Exhibit 10.1
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 2 TO THE SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of March 30, 2009, by and among CONSECO, INC., a Delaware
corporation (the "Borrower"), the lenders signatory hereto 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 Increasing Lenders, the Agent and JPMorgan Chase Bank, N.A., as
syndication agent, have entered into a Second Amended and Restated Credit
Agreement dated as of October 10, 2006, as amended by Amendment No. 1 to the
Second Amended and Restated Credit Agreement dated as of June 12, 2007 (as
amended, restated, supplemented or otherwise modified through the date hereof,
the "Existing Credit Agreement"). Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified in the Credit Agreement.
(2) The Borrower, the Agent, the Lenders and the Increasing Lenders desire
to amend certain provisions of the Existing Credit Agreement as provided more
fully herein below.
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 2
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:
""Accrued Fee" " has the definition set forth in Section 2.10(b)."
""Amendment No. 2" means Amendment No. 2 to this Agreement dated as of
March 30, 2009."
""Amendment No. 2 Effective Date" means March 30, 2009, which is the
date of satisfaction (or waiver) of the conditions precedent set forth in
Section 3 of Amendment No. 2."
""LIBOR Floor" has the definition set forth in the definition of
Eurodollar Rate."
""Restructured the Permitted Convertible Indebtedness" means (i) any
repurchase, redemption, put, or similar obligation of the Company or any
Subsidiary under the Permitted Convertible Indebtedness shall have been
extended, waived or deferred to a date that is at least one year following
the later of the Maturity Date or the Termination Date, or (ii) the
Permitted Convertible Indebtedness shall have been refinanced in accordance
with the requirements of Section 7.10(f)."
""Steering Committee" has the meaning specified in Section 6.17."
(b) The definition of "Applicable Margin" contained in Section 1.01 to the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
""Applicable Margin" means, for any day, a percentage per annum equal
to (a) with respect to any Eurodollar Rate Loan, 4.00% or (b) with respect
to any Base Rate Loan, 3.00%."
(c) The definition of "Base Rate" contained in Section 1.01 to the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
""Base Rate" means, for any day, a fluctuating rate per annum equal to
the highest of: (a) 1.00% per annum above the latest Eurodollar Rate for an
Interest Period of one month, (b) 0.50% per annum above the latest Federal
Funds Rate and (c) the rate of interest in effect for such day as publicly
announced from time to time by BofA as its "prime rate." The "prime rate"
is a rate set by BofA based upon various factors, including BofA's costs
and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at,
above or below such announced rate. Any change in such rate announced by
BofA shall take effect at the opening of business on the day specified in
the public announcement of such change."
(d) The definition of "Eurodollar Rate" contained in Section 1.01 to the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
""Eurodollar Rate" means, for any Interest Period with respect to any
Eurodollar Rate Loan, the highest of:
(a) 2.50% per annum ("LIBOR Floor"),
(b) the rate per annum equal to the rate determined by the Agent to be
the offered rate that appears on the page of the Telerate screen (or any
successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
(c) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall not be available, the
rate per annum equal to the rate determined by the Agent to be the offered
rate on such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(d) if the rates referenced in the preceding clauses (b) and (c) are
not available, the rate per annum determined by the Agent as the rate of
interest at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by BofA and with a
term equivalent to such Interest Period would be offered by BofA's London
Branch to major banks in
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the London interbank eurodollar market at their request at approximately
4:00 p.m. (London time) two Business Days prior to the first day of such
Interest Period."
(e) Section 2.08(b)(i) of the Existing Credit Agreement is hereby amended
in its entirety to read as follows:
"(i) Indebtedness. Within five Business Days after any Net Proceeds
are received by or on behalf of the Company or any Subsidiary in respect of
the incurrence of any Indebtedness by the Company or such Subsidiary,
including Permitted Refinancing Indebtedness, unsecured Indebtedness
permitted under Section 7.01(a)(xiv) and issued or incurred on or after the
Amendment No. 2 Effective Date in excess of $25,000,000 in the aggregate
and Permitted Convertible Indebtedness, but excluding all other
Indebtedness permitted pursuant to Section 7.01, the Company shall prepay
Borrowings in an aggregate amount equal to such Net Proceeds.
