1
EXHIBIT 10.75
SECOND CONSENT AND AMENDMENT TO CREDIT AGREEMENT
SECOND CONSENT AND AMENDMENT (this "Consent"), dated as of October 2, 1998,
among AMERUS LIFE HOLDINGS, INC., an Iowa corporation (the "Borrower"), the
various Banks from time to time party to the Credit Agreement referred to below,
BANK ONE, INDIANA, NA and ABN AMRO BANK, N.V., as Co-Arrangers, and THE CHASE
MANHATTAN BANK, as Administrative Agent. All capitalized terms used herein and
not otherwise defined herein shall have the respective meanings provided such
terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, the Co-Arrangers and the Administrative
Agent are parties to a Credit Agreement, dated as of October 23, 1997 (as
amended, modified or supplemented to the date hereof, the "Credit Agreement")
and the Consent to Credit Agreement, dated as of May 20, 1998 (the "First
Consent");
WHEREAS, the Borrower desires to make open market repurchases of its
publicly held shares of Class A Common Stock not otherwise permitted under the
terms of the Credit Agreement or the First Consent;
WHEREAS, subject to the terms and conditions set forth herein, the Banks
are willing to consent to such repurchases:
NOW, THEREFORE, the parties hereto agree as follows:
1. So long as no Default or Event of Default exists or results therefrom,
in addition to all purchases of Class A Common Stock of the Borrower permitted
pursuant to the First Consent, and notwithstanding anything to the contrary
contained in Sections 7.02 or 7.07 of the Credit Agreement, at any time prior
to December 31, 1998, the Borrower may engage in open market cash purchases of
up to $25,000,000 in the aggregate of its publicly held Class A Common Stock.
2. In order to induce the Banks to enter into this Consent, (i) the
Borrower hereby represents and warrants that (x) all representations and
warranties contained in Section 5 of the Credit Agreement are true and correct
in all material respects on and as of the Second Consent Effective Date (as
defined below), both before and after giving effect to the Consent (unless such
representations and warranties relate to a specific earlier date, in which case
such representations and warranties shall be true and correct as of such
earlier date) and (y) there exists no Default or Event of Default on the Second
Consent Effective Date, both before and after giving effect to this Consent and
(ii) hereby agrees with the Banks that Section 5 of the Credit Agreement is
hereby amended by inserting at the end thereof the following new Section 5.24:
2
5.25 Year 2000.
Any reprogramming required to permit the proper functioning, in and
following the year 2000, of (i) the Borrower's and its Subsidiaries'
computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which the
Borrower's or its Subsidiaries' systems interface) and the testing of all
such systems and equipment, as so reprogrammed, will be completed by
September 30, 1999, in each case to the extent required to avoid the
occurrence of a Default, Event of Default or a Material Adverse Effect.
The cost to the Borrower and its Subsidiaries of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to
the Borrower and its Subsidiaries (including, without limitation,
reprogramming errors and the failure of others' systems or equipment)
will not result in a Default, Event of Default or a Material Adverse
Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management
information systems of the Borrower and its Subsidiaries are and, with
ordinary course upgrading and maintenance, will continue for the term of
this Agreement to be, sufficient to permit the Borrower to conduct its
business without giving rise to a Material Adverse Effect.
3. This Consent is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
4. This Consent may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
5. THIS CONSENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
6. This Consent shall become effective on the date (the "Second Consent
Effective Date") when each Credit Party and the Required Banks shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered (including by way of facsimile transmission) the same to
the Administrative Agent at its Notice Office.
7. From and after the Second Consent Effective Date, all references in the
Credit Agreement and each of the Credit Documents to the Credit Agreement shall
be deemed to be references to the Credit Agreement after giving effect to this
Consent.
* * *
2
3
IN WITNESS WHEREOF, the parties hereto have caused a counterpart of this
Consent to be duly executed and delivered as of the date first above written.
AMERUS LIFE HOLDINGS, INC.
By
------------------------------------
Name: Joseph K. Haggerty
Title: Senior Vice President
and General Counsel
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By
------------------------------------
Name: Peter Platten
Title: Vice President
BANK ONE, INDIANA, NA, Individually and
as a Co-Arranger
By
------------------------------------
Name: Peter S. Little
Title: Vice President
ABN AMRO BANK N.V., Individually and as a
Co-Arranger
By
------------------------------------
Name:
Title:
4
BANK OF MONTREAL
By
------------------------------------
Name:
Title:
BANK OF TOKYO MITSUBISHI TRUST
COMPANY
By
------------------------------------
Name:
Title:
BANQUE NATIONALE DE PARIS
By
------------------------------------
Name: Mr. Arnaud Collindu Bocage
Title: EVP and General Manager
CIBC INC.
By
------------------------------------
Name:
Title:
5
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN
BRANCH
By
------------------------------------
Name: Robert P. Donohue
Title: Vice President
By
------------------------------------
Name: George T. Ferguson, IV
Title: Associate
FIRST UNION NATIONAL BANK
By
------------------------------------
Name: T. L. Stitchberry
Title: Senior Vice President
FLEET NATIONAL BANK
By
------------------------------------
Name: David A. Bosselait
Title: Vice President
MELLON BANK, N.A.
By
------------------------------------
Name: Karen E. McConomy
Title: Assistant Vice President
6
NATIONSBANK OF TEXAS, N.A.
By
------------------------------------
Name:
Title:
NORWEST BANK IOWA, NATIONAL ASSOCIATION
By
------------------------------------
Name: Diane S. Ramsey
Title: Vice President
ROYAL BANK OF CANADA
By
------------------------------------
Name: Marek Ulanicki
Title: Manager
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By
------------------------------------
Name: Darryl J. Weaver
Title: First Vice President