Exhibit 10.1.1
EXECUTION COPY
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of December 20, 2005
AMENDMENT NO. 1 TO THE AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") among CONSECO, INC., a Delaware corporation (the "Borrower"), the
lenders providing the Commitment Increase (as defined in the Credit Agreement
referred to below) signatory hereto (collectively, the "Increasing Lenders") and
BANK OF AMERICA, N.A., as administrative agent (the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Subsidiary Guarantors referred to therein, the
Lenders, the Agent and JPMorgan Chase Bank, N.A. ("JPMC"), as syndication agent,
have entered into an Amended and Restated Credit Agreement dated as of August
15, 2005 (as amended, restated, supplemented or otherwise modified through the
date hereof, the "Credit Agreement"). Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower has requested a Commitment Increase in respect of the
Term Facility in a principal amount of $80,000,000 pursuant to Section 2.14 of
the Credit Agreement. Each Increasing Lender has provided a commitment in the
amount set forth opposite such Increasing Lender's name on Schedule 2.01 to this
Amendment to make a term loan having the same terms as the existing Term Loans.
Such incremental commitments and Term Loans are referred to herein as the
"Additional Term Facility."
(3) As provided in Section 2.14 of the Credit Agreement, the Borrower
and the Agent hereby agree to make certain technical amendments to the Credit
Agreement to add the Additional Term Facility thereto, as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the sufficiency and receipt of all of which is
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. Upon, and subject to, the
satisfaction (or waiver) of the conditions precedent set forth in Section 3
below, the Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding
in the appropriate alphabetical order the following new definitions:
"`Additional Term Commitment' means, with respect to each Increasing
Lender, the commitment of such Increasing Lender to make an Additional Term
Loan pursuant to Amendment No. 1 and Section 2.14 of this Agreement, in the
amount set forth opposite such Increasing Lender's name on Schedule 2.01 to
Amendment No. 1."
"`Additional Term Loans' means $80,000,000 of incremental Term Loans
made by the Increasing Lenders pursuant to Amendment No. 1 and Section 2.14
of this Agreement."
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"`Amendment No. 1' means Amendment No. 1 to this Agreement dated as of
December 20, 2005."
"`Amendment No. 1 Effective Date' means the date of satisfaction (or
waiver) of the conditions precedent set forth in Section 3 of Amendment No.
1."
"`Increasing Lender' has the meaning specified therefor in Amendment
No. 1.
(b) The definition of "Term Commitment" contained in Section 1.01 to
the Credit Agreement is hereby amended in its entirety to read as follows:
"`Term Commitment' means, as to each Term Lender, its obligation to
make Term Loans to the Company pursuant to Section 2.01 in an aggregate
principal amount at any one time outstanding not to exceed (a) in the case
of any initial Term Lender, the amount set forth opposite such Term
Lender's name on Schedule 2.01 under the caption "Term Commitment", (b) in
the case of any Increasing Lender, the amount set forth opposite such
Increasing Lender's name on Schedule 2.01 to Amendment No. 1 under the
caption "Additional Term Commitment" or (c) otherwise, the amount set forth
opposite the caption "Term Commitment" in the Assignment and Assumption
pursuant to which such Term Lender becomes a party hereto, as applicable,
as such amount may be adjusted from time to time in accordance with this
Agreement."
(c) Section 2.01(a) of the Credit Agreement is hereby amended in its
entirety to read as follows:
"(i) Subject to the terms and conditions set forth herein, each Term
Lender severally agrees to make a single loan (together with the Additional
Term Loans, each a "Term Loan") to the Company on the Effective Date in an
amount not to exceed such Term Lender's Term Commitment at such time and
(ii) each Lender with an Additional Term Commitment agrees to make an
Additional Term Loan to the Borrower on the Amendment No. 1 Effective Date
in a principal amount not to exceed its Additional Term Commitment. Each
Borrowing under this Section 2.01(a) shall consist of Term Loans made
simultaneously by the Term Lenders ratably according to their Term
Commitments. Amounts borrowed under this Section 2.01(a) and repaid or
prepaid may not be reborrowed."