(f) Section 2.10 of the Existing Credit Agreement shall be amended by
adding the following new subsection (b) to the end thereof:
"(b) The outstanding principal amount of the Term Loan will accrue a
daily fee (the "Accrued Fee") at a rate equal to 1.00% per annum from the
Amendment No. 2 Effective Date until such principal amount has been paid in
full. The Accrued Fee shall be capitalized (and the principal amount of the
Term Loan together with such capitalized Accrued Fee shall then accrue a
daily fee at a rate equal to 1.00% per annum) quarterly on the last day of
each March, June, September and December, commencing June 30. 2009. The
Accrued Fee (including all capitalized Accrued Fees) shall be paid in cash
on the Maturity Date (or the date the principal of the Term Loans is paid
in full). For the avoidance of doubt, the Accrued Fee shall not constitute
cash interest expense for purposes of the Interest Coverage Ratio."
(g) Section 2.14 of the Existing Credit Agreement is hereby deleted in its
entirety.
(h) Article 5 of the Existing Credit Agreement is hereby amended by adding
the following Section 5.20 thereto:
"Section 5.20. Surplus Debenture Interest and Dividends. The Company
has not received any notice from NAIC, any other Governmental Authority or
any other insurance regulatory authority that its Insurance Subsidiaries
will not be permitted to pay dividends or Surplus Debenture interest, and
has no reason to believe that such notice is forthcoming."
(i) Article 6 of the Existing Credit Agreement is hereby amended by adding
the following Section 6.16 thereto:
"Section 6.16. Steering Committee and Lenders' Financial Advisor. Any
Lender shall have the right, at any time, with the consent of, or at the
direction of, the Required Lenders, to form a steering committee (the
"Steering Committee"), with respect to which the Agent shall have the right
to be a member. In no event shall there be more than one Steering
Committee. The Steering Committee shall be permitted to retain legal
counsel, only one of which counsel shall have the right to reimbursement of
its fees and expenses in the same manner as counsel to the Agent under
Section 10.04. Upon retention of any such counsel, the Borrower shall (i)
promptly deliver to the Steering Committee an executed fee agreement (the
"Fee Agreement") with such counsel in form and substance satisfactory to
the Steering Committee and such counsel and (ii)
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promptly deliver to such counsel an initial retainer in the amount of
$100,000 in accordance with such Fee Agreement. The Steering Committee may
at its sole discretion engage a financial advisor to the Lenders acceptable
to the Steering Committee or have a financial advisor retained by counsel
to the Steering Committee for the benefit of the Lenders, which financial
advisor shall, among other things, exercise the rights, pursuant to Section
6.09 hereof, of an agent, advisor or representative of the Agent or the
Lenders, and review financial projections and other financial information
prepared by or on behalf of the Company, perform valuations of the assets
of the Company and its Subsidiaries, review and analyze the investment
portfolio of the Company and its Subsidiaries, and take such other actions
as are customary or reasonable for an advisor acting in such capacity. The
fees and expenses of such financial advisor shall be paid by the Borrower
in accordance with Section 10.04. The Company shall cause its executives
and employees and the executives and employees of its Subsidiaries to meet
with the financial advisor and representatives of the Agent and the Lenders
from time to time as reasonably requested by them. The limitation in
Section 6.09 as to the number of occasions on which the Agent or Lenders
can exercise rights under Section 6.09 shall not apply as to the financial
advisor or the Agent or the Lenders acting in conjunction with the
financial advisor. The scope of work undertaken by the financial advisor
shall be reasonably acceptable to the Steering Committee, and the results
thereof shall be made available to the Lenders."
(j) Section 7.01(a)(xiii) of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
"(xiii) other secured Indebtedness in an aggregate principal amount
not to exceed $2,500,000 at any time outstanding;"
(k) Section 7.01(a)(xiv) of the Existing Credit Agreement is hereby amended
in its entirety to read as follows:
"other unsecured Indebtedness; provided that, to the extent the
aggregate principal amount of any such Indebtedness issued or incurred
after the Amendment No. 2 Effective Date exceeds $25,000,000, such
Indebtedness shall (i) have a maturity date that is at least one year
following the later of (A) the Maturity Date and (B) the Termination Date,
(ii) contain covenants and events of default that are no more restrictive,
taken as a whole, to the Borrower than the Loan Documents, and (iii) shall
not contain any covenants or events of default based on maintenance of the
Company's financial condition, and the Company shall be required to prepay
the Loans in accordance with Section 2.08 with the net proceeds thereof;
and provided further that to the extent that any unsecured Indebtedness is
used for prepayments and purchases of the Permitted Convertible
Indebtedness, such Indebtedness shall be treated as having been issued or
incurred under Section 7.01(a)(xix) hereof and not this Section
7.01(a)(xiv),"
(l) Section 7.01(a)(xviii) of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
"(xviii) unsecured convertible notes issued by the Company on the
Prior Effective Date (together with any refinancing thereof in accordance
with the requirements of Section 7.10(f), "Permitted Convertible
Indebtedness") as in effect on the Amendment No. 2 Effective Date."
