AMENDMENT dated as of April 20, 1998
(this "Amendment"), to the Credit Agreement dated
as of June 24, 1997, as amended by the Release and
Amendment dated as of December 15, 1997 (the "Credit
Agreement"), among ARM FINANCIAL GROUP, INC., a
Delaware corporation (the "Borrower"), the financial
institutions from time to time party thereto (the
"Lenders") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as agent for the Lenders (in such
capacity, the "Agent").
WHEREAS the Borrowers have requested that the Lenders
amend certain provisions of the Credit Agreement as set forth
herein;
WHEREAS the Lenders are willing, on the terms, subject to
the conditions and to the extent set forth below, to provide such
amendments; and
WHEREAS capitalized terms used and not otherwise defined
herein shall have the meanings assigned to them in the Credit
Agreement.
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 herein, as follows:
SECTION 1. Amendments to Credit Agreement.
(a) Section 1.01 of the Credit Agreement is amended by amending and
restating the definitions of "Change of Control" and "Subsidiary" as
follows, and adding the following defined terms for "Designated
Activity", "Designated Subsidiary", "Structured Finance", "312",
"Total Return Swaps" and "212" in proper alphabetical order:
A "Change of Control" shall be deemed to have occurred if
at any time a majority of the seats (other than vacant seats) on
the board of directors of the Borrower shall at such time be
occupied by persons who were neither nominated by the management
of the Borrower nor appointed by directors so nominated.
"Subsidiary" shall mean any subsidiary of the Borrower,
except that, for purposes of clauses (f) and (g) of Article VII,
the term Subsidiary (and any terms that include the definition
of Subsidiary) shall not include any Designated Subsidiary.
"Designated Activity" of any Person shall mean each of
the following: (i) the holding of the stock of one or more
of Structured Finance, 312 and 212; (ii) the issuance by
such Person (if such Person is 312 or 212) of face-amount
certificates in such amounts as are otherwise permitted by
this Agreement; (iii) the acquisition and maintenance by such
Person of fixed income securities with an average credit quality
of no less than AA; (iv) the establishment of liquidity
facilities (with such Person as the borrower) and/or standby
letters of credit (with such Person as the account party) in such
amounts as are otherwise permitted by this Agreement; (v) the
execution, delivery and performance of swap agreements and other
derivative agreements (including, without limitation, Rate
Protection Agreements and Total Return Swaps) with any one or
more of Integrity, Structured Finance, 312, 212 and any other
Person (except for the Borrower or any Subsidiary other than the
Structured Finance, 312 or 212); (vi) the securitization of
such face-amount certificates; (vii) the securing with such
securities of all Indebtedness and obligations of such Person
(including, without limitation, such as constitute or arise
from Designated Activities) which are permitted under this
Agreement; (viii) administrative support arrangements between
or among one or more of Structured Finance, 312 and 212, on the
one hand, and one or more of the Borrower and the Subsidiaries,
on the other, providing, among other things, for the lease or
sublease of office facilities for Structured Finance, 312 or 212
and/or the hiring or use of personnel employed by the Borrower;
(ix) all other actions and activities and circumstances by or
in respect of such Person which are otherwise permitted by this
Agreement; (x) the execution, delivery and performance of
agreements, documents and instruments evidencing or required by
the Designated Acitivities; and (xi) actions and activities
incidental or related to the foregoing.
"Designated Subsidiary" shall mean (i) ARM Structured
Finance Group, Inc., a direct wholly owned Subsidiary
("Structured Finance"); (ii) 312 Cerfiticate Company, an
indirect wholly owned Subsidiary ("312"); and (iii) 212
Certificate Company, an indirect wholly owned Subsidiary
("212"), but only for so long as (A) the activities of such
corporations are confined to Designated Activities and (B)
the creditors of such corporations do not have direct or
contingent recourse (whether pursuant to partnership law or
by reason of any Guarantee or similar agreement or arrangement)
to the Borrower or any Subsidiary (except for Structured
Finance, 312 or 212), in each case in respect of any
indebtedness or other obligation owed to such holders by
Structured Finance, 312 or 212 (it being understood that the
obligations to perform, and the performance of, Designated
Activities by the Designated Subsidiaries [the Borrower
or the other Subsidiaries], shall not be deemed to
constitute direct or contingent recourse).