(d) Section 2.01(b) of the Credit Agreement is hereby amended by
adding the following provision immediately before the period at the end thereof:
"; provided that Additional Term Loans shall initially bear interest
at the rate in effect for the existing Term Loans then outstanding until
the end of the Interest Period then in effect with respect thereto"
(e) Section 2.05(b)(i) of the Credit Agreement is hereby amended by
adding to the end thereof, immediately before the period, the following
language: ", except that the Additional Term Commitments will terminate upon the
making of the Additional Term Loans".
(f) Section 2.07(a) is hereby amended in its entirety to read as
follows:
"Term Loans. The Company shall repay to the Agent, (i) for the ratable
account of the Term Lenders (other than the Increasing Lenders), the
following percentages of the initial aggregate principal amount of all Term
Loans (other than the Additional Term Loans) on the
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following dates (which percentages shall be reduced as a result of the
application of prepayments in accordance with the order of priority set
forth in Section 2.08(c)):
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Date Percentage
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September 30, 2005 0.25%
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December 31, 2005 0.25%
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March 31, 2006 0.25%
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June 30, 2006 0.25%
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September 30, 2006 0.25%
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December 31, 2006 0.25%
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March 31, 2007 0.25%
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June 30, 2007 0.25%
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September 30, 2007 0.25%
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December 31, 2007 0.25%
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March 31, 2008 0.25%
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June 30, 2008 0.25%
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September 30, 2008 0.25%
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December 31, 2008 0.25%
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March 31, 2009 0.25%
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June 30, 2009 0.25%
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September 30, 2009 0.25%
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December 31, 2009 0.25%
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March 31, 2010 0.25%
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Maturity Date 95.25%
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Total 100.00%
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and (ii) for the ratable account of the Increasing Lenders, the following
percentages of the initial aggregate principal amount of all Additional
Term Loans on the following dates (which percentages shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.08(c)):
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Date Percentage
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March 31, 2006 0.25%
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June 30, 2006 0.25%
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September 30, 2006 0.25%
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December 31, 2006 0.25%
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March 31, 2007 0.25%
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June 30, 2007 0.25%
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September 30, 2007 0.25%
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December 31, 2007 0.25%
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March 31, 2008 0.25%
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June 30, 2008 0.25%
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September 30, 2008 0.25%
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December 31, 2008 0.25%
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March 31, 2009 0.25%
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June 30, 2009 0.25%
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Date Percentage
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September 30, 2009 0.25%
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December 31, 2009 0.25%
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March 31, 2010 0.25%
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Maturity Date 95.75%
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Total 100.00%
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"
(g) Section 6.14 of the Credit Agreement is hereby amended in its
entirety to read as follows:
"Use of Proceeds. (a) The Term Loans shall be used solely to (i)
effect the Refinancing, (ii) pay fees and expenses incurred in connection
with the Refinancing and (iii) in the case of the Additional Term Loans,
for general corporate purposes of the Company and its Subsidiaries,
including, without limitation, to make contributions to Insurance
Subsidiaries and (b) any Revolving Credit Loans shall be used solely for
general corporate purposes of the Company and its Subsidiaries."
(h) Section 10.07(b) of the Credit Agreement is hereby amended by (x)
deleting in the first proviso thereto the word "and" immediately prior to clause
(iv) and inserting in its place a comma and (y) adding a new clause (v) in the
first proviso thereto as follows:
"and (v) in the case of any assignment of a Term Loan, the assigning
Lender shall specify whether all or a portion of such assigned Term Loan
constitutes an Additional Term Loan"
(i) Schedule 2.01 to the Credit Agreement is deemed supplemented with
the information set forth on Schedule 2.01 to this Amendment.
(j) Exhibit D to the Credit Agreement is hereby replaced in its
entirety with Exhibit D to this Amendment.
