Exhibit 10.36
CONSENT
CONSENT (this "Consent"), dated as of March 15, 2002, among
AMERUS GROUP CO., an Iowa corporation (the "Borrower"), the lending institutions
party hereto (each a "Bank" and, collectively, the "Banks"), THE BANK OF NEW
YORK, MELLON BANK, N.A. and FLEET NATIONAL BANK as Co-Arrangers, and JPMORGAN
CHASE BANK, as Administrative Agent (the "Administrative Agent") and
Co-Arranger. All capitalized terms used herein and not otherwise defined shall
have the respective meanings provided such terms in the Credit Agreement
referred to below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks, the Administrative Agent and
the Co-Arrangers are parties to a Credit Agreement, dated as of December 12,
2001 (as amended, modified and/or supplemented to the date hereof, the "Credit
Agreement");
WHEREAS, Indianapolis Life Insurance Company (the "Seller"), a
Material Subsidiary of the Borrower, desires to sell (the "Sale") all of the
issued and outstanding shares of capital stock of Western Security Life
Insurance Company, an Arizona corporation and a Regulated Insurance Company
("Western Security"), pursuant to that certain Stock Purchase Agreement, dated
as of December 19, 2001, among the Seller and Delta Dental Plan of California,
in the form of Exhibit A attached hereto (the "Stock Purchase Agreement"); and
WHEREAS, subject to the terms and conditions of this Consent,
the parties hereto wish to provide the consents described herein;
NOW, THEREFORE, it is agreed:
I. Consent to Consummation of the Sale.
Notwithstanding anything to the contrary contained in the
Credit Agreement, including, without limitation, Section 7.02, the Banks hereby
consent to the consummation of the Sale; provided that (w) such Sale is
consummated in all material respects in accordance with the terms of the Stock
Purchase Agreement, and prior thereto the Seller shall have received all
necessary or desirable consents in connection therewith, (x) the aggregate fair
market value of the Assets (as defined in the Stock Purchase Agreement) does not
exceed $8,000,000, (y) the balance sheet of Western Security immediately prior
to the consummation of the Sale is not materially different from the pro-forma
balance sheet set forth on Exhibit B attached hereto, and (z) no Default or
Event of Default exists both before and after giving effect to the consummation
of the Sale.
II. Miscellaneous Provisions.
1. In order to induce the Banks to enter into this
Consent, the Borrower hereby represents and warrants that:
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(a) no Default or Event of Default exists as of the
Consent Effective Date, both before And after giving effect to this
Consent; and
(b) all of the representations and warranties contained in the
Credit Agreement or the other Credit Documents are true and correct in
all material respects on the Consent Effective Date both before and
after giving effect to this Consent, with the same effect as though
such representations and warranties had been made on and as of the
Consent Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. 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.
3. 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.
4. 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.
5. This Consent shall become effective on the date (the
"Consent Effective Date") when (i) each of the Borrower and the Required Banks
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent and (ii) the Borrower shall
have paid to the Administrative Agent for the account of each Bank which
executes and delivers to the Administrative Agent a counterpart hereof by 5:00
p.m. (New York City time) on March 25, 2002, a non-refundable cash fee (in U.S.
dollars) (the "Consent Fee") equal to 0.10% of the aggregate amount of such
Bank's Commitment (as in effect on the date hereof), which Consent Fee shall be
in addition to all other fees, costs and expenses paid or payable to the
Administrative Agent and the Banks. The Consent Fee shall not be subject to
counterclaim or set-off, or be otherwise affected by, any claim or dispute
relating to any other matter.
6. From and after the Consent Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Consent as of the date first
above written.
AMERUS GROUP CO.
By /s/ Brenda J. Cushing
-------------------------------
Name: Brenda J. Cushing
Title: Senior Vice President
and Controller
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JPMORGAN CHASE BANK,
Individually and as Administrative
Agent and Co-Arranger
By /s/ Helen L. Newcomb
-------------------------------
Name: Helen L. Newcomb
Title: Vice President
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THE BANK OF NEW YORK,
Individually and as a Co-Arranger
By /s/ Evan Glass
-------------------------------
Name: Evan Glass
Title: Vice President
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MELLON BANK, N.A.,
Individually and as a Co-Arranger
By /s/ Carrie Burnham
-------------------------------
Name: Carrie Burnham
Title: Assistant Vice President
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FLEET NATIONAL BANK,
Individually and as a Co-Arranger
By /s/ David A. Bosselait
-------------------------------
Name: David A. Bosselait
Title: Director
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BANK ONE, N.A.
By /s/ Thomas A. Kiepura
-------------------------------
Name: Thomas A. Kiepura
Title: Director
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CREDIT SUISSE FIRST BOSTON
By /s/ Jay Chall
-------------------------------
Name: Jay Chall
Title: Director
By /s/ Jeffrey Bernstein
-------------------------------
Name: Jeffrey Bernstein
Title: Vice President
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THE FIFTH THIRD BANK
By /s/ Marie B. Magnin
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Name: Marie Magnin
Title: Corporate Banking Officer
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