger, the CIHC Contribution and the Conseco
Contribution.
SECTION 7.31 BLHC a Subsidiary. Notwithstanding any other provision
contained in this Agreement to the contrary, for purposes of this Section 7
(other than Sections 7.13, 7.15 7.16, 7.17 and 7.20 with respect to any
Borrowing made after the initial Borrowing) BLHC shall be deemed to be a
Subsidiary of the Borrower.
SECTION 8. AFFIRMATIVE COVENANTS
The Borrower agrees that, on and after the Closing Date until the
termination or expiration of the Commitments and for so long thereafter as any
of the Liabilities remain unpaid or outstanding (except Liabilities which by the
terms hereof survive the payment in full of the Loans and termination of this
Agreement), the Borrower will:
SECTION 8.1 Reports, Certificates and Other Information. Unless
otherwise provided herein, furnish or cause to be furnished to the
Administrative Agent and each Bank:
8.1.1 Audit Report. As soon as available, but in any event
within one hundred and twenty (120) days after the end of each Fiscal
Year of the Borrower:
(a) copies of the audited consolidated balance
sheet of the Borrower and an unaudited consolidating balance sheet of
the Borrower as at the end of such Fiscal Year and the related
statements of earnings, stockholders' equity and cash flows for such
Fiscal Year, in each case setting forth the figures for the previous
year, prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except as set
forth therein) certified, in the case of the audited financial
statements, without Qualification by Coopers & ▇▇▇▇▇▇▇ (or such other
independent certified public accountants of recognized standing
acceptable to the Required Banks);
(b) a letter or letters addressed to the Borrower
from such accountants stating in substance that such accountants have
been informed that such audited financial statements and audited reports
are being delivered to the Administrative Agent and the Banks, and
acknowledging that such financial statements and audit reports will be
part of the information that the Administrative Agent and the Banks
will use to make credit decisions with regard to this Agreement;
8.1.2 Quarterly Reports. As soon as available, but in any event
within sixty (60) days after the end of each of the first three Fiscal
Quarters of each Fiscal Year of the Borrower, copies of the condensed
unaudited consolidated and consolidating balance sheet of the Borrower
at the end of such Fiscal Quarter and the related condensed unaudited
statements of earnings, stockholders' equity and cash flows for such
Fiscal Quarter and the portion of the Fiscal Year through such Fiscal
Quarter, in each case setting forth in comparative form the figures for
the corresponding periods of the previous Fiscal Year, prepared in
reasonable detail and in accordance with GAAP applied consistently
throughout the periods reflected therein (except as set forth therein)
and certified by the chief financial officer or a vice-president with
responsibility for or knowledge of financial matters of the Borrower on
behalf of the Borrower as presenting fairly the financial condition and
results of operations of the Borrower (subject to normal year-end and
audit adjustments);
8.1.3 Tax Returns and Reports. If requested by the Administrative
Agent or the Required Banks, copies of all federal, state, local and
foreign Tax Returns and Reports filed by any of the Borrower and any of
its Subsidiaries;
8.1.4 SAP Financial Statements.
(a) As soon as possible, but in any event within
sixty (60) days after the end of each Fiscal Year of each of the
Insurance Subsidiaries, a copy of the Annual Statement of such Insurance
Subsidiary for such Fiscal Year prepared in accordance with SAP and
accompanied by the certification of the chief financial officer or a
vice-president with responsibility for or knowledge of financial matters
of such Insurance Subsidiary that such financial statement presents
fairly, in accordance with SAP, the financial position of such Insurance
Subsidiary for the period then ended;
(b) As soon as possible, but in any event within
sixty (60) days after the end of each of the first three Fiscal Quarters
of each Fiscal Year of each of the Insurance Subsidiaries, a copy of
the quarterly statement of such Insurance Subsidiary for such Fiscal
Quarter, all prepared in accordance with SAP and accompanied by the
certification of the chief financial officer or a vice-president with
responsibility for or knowledge of financial matters of such
Insurance Subsidiary that all such financial statements present fairly
in accordance with SAP the financial position of such Insurance
Subsidiary for the periods then ended;
(c) Within fifteen (15) days after being delivered
to any of the Insurance Subsidiaries constituting a Significant
Subsidiary, any draft or final Triennial Examination Report issued by
the applicable Department or the NAIC;
(d) Within ninety (90) days after the close of
each Fiscal Year of each of the Insurance Subsidiaries, a copy of the
"Statement of Actuarial Opinion" and "Management Discussion and
Analysis" for each of the Insurance Subsidiaries which is provided to
the applicable Department (or equivalent information should such
Department no longer require such a statement) as to the adequacy of
loss reserves of such Insurance Subsidiary. Such opinion shall be in the
format prescribed by the Applicable Insurance Code of the state of
domicile of such Insurance Subsidiary;
8.1.5 Compliance Certificate. Contemporaneously with the
furnishing of a copy of each set of the statements and reports provided
for in Sections 8.1.1 through 8.1.2, a duly completed certificate,
substantially in the form of Exhibit G hereto (the "Compliance
Certificate"), signed by the chief financial officer or a vice-president
with responsibility for or knowledge of financial matters of the
Borrower, containing, among other things, a computation of, and showing
compliance with, each of the applicable financial ratios and
restrictions contained in Section 10 and to the effect that as of such
date no Default has occurred and is continuing;
8.1.6 Excess Cash Flow Certificate. Within one hundred twenty
(120) days of the end of each Fiscal Year of the Borrower (commencing
with the Fiscal Year ended December 31, 1997), a duly completed
certificate, substantially in the form of Exhibit N hereto, signed by
the chief financial officer or a vice-president of the Borrower who has
sufficient information to calculate the Excess Cash Flow of the
Borrower, containing, among other things, a computation of Excess Cash
Flow for the previous Fiscal Year;
8.1.7 Auditors' Materials. Promptly upon receipt thereof by the
Borrower, copies of all material financial and management reports
regarding the Borrower or any of the Significant Subsidiaries submitted
to the Borrower or any of the Significant Subsidiaries by independent
public accountants in connection with each annual or interim audit
report made by such accountants of the books of the Borrower or any of
its Significant Subsidiaries;
8.1.8 Reports to SEC and to Stockholders. Promptly upon the
filing or making thereof, copies of each filing and report made by the
Borrower or any of its Subsidiaries with or to any securities exchange
or the Securities and Exchange Commission and of each communication from
the Borrower or any of its Subsidiaries to stockholders generally;
8.1.9 Notice of Default and Litigation. Promptly upon learning
of the occurrence of any of the following, written notice thereof,
describing the same and the steps being taken by the Borrower with
respect thereto:
(a) the occurrence of a Default;
(b) the institution of any Material Litigation or
the occurrence of any Material Litigation Development;
(c) the commencement of any dispute which might
reasonably be expected to lead to the material modification, transfer,
revocation, suspension or termination of any Loan Document; or
(d) any Material Adverse Change;
8.1.10 Insurance Reports. Written notification ten (10) days
prior to any cancellation or material change of any insurance policy by
the Borrower or any Significant Subsidiary within five (5) days after
receipt of any notice (whether formal or informal) of cancellation or
any material change by any of its insurers;
8.1.11 ERISA Liability. Promptly upon learning of the occurrence
of the following, written notice thereof describing the same and the
steps being taken by Borrower with respect thereto:
(a) the failure of any member of the Controlled
Group to make a required contribution to any Pension Plan if such
failure is sufficient to give rise to a Lien under section
302(f)(1) or accumulated funding deficiency under section 302 of ERISA
of at least $10,000,000, but with respect to the Borrower only if such
failure or deficiency totals $50,000,000,
(b) the institution of any steps by any member of
the Controlled Group to withdraw from, or the institution of any steps
by the Borrower to terminate, any Pension Plan,
(c) the taking of any action with respect
to a Pension Plan which could result in the requirement that the
Borrower or any member of the Controlled Group furnish a bond or other
security in excess of $10,000,000 by any Controlled Group member (other
than the Borrower) or in excess of $50,000,000 by the Borrower to the
Pension Benefit Guaranty Corporation (or any successor thereto) or such
Pension Plan, or
(d) the occurrence of any event with
respect to any Pension Plan which could result in the incurrence by any
member of the Controlled Group (other than the Borrower) of any
liability, fine, Tax or penalty in excess of $10,000,000 or $50,000,000
with respect to the Borrower or any event or requirement that would
require the Borrower or any member of the Controlled Group to pay more
than $17,000,000 in benefits in any one year with respect to any
post-retirement Welfare Plan other than benefits which are required to
be provided under section 601 of ERISA;
8.1.12 Pension Plan Withdrawals. With respect to each Pension
Plan, if any, which is a "multi-employer plan," as defined in section
4001 of ERISA as to which any member of the Controlled Group may incur
any liability,
(a) no less frequently than annually, a written estimate (which
shall be based on information received from each such plan, it being
expressly understood that the Borrower shall take all reasonable steps
to obtain such information) of the withdrawal liability that would be
incurred by the Controlled Group in the event that all members of the
Controlled Group were to completely withdraw from such plan, and
(b) written notice thereof, as soon as it has reason to believe
(on the basis of the most recent information available to it) that the
sum of (i) the withdrawal liability that would be incurred by the
Controlled Group if all members of the Controlled Group completely
withdrew from all multi-employer plans as to which any member of the
Controlled Group has an obligation to contribute, and (ii) the aggregate
amount of the outstanding withdrawal liability (without unaccrued
interest) incurred by the Controlled Group to multi-employer plans,
would exceed $10,000,000;
8.1.13 Environmental Liabilities. Promptly upon learning
thereof, written notice (together with copies, if available) of all
material written claims, complaints, notices or inquiries relating to
the Borrower's or any Subsidiary's (a) properties or facilities, or (b)
compliance with Environmental Laws, together with a description of the
steps being taken by the Borrower or such Subsidiary with respect
thereto;
8.1.14 Insurance Holding Company Filings. Copies of all material
Insurance Holding Company System Act filings with Governmental
Authorities by the Borrower or any of its Subsidiaries not later than
five (5) Business Days after such filings are made, including, without
limitation, filings which seek approval of Governmental Authorities with
respect to transactions between the Borrower and its Affiliates;
8.1.15 Insurance Licenses. Within five (5) Business Days of
notice, notice of actual suspension, termination or revocation of any
License or restriction thereon (material to the Insurance Subsidiaries
taken as a whole) of any of the Insurance Subsidiaries by any
Governmental Authority or of receipt of notice from any Governmental
Authority notifying any of the Insurance Subsidiaries of a hearing
(which is not withdrawn within ten (10) days) relating to such a
suspension, termination, revocation or restriction, including any
request by a Governmental Authority which commits any of the Insurance
Subsidiaries to take, or refrain from taking, any action or which
otherwise materially and adversely affects the authority of any of the
Insurance Subsidiaries to conduct its business;
8.1.16 Insurance Proceedings. Within three (3) Business Days of
such notice, notice of any pending or threatened investigation or
regulatory proceeding (other than routine periodic investigations or
reviews) by any Governmental Authority concerning the business,
practices or operations of any of the Insurance Subsidiaries, including
any agent or managing general agent thereof;
8.1.17 Changes in Applicable Insurance Code. Promptly, upon
knowledge of the Borrower, to the Administrative Agent (which shall
promptly deliver such reports to the Banks), notice of any actual or
proposed material changes in any Applicable Insurance Code;
8.1.18 Reinsurance Agreements.
(a) Promptly, notice of any material change or modification to
any Reinsurance Agreements or Surplus Relief Reinsurance Agreements
whether entered into before or after the Closing Date including
Reinsurance Agreements, if any, which are in a runoff mode on the
Closing Date, which change or modification could reasonably be expected
to have a Material Adverse Effect;
(b) promptly, notice of any written notice received by any of
the Insurance Subsidiaries of any material denial of coverage,
litigation or arbitration arising out of any material Surplus Relief
Reinsurance Agreement or any material Reinsurance Agreement to which any
of the Insurance Subsidiaries is a party; and
(c) promptly, such other financial, actuarial and other
information with respect to Surplus Relief Reinsurance Agreements and
Reinsurance Agreements as the Administrative Agent may reasonably
request;
8.1.19 Investments. To the extent not provided with the
financial statements provided in Section 8.1.4, within sixty (60) days
of the end of each Fiscal Quarter, a list of the Investments of the
Borrower and its Subsidiaries including a valuation thereof prepared
from sources reasonably acceptable to the Administrative Agent;
8.1.20 Revenue Agent Notices. Promptly, and in any event
within ten (10) days of receipt, any revenue agent's reports or
statutory notices of material deficiency related to the Borrower or any
of its Subsidiaries;
8.1.21 Other Tax Information. Upon request, promptly furnish to
the Administrative Agent copies of all correspondence (including without
limitation, notices, requests, explanations, determinations, schedules,
charts and lists) delivered to any Governmental Authority in connection
with any Tax claim or Taxes and any protest, petition or refund suit
filed on behalf of the Borrower or any of its Subsidiaries in connection
with any Tax claim or Taxes;
8.1.22 Rating Agency Notice. Promptly, but in any event within
three (3) Business Days of its knowledge thereof, written notice of any
change in the rating of the Borrower's Senior Notes by ▇▇▇▇▇'▇ and/or
Standard & Poor's;
8.1.23 Financial Projections and Reconciliation. As soon as
available, but in any event:
(a) within ninety (90) days after the beginning of (i) each
Fiscal Year of the Borrower commencing on or after January 1, 1997, a
copy of the financial projections of the Borrower and its Subsidiaries
for such Fiscal Year; and
(b) within ninety (90) days after each Fiscal Year, a
reconciliation of the financial projections provided in clause (a) with
the Fiscal Year immediately preceding such Fiscal Year;
8.1.24 Risk-Based Capital Calculations. Within three (3)
Business Days after the request of the Administrative Agent or the
Required Banks, calculations of the Risk-Based Capital for all or any of
BLC, BSL, GARCO, BNL and JNL-TX; which calculation shall be made based
on the last day of the Fiscal Quarter immediately preceding such
request; and
8.1.25 Other Information. From time to time, such other
information concerning the Borrower and any of its Subsidiaries as the
Administrative Agent or a Bank may reasonably request.
SECTION 8.2 Corporate Existence; Foreign Qualification. Except as
permitted by Sections 9.3 and 9.4, do and cause to be done at all times all
things necessary to (a) maintain and preserve the corporate existence of the
Borrower and each of its Wholly-Owned Subsidiaries and/or Significant
Subsidiaries, (b) be, and ensure that the Borrower and each of its Subsidiaries
are duly qualified to do business and in good standing as foreign corporations
or partnerships, as applicable, in each jurisdiction where the nature of their
business makes such qualification necessary and failure to so qualify could have
a Material Adverse Effect, and (c) comply, and cause each of its Wholly-Owned
Subsidiaries and/or Significant Subsidiaries to comply, with all material
Contractual Obligations and requirements of law binding upon such entity.
SECTION 8.3 Books, Records and Inspections.
(a) Maintain, and cause each of its Wholly-Owned Subsidiaries
and/or Significant Subsidiaries to maintain, books and records which are
complete and correct in all material respects;
(b) permit, and cause each of its Wholly-Owned Subsidiaries
and/or Significant Subsidiaries to permit, access at reasonable times by
the Administrative Agent and each Bank to its books and records;
(c) permit, and cause each of its Wholly-Owned Subsidiaries
and/or Significant Subsidiaries to permit, the Administrative Agent and
each Bank to inspect at reasonable times its properties and operations;
and
(d) permit, and cause each of its Wholly-Owned Subsidiaries
and/or Significant Subsidiaries to permit, the Administrative Agent and
each Bank to discuss its business, operations and financial condition
with its officers.
SECTION 8.4 Insurance. Maintain with responsible insurance companies,
insurance with respect to its properties and business against such casualties
and contingencies and of such types and in such amounts as is customary in the
case of similar businesses.
SECTION 8.5 Taxes and Liabilities.
(a) Pay, and cause each of its Subsidiaries to pay, when due all
of their respective Taxes and other material liabilities, except as
contested in good faith and by appropriate proceedings with respect to
which reserves have been established, and are being maintained, in
accordance with GAAP; and
(b) except as permitted by Sections 9.3 and 9.4, cause each of
the Insurance Subsidiaries to continue to qualify as life insurance
companies under Section 816 of the Code.
SECTION 8.6 Pension Plans and Welfare Plans. Maintain, and cause each of
its Subsidiaries to maintain, each Pension Plan and Welfare Plan sponsored by it
or its Subsidiaries as to which it may have any liability, in compliance in all
material respects with all applicable requirements of law.
SECTION 8.7 Compliance with Laws. Comply, and cause each of its
Subsidiaries to comply, with all federal, state and local laws, rules and
regulations related to its businesses including, without limitation, the various
Applicable Insurance Codes, except where such failure to comply could not
reasonably be expected to have a Material Adverse Effect.
SECTION 8.8 Maintenance of Permits. Maintain, and cause each of its
Subsidiaries to maintain, all permits, licenses and consents as may be required
for the conduct of its business by any state, federal or local government agency
or instrumentality including, without limitation, the Licenses, except where
such failure to maintain could not reasonably be expected to have a Material
Adverse Effect.
SECTION 8.9 Environmental Compliance. Maintain, and cause each of its
Subsidiaries to maintain, (a) all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental matters in effect
and use and operate all of its facilities and properties in material compliance
with all Environmental Laws, and (b) appropriate procedures for the handling of
all Hazardous Materials in material compliance with all applicable Environmental
Laws, and comply with such procedures at all times, except where such failure to
maintain could not reasonably be expected to have a Material Adverse Effect.
SECTION 8.10 BLHC a Subsidiary. Notwithstanding any other provision
contained in this Agreement to the contrary, for purposes of this Section 8
(other than Sections 8.4 and 8.5) BLHC shall be deemed to be a Subsidiary of the
Borrower.
SECTION 9. NEGATIVE COVENANTS
The Borrower agrees that, on and after the Closing Date until the
termination or expiration of the Commitments and for so long thereafter as any
of the Liabilities remain unpaid or outstanding (except Liabilities which by the
terms hereof survive the payment in full of the Loans and the termination of
this Agreement), the Borrower will:
SECTION 9.1 Limitation on Indebtedness. Not, and not permit any of its
Subsidiaries to, incur or at any time be liable with respect to any Indebtedness
except:
(a) Indebtedness outstanding under this Agreement in respect of
the Loans and other Liabilities;
(b) Indebtedness outstanding on the Closing Date described on
Schedule 9.1; provided, that Indebtedness permitted by this clause (b)
does not include any extension, renewal or refunding of any such
outstanding Indebtedness unless such extension, renewal or refunding of
such Indebtedness does not (A) increase the principal amount of or rate
of interest on such Indebtedness, (B) shorten the Average Life of such
Indebtedness, or (C) make the terms of such Indebtedness less favorable
to the Borrower or any Subsidiary of the Borrower;
(c) Indebtedness secured by a Permitted Lien;
(d) Hedging Obligations entered into in the ordinary course of
business;
(e) Other Indebtedness the proceeds of which are used solely to
pay the Liabilities; provided that a permanent ratable reduction is made
with respect to the Commitments in an amount equal to such proceeds;
(f) Indebtedness in connection with Permitted Transactions;
(g) Indebtedness, or refinancings thereof, under reimbursement
obligations in respect of letters of credit incurred in the ordinary
course of business;
(h) Indebtedness of the Borrower or its Subsidiaries consisting
of deferred payment obligations resulting from the adjudication or
settlement of any claim or Litigation of the Borrower or its
Subsidiaries;
(i) Indebtedness resulting from reserves for
outstanding checks;
(j) Indebtedness of the Significant Subsidiaries resulting from
the sale or securitization of receivables so long as such receivables
constitute non-admitted assets of such Significant Subsidiaries;
provided, that Indebtedness related to any sale or securitization will
be nonrecourse to the Significant Subsidiaries;
(k) Indebtedness with respect to Contingent Obligations in an
aggregate principal amount not exceeding $15,000,000;
(l) Indebtedness of Wholly-Owned Subsidiaries of the Borrower
owing to the Borrower or another Wholly- Owned Subsidiary of the
Borrower, and Indebtedness of the Borrower owing to any of its
Wholly-Owned Subsidiaries;
(m) Indebtedness in respect of deferred Taxes reserved on the
financial statements of the Borrower in accordance with GAAP;
(n) Indebtedness of BLHC; provided that such Indebtedness is
nonrecourse to the Borrower or any of its assets or the assets of any
Subsidiary of the Borrower (other than BLHC);
(o) Capitalized Lease Liabilities; provided that the aggregate
Capitalized Lease Liabilities shall not exceed $5,000,000;
(p) Indebtedness arising from deferral by employees of their
right to receive a portion of their salary or wages pursuant to any
Pension Plan;
(q) Indebtedness of a Person existing at the time such Person is
first acquired and becomes a Subsidiary of the Borrower as permitted by
this Agreement; provided that (i) such Person continues as a separate
Subsidiary of the Borrower and is not merged or consolidated with the
Borrower or any other Subsidiary of the Borrower, (ii) such Indebtedness
remains the obligation of such Person and is not assumed or guaranteed
by the Borrower or any other Subsidiary of the Borrower and (iii) such
Indebtedness was not incurred in contemplation of such acquisition; and
(r) Indebtedness, in addition to the Indebtedness permitted by
clauses(a) through (q), in a principal amount not exceeding $50,000,000.
SECTION 9.2 Liens. Not, and not permit any of its Subsidiaries to,
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except for the following (collectively called "Permitted
Liens"):
(a) Liens in favor of the Administrative Agent for the benefit
of the Banks and the holders of the Senior Notes pursuant to this
Agreement and the other Loan Documents;
(b) Liens for current Taxes not delinquent or for Taxes being
contested in good faith and by appropriate proceedings and with respect
to which adequate reserves are being maintained in accordance with GAAP;
(c) Liens in connection with the acquisition of fixed or capital
assets after the date hereof and attaching only to the property being
acquired, provided the Indebtedness secured thereby does not exceed
$30,000,000 and that no such Lien exceeds 90% of the fair market value
of such property at the time of acquisition thereof or $30,000,000 in
the aggregate at any one time outstanding;
(d) Liens shown on Schedule 9.2;
(e) Liens incurred in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other
forms of governmental insurance or benefits or to secure performance of
tenders, statutory obligations, leases and contracts (other than for
borrowed money) entered into in the ordinary course of business or to
secure obligations on surety or appeal bonds;
(f) Liens of mechanics, carriers, materialmen and other like
Liens arising in the ordinary course of business in respect of
obligations which are not delinquent or which are being contested in
good faith and by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP;
(g) Liens arising in the ordinary course of business for sums
being contested in good faith and by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP, or for sums not due, and in either case not involving any
deposits or advances for borrowed money or the deferred purchase price
of property or services;
(h) Liens on real estate to the extent real estate Investments
are permitted by Section 9.10(e)(iii);
(i) Liens in favor of the trustee on sums required to be
deposited with the trustee under the Indentures;
(j) Liens on Indebtedness permitted by Section 9.1(n) or (q);
(k) prior to the CCPI Merger, Liens on the capital stock of
CCPI; and
(l) Liens not otherwise permitted to be incurred pursuant to the
foregoing clauses (a) - (k) in an aggregate principal amount which, when
aggregated with the Indebtedness permitted by Section 9.1(r), shall not
exceed $65,000,000; provided that no Lien permitted by this clause (l)
shall be created, assumed or permitted to exist with respect to any
asset constituting Collateral.
SECTION 9.3 Consolidation, Merger, etc. Not, and not permit any of its
Wholly-Owned Subsidiaries and/or Significant Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other Person, or purchase
or otherwise acquire all or substantially all of the capital stock or assets of
any Person (or of any division thereof) or, repurchase any of its capital stock,
except (a) any Wholly-Owned Subsidiary of the Borrower may liquidate or dissolve
voluntarily into, and may merge or consolidate with and into, or sell all or
substantially all of its capital stock or assets to, the Borrower or any other
Wholly-Owned Subsidiary of the Borrower, and (b) any Insurance Subsidiary may
acquire books of insurance business so long as the Statutory Liabilities
associated therewith does not exceed 15% of the Statutory Liabilities of all the
Insurance Subsidiaries, on a consolidated basis, immediately prior to such
acquisition.
SECTION 9.4 Asset Disposition, etc. Not, and not permit any of its
Wholly-Owned Subsidiaries and/or Significant Subsidiaries to, sell, assign,
lease, transfer, contribute, reinsure, cede, convey or otherwise dispose of, or
grant options, warrants or other rights with respect to, any of its assets
(including, without limitation, any books of business), unless a prepayment is
made pursuant to Section 4.3 or:
(a) such sale, assignment, transfer, lease, contribution,
reinsurance, cession, conveyance or other disposition is in the ordinary
course of its business including, without limitation, sales of assets in
connection with the management of the investment portfolio of the
Borrower and its Subsidiaries or as related to the sale or
securitization of receivables constituting non-admitted assets of an
Insurance Subsidiary;
(b) such sale, assignment, transfer, contribution, conveyance or
other disposition is of Credit Tenant Loans or other mortgages held by
such Person in connection with the securitization of such mortgages; or
(c) such sale, assignment, transfer, lease, contribution,
reinsurance, cession, conveyance or other disposition (i) does not
constitute a Sale the Net Proceeds of which would otherwise be required
to be applied as a mandatory prepayment pursuant to Section 4.3(a) or
(b) and is not of all or substantially all of the assets of the Borrower
or any Subsidiary of the Borrower and (ii) does not (A) in the case of
the Borrower and any of its Subsidiaries in any single or series of
related sales, assignments, transfers, leases, contributions, cessions,
conveyances or other dispositions, exceed $25,000,000 or, (B) in all
such sales, assignments, transfers, leases, contributions, cessions,
conveyances or other dispositions, in the aggregate during the term of
this Agreement, exceed $100,000,000.
SECTION 9.5 Other Agreements. Not, and not permit any of its
Subsidiaries to, enter into any agreement (other than agreements with insurance
regulators) containing any provision which (a) would be violated or breached by
the performance of its obligations hereunder or under any instrument or document
delivered or to be delivered by it hereunder or in connection herewith, (b)
prohibits or restricts the ability of any Subsidiary of the Borrower to make
dividends or advances or payments to the Borrower, (c) prohibits or restricts
the ability of the Borrower or any of its Subsidiaries to amend or otherwise
modify this Agreement or any other document executed in connection herewith or
(d) constitutes an agreement to a limitation or restriction of the type
described in clauses (a) through (c) with respect to any other Indebtedness.
SECTION 9.6 Business Activities. Not, and not permit any of its
Significant Subsidiaries to fundamentally change the type of business in which
it is presently engaged as listed on Schedule 9.6.
SECTION 9.7 Change of Location or Name. Not, and not permit its
Significant Subsidiaries to, change (a) the location of its principal place of
business, chief executive office, major executive office, chief place of
business or its records concerning its business and financial affairs, or (b)
its name or the name under or by which it conducts its business, in each case
without first giving the Administrative Agent at least ten (10) days' advance
written notice thereof; provided, however, that notwithstanding the foregoing,
neither the Borrower nor any of its Significant Subsidiaries shall change the
location of its principal place of business, chief executive office, major
executive office, chief place of business or its records concerning its business
and financial affairs to any place outside the contiguous continental United
States of America.
SECTION 9.8 Transactions with Affiliates. Except as set forth on
Schedule 9.8, not, and not permit any of the Insurance Subsidiaries to, enter
into, or cause, suffer or permit to exist any arrangement, Reinsurance
Agreement, Surplus Relief Reinsurance Agreement or contract with any of its
other Affiliates (other than the Borrower, another Insurance Subsidiary or a
Wholly-Owned Subsidiary of any of them) unless, in the case of material
arrangements, contracts or instruments, written notice is given to the
Administrative Agent (which shall promptly deliver copies of such notice to the
Banks) subsequent to the arrangement and, in any case, such arrangement,
contract or instrument (a) is fair and equitable to the Borrower or such
Subsidiary, (b) is of a sort which would be entered into by a prudent Person in
the position of the Borrower or such Subsidiary with a Person which is not one
of its Affiliates, and (c) is on terms which are not less favorable to the
Borrower or such Subsidiary than are obtainable from a Person which is not one
of its Affiliates.
SECTION 9.9 Dividends, etc. Except for (a) dividends paid by the
Borrower on the Conseco Preferred Stock in an amount not to exceed $3.25 per
share per annum, (b) the Borrower's repurchase of shares of its common stock
from its employees in accordance with the terms of, or otherwise in connection
with, any Pension Plan or Benefit Program, (c) intercompany dividends from the
Borrower to any Subsidiary of the Borrower or any Subsidiary of the Borrower to
the Borrower or any other Subsidiary of the Borrower, and (d) (i) the Borrower's
repurchase of shares of its capital stock or acquisition of its capital stock or
assets of any Person on an annual basis and (ii) the payment of dividends on the
common stock of the Borrower; provided that the aggregate amount of any
repurchases, acquisitions and dividends permitted by clauses (d)(i) and (ii) in
any Fiscal Year shall not exceed the greater of (1) one hundred percent (100%)
of the Net Proceeds received from the sale of Merchant Banking Investments, less
the amount originally paid for the Merchant Banking Investments set forth on
Schedule A as of the Closing Date, or (2) fifty percent (50%) of the Borrower's
Excess Cash Flow for the immediately preceding Fiscal Year plus any amounts the
Borrower would have been permitted to apply to purchases and repurchases and
common stock dividends under clauses(d)(i) and (ii) in previous Fiscal Years
which were not so applied, in each case so long as no Default has occurred and
is then continuing, not (1) declare, pay or make any dividend or distribution
(in cash, property or obligations) on any shares of any class of capital stock
(now or hereafter outstanding) of the Borrower or on any warrants, options or
other rights with respect to any shares of any class of capital stock (now or
hereafter outstanding) of the Borrower (other than dividends or distributions
payable in its common stock, preferred stock or warrants to purchase its common
stock or split-ups or reclassification of its stock into additional or other
shares of its common stock) or apply, or permit any of its Subsidiaries to
apply, any of its funds, property or assets to the purchase, redemption, sinking
fund or other retirement of any shares of any class of capital stock (now or
hereafter outstanding) of the Borrower or any option, warrant or other right to
acquire shares of the Borrower's capital stock (other than any such payment
pursuant to stock appreciation rights granted and exercised in accordance with
applicable rules and regulations of the Securities and Exchange Commission); or
(2) make any deposit for any of the foregoing purposes.
Notwithstanding anything contained in this Section 9.9 to the contrary, if the
aggregate Commitments of the Banks have been permanently reduced to an aggregate
amount equal to $350,000,000 or less prior to April 1, 1997 or $320,000,000 or
less prior to December 31, 1997, the fifty percent (50%) set forth in clause (2)
of the proviso of clause (d) of this Section 9.9 shall be simultaneously
increased to one hundred percent (100%).
SECTION 9.10 Investments. Not, and not permit any of its Subsidiaries
to, make, incur, assume or suffer to exist any Investment in any other Person,
except:
(a) Investments existing on the Closing Date and identified in
Schedule 9.10;
(b) Cash Equivalents;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 9.1;
(d) Investments by the Borrower in any of its Wholly- Owned
Subsidiaries or by any such Wholly-Owned Subsidiary in the Borrower or
any other Wholly-Owned Subsidiary of the Borrower, by way of
contributions to capital or loans or advances;
(e) other Investments by the Borrower and its Subsidiaries
which are in compliance with all of the following guidelines:
(i) All Investments made by any Insurance Subsidiary
shall be in compliance with the applicable Department of such Insurance
Subsidiary;
(ii) No Investments in mortgage loans, except (A)
for existing direct mortgage loans listed on Schedule 9.10 and
refinancings thereof and (B) other Investments in direct mortgage
loans; provided, that such Investments, when aggregated with Investments
in real estate permitted by clause (iii) below, shall not exceed 8% of
the aggregate Investments of the Borrower and its Subsidiaries on a
consolidated basis;
(iii) No Investments in real estate, except for
existing Investments in real estate listed on Schedule 9.10 and
additional Investments in real estate; provided, that such Investments,
when aggregated with Investments in mortgage loans permitted by clause
(ii) above, shall not exceed 8% of the aggregate Investments of the
Borrower and its Subsidiaries on a consolidated basis;
(iv) Investments by the Borrower and its
Subsidiaries, on a consolidated basis, in equity securities (excluding
Investments in any Subsidiary of the Borrower) and non-Investment Grade
Securities shall not exceed in the aggregate 12% of the Investments of
the Borrower and its Subsidiaries on a consolidated basis; provided that
Investments of the Borrower and its Subsidiaries, on a consolidated
basis, in equity securities solely as a result of common stock received
as partnership distributions under the CCP II Partnership Agreement
shall not constitute Investments under this clause (iv);
(v) Investments by the Borrower and its
Subsidiaries, on a consolidated basis, in Investments relating to a
single issuer (other than U.S. Government Securities) shall not exceed
in the aggregate 4% of the Investments of the Borrower and its
Subsidiaries on a consolidated basis;
(vi) Investments in connection with Permitted
Transactions;
(vii) Investments in CMO Derivative Investments
in an amount not to exceed in the aggregate 4% of the Investments of the
Borrower and its Subsidiaries on a consolidated basis;
(f) Credit Tenant Loans; and
(g) Investments, in addition to the Investments permitted by
clauses (a) - (f) above, which do not exceed in the aggregate 2% of the
Investments of the Borrower and its Subsidiaries on a consolidated
basis.
SECTION 9.11 Senior Notes and Senior Note Documents. Not, and not
permit any of its Subsidiaries to:
(a) make any payment (whether of principal, interest or
otherwise) on any Senior Notes on any day other than the stated
scheduled date for such payment set forth in the Senior Note Documents
as of the Closing Date;
(b) prepay, redeem, purchase, defease or transfer its
obligations under any Senior Notes, or make any deposit for any of the
foregoing; or
(c) amend or modify any Senior Note Documents if such amendment
or modification could have an adverse effect on the Banks or any
material provision of the Loan Documents.
SECTION 9.12 BLHC a Subsidiary. Notwithstanding any other provision
contained in this Agreement to the contrary, for purposes of this Section 9
(other than clause (b) of Section 9.3 and Sections 9.4, 9.5, 9.7; provided that
for purposes of Section 9.7 BLHC and its Subsidiaries shall remain located in
the continental United States, 9.9 and 9.11) BLHC shall be deemed to be a
Subsidiary of the Borrower.
SECTION 10. FINANCIAL COVENANTS
The Borrower agrees that, on and after the Closing Date until the
termination or expiration of the Commitments and for so long thereafter as any
of the Liabilities remain unpaid or outstanding, it will comply with the
following:
SECTION 10.1 Minimum Surplus. Not permit (a) Capital and Surplus plus
IMR/AVR of BLC to be less than $300,000,000 at any time, (b) Capital and Surplus
plus IMR/AVR of BSL to be less than $120,000,000 at any time or (c) Capital and
Surplus plus IMR/AVR of GARCO to be less than $160,000,000 at any time.
SECTION 10.2 Shareholders' Equity. Not permit Total Shareholders' Equity
of the Borrower to be less than $750,000,000 at any time from the Closing Date
to December 31, 1997, and $1,000,000,000 at any time thereafter.
SECTION 10.3 Debt to Total Capitalization. Not permit the ratio of the
principal and accrued but unpaid interest on all Indebtedness for money borrowed
of the Borrower for which the Borrower is directly liable and which is not a
Contingent Obligation (calculated excluding Permitted Transactions) to Total
Capitalization (calculated excluding Permitted Transactions) to exceed .60:1 at
any time from the Closing Date to December 31, 1997, and .50:1 thereafter. This
ratio shall be measured at the end of each Fiscal Quarter for the Fiscal Quarter
then ended.
SECTION 10.4 Risk-Based Capital. Not permit the Risk-Based Capital of
any of BLC, BSL or GARCO to fall below 150% and not permit the Risk-Based
Capital of BNL and JNL-TX to fall below 125%. These ratios shall be measured as
of the end of each Fiscal Year for the Fiscal Year then ended.
SECTION 10.5 Cash Coverage Ratio. Not permit the Cash Coverage Ratio to
be less than 1.2:1 at any time.
SECTION 10.6 Best Rating. Cause BSL, BLC and GARCO at all times to
maintain a rating by A.M. Best & Company (or any successor thereof) of "B++" (or
its equivalent) or better.
SECTION 11. CONDITIONS
The obligation of the Banks to make the Loans is subject to the
performance by the Borrower of all of its obligations under this Agreement and
to the satisfaction of the following conditions precedent:
SECTION 11.1 Initial Loans. Prior to or concurrent with the making of
the initial Loans, the Administrative Agent shall have received all of the
following, each, except to the extent otherwise specified below, duly executed
by a Responsible Officer, dated the date of the initial Loans (or such earlier
date as shall be satisfactory to the Administrative Agent), in form and
substance satisfactory to the Administrative Agent, and each in sufficient
number of signed counterparts or copies to provide one for each Bank and the
Administrative Agent:
11.1.1 If requested by a Bank, an appropriately completed
Tranche A Note, payable to the order of such Bank evidencing such Bank's
Tranche A Commitment, if any, and an appropriately completed Tranche B
Note, payable to the order of such Bank evidencing such Bank's Tranche B
Commitment, if any;
11.1.2 The Borrower Shared Pledge Agreement, the Borrower
Non-Shared Pledge Agreement, the MDSCG Pledge Agreement and the New CIHC
Pledge Agreement, together with (a) the stock certificates and the
Surplus Debenture evidencing all shares and surplus debentures pledged
under such Pledge Agreements, and (b) appropriate stock powers for such
shares endorsed in blank;
11.1.3 A favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, general counsel of
the Borrower and its Significant Subsidiaries (including BLHC),
substantially in the form of Exhibit H hereto, and addressing such other
legal matters as the Administrative Agent may require;
11.1.4 An officer's certificate of the Borrower New CIHC, MDSCG,
BNL, CCM and CMCI, substantially in the form of Exhibits I-1 through I-6
hereto, respectively, and dated as of the Closing Date, signed by a
Responsible Officer of the Borrower, New CIHC, MDSCG, BNL, CCM and CMCI,
as the case may be, and attested to by the secretary thereof, together
with certified copies of the Borrower's, New CIHC's, MDSCG's, BNL's,
CCM's and CMCI's articles of incorporation, by-laws and directors
resolutions;
11.1.5 Evidence of the good standing or certificates of
compliance of the Borrower, New CIHC, MDSCG, BNL, CCM and CMCI in the
jurisdiction in which such entity is incorporated;
11.1.6 Evidence that the Borrower shall have paid to the
Administrative Agent the fees and expenses provided for herein;
11.1.7 A letter from the Process Agent agreeing to receive
service of process on behalf of the Borrower pursuant to Section 15.11
hereof;
11.1.8 Certified copies of each material consent, license and
approval (including, without limitation, any insurance commission
approvals) required in connection with the execution, delivery,
performance, validity and enforceability of this Agreement and the other
Loan Documents; such consents, licenses and approvals shall be in full
force and effect, shall be satisfactory in form and substance to the
Administrative Agent and shall be all of the material consents required
to be obtained or made on or before the consummation of the financing
contemplated by this Agreement and the CCPI Merger Documents;
11.1.9 A certificate of a Responsible Officer of the Borrower
that there are no material insurance regulatory proceedings pending or
threatened against any of the Insurance Subsidiaries including BLHC;
11.1.10 A certificate of a Responsible Officer of the Borrower,
dated the Closing Date, as to the matters set forth in Sections 11.2.2
through 11.2.5;
11.1.11 An officer's certificate, signed by a Responsible
Officer of the Borrower, certifying that to such officer's best
knowledge, since December 31, 1994, no event has occurred which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect;
11.1.12 Evidence that the Cash Collateral Account has been
established;
11.1.13 Certified copies of the Servicing Agreements;
11.1.14 A payoff letter from the agent under the Existing
Conseco Credit Agreements satisfactory to the Administrative Agent
relating to the payment of the Indebtedness to be Refinanced including
evidence that all commitments have been terminated and all loans have
been paid thereunder;
11.1.15 Schedules and Exhibits satisfactory to the Admin-
istrative Agent and the Banks;
11.1.16 A Federal Reserve Form U-1 for each Bank, duly executed
by a Responsible Officer of the Borrower, the statements made in which
shall be such, in the opinion of the Administrative Agent, as to permit
the transactions contemplated hereby in accordance with Regulation U
promulgated by the FRB;
11.1.17 Evidence of each filing, registration or recordation
(and payment of any necessary fee, Tax or expense relating thereto) with
respect to each document (including, without limitation, any UCC
financing statement) required by the Loan Documents, the CCPI Merger
Documents or under law or requested by the Administrative Agent to be
filed, registered or recorded in order to create, in favor of the
Administrative Agent, for the benefit of the Banks and the holders of
the Senior Notes, a perfected first priority Lien on the Collateral
(other than UCC financing statements to be filed in connection with the
Loan Documents which will be delivered for filing on the Closing Date);
11.1.18 Evidence satisfactory to the Administrative Agent that
each of the Loan Documents and the CCPI Merger Documents have been duly
executed and delivered and are in full force and effect without
modification and that concurrently with the initial Borrowing the CCPI
Merger will be consummated pursuant to the terms of the CCPI Merger
Documents;
11.1.19 The Assumption Agreement;
11.1.20 Evidence satisfactory to the Administrative Agent that
(a) the CIHC Contribution has been consummated and (b) the Conseco
Contribution will be consummated concurrently with the initial
Borrowing; and
11.1.21 Such other information and documents as may reasonably
be required by the Administrative Agent and the Administrative Agent's
counsel.
SECTION 11.2 All Loans. The obligation of the Banks to make Loans
hereunder is subject to the following further conditions precedent:
11.2.1 The Administrative Agent shall have received a duly
executed Notice of Borrowing;
11.2.2 No Default exists or will result from the making of the
Loans;
11.2.3 The representations and warranties of the Borrower
contained in Section 7 and by the Borrower, MDSCG, New CIHC, BNL, CCM
and CMCI in the other Loan Documents are true and correct with the same
effect as though made on the Closing Date;
11.2.4 No Material Litigation exists except as disclosed on
Schedule 7.8; and
11.2.5 No Material Adverse Change has occurred since December
31, 1994.
SECTION 11.3 Tranche B Loans. The obligation of the Banks to make
Tranche B Loans is subject to the following further condition precedent:
11.3.1 The ratio of (a) the current market value of the common
stock of BLHC pledged to the Administrative Agent, for the benefit of
the Banks, under the Borrower Non-Shared Pledge Agreement plus the
current market value of the Collateral Percentage of the Banks of the
common stock of BLHC pledged under the Borrower Shared Pledge Agreement
to (b) the aggregate principal amount of the Tranche B Loans then
outstanding (after giving effect to the amount of the requested Tranche
B Loans) is at least 2.0 to 1.0.
SECTION 12. EVENTS OF DEFAULT AND THEIR EFFECT
SECTION 12.1 Events of Default. An "Event of Default" shall exist if any
one or more of the following events (herein collectively called "Events of
Default") shall occur and be continuing:
12.1.1 Non-Payment of Loans, etc.
(a) Default in the payment or prepayment when due
of any principal on the Loans, or
(b) Default in the payment within five (5) days of
when due of any interest on the Loans or any other amount owing by the
Borrower pursuant to this Agreement.
12.1.2 Non-Payment of Other Indebtedness. Default in the payment
when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness of the Borrower or any of
its Significant Subsidiaries (including BLHC) (other than Indebtedness
in respect of this Agreement) in an amount in excess of $20,000,000; or
default in the performance or observance of any obligation or condition
with respect to any such Indebtedness if the effect of such default is
to accelerate or could result in the acceleration of the maturity of any
such Indebtedness or to permit the holder or holders thereof, or any
trustee or agent for such holders, to cause such Indebtedness to become
due and payable prior to its expressed maturity. For purposes of this
Section 12.1.2, Indebtedness shall refer only to Indebtedness included
in clauses (a) through (d) of the definition of Indebtedness.
12.1.3 Bankruptcy, Insolvency, etc. The Borrower or any of its
Wholly-Owned and/or Significant Subsidiaries (including BLHC) becomes
insolvent or generally fails to pay, or admits in writing its inability
to pay, debts as they become due; or the applicable Department places
the Borrower or any of its Wholly-Owned Subsidiaries and/or Significant
Subsidiaries (in each case including BLHC) under supervision or
conservation; or the Borrower or any of its Wholly-Owned Subsidiaries
and/or Significant Subsidiaries (in each case including BLHC) applies
for, consents to, or acquiesces in the appointment of, a trustee,
receiver or other custodian for the Borrower or such Wholly-Owned
Subsidiary and/or Significant Subsidiary (in each case including BLHC)
or any property thereof, or makes a general assignment for the benefit
of creditors; or, in the absence of such application, consent or
acquiescence, a trustee, receiver or other custodian is appointed for
the Borrower or any of its Wholly-Owned Subsidiaries and/or Significant
Subsidiaries (in each case including BLHC) or for a substantial part of
the property of any thereof and is not discharged within sixty (60)
days; or any bankruptcy, reorganization, debt arrangement, or other case
or proceeding under any bankruptcy or insolvency law, or any dissolution
or liquidation proceeding (except the voluntary dissolution, not under
any bankruptcy or insolvency law, of a Subsidiary (including BLHC)), is
commenced in respect of the Borrower or any of its Wholly-Owned
Subsidiaries and/or Significant Subsidiaries (in each case including
BLHC) and if such case or proceeding is not commenced by the Borrower or
such Wholly-Owned Subsidiary and/or Significant Subsidiary, it is
consented to or acquiesced in by the Borrower or such Wholly-Owned
Subsidiary and/or Significant Subsidiary or remains for sixty (60) days
undismissed; or the Borrower or any of its Wholly-Owned Subsidiaries
and/or Significant Subsidiaries (in each case including BLHC) takes any
corporate action to authorize, or in furtherance of, any of the
foregoing.
12.1.4 Defaults Under this Agreement. Failure by the Borrower to
comply with or perform any of the covenants or agreements of the
Borrower set forth in Sections 9.1, 9.2, 9.3, 9.4, 9.8 and 10.
12.1.5 Other Noncompliance with this Agreement. Failure by the
Borrower or any of its Subsidiaries (including BLHC) to comply with or
perform any other provision of this Agreement or the other Loan
Documents applicable to it (other than those listed in Section 12.1.4 or
those constituting an Event of Default under any of the other provisions
of this Section 12) and continuance of such failure for thirty (30) days
after notice thereof to the Borrower from the Administrative Agent.
12.1.6 Representations and Warranties. Any representation or
warranty made by the Borrower, MDSCG, New CIHC, BNL, CCM or CMCI in any
of the Loan Documents is false or misleading in any material respect as
of the date hereof or as of the date hereafter certified, or any
schedule, certificate, financial statement, report, notice, or other
writing furnished by the Borrower to the Administrative Agent or any
Bank is false or misleading in any material respect on the date as of
which the facts therein set forth are stated or certified.
12.1.7 Pension Plans and Welfare Plans. With respect to any
Single Employer Pension Plan as to which the Borrower or any other
Controlled Group member may have any liability, there shall exist a
deficiency of more than $10,000,000 as to any Controlled Group member
(other than the Borrower) or $50,000,000 as to the Borrower in the
Pension Plan assets available to satisfy the benefits guaranteeable
under ERISA with respect to such Pension Plan, and steps are undertaken
to terminate such plan or such Pension Plan is terminated or the
Borrower or any other Controlled Group member withdraws from or
institutes steps to withdraw from such Pension Plan, or the Borrower has
knowledge that steps have been taken to terminate any Multiemployer
Pension Plan and such termination may result in liability to any
Controlled Group member (other than the Borrower) in excess of
$10,000,000 or $50,000,000 as to the Borrower or any Reportable Event
with respect to such Pension Plan has occurred which could result in the
incurrence of liability by any Controlled Group member (other than the
Borrower) in excess of $10,000,000 or $50,000,000 as to the Borrower or
steps are taken to terminate any Multiemployer Pension Plan and such
termination may result in any liability of any Controlled Group member
(other than the Borrower) in excess of $10,000,000 or $50,000,000 as to
the Borrower shall occur.
12.1.8 Adverse Judgment. One or more final judgments or decrees
shall be entered against the Borrower or any of its Wholly-Owned
Subsidiaries and/or Significant Subsidiaries (in each case including
BLHC) involving, individually or in the aggregate, a liability (other
than a liability of an Insurance Subsidiary (including BLHC) in the
ordinary course of business) (not covered by collectible insurance) of
$20,000,000 or more, and all such judgments or decrees shall not have
been vacated, satisfied, discharged or stayed or bonded pending appeal
within thirty (30) consecutive days from the entry thereof.
12.1.9 Change in Control. The occurrence of a Change in Control
12.1.10 Material Adverse Change. The occurrence of any event
which, in the reasonable judgment of the Required Banks, constitutes
a Material Adverse Change.
12.1.11 BLHC Market Value. The ratio of (a) the current market
value of the common stock of BLHC pledged to the Administrative Agent,
for the benefit of the Banks, under the Borrower Non-Shared Pledge
Agreement plus the current market value of the Collateral Percentage of
the Banks of the common stock of BLHC pledged under the Borrower Shared
Pledge Agreement to (b) the aggregate principal amount of the Tranche B
Loans then outstanding is less than 1.5 to 1.0.
12.1.12 Failure to Consummate CCPI Merger. The Borrower and CCPI
shall fail (for any reason whatsoever) to consummate the CCPI Merger
concurrently with the initial Borrowing hereunder pursuant to the terms
of the CCPI Merger Agreement and the other CCPI Merger Documents.
SECTION 12.2 Effect of Event of Default. If any Event of Defaultdescribed in
Section 12.1.3 shall occur and be continuing, the Commitments (if they have not
theretofore terminated) shall immediately terminate and all Liabilities shall
become immediately due and payable, all without notice of any kind; and, in the
case of any other Event of Default, the Administrative Agent may (or shall
upon the written request of the Required Banks) declare the Commitments (if
they have not theretofore terminated) to be terminated and all Liabilities to
be due and payable, whereupon the Commitments (if they have not theretofore
terminated) shall immediately terminate and all Liabilities shall become
immediately due and payable, all without presentment, demand, protest or notice
of any kind. The Administrative Agent shall promptly advise the Borrower and
each Bank of any such declaration, but failure to do so shall not impair the
effect of such declaration. Notwithstanding the foregoing or any provision of
Section 15.1, the effect as an Event of Default of any event described in
Section 12.1.3 may be waived by the written concurrence of the Banks holding
100% of the aggregate unpaid principal amount of the Loans, and the effect as an
Event of Default of any other event described in this Section 12 may be waived
as provided in Section 15.1.
SECTION 13. THE AGENT
SECTION 13.1 Authorization and Action. Each Bank hereby appoints and
authorizes the Administrative Agent to take such action as administrative agent
on its behalf and to exercise such powers to the extent provided herein or in
any document or instrument delivered hereunder or in connection herewith,
together with such other action as may be reasonably incidental thereto. As to
matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of this Agreement or any other Loan
Document) the Administrative Agent shall not be required to exercise any
discretion, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Banks and such instructions shall be binding upon all Banks and,
with respect to the Collateral, the holders of the Senior Notes. Under no
circumstances shall the Administrative Agent have any fiduciary duties to any
Bank or be required to take any action which exposes the Administrative Agent to
personal liability or which is contrary to this Agreement or to the other Loan
Documents or applicable law.
SECTION 13.2 Liability of the Administrative Agent. None of the
Administrative Agent or any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement and the other Loan Documents, except for
its own gross negligence or willful misconduct. Without limiting the generality
of the foregoing, the Administrative Agent (a) may treat a Bank as such until
the Administrative Agent receives an executed Assignment Agreement entered into
between a Bank and an Eligible Assignee pursuant to Section 14.1 hereof; (b) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts or consultants selected by it; (c) shall
not be liable for any action taken or omitted to be taken in good faith by the
Administrative Agent in accordance with the advice of counsel, accountants,
consultants or experts; (d) shall make no warranty or representation to any Bank
and shall not be responsible to any Bank for any recitals, statements,
warranties or representations, whether written or oral, made in or in connection
with this Agreement or the other Loan Documents; (e) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
obligations, covenants or conditions of this Agreement on the part of the
Borrower or to inspect the property (including, without limitation, any books
and records) of the Borrower; (f) shall not be responsible to any Bank for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Loan Document or other support or security
(including the validity, priority or perfection of any Lien), or any other
document furnished in connection with any of the foregoing; and (g) shall incur
no liability under or in respect of this Agreement or any other Loan Document by
action upon any written notice, statement, certificate, order, telephone
message, facsimile or other document which the Administrative Agent believes in
good faith to be genuine and correct and to have been signed, sent or made by
the proper Person.
SECTION 13.3 Administrative Agent and Affiliates. With respect to the
Loans made by it, BofA shall have the same rights and powers under this
Agreement and the other Loan Documents as any other Bank and may exercise the
same as though it were not the Administrative Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include BofA in its
individual capacity. BofA and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower and any of its Subsidiaries (including BLHC) and
any Person who may do business with or own securities of the Borrower or any
such Subsidiary, all as if BofA was not the Administrative Agent and without any
duty to account therefor to the Banks.
SECTION 13.4 Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Bank and based on the financial statements referred to in Section 7.6 and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 13.5 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower), ratably
according to their Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or assessed against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or any
action taken or omitted by the Administrative Agent under this Agreement or the
other Loan Documents; provided, that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Administrative
Agent's gross negligence or willful misconduct. Without limiting any of the
foregoing, each Bank agrees to reimburse the Administrative Agent promptly upon
demand for their Percentage of any expenses (including reasonable counsel fees)
incurred by the Administrative Agent (in its individual capacity as agent or in
its capacity as representative of the Banks) in connection with the preparation,
execution, delivery, administration, modification, amendment, waiver or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under this Agreement or
the other Loan Documents to the extent that the Administrative Agent is not
reimbursed for such expenses by the Borrower. All obligations provided for in
this Section 13.5 shall survive termination of this Agreement.
SECTION 13.6 Successor Agent. The Administrative Agent may, and at the
request of the Required Banks shall, resign as Administrative Agent upon 30
days' notice to the Banks. If the Administrative Agent resigns under this
Agreement, the Required Banks shall appoint from among the Banks a successor
agent for the Banks which successor agent shall be approved by the Borrower
(which consent shall not be unreasonably withheld). If no successor agent is
appointed prior to the effective date of the resignation of the Administrative
Agent, the Administrative Agent may appoint, after consulting with the Banks and
the Borrower, a successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Administrative Agent and the
term "Administrative Agent" shall mean such successor agent and the retiring
Administrative Agent's appointment, powers and duties as Administrative Agent
shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 13 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor agent has accepted
appointment as Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Banks appoint a successor
agent as provided for above.
SECTION 13.7 Duties of Documentation Agents and Managing Agents.
Notwithstanding any other provision contained in this Agreement to the contrary,
the Documentation Agents and the Managing Agents shall have no duties or
obligations with respect to this Agreement or the other Loan Documents.
SECTION 14. ASSIGNMENTS AND PARTICIPATIONS
SECTION 14.1 Assignments.
(a) Each Bank shall have the right at any time to assign with
the consent of the Borrower and the Administrative Agent (which consent,
in each case, will not unreasonably be withheld), to any Eligible
Assignee, all or any part of such Bank's rights and obligations under
this Agreement and each other Loan Document including its rights in
respect of its Loans and Notes. Any such assignment shall be pursuant to
an assignment agreement, substantially in the form of Exhibit K hereto
(an "Assignment Agreement"), duly executed by such Bank and the Eligible
Assignee, and acknowledged by the Administrative Agent and the Borrower.
Notwithstanding the foregoing, each Bank may make assignments to its
Affiliates or to any Federal Reserve Bank without obtaining consent of
the Borrower or the Administrative Agent.
(b) Each assignment shall be pro rata with respect to all rights
and obligations of the assigning Bank including the Commitments, the
Loans and the Notes, if any (i.e., such assignment shall consist of the
same percentage interest of each of such Bank's Tranche A Commitment and
Tranche B Commitment). Each assignment shall be in an amount equal to or
in excess of $10,000,000 (except for assignments of the entire unpaid
balance, if less than $10,000,000, of the Loans of a Bank or assignments
to existing Banks). In the case of any such assignment, upon the
fulfillment of the conditions in Section 14.1(c), this Agreement shall
be deemed to be amended to the extent, and only to the extent, necessary
to reflect the addition of such Eligible Assignee, and such Eligible
Assignee shall for all purposes be a Bank party hereto and shall have,
to the extent of such assignment, the same rights and obligations as a
Bank hereunder.
(c) An assignment shall become effective hereunder when all of
the following shall have occurred:
(i) the Assignment Agreement shall have been
executed by the parties thereto,
(ii) the Assignment Agreement shall have been
acknowledged by the Administrative Agent and by the Borrower,
(iii) either the assigning Bank or the
Eligible Assignee shall have paid a processing fee of $2,500 to the
Administrative Agent for its own account; provided that the Eligible
Assignee shall be solely responsible for such processing fee with
respect to any assignment pursuant to Section 5.8 and 15.2, and in
connection with the replacement of an Exiting Bank(s) on the Tranche B
Termination Date (or any extension thereof), and
(iv) the assigning Bank and the
Administrative Agent shall have agreed upon a date upon which such
assignment shall become effective. Upon such assignment becoming
effective, the Administrative Agent shall forward all payments of
interest, principal, fees and other amounts that would have been made to
the assigning Bank, in proportion to the percentage of the assigning
Bank's rights transferred, to the Eligible Assignee.
(d) Upon the effectiveness of any assignment, the assigning Bank
shall be relieved from its obligations hereunder to the extent of the
obligations so assigned (except to the extent, if any, that the
Borrower, any other Bank or the Administrative Agent have rights against
such assigning Bank as a result of any default by such Bank under this
Agreement). Promptly following the effectiveness of each assignment, the
Administrative Agent shall furnish to the Borrower and each Bank a
revised Schedule 2.1, revised to reflect such assignment.
SECTION 14.2 Participations.
(a) Each Bank may grant participations in all or any part of its
Loans, Commitments and, if applicable, the Notes to any commercial bank
or other financial institution (other than insurance companies and
Affiliates thereof unless consented to by the Borrower). A participant
shall not have any rights under this Agreement or any other document
delivered in connection herewith (the participant's rights against such
Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating
thereto, which agreement with respect to such participation shall not
restrict such Bank's ability to make any modification, amendment or
waiver to this Agreement without the consent of the participant except
that the consent of such participant may be required in connection with
matters requiring the consent of all of the Banks under Section 15.1).
Notwithstanding the foregoing, each participant shall have the rights of
a Bank pursuant to Section 4.7. All amounts payable by the Borrower
under this Agreement shall be determined as if the Bank had not sold
such participation. In the event of any such sale by a Bank of
participating interests to a participant, such Bank's obligations under
this Agreement shall remain unchanged, such Bank shall remain solely
responsible for the performance thereof, such Bank shall remain the
holder of any obligation for all purposes under this Agreement, and the
Borrower and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and
obligations under this Agreement.
(b) Limititation of Rights of any Participant. Notwithstanding
anything in the foregoing to the contrary,
(i) no participant shall have any direct rights
hereunder,
(ii) the Borrower, the Administrative Agent and
the Banks, other than selling Bank, shall deal solely with the selling
Bank and shall not be obligated to extend any rights or make any payment to, or
seek any consent of, the participant,
(iii) no participation shall relieve the selling
Bank of any of its other obligations hereunder and such Bank shall remain solely
responsible for the performance thereof, and
(iv) no participant, other than an affiliate of
the selling Bank, shall be entitled to require such Bank to take or omit to take
any action hereunder, except that such Bank may agree with such
participant that such Bank will not, without participant's consent,
take any action which requires the consent of all of the Banks under
Section 15.1.
SECTION 14.3 Disclosure of Information. The Borrower authorizes each
Bank to disclose to any participant, assignee or Eligible Assignee (each, a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower and its
Subsidiaries (including BLHC) which has been delivered to such Bank by the
Borrower in connection with such Bank's credit evaluation of the Borrower prior
to entering into this Agreement or which has been delivered to such Bank by the
Borrower pursuant to this Agreement; provided, however, that each Bank,
participant, assignee and Eligible Assignee shall execute a confidentiality
agreement substantially in the form of Exhibit L hereto in which it agrees that
it shall hold all non-public, confidential and proprietary information obtained
pursuant to the requirements of this Agreement in accordance with safe and sound
banking and business practices and may make disclosure reasonably required by
any bona fide participant, assignee or Eligible Assignee in connection with the
contemplated transfer of any portion of the Loans or as required or requested by
any Governmental Authority or representative thereof or pursuant to legal
process. For the purposes of this Section 14.3, by execution of this Agreement
each of the Banks shall be deemed to have agreed to and executed the
confidentiality agreement contained in Exhibit L hereto.
SECTION 14.4 Foreign Transferees. If, pursuant to this Section 14, any
interest in this Agreement or any Loans or the Note is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any state thereof or upon the request of the Administrative
Agent, the transferor Bank shall cause such Transferee (other than any
participant), and may cause any participant, concurrently with the effectiveness
of such transfer,
(a) to represent to the transferor Bank (for the benefit of the
transferor Bank, the Administrative Agent and the Borrower) that under
applicable law and treaties no Taxes will be required to be withheld by
the Administrative Agent,
(b) to represent to the Borrower or the transferor Bank that
under applicable law and treaties no Taxes will be required to be
withheld with respect to any payments to be made to such Transferee in
respect of the Loans or, if applicable, the Notes,
(c) to furnish to the transferor Bank, the Administrative Agent
and the Borrower either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such Transferee claims
entitlement to complete exemption from U.S. federal withholding tax on all
interest payments hereunder), and
(d) to agree (for the benefit of the transferor Bank, the
Administrative Agent and the Borrower) to provide the transferor Bank,
the Administrative Agent and the Borrower a new Form 4224 or Form 1001
upon the obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Transferee, and to comply
from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
SECTION 15. MISCELLANEOUS
SECTION 15.1 Waivers and Amendments. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and the Required Banks; provided, that no such amendment,
modification or waiver:
(a) which would modify any requirement hereunder that any
particular action be taken by all Banks or by the Required Banks, shall
be effective without the consent of each Bank;
(b) which would modify this Section 15.1, change the definition
of "Required Banks," change any Percentage for any Bank (except pursuant
to an Assignment Agreement), reduce any fees, extend the maturity date
of any Loan, reduce any rate of interest payable on the Loans or subject
any Bank to any additional obligations, shall be effective without the
consent of each Bank;
(c) which would permit the release of all or any material portion of
the Collateral shall be effective without the consent of each Bank;
(d) which would extend the due date for, or reduce the amount
of, any payment or prepayment of principal of or interest on the Loans,
shall be effective without the consent of each Bank; or
(e) which would affect adversely the interests, rights or
obligations of the Administrative Agent (in such capacity) other than
removal in accordance with Section 13.6, shall be effective without
consent of the Administrative Agent.
SECTION 15.2 Failure to Consent. If any Bank shall fail to consent to any
amendment, modification or waiver described in Section 15.1 (any such Bank being
hereinafter referred to as a "Nonconsenting Bank") then in such case, the
Borrower may, upon at least five (5) Business Days' written notice to the
Administrative Agent and such Nonconsenting Bank, designate a substitute lender
(a "Substitute Bank") acceptable to the Administrative Agent in its sole
discretion, to which such Nonconsenting Bank shall assign all (but not less than
all) of its rights and obligations under the Loans and Commitment hereunder.
Upon any assignment by any Bank pursuant to this Section 15.2 becoming
effective, the Substitute Bank shall thereupon be deemed to be a "Bank" for all
purposes of this Agreement and the Assigning Bank shall thereupon cease to be a
"Bank" for all purposes of this Agreement and shall have no further rights or
obligations hereunder (other than pursuant to Sections 5.1, 5.2, 15.4 and 15.5
while such Non-Consenting Bank was a Bank); provided, that all Liabilities
(except Liabilities which by the terms hereof survive the payment in full of the
Loans and termination of this Agreement) due and payable to the Nonconsenting
Bank shall be paid in full as of the date of such assignment. Notwithstanding
the foregoing, in the event that in connection with any amendment, modification
or waiver more than one Bank is a Nonconsenting Bank, the Borrower may not
require one Bank to assign its rights and obligations to a Substitute Bank
unless all Nonconsenting Banks are required to make such an assignment.
Notwithstanding any Nonconsenting Bank's failure or refusal to assign its
rights, obligations, Loans and Commitment under this Section 15.2, the
Nonconsenting Bank shall cease to be a "Bank" for all purposes of this Agreement
and the Substitute Bank substituted therefor upon payment to the Nonconsenting
Bank by the Substitute Bank of all amounts set forth in this Section 15.2
without any further action of the Nonconsenting Bank.
SECTION 15.3 Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
or similar writing) and shall be given to such party at its address, facsimile
or telex number set forth on the signature or acknowledgement pages hereof or
such other address, facsimile or telex number as such party may hereafter
specify for the purpose by written notice to the Administrative Agent and the
Borrower. Each such notice, request or other communication shall be effective
(a) if given by facsimile or telex, when such facsimile or telex is transmitted
to the facsimile or telex number specified in this Section and, in the case of
telex, the appropriate answerback is received, (b) if given by mail, seventy-two
(72) hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (c) if given by any other means, when
delivered at the address specified in this Section, provided, that notices to
the Administrative Agent under Sections 3, 4 and 12 shall not be effective until
received by the Administrative Agent.
SECTION 15.4 Payment of Costs and Expenses. The Borrower agrees to pay
on demand all reasonable expenses of the Administrative Agent (including the
non-duplicative fees and reasonable expenses of counsel (including expenses of
in-house counsel) and of local counsel, if any, who may be retained by such
counsel) in connection with:
(a) the negotiation, preparation, execution, syndication and
delivery of this Agreement and the other Loan Documents, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or the other Loan
Documents as may from time to time hereafter be required, whether or not
the transactions contemplated hereby or thereby are consummated; and
(b) the preparation and/or review of the form of any document or
instrument relevant to this Agreement or any other Loan Document. The
Borrower further agrees to pay, and to save the Administrative Agent and the
Banks harmless from all liability for, any stamp or other Taxes (other than
income taxes of the Administrative Agent or the Banks) which may be payable in
connection with the execution or delivery of this Agreement, the borrowing
hereunder, or the issuance of the Notes or any other Loan Document. The Borrower
also agrees to reimburse the Administrative Agent, the Agents and each Bank upon
demand for all reasonable expenses (including attorneys' fees and legal
expenses) incurred by the Administrative Agent or such Bank in connection with
the enforcement of any Liabilities and the consideration of legal issues
relevant hereto and thereto whether or not such expenses are incurred by the
Administrative Agent on its own behalf or on behalf of the Banks. All
obligations of the Borrower provided for in this Section 15.4 shall survive
termination of this Agreement. Notwithstanding the foregoing, the Administrative
Agent, the Agents or a Bank shall not have the right to reimbursement under this
Section 15.4 for amounts determined by a court of competent jurisdiction to have
arisen from the gross negligence or willful misconduct of the Administrative
Agent or a Bank.
SECTION 15.5 Indemnity. The Borrower agrees to indemnify each Bank and
each Bank's respective directors, officers, employees, persons controlling or
controlled by any of them or their respective agents, consultants, attorneys and
advisors (the "Indemnified Parties") and hold each Indemnified Party harmless
from and against any and all liabilities, losses, claims, damages, costs and
expenses of any kind to which any of the Indemnified Parties may become subject,
whether directly or indirectly (including, without limitation, the reasonable
fees and disbursements of counsel for any Indemnified Party), relating to or
arising out of this Agreement, the other Loan Documents, the CCPI Merger or any
actual or proposed use of the proceeds of the Loans hereunder; provided, that no
Indemnified Party shall have the right to be indemnified hereunder for its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction. All obligations of the Borrower provided for in this Section 15.5
shall survive termination of this Agreement.
SECTION 15.6 Subsidiary References. The provisions of this Agreement
relating to Subsidiaries shall apply only during such times as a Person
referenced in such a provision has one or more Subsidiaries.
SECTION 15.7 Captions. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
SECTION 15.8 GOVERNING LAW. THIS AGREEMENT, THE NOTES AND THE LOANS
SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. ALL OBLIGATIONS OF THE
BORROWER AND RIGHTS OF THE ADMINISTRATIVE AGENT AND THE BANKS IN RESPECT OF THE
LIABILITIES EXPRESSED HEREIN OR IN THE OTHER LOAN DOCUMENTS SHALL BE IN ADDITION
TO AND NOT IN LIMITATION OF THOSE PROVIDED BY APPLICABLE LAW.
SECTION 15.9 Counterparts. This Agreement may be executed in any number
of counterparts and by the different parties on separate counterparts and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same agreement. When counterparts
executed by all the parties shall have been lodged with the Administrative Agent
(or, in the case of any Bank as to which an executed counterpart shall not have
been so lodged, the Administrative Agent shall have received telegraphic,
facsimile, telex or other written confirmation from such Bank of execution of a
counterpart hereof by such Bank), this Agreement shall become effective as of
the Effective Date hereof, and at such time the Administrative Agent shall
notify the Borrower and each Bank.
SECTION 15.10 SUBMISSION TO JURISDICTION; WAIVER OF VENUE. THE
ADMINISTRATIVE AGENT, EACH AGENT, EACH BANK AND THE BORROWER (A) HEREBY
IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY ILLINOIS STATE OR FEDERAL COURT
SITTING IN THE NORTHERN DISTRICT OF ILLINOIS OVER ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, AND
THE ADMINISTRATIVE AGENT, EACH AGENT, EACH BANK AND THE BORROWER HEREBY
IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH ILLINOIS STATE OR FEDERAL COURT, AND (B) AGREE NOT
TO INSTITUTE ANY LEGAL ACTION OR PROCEEDING AGAINST ANOTHER PARTY OR THE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PROPERTY OF ANY THEREOF, ARISING OUT
OF OR RELATING TO THIS AGREEMENT, IN ANY COURT OTHER THAN AS HEREINABOVE
SPECIFIED IN THIS SECTION 15.10. THE ADMINISTRATIVE AGENT, EACH AGENT, EACH BANK
AND THE BORROWER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY
ACTION OR PROCEEDING (WHETHER BROUGHT BY THE BORROWER, THE ADMINISTRATIVE AGENT,
ANY AGENT, ANY BANK, OR OTHERWISE) IN ANY COURT HEREINABOVE SPECIFIED IN THIS
SECTION 15.10 AS WELL AS ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO REMOVE ANY
SUCH ACTION OR PROCEEDING, ONCE COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF
FORUM NON CONVENIENS OR OTHERWISE. THE ADMINISTRATIVE AGENT, EACH AGENT, EACH
BANK AND THE BORROWER AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15.11 Service of Process. The Borrower hereby irrevocably
appoints C.T. Corporation (the "Process Agent"), with an office on the date
hereof at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, as
its agent to receive on behalf of the Borrower and its Subsidiaries (including
BLHC) and their property service of copies of the summons and complaint and any
other process which may be served in any such action or proceeding, provided,
that a copy of such process is also mailed by express two-day delivery, postage
prepaid, to the Borrower at its address specified pursuant to Section 15.3. Such
service may be made by delivering by express two-day delivery or hand delivering
a copy of such process to the Borrower in care of the Process Agent at the
Process Agent's above address, and the Borrower hereby irrevocably authorizes
and directs the Process Agent to accept such service on its behalf. The Borrower
agrees to indemnify such Process Agent in connection with all matters relating
to its appointment as agent of the Borrower for such purposes, to enter into any
agreement relating to such appointment which such Process Agent may customarily
require, and to pay such Process Agent's customary fees upon demand. As an
alternative method of service, the Borrower for itself and its Subsidiaries
(including BLHC) also irrevocably consents to the service of any and all process
in any such action or proceeding by the mailing of copies of such process to the
Borrower at its address specified pursuant to Section 15.3. Nothing in this
Section 15.11 shall affect the right of the Administrative Agent or any Bank to
serve legal process in any other manner permitted by law.
SECTION 15.12 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that: the Borrower may not assign or
transfer its rights or obligations under this Agreement or any other Loan
Document without the prior written consent of all Banks, and the rights of the
Banks to make assignments or grant participations are subject to the provisions
of Section 14.
SECTION 15.13 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND EACH BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING
ANY RIGHTS UNDER THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY OTHER DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH, OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN
CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION, PROCEEDING OR
COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY; THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
* * *
Executed as of the day and year first above written at Chicago,
Illinois.
CONSECO, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
Notice Address
Address: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇▇ DRUBNY
---------------------------
Name: ▇▇▇▇▇▇ Drubny
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address:
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK OF MONTREAL
By: /s/ K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: K. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF TOKYO TRUST COMPANY
By: /s/ ▇. ▇▇▇▇▇▇▇▇ SUNIER
-----------------------
Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: 1251 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANK ONE TEXAS, N.A.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE NATIONALE DE PARIS
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇/ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE PARIBAS
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COMERICA BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CORESTATES BANK, NA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Commercial Officer
Lending Office (Base Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇-▇-▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇-▇-▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇-▇-▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Lending Office (Base Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE DAIWA BANK LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President & Manager
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
DEUTSCHE BANK AG,
NEW YORK AND/OR
CAYMAN ISLAND BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Treasurer
Lending Office (Base Rate Loans)
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
DRESDNER BANK AG, NEW YORK BRANCH
By: /s/LOUIS CALTANUTURO
------------------------
Name: Louis Caltanuturo
Title: Associate
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Associate
Lending Office (Base Rate Loans)
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST UNION NATIONAL BANK
OF NORTH CAROLINA
By: /s/ ▇▇▇▇▇ BOUHAYS
--------------------
Name: ▇▇▇▇▇ Bouhays
Title: Senior Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Jr.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Jr.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Jr.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE FUJI BANK LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Joint General Manager
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ING CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Deputy General Manager
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE MITSUBISHI TRUST & BANKING CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Deputy General Manager
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Jr.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Jr.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Jr.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONSBANK OF GEORGIA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
ROYAL BANK OF SCOTLAND
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SANWA BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SHAWMUT BANK CONNECTICUT, N.A.
By: /s/ R. ▇▇▇ ▇▇▇▇
---------------------
Name: R. ▇▇▇ ▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Ins. Ind. Dept. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Ins. Ind. Dept. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Ins. Ind. Dept. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SOCIETE GENERALE
By: /s/ ▇▇▇▇▇ ▇. HOPE
--------------------
Name: ▇▇▇▇▇ ▇. Hope
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Hope
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Hope
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ Hope
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
STAR BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Location 9150
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Location 9150
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Location 8160
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
VAN ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME RATE
INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Portolio Manager
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
THE YASUDA TRUST & BANKING CO., LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President & Manager
Lending Office (Base Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office (Offshore Rate Loans)
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice Address
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