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EXHIBIT 10.44
AMENDMENT NO. 2 TO FACILITY AGREEMENT
This AMENDMENT NO. 2 TO FACILITY AGREEMENT (this "Amendment") is
entered into as of January 25, 2000 by and among AmerUs Life Holdings, Inc. (the
"Company"), Bank One, NA (f/k/a The First National Bank of Chicago),
individually and as agent ("Agent"), and the other finanial institutions
signatory hereto (the "Lenders").
RECITALS
A. The Company, the Agent and the Lenders are party to that certain
$27,500,000 Facility and Guaranty Agreement dated as of February 12, 1999 (as
previously amended, the "Facility Agreement"). Unless otherwise specified
herein, capitalized terms used in this Amendment shall have the meanings
ascribed to them by the Facility Agreement.
B. The Company, the Agent and the undersigned Lenders wish to amend the
Facility Agreement on the terms and conditions set forth below in order to
accommodate, among other things, the merger (the "Merger") of the Company with
and into the reorganized stock company which results from the demutualization of
American Mutual Holding Company, the name of which is to be determined (the
"Reorganized Company").
Now, therefore, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Facility Agreement. Upon the Effective Date
(as defined below) or the Delayed Effective Date (as defined below), as
applicable, the Facility Agreement shall be amended as follows:
(a) Article I is amended as follows:
(i) by deleting the definitions of "Change of Control",
"Company" and "Subsidiary" and replacing each in its entirety to read
as follows:
"Change of Control" shall mean the occurrence of any of the
following events: (i) the Company shall cease to own, directly, or
indirectly through Wholly-Owned Subsidiaries, 100% of the issued
and outstanding voting stock of AmerUs Life ordinarily entitled to
vote for the election of directors, or any other class of stock of
AmerUs Life of which the Company owns 50% or less shall become
entitled to elect a majority of AmerUs Life's board of directors;
or (ii) during any period of 25 consecutive calendar months,
individuals who at the beginning of such period constituted the
Board of Directors of the Company (together with any new directors
whose election by such Board of Directors or whose nomination for
election by the stockholders or members, as the case may be, of
the Company was approved by a vote of a majority of the directors
then
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still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of such
Board of Directors then in office.";
"Company" means the reorganized stock company which results
from the demutualization of American Mutual Holding Company, the
name of which is to be determined, and the successor by merger to
AmerUs Life Holdings, Inc.";
"Subsidiary" of any Person shall mean and include (a) any
corporation more than 50% of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of
whether or not at the time stock of any class or classes of such
corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person
directly or indirectly through Subsidiaries and (b) any
partnership, association, joint venture or other entity in which
such Person directly or indirectly through Subsidiaries has more
than a 50% equity or voting interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall
mean a Subsidiary of the Company; provided that, notwithstanding
the foregoing provisions of this definition (x) any grantor trust
or limited liability company established by the Company and/or its
Subsidiaries in order to effectuate the lease/leaseback
transaction with Linzer Elektrizitats-, Fernwarme- und
Verkehrsbetriebe Aktiengesellschaft ("ESG") with respect to a
cogeneration facility in Linz, Austria as described in the summary
of terms and structure delivered to the Administrative Agent and
the Banks prior to the Fourth Amendment Effective Date (all as
defined in the Existing Credit Agreement), and any trust or
limited liability company formed by the Company and/or its
Subsidiaries after the Fourth Amendment Effective Date to
effectuate transactions with ESG or any other Person in which the
Indebtedness of the Company and its Subsidiaries incurred in
connection therewith is comprised solely of (i) obligations which
are non-recourse to the Company or any of its Subsidiaries and
(ii) other obligations which are or will be 100% defeased by U.S.
Government obligations (each such transaction, including the
lease/leaseback with ESG, a "Permitted Transaction") and (y) any
Person which is at the relevant time of determination an
Unrestricted Subsidiary (as such term is defined in the Existing
Credit Agreement, as amended by the Sixth Amendment thereto dated
as of May 18, 1999), shall not constitute a Subsidiary for
purposes of this Agreement."
(ii) by deleting the definition of "Group".
(iii) by adding the following definition for "Bank One" in
its proper alphabetical order:
"Bank One" means Bank One, NA, a national banking
association having its principal office in Chicago, Illinois, in
its individual capacity, and its successors."
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(b) Each reference therein to "First Chicago" is amended to
be a reference to "Bank One" and each reference to "The First National
Bank of Chicago" is amended to be a reference to "Bank One, NA."
(c) Section 5.01(a) is amended by adding the following at
the end of such section:
"; provided, however, that AmerUs Life Holdings, Inc. may
merge into the reorganized stock company which results from the
demutualization of American Mutual Holding Company, the name of
which is to be determined.
(d) Section 6.01(g) is amended in its entirety to read as
follows:
"(g) The Company shall default in the performance or
observance of Section 5.01(e) or (h) herein or Section 7.10 or 7.11 of
the Existing Credit Agreement (as amended by the Sixth Amendment
thereto dated as of May 18, 1999)."
(e) the first sentence of Section 10.01 is amended to add
the following at the conclusion thereof before the period:
"and further provided that AmerUs Life Holdings, Inc. may assign such
rights and obligations to the reorganized stock company which results
from the demutualization of American Mutual Holding Company in
connection with the Merger of AmerUs Life Holdings, Inc. into such
reorganized stock company".
2. Representations and Warranties of the Company. The Company
represents and warrants that:
(a) The execution, delivery and performance by the Company of this
Amendment and by the Reorganized Company of the Affirmation Agreement
attached hereto as Exhibit A (the "Affirmation") has been (or in the case of
the Reorganized Company, will be) duly authorized by all necessary corporate
action on the part of the Company or the Reorganized Company, as applicable,
and that this Amendment and the Affirmation are (or in the case of the
Affirmation Agreement, will be) the legal, valid and binding obligation of
the Company or the Reorganized Company, as applicable, enforceable against
the Company or the Reorganized Company, as applicable, in accordance with
their respective terms, except as the enforcement thereof may be subject to
the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally;
(b) Neither the execution, delivery and performance by the Company
or the Reorganized Company of this Amendment or the Affirmation, as
applicable, nor compliance with the terms and provisions hereof, nor the
consummation of the transactions contemplated herein (including the Merger),
(i) will contravene any applicable provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict or be inconsistent with or result in any
breach of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or
the obligation to
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create or impose) any lien upon any of the property or assets of the
Reorganized Company (after giving effect to the Merger), the Company or any
of their respective Subsidiaries pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, credit agreement (including without
limitation the Existing Credit Agreement) or any other material instrument
to which the Reorganized Company (after giving effect to the Merger), the
Company or any of their respective Subsidiaries is a party or by which the
Reorganized Company, the Company or any of their respective property or
assets are bound or to which the Reorganized Company (after giving effect to
the Merger) or the Company may be subject (it being understood that the
prior existence and continuation of Liens on the assets of the Reorganized
Company and its Subsidiaries shall not violate this representation) or (iii)
will violate any provision of the Certificate of Incorporation or By-Laws of
the Reorganized Company, the Company or any of their respective
Subsidiaries.
(c) No order, consent, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by,
any Governmental Authority (including without limitation the Iowa Insurance
Division) is required to authorize or is required in connection with (i) the
execution, delivery and performance of this Amendment, the Affirmation or
the Merger or (ii) the legality, validity, binding effect or enforceability
of this Amendment or the Affirmation, other than those which shall have been
obtained and shall be in effect as of (x) the Effective Date in connection
with this Amendment and (y) the Delayed Effective Date in connection with
the Affirmation and the Merger.
(d) Immediately after giving effect to this Amendment and the
Merger, each of the representations and warranties contained in the Facility
Agreement will be true and correct in all material respects as if made at
such time; and
(e) Immediately after giving effect to this Amendment and the
Merger, no Program Event of Default or Unmatured Default will have occurred
and be continuing.
3. Effective Date. The Immediate Amendments (as defined below) shall
become effective on the date (the "Effective Date") of the execution and
delivery hereof by the Company, the Agent and each of the Lenders. The Delayed
Amendments (as defined below) shall become effective upon such date (the
"Delayed Effective Date") as the Effective Date has occurred and the following
additional conditions have been satisfied:
(a) receipt by the Agent substantially contemporaneously with the
Merger of the Affirmation duly executed by the Reorganized Company;
(b) consummation of the Merger;
(c) receipt by the Agent substantially contemporaneously with the
Merger of a certificate, executed by the Secretary or Assistant Secretary of
the Reorganized Company, certifying an attached copy of the Board of
Directors' resolutions for the Reorganized Company authorizing, either
generally or specifically, the execution, delivery and performance under the
Affirmation;
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(d) receipt by the Agent of such other documents relating to the
Merger as the Agent or its counsel may have reasonably requested.
In the event the Delayed Effective Date has not occurred on or before
August 31, 2000, the Delayed Amendments shall not become operative and shall
be of no force or effect. "Immediate Amendments" means the amendments to the
Facility Agreement set forth in Sections 1(a)(i) (as to the definition of
"Subsidiary" only) and 1(a)(iii), 1(b) and 1(d) above. "Delayed Amendments"
means all other amendments to the Facility Agreement set forth in Section 1
above.
4. Reference to and Effect Upon the Facility Agreement.
(a) Except as specifically amended above, the Facility Agreement
and the other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of the Agent or
any Lender under the Facility Agreement or any Loan Document, nor constitute
a waiver of any provision of the Facility Agreement or any Loan Document,
except as specifically set forth herein. Upon the effectiveness of this
Amendment, each reference in the Facility Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of similar import shall mean and be
a reference to the Facility Agreement as amended hereby.
5. Costs and Expenses. The Company hereby affirms its obligations
under Section 12.08 of the Facility Agreement to reimburse the Agent for all
reasonable costs, internal charges and out-of-pocket expenses paid or incurred
by the Agent in connection with the preparation, negotiation, execution and
delivery of this Amendment, including but not limited to the attorneys' fees and
time charges of attorneys for the Agent with respect thereto.
6. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1
ET SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
[signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date and year first above written.
AMERUS LIFE HOLDINGS, INC.
By: s/ Michael G. Fraizer
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Name: Michael G. Fraizer
Title: Senior Vice President and Chief Financial
Officer
BANK ONE, NA,
Individually and as Agent
By: s/ Cynthia Priest
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Cynthia Priest
Vice President
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