(m) Section 7.01 of the Existing Credit Agreement is hereby further amended
by deleting the word "and" at the end of Section 7.01(a)(xvii) and adding the
following clause (xix):
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"(xix) other unsecured Indebtedness not subject to Section
7.01(a)(xiv) above to be used solely for prepayments and purchases of the
Permitted Convertible Indebtedness, provided that, such Indebtedness shall
(i) have a maturity date that is at least one year following the later of
(A) the Maturity Date and (B) the Termination Date, (ii) contain covenants
and events of default that are no more restrictive, taken as a whole, to
the Borrower than the Loan Documents, (iii) not contain any covenants or
events of default based on maintenance of the Company's financial
condition, (iv) not amortize and (v) not have a put date or otherwise be
callable prior to one year following the Maturity Date, and provided
further that the aggregate amount of unsecured Indebtedness incurred by the
Company under this Section 7.01(a)(xix) or any other section of this
Agreement (other than unsecured Indebtedness incurred pursuant to Section
7.01(a)(xiv) above) shall not exceed, in the aggregate, the amount of the
Permitted Convertible Indebtedness outstanding on the Amendment No. 2
Effective Date, and provided further that the amount of the cash interest
payable annually on unsecured Indebtedness incurred pursuant to this
Section 7.01(a)(xix) and Permitted Convertible Indebtedness shall not, in
the aggregate, exceed twice the amount of the cash interest payable
annually on the Permitted Convertible Indebtedness on the Amendment No. 2
Effective Date."
(n) Section 7.02(p) of the Existing Credit Agreement is hereby amended in
its entirety to read as follows:
"(p) other Liens securing Indebtedness or other obligations in an
aggregate amount not exceeding $75,000,000 at any time outstanding,
provided that the maximum aggregate amount of such Liens arising after the
Amendment No. 2 Effective Date shall not exceed $2,500,000;"
(o) Section 7.08 of the Existing Credit Agreement is hereby amended by
deleting in their entirety clauses (g), (h) and (i) thereof, and such clauses
shall remain reserved, and adding the following clause (j):
"(j) subject to compliance with Section 2.08(b)(ii), the Company may
issue common equity interests for the purpose of using the proceeds
therefrom to prepay or purchase the Permitted Convertible Indebtedness,
provided that no other cash payments may be made in respect of any equity
into which Permitted Convertible Indebtedness is converted."
(p) Section 7.09(l) of the Existing Credit Agreement is hereby amended in
its entirety to read as follows:
"(l) (i) Acquisitions (other than Acquisitions that constitute
Investments permitted by Section 7.09(f) above or Section 7.09(m) below),
for aggregate consideration in an amount not to exceed $100,000,000 in any
Fiscal Year or $450,000,000 during the term of this Agreement, which
consideration shall be limited to Capital Stock of the Company (other than
Capital Stock prohibited under Section 7.01(b) and not permitted to be used
for such purpose) and other non-cash consideration used to consummate such
Acquisition; provided further that at the time of such Acquisition (i) no
Event of Default shall be continuing and immediately after giving effect to
such Acquisition, no Default (including any failure to be in compliance
with the financial covenants calculated on a Pro Forma Basis) would occur;
(ii) the Company shall have Restructured the Permitted Convertible
Indebtedness and (iii) after January 1, 2011, in the event (w) the Debt to
Total Capitalization Ratio is equal to or less than 20% (calculated on a
Pro Forma Basis), (x) the Financial Strength Rating Condition is satisfied
(calculated on a Pro Forma Basis), (y) each of the Facilities has a senior
secured debt rating of not less than Ba3 from Moody's and BB- from S&P and
(z) the consideration for such Acquisitions consists solely of such Capital
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Stock, the limits referred to above shall be increased to $500,000,000 in
any Fiscal Year and $1,000,000,000 during the term of this Agreement; and"
(q) Section 7.10 to the Existing Credit Agreement is hereby amended by
adding the following new subsection (f) to the end thereof:
"(f) Except as expressly set forth in Sections 7.01(a)(xix) and
7.08(j), make, or permit any of its Subsidiaries to make, any redemption,
purchase or repurchase in cash of Permitted Convertible Indebtedness,
provided that the Company shall be permitted to amend, modify or refinance
Permitted Convertible Indebtedness so long as such resulting Indebtedness
(i) is unsecured, (ii) has a maturity date that is at least one year
following the later of (A) the Maturity Date and (B) the Termination Date,
(ii) contains covenants and events of default that are no more restrictive,
taken as a whole, to the Borrower than Permitted Convertible Indebtedness
as in effect on the Amendment No. 2 Effective Date, (iii) not contain any
covenants or events of default based on maintenance of the Company's
financial condition, (iv) does not amortize and (v) does not have a put
date or conversion date and is not otherwise callable, in each case prior
to one year following the Maturity Date, and provided further that the
amount of the cash interest and fees payable annually on unsecured
Indebtedness incurred pursuant to Section 7.01(a)(xix) and Permitted
Convertible Indebtedness (including as so amended, modified or refinanced)
shall not, in the aggregate, exceed twice the amount of cash interest and
fees payable annually on the Permitted Convertible Indebtedness on the
Amendment No. 2 Effective Date."
(r) Section 7.11 to the Existing Credit Agreement is hereby amended in its
entirety to read as follows:
"Debt to Total Capitalization Ratio. The Company shall maintain at all
times a Debt to Total Capitalization Ratio of (a) for the period from and
including March 31, 2009 through June 30, 2010, not more than 32.5% and (b)
thereafter, not more than 30%."
(s) Section 7.12 to the Existing Credit Agreement is hereby amended in its
entirety to read as follows:
"Interest Coverage Ratio. The Company shall not permit the Interest
Coverage Ratio as of the end of any Fiscal Quarter for the four Fiscal
Quarters then ended to be (a) for the period from and including March 31,
2009 through June 30, 2010, less than 1.50 to 1 for such Fiscal Quarter and
(b) thereafter, less than 2.00 to 1 for such Fiscal Quarter."
(t) Section 7.14 to the Existing Credit Agreement is hereby amended in its
entirety to read as follows:
"Aggregate RBC Ratio. The Company shall not permit the Aggregate RBC
Ratio as of the end of any Fiscal Quarter to be (a) for the period from and
including March 31, 2009 through June 30, 2010, less than 200% for such
Fiscal Quarter and (b) thereafter, less than 250% for such Fiscal Quarter."
(u) Section 7.15 to the Existing Credit Agreement is hereby amended in its
entirety to read as follows:
"Combined Statutory Capital and Surplus Level. The Company shall not
permit the Combined Statutory Capital and Surplus of the Insurance
Subsidiaries as of the end of any Fiscal
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Quarter to be (a) for the period from and including March 31, 2009 through
June 30, 2010, less than $1,100,000,000 and (b) thereafter, less than
$1,270,000,000."
SECTION 2. Conditions to Effectiveness. This Amendment shall become
effective as of the date (the "Amendment No. 2 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. 2 Effective Date:
(i) counterparts of this Amendment executed by the Loan Parties and
the Required Lenders;
(ii) counterparts of the Consent executed by the Subsidiary
Guarantors;
(iii) 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 (as amended
by this Amendment) are true and correct in all material respects as of the
Amendment No. 2 Effective Date, with the same effect as though made on and
as of such 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) immediately prior to and after giving effect to the
Amendment No. 2 Effective Date, 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. 2 Effective Date, 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; and
(iv) a certificate of the secretary or assistant secretary or similar
officer of each Obligor dated the Amendment No. 2 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. 2 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
that such resolutions have not been modified, rescinded or amended and
are in full force and effect on the Amendment No. 2 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. 2 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,
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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.
(b) The Borrower shall have paid or caused to be paid, in cash, to the
Agent, for the account of each Lender consenting to this Amendment (provided
that such Lender is not a Defaulting Lender on the Amendment No. 2 Effective
Date), a fee equal to 0.50% of the aggregate amount of the Term Loans and
Revolving Credit Commitments of such Lender, the fees of Banc of America
Securities LLC, as arranger for this Amendment, and all reasonable and invoiced
out-of-pocket expenses of the Agent in connection with this Amendment.
SECTION 3. 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 Existing Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Existing 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
Existing Credit Agreement, shall mean and be a reference to the Existing Credit
Agreement, as amended by this Amendment.
(b) The Existing 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 4. Expenses. The Borrower agrees that all reasonable out-of-pocket
expenses incurred by the Agent and the Steering Committee 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 and the Fee Agreement.
SECTION 5. Releases.
(a) In consideration of the agreements of the Agent and the Lenders
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower on behalf of itself
and each of its Subsidiaries (collectively, the "Releasing Parties"), on behalf
of the Releasing Party and their respective successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably releases,
remises and forever
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discharges the Agent and each of the Lenders and their respective successors and
assigns, and their respective present and former shareholders, affiliates,
subsidiaries, divisions, predecessors, directors, officers, attorneys,
employees, agents and other representatives (the Agent, the Lenders and all such
other Persons being hereinafter referred to collectively as the "Releasees" and
individually as a "Releasee"), of and from all demands, actions, causes of
action, suits, covenants, contracts, controversies, agreements, promises, sums
of money, accounts, bills, reckonings, damages and any and all other claims,
counterclaims, defenses, rights of set off, demands and liabilities whatsoever
(individually, a "Claim" and collectively, "Claims") of every name and nature,
known or unknown, suspected or unsuspected, both at law and in equity, which
such Releasing Party or any of its successors, assigns, or other legal
representatives may now or hereafter own, hold, have or claim to have against
the Releasees or any of them for, upon, or by reason of any circumstance,
action, cause or thing whatsoever which arises at any time on or prior to the
day and date of this Amendment for or on account of, or in relation to, or in
any way in connection with the Existing Credit Agreement, this Amendment or any
related documents or transactions thereunder or related thereto.
(b) Each Releasing Party understands, acknowledges and agrees that the
release set forth above may be pleaded as a full and complete defense and may be
used as a basis for an injunction against any action, suit or other proceeding
which may be instituted, prosecuted or attempted in breach of the provisions of
such release.
(c) Each Releasing Party agrees that no fact, event, circumstance, evidence
or transaction which could now be asserted or which may hereafter be discovered
shall affect in any manner the final, absolute and unconditional nature of the
release set forth above. Each Releasing Party acknowledges and agrees that the
Releasees have fully performed all obligations and undertakings owed to the
Releasing Parties under or in any way in connection with the Existing Credit
Agreement, this Amendment or any related documents or transactions thereunder or
related thereto as of the date hereof.
(d) Each Releasing Party, on behalf of itself and its successors, assigns,
and other legal representatives, hereby absolutely, unconditionally and
irrevocably, covenants and agrees with and in favor of each Releasee that it
will not sue (at law, in equity, in any regulatory proceeding or otherwise) any
Releasee on the basis of any Claim released, remised and discharged by such
Releasing Party pursuant to this Section 5. If any Releasing Party or any of
their successors, assigns or other legal representatives violates the foregoing
covenant, such Person, for itself and its successors, assigns and legal
representatives, agrees to pay, in addition to such other damages as any
Releasee may sustain as a result of such violation, all attorneys' fees and
costs incurred by any Releasee as a result of such violation.
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
or electronic transmission (e.g., .pdf or .tif file) 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/ Todd M. Hacker
------------------
Name: Todd M. Hacker
Title: Senior Vice President and Treasurer
BANK OF AMERICA, N.A., as Agent
By /s/ H.G. Wheelock
-----------------
Name: H.G. Wheelock
Title: SVP
CONSENT
Dated as of March 30, 2009
Each of the undersigned, as a Subsidiary Guarantor under the Credit
Agreement referred to in the foregoing Amendment, hereby consents to such
Amendment and the transactions contemplated by such Amendment and hereby
confirms and agrees that (a) notwithstanding the effectiveness of such
Amendment, the Security Agreement is, and shall continue to be, in full force
and effect and is hereby ratified and confirmed in all respects, except that, on
and after the effectiveness of such Amendment, each reference in the Security
Agreement to the "Credit Agreement", "thereunder", "thereof" or words of like
import shall mean and be a reference to the Existing Credit Agreement, as
amended by such Amendment, and (b) the Security Documents to which such
Guarantor is a party and all of the Collateral described therein do, and shall
continue to, secure the payment of all of the obligations to be secured
thereunder.
AMERICAN LIFE AND CASUALTY
MARKETING DIVISION CO.
CDOC, INC.
CONSECO MANAGEMENT SERVICES
COMPANY
By /s/ Todd M. Hacker
------------------
Name: Todd M. Hacker
Title: Senior Vice President and Treasurer
CODELINKS, LLC
By: CDOC, Inc., its Manager
By /s/ Todd M. Hacker
------------------
Name: Todd M. Hacker
Title: Senior Vice President and Treasurer
40|86 ADVISORS, INC.
40|86 MORTGAGE CAPITAL, INC.
By /s/ Todd M. Hacker
------------------
Name: Todd M. Hacker
Title: Senior Vice President and Treasurer
PERFORMANCE MATTERS ASSOCIATES, INC.
PERFORMANCE MATTERS ASSOCIATES OF TEXAS, INC.
By /s/ Todd M. Hacker
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Name: Todd M. Hacker
Title: Senior Vice President and Treasurer
CONSECO SERVICES, LLC
By /s/ Todd M. Hacker
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Name: Todd M. Hacker
Title: Senior Vice President and Treasurer
Acknowledged as of the date hereof:
BANK OF AMERICA, N.A., as Agent
By /s/ H.G. Wheelock
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Name: H.G. Wheelock
Title: SVP