SECTION 2. Additional Term Commitment. Each Increasing Lender hereby
acknowledges that it has made the Additional Term Commitment set forth opposite
such Increasing Lender's name on Schedule 2.01 to this Amendment. Each of the
Borrower and each Increasing Lender hereby agrees that from and after the
Amendment No. 1 Effective Date (as defined below), such Increasing Lender shall
be a "Term Lender" for all purposes under the Credit Agreement.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective as of the date (the "Amendment No. 1 Effective Date") on which the
following conditions shall have been satisfied (or waived):
(a) The Agent shall have received the following documents, each dated
as of the Amendment No. 1 Effective Date:
(i) a Loan Notice as required by Section 2.03 of the Credit
Agreement with respect to the Borrowing of the Additional Term Loans;
(ii) a certificate of a Responsible Officer of the Borrower, the
statements in which shall be true, certifying that (i) the
representations and warranties set forth in Article 5 of the Credit
Agreement are true and correct in all material respects as of the
Amendment No. 1 Effective Date, with the same effect as though made on
and as of such
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date, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date), (ii) at the time of and
immediately after the Borrowing of the Additional Term Loans, no
Default or Event of Default shall have occurred and be continuing and
(iii) immediately prior to and after giving effect to the Amendment
No. 1 Effective Date (and the making of the Additional Term Loans),
the Borrower is in compliance, on a pro forma basis, with Sections
7.11, 7.12, 7.14 and 7.15 of the Credit Agreement;
(iii) a certificate of the secretary or assistant secretary or
similar officer of each Obligor dated the Amendment No. 1 Effective
Date and certifying:
(A) that attached thereto is a true and complete copy of the
by-laws (or limited partnership agreement, limited liability
company agreement or other equivalent governing documents) of
such Obligor as in effect on the Amendment No. 1 Effective Date
and at all times since a date prior to the date of the
resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of
resolutions duly adopted by the board of directors (or equivalent
governing body) of such Obligor (or its managing general partner
or managing member) authorizing the execution, delivery and
performance of this Amendment or the Consent to which such person
is a party and, in the case of the Borrower, the borrowings of
the Additional Term Loans, and that such resolutions have not
been modified, rescinded or amended and are in full force and
effect on the Amendment No. 1 Effective Date,
(C) that attached thereto is a true and complete copy of the
certificate or articles of incorporation, certificate of limited
partnership or certificate of formation as in effect on the
Amendment No. 1 Effective Date, and
(D) that attached thereto is a certificate of good standing
or equivalent document for each Obligor from the Secretary of
State (or similar, applicable Governmental Authority) of its
state of incorporation or organization as of a recent date;
provided, that with respect to any constituent document or resolution
(to the extent the same authorizes this Amendment) required to be
delivered pursuant to this clause (iii) that was delivered on the
Effective Date and has not since been amended or otherwise modified,
the applicable Obligor may be permitted to certify as such in lieu of
delivery of such document or resolution; and
(iv) a written opinion (addressed to the Agent and the Increasing
Lenders and dated the Amendment No. 1 Effective Date) of each of (i)
Kirkland & Ellis LLP, counsel for the Obligors and (ii) Baker &
Daniels LLP, Indiana counsel for the Obligors, in each case
substantially similar to the opinion delivered on the Effective Date,
with such modifications as the Agent may reasonably agree.
(b) The Borrower shall have paid or caused to be paid, in cash, all
fees which have been separately agreed in writing (including the fees of
the Agent and JPMC, as arrangers for this
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Amendment) and all reasonable and invoiced out-of-pocket expenses of the
Agent in connection with this Amendment.
SECTION 4. Reference to and Effect on the Credit Agreement and the
Loan Documents. (a) On and after the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the Notes and each of the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as amended by
this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment (and as contemplated to be
amended, modified, supplemented, restated, substituted or replaced by this
Amendment) are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed. Without limiting the generality of the
foregoing, the Security Documents and all of the Collateral described therein do
and shall continue to secure the payment of all Obligations of the Obligors
under the Loan Documents, in each case, as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender, any Issuing Bank or the Agent under any of the
Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. Expenses. The Borrower agrees that all reasonable
out-of-pocket expenses incurred by the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder or
in connection herewith (including, without limitation, the reasonable fees,
charges and disbursements of counsel for the Agent), are expenses that the
Borrower is required to pay or reimburse pursuant to Section 10.04 of the Credit
Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
CONSECO, INC., as Borrower
By:/s/Daniel J. Murphy
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Name: Daniel J. Murphy
Title: Senior Vice President and Treasurer
BANK OF AMERICA, N.A., as Agent and as Increasing
Lender
By: /s/ Mike Colon
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Name: Mike Colon
Title: Senior Vice President