"Structured Finance" shall have the meaning given such
term in the definition of "Designated Subsidiary".
"312" shall have the meaning given such term in the
definition of "Designated Subsidiary".
"Total Return Swap" shall mean, at any time, any total
return and/or total yield swap, derivative instrument or product
and any derivation thereof (including, without limitation, any
option to enter into any of the foregoing and any master agreement for
any of the foregoing) between or among any two or more of Integrity,
Structured Finance, 312 or 212 and any other Person (except for the
Borrower or any Subsidiary other than Structured Finance, 312, or 212)
and/or by virtue of assignment or otherwise, the holders of the
face-amount certificates issued by 312 or 212, in each case in order to
Guarantee, provide cash flows or credit enhancement in support of, or
otherwise protect, the payment of principal of, interest on, and other
amounts in respect of, such face-amount certificates, any Indebtedness
or other obligation of Integrity, Structured Finance, 312, 212 or any
such holder that constitutes a Designated Activity or, in each case,
any securitization of any of the foregoing.
"212" shall have the meaning given such term in the definition of
"Designated Subsidiary".
(b) Section 6.01 of the Credit Agreement is amended by deleting
the word "and" appearing at the end of clause (k) thereof and inserting after
clause (l) thereof a semicolon followed by the word "and" and the following
additional clause:
(m) Indebtedness of the Designated Subsidiaries (evidenced by or
incurred pursuant to any agreements, instruments, commitments or
arrangements, irrespective of their individual or aggregate face
amount, in each case arising from or related to one or more Designated
Activities) in an aggregate outstanding principal amount not to exceed at
any time $1,050,000,000 plus accrued but unpaid interest thereon.
(c) Section 6.02 of the Credit Agreement is amended by deleting the
word "and" at the end of clause (k) thereof and inserting after clause (l)
thereof a semicolon and the following additional clause:
(m) Liens on the assets of any Designated Subsidiary.
(d) Section 6.04 of the Credit Agreement is amended (i) by
inserting at the end of clause (a) thereof the phrase "(other than
the Designated Subsidiaries)" and (ii) by deleting the word "and" at the
end of clause (d) thereof and inserting after clause (e) thereof a semicolon
and the following additional clauses:
(f) investments in (including cash capital contributions to)
the Designated Subsidiaries in an
amount not greater in the aggregate for both such Subsidiaries than
$1,500,000 plus any amounts contributed in satisfaction of amounts
that are due from but have not been paid by Integrity under the Total
Return Swaps;
(g) the Total Return Swaps; and
(h) investments by any Designated Subsidiaries.
(e) Section 6.05 of the Credit Agreement is hereby amended by
adding the following paragraph (d) at the end of such Section:
(d) Notwithstanding paragraphs (a), (b) and (c) above,
transactions by the Designated Subsidiaries shall not be subject
to (and shall not be included in or aggregated with transactions
effected by the Borrower and the other Subsidiaries for purposes
of determining compliance by the Borrower and the other
Subsidiaries with) the limitations contained in this Section 6.05.
(f) Section 6.07 of the Credit Agreement is amended by deleting
the word "and" at the end of the clause (e) thereof and inserting after
clause (f) thereof a comma and the following additional clause:
(g) Integrity may enter into Total Return Swaps with the
Designated Subsidiaries.
(g) Section 6.09 of the Credit Agreement is amended by deleting
the word "and" at the end of clause (a) thereof and inserting after clause
(b) thereof a comma and the following additional clause:
(c) payments by any Designated Subsidiary with respect to
its Indebtedness.
(h) The parties hereto agree that (i) all Indebtedness of the
Designated Subsidiaries, and all payments of interest and fees in respect of
such Indebtedness, will be excluded for purposes of determining the
Borrower's compliance with Sections 6.11 and 6.12 and (ii) to the extent
includible in net income of the Borrower under GAAP, items of income and
expense of the Designated Subsidiaries will be included for purposes of
determining the Borrower's compliance with Sections 6.11 and 6.12.
SECTION 3. Representations and Warranties. The Borrower
hereby represents and warrants to each Lender, on and as of the date hereof,
and after giving effect to this Amendment, that:
a) the representations and warranties set forth in Article III of
the Credit Agreement are true and correct in all material respects on and
as of the date hereof, except to the extent such representations and
warranties relate to an earlier date; and
(b) no Event of Default or Default has occurred and is continuing.
SECTION 4. Effectiveness. The amendments to the Credit Agreement
set forth in Section 1 shall become effective only upon receipt by the Agent
of duly executed counterparts hereof which, when taken together, bear the
authorized signatures of the Borrower and the Required Lenders.
SECTION 5. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be an original but all of which,
when taken together, shall constitute but one instrument. 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 7. Expenses. The Borrower agrees to pay all expenses
incurred by the Agent in connection with the preparation, execution and
delivery of this Amendment, including the fees, charges and disbursements of
counsel.
SECTION 8. 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.
SECTION 9. Effect of this Amendment Generally, 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 the Lenders under the Credit Agreement or any other Loan Document, and
shall not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document, all of which are ratified and affirmed
in all respects and shall continue in full force and effect. Nothing herein
shall be deemed to entitle the Borrower to a consent to, or a waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Loan Document in similar or different circumstances. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and
year first above written.
ARM FINANCIAL GROUP, INC.,
by /s/ Edward L. Zeman
---------------------------------
Name: Edward L. Zeman
Title: CFO
by /s/ Martin H. Ruby
---------------------------------
Name: Martin H. Ruby
Title: Chief Executive Officer
THE CHASE MANHATTAN BANK,
individually, as Administrative Agent
and as representative for the Secured
Parties,
by
---------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
by
---------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES,
by
---------------------------------
Name:
Title:
by
---------------------------------
Name:
Title:
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and
year first above written.
ARM FINANCIAL GROUP, INC.,
by /s/ Edward L. Zeman
----------------------------------
Name: Edward L. Zeman
Title: CFO
by /s/ Martin H. Ruby
----------------------------------
Name: Martin H. Ruby
Title: Chief Executive Officer
THE CHASE MANHATTAN BANK,
individually, as Administrative Agent
and as representative for the
Secured Parties,
by /s/ Peter Platton
----------------------------------
Name: Peter Platton
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
----------------------------------
Name:
Title:
DEUTSCHE BANK AG. NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES,
by
----------------------------------
Name:
Title:
Document in similar or different circumstances. This Amendment shall apply and
be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and
year first above written.
ARM FINANCIAL GROUP, INC.,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually, as Administrative Agent
and as representative for the
Secured Parties,
by
----------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by /s/ John E. Beckwith
----------------------------------
Name: John E. Beckwith
Title: Vice President
DEUTSCHE BANK AG. NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES,
by
----------------------------------
Name:
Title:
by
----------------------------------
Name:
Title:
Document in similar or different circumstances. This Amendment shall apply
and be effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and
year first above written.
ARM FINANCIAL GROUP, INC.,
by
---------------------------------
Name:
Title:
by
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually, as Administrative Agent
and as representative for the Secured
Parties.
by
---------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
by
---------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES,
by /s/ Gayma Z. Shivnarain
---------------------------------
Name: Gayma Z. Shivnarain
Title: Vice President
by /s/ John S. McGill
---------------------------------
Name: John S. McGill
Title: Vice President
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH,
by /s/ Robert P. Donohue
---------------------------------
Name: Robert P. Donohue
Title: Vice President
by /s/ Anthony C. Valencourt
---------------------------------
Name: Anthony C. Valencourt
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
by
---------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by
---------------------------------
Name:
Title:
PNC BANK, KENTUCKY, INC.
by
---------------------------------
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
by
---------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH,
by
------------------------------
Name:
Title:
by
------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO,
by
/s/ Fred J. Lawford
------------------------------
Name: Fred J. Lawford
Title: First Vice President
FIRST UNION NATIONAL BANK,
by
------------------------------
Name:
Title:
PNC BANK, KENTUCKY, INC.
by
------------------------------
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
by
------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH,
by
------------------------------
Name:
Title:
by
------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO,
by
------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by
/s/ Gail M. Golightly
------------------------------
Name: Gail M. Golightly
Title: Senior Vice President
PNC BANK, KENTUCKY, INC.
by
------------------------------
Name:
Title:
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
by
------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH,
by
--------------------------
Name:
Title:
by
--------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF
CHICAGO,
by
--------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
by
--------------------------
Name:
Title:
PNC BANK, N.A.
by
/s/ Ralph A. Phillips
--------------------------
Name: Ralph A. Phillips
Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION,
by
--------------------------
Name:
Title: