FIFTH AMENDMENT, WAIVER AND CONSENT dated as of
December 31, 1996 (this "Amendment"), to the Credit
Agreement dated as of November 15, 1993 (as amended, the
"Credit Agreement"), among ARM FINANCIAL GROUP, INC., a
Delaware corporation (the "Borrower"), INTEGRITY HOLDINGS,
INC., a Delaware corporation ("Holdings") formerly named
N.M. U.S. Limited, as guarantor, the financial institutions
listed on Schedule 2.01 to the Credit Agreement (the
"Lenders") and THE CHASE MANHATTAN BANK, as successor to the
Chase Manhattan Bank, N.A. and Chemical Bank (individually,
as holder of the collateral subject to the Security
Documents (such term and each other capitalized term used
but not defined in this Amendment having the meaning
assigned thereto in the Credit Agreement), and as managing
agent for the Lenders, the "Managing Agent").
WHEREAS the Borrower and Holdings have requested that the Lenders (a)
amend certain provisions of the Credit Agreement as set forth below and (b)
grant certain waivers and consents with respect to the Credit Agreement; and
WHEREAS the Lenders are willing, on the terms and subject to the
conditions set forth below, to effect such amendment and grant such waivers and
consents;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree, on
the terms and subject to the conditions set forth below, as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT. The Borrower, Holdings
and the Lenders hereby amend Section 6.01 of the Credit Agreement by (i)
deleting the word "and" appearing at the end of clause (j) thereof and (ii)
deleting the period at the end of clause (l) thereof and substituting therefor
the following:
; and
(m) Indebtedness in an aggregate principal amount at any time
outstanding, not exceeding $12,000,000 owed to reinsurers the proceeds of
which are used to finance the payment of commissions to
agents that sell insurance products on behalf of the Borrower's
Subsidiaries.
SECTION 2. CONSENT AND WAIVER. (a) Holdings hereby consents to the
provisions of this Amendment, reaffirms its guarantee under Article VIII of the
Credit Agreement and reaffirms its grant of security interests under the Loan
Documents to which it is a party.
(b) The Lenders hereby waive compliance by the Borrower with, and any
Default or Event of Default arising under, any provisions of the Credit
Agreement to be amended pursuant to Section l above (as in effect immediately
before giving effect to such amendment), to the extent, but only to the extent,
that failure to comply with such provisions (as in effect immediately before
giving effect to such amendment) would not constitute a Default or an Event of
Default under the Credit Agreement (as in effect immediately after giving effect
to such amendment).
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and
Holdings represents and warrants, jointly and severally, to each of the Lenders
as of the date hereof that:
(a) The Borrower and each of the Subsidiaries (i) is a corporation or
limited partnership duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to own its property and assets and to carry
on its business as now conducted and as proposed to be conducted, (iii) is
qualified to do business in every jurisdiction where such qualification is
required, except where the failure so to qualify would not result in a
Material Adverse Effect, and (iv) has the corporate power and authority
to execute, deliver and perform its obligations under each of the Loan
Documents and each other agreement or instrument contemplated thereby to
which it is or will be a party.
(b) This Amendment (i) has been duly authorized by all requisite
corporate and, if required, stockholder action and (ii) will not (A)
violate (I) any provision of law, statute, rule or regulation applicable to
the Borrower or any Subsidiary, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or
any Subsidiary, or (II) any provision of any indenture, agreement or other
instrument to which the Borrower or any Subsidiary is a party or by which
any of them or any of their property is or may be bound, (B) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of
time or both) a default under any such indenture, agreement or other
instrument or (C) result in the creation or imposition of any Lien upon or
with respect to any property or assets now owned or hereafter acquired by
the Borrower or any Subsidiary, other than the Liens created by the
Security Documents.
(c) This Amendment has been duly executed and delivered by the
Borrower and Holdings and constitutes a legal, valid and binding obligation
of the Borrower or Holdings, as applicable, enforceable against the
Borrower or Holdings, as applicable, in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equity principles (whether
enforcement is sought by proceedings in equity or at law).
(d) No action, consent or approval of, registration or filing with
or any other action by any Governmental Authority is or will be required in
order to consummate this Amendment, except (i) such as have been made or
obtained and are in full force and effect and (ii) any approvals that may
be required by any Applicable Insurance Regulatory Authority in
connection with the exercise of rights or remedies with respect to any of
the Collateral (as defined in the Pledge Agreement) pledged by the
Borrower or Holdings pursuant to the Pledge Agreement.
The representations and warranties contained in this Section 3 shall survive
the termination of this Amendment Agreement (it being understood that no
representation and warranty contained herein shall have been deemed to have
been made on or as of any date other than the date first above written).
SECTION 4. LOAN DOCUMENTS. This Amendment shall, for purposes of
paragraph (a) of Article VII and Section 10.05 of the Credit Agreement, be
deemed to be a Loan Document.
SECTION 5. EFFECTIVENESS. This Amendment shall become effective as
of the date hereof when Chemical Bank, as a Managing Agent, shall have received
copies hereof that, when taken together, bear the signatures of the Borrower,
Holdings and each of the Required Lenders.
SECTION 6. NOTICES. All notices hereunder shall be given in
accordance with the provisions of Section 10.01 of the Credit Agreement.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. NO NOVATION. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of or otherwise affect the rights and remedies of any party under the
Credit Agreement, nor alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. This Amendment shall apply and be effective
only with respect to the provisions of the Credit Agreement specifically
referred to herein.
SECTION 9. COUNTERPARTS. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of this
Amendment.
SECTION 10. HEADINGS. Section headings used herein are for
convenience of reference only, are not part
of this Amendment and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
IN WITNESS WHEREOF, the Borrower, Holdings and the Lenders have caused
this Amendment to be duly executed by their duly authorized officers, all as of
the date and year first above written.
ARM FINANCIAL GROUP, INC.,
by: /s/ Peter S. Resnik
----------------------------
Name: Peter S. Resnik
Title: Treasurer
INTEGRITY HOLDINGS, INC., as
Guarantor
by: /s/ Peter S. Resnik
----------------------------
Name: Peter S. Resnik
Title: Treasurer
THE CHASE MANHATTAN BANK,
individually, and as the
Managing Agent and as
Representative of the Secured
Parties,
by
----------------------------
Name:
Title:
FIRST BANK NATIONAL
ASSOCIATION,
by
----------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
by
----------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA,
by
----------------------------
Name:
Title:
FLEET NATIONAL BANK,
by
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Name:
Title: