EXHIBIT 10(FF)
REVOLVING CREDIT AND TERM LOAN AGREEMENT
dated as of August 31, 2001
among
FPIC INSURANCE GROUP, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent and Collateral Agent
SUNTRUST ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CAPITAL MARKETS,
A DIVISION OF SUNTRUST CAPITAL MARKETS, INC.,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; CONSTRUCTION...........................................1
Section 1.1 Definitions............................................1
Section 1.2 Classifications of Loans and Borrowings...............17
Section 1.3 Accounting Terms and Determination....................17
Section 1.4 Terms Generally.......................................17
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS...............................17
Section 2.1 General Description of Facilities....................17
Section 2.2 Revolving Loans.......................................18
Section 2.3 Procedure for Revolving Borrowings....................18
Section 2.4 Term Loan Commitments.................................18
Section 2.5 Funding of Borrowings.................................18
Section 2.6 Interest Elections....................................19
Section 2.7 Optional Reduction and Termination of Commitments.....20
Section 2.8 Repayment of Loans....................................20
Section 2.9 Evidence of Indebtedness..............................21
Section 2.10 Prepayments...........................................21
Section 2.11 Interest on Loans.....................................22
Section 2.12 Fees..................................................22
Section 2.13 Computation of Interest and Fees......................23
Section 2.14 Inability to Determine Interest Rates.................23
Section 2.15 Illegality............................................24
Section 2.16 Increased Costs.......................................24
Section 2.17 Funding Indemnity.....................................25
Section 2.18 Taxes.................................................25
Section 2.19 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs..............................................26
Section 2.20 Mitigation of Obligations; Replacement of Lenders.....28
Section 2.21 Letters of Credit.....................................28
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT..............32
Section 3.1 Conditions To Effectiveness...........................32
Section 3.2 Each Credit Event.....................................34
Section 3.3 Delivery of Documents.................................34
ARTICLE IV REPRESENTATIONS AND WARRANTIES....................................34
Section 4.1 Existence; Power......................................34
Section 4.2 Organizational Power; Authorization...................35
Section 4.3 Governmental Approvals; No Conflicts..................35
Section 4.4 Financial Statements..................................35
Section 4.5 Annual Statutory Statements...........................35
Section 4.6 Litigation and Environmental Matters..................35
Section 4.7 Compliance with Laws and Agreements...................36
Section 4.8 Investment Company Act, Etc...........................36
Section 4.9 Taxes.................................................36
Section 4.10 Margin Regulations....................................36
Section 4.11 ERISA.................................................36
Section 4.12 Ownership of Property.................................36
Section 4.13 Disclosure............................................37
Section 4.14 Labor Relations.......................................37
Section 4.15 Indebtedness..........................................37
Section 4.16 Insurance.............................................37
Section 4.17 Subsidiaries..........................................37
Section 4.18 Investments...........................................37
Section 4.19 Licenses and Permits..................................37
Section 4.20 Material Contracts....................................37
Section 4.21 Principal Place of Business...........................38
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Section 4.22 Solvency..............................................38
Section 4.23 Reinsurance Agreements................................38
Section 4.24 Stock Pledge Agreements...............................38
ARTICLE V AFFIRMATIVE COVENANTS..............................................39
Section 5.1 Financial Statements and Other Information............39
Section 5.2 Notices of Material Events............................41
Section 5.3 Existence; Conduct of Business........................41
Section 5.4 Compliance with Laws, Etc.............................41
Section 5.5 Payment of Obligations................................42
Section 5.6 Books and Records.....................................42
Section 5.7 Visitation, Inspection, Etc...........................42
Section 5.8 Maintenance of Properties; Insurance..................42
Section 5.9 Use of Proceeds and Letters of Credit.................42
Section 5.10 Additional Subsidiaries...............................42
Section 5.11 Pledged Shares........................................43
Section 5.12 A.M. Best Rating......................................43
Section 5.13 Dividends.............................................43
Section 5.14 Further Assurances....................................43
ARTICLE VI FINANCIAL COVENANTS...............................................43
Section 6.1 Leverage Ratio........................................43
Section 6.2 Consolidated Total Debt to Cash Flow Available for
Debt Service Ratio....................................43
Section 6.3 Fixed Charge Coverage Ratio...........................44
Section 6.4 Consolidated Net Worth................................44
Section 6.5 Combined Adjusted Capital to Combined Risk-Based
Capital Ratio.........................................44
Section 6.6 Combined Net Premiums Written to Combined
Statutory Capital and Surplus Ratio...................44
ARTICLE VII NEGATIVE COVENANTS...............................................44
Section 7.1 Indebtedness..........................................44
Section 7.2 Negative Pledge.......................................46
Section 7.3 Fundamental Changes...................................46
Section 7.4 Investments, Loans, Etc...............................47
Section 7.5 Restricted Payments...................................47
Section 7.6 Sale of Assets........................................48
Section 7.7 Transactions with Affiliates..........................48
Section 7.8 Restrictive Agreements................................48
Section 7.9 Sale and Leaseback Transactions.......................48
Section 7.10 Hedging Agreements....................................48
Section 7.11 Amendment to Material Documents.......................48
Section 7.12 Accounting Changes....................................49
Section 7.13 Certain Covenants Relating to Reinsurance.............49
ARTICLE VIII EVENTS OF DEFAULT...............................................49
Section 8.1 Events of Default.....................................49
ARTICLE IX THE ADMINISTRATIVE AGENT..........................................51
Section 9.1 Appointment of Administrative Agent...................51
Section 9.2 Nature of Duties of Administrative Agent..............52
Section 9.3 Lack of Reliance on the Administrative Agent..........52
Section 9.4 Certain Rights of the Administrative Agent............53
Section 9.5 Reliance by Administrative Agent......................53
Section 9.6 The Administrative Agent in its Individual Capacity...53
Section 9.7 Successor Administrative Agent........................53
ARTICLE X MISCELLANEOUS......................................................54
Section 10.1 Notices...............................................54
Section 10.2 Waiver; Amendments....................................55
Section 10.3 Expenses; Indemnification.............................56
Section 10.4 Successors and Assigns................................57
Section 10.5 Governing Law; Jurisdiction; Consent to Service
of Process............................................59
Section 10.6 WAIVER OF JURY TRIAL..................................59
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Section 10.7 Right of Setoff.......................................59
Section 10.8 Counterparts; Effectiveness; Integration..............60
Section 10.9 Survival..............................................60
Section 10.10 Severability..........................................60
Section 10.11 Confidentiality.......................................60
Section 10.12 Interest Rate Limitation..............................60
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Schedules
---------
Schedule I - Pricing Grid
Schedule 4.17 - Subsidiaries
Schedule 4.19 - Jurisdictions in Which Insurance
Subsidiaries Conduct Business
Schedule 4.20 - Material Contracts
Schedule 4.21 - Principal Place of Business
Schedule 4.23 - Material Liabilities Under Reinsurance
Agreements
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.3 - Insurance Lines of Business
Schedule 7.4 - Existing Investments
Schedule I-D - To the Subsidiary Guarantee Agreement
Schedule I-D-1 - To Supplement No.___ to the Subsidiary
Guarantee Agreement
Schedule I-E - To the Indemnity, Subrogation and
Contribution Agreement
Schedule I-E-1 - To Supplement No.___ to the Indemnity,
Subrogation and Contribution Agreement
Schedule I-F - To the Stock Pledge Agreement
Schedule II-F - To the Stock Pledge Agreement
Annex I-D - To the Subsidiary Guarantee Agreement
Annex I-E - To the Indemnity, Subrogation and
Contribution Agreement
Exhibits
--------
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Term Note
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Subsidiary Guarantee Agreement
Exhibit E - Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit F - Form of Stock Pledge Agreement
Exhibit 2.1 - Form of Lender Addition Agreement
Exhibit 2.3 - Form of Notice of Revolving Borrowing
Exhibit 2.9 - Form of Continuation/Conversion
Exhibit 3.1(b)(vi) - Form of Secretary's Certificate
Exhibit 3.1(b)(ix) - Form of Officer's Certificate
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
----------------------------------------
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (this
"Agreement") is made and entered into as of August 31, 2001, by and among FPIC
INSURANCE GROUP, INC., a Florida corporation (the "Borrower"), the several banks
and other financial institutions from time to time party hereto (the "Lenders"),
and SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
"Administrative Agent") and in its capacity as Collateral Agent for the Lenders
(the "Collateral Agent").
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower has requested that the Lenders (a)
establish a $37,500,000 revolving credit facility with a $15,000,000 letter of
credit sub-facility thereunder and (b) make term loans in an aggregate principal
amount equal to $17,500,000 to the Borrower;
WHEREAS, subject to the terms and conditions of this
Agreement, the Lenders severally, to the extent of their respective Commitments,
are willing to establish the requested revolving credit facility and severally
to make the term loans to the Borrower.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Borrower, the Lenders and the
Administrative Agent agree as follows:
ARTICLE I
---------
DEFINITIONS; CONSTRUCTION
-------------------------
Section 1.1 Definitions. In addition to the other terms
defined herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of the
terms defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest
Period for a Eurodollar Borrowing, the rate per annum obtained by dividing (i)
LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the
Eurodollar Reserve Percentage.
"Administrative Agent" shall have the meaning assigned to such
term in the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to
each Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"Affiliate" shall mean, as to any Person, any other Person
that directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"Aggregate Revolving Commitments" shall mean the sum of the
Revolving Commitments of all Lenders at any time outstanding. On the Closing
Date, the Aggregate Revolving Commitments equal $37,500,000.
"AFP" shall mean Administrators for the Professions, Inc, a
New York corporation, and its successors and assigns.
"APAC" shall mean Anesthesiologists Professional Assurance
Co., a Florida corporation, and its successors and assigns.
1
"Applicable Lending Office" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or an Affiliate of
such Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender (or
an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Margin" shall mean, as of any date, with respect
to all Eurodollar Borrowings and Base Rate Borrowings outstanding on such date,
the percentage per annum designated in the "Pricing Grid" attached hereto as
Schedule I as applicable to Eurodollar Borrowings or Base Rate Borrowings, as
the case may be, based on the Borrower's ratio of Consolidated Total Debt to
Consolidated Total Capital. The Applicable Margin for Eurodollar Borrowings
shall initially be 2.25% and the Applicable Margin for Base Rate Borrowings
shall initially be 1.25%; provided, however, that commencing with the delivery
to the Administrative Agent of the Borrower's financial statements required by
Section 5.1(a) or (b) and the compliance certificate required by Section 5.1(e)
for the fiscal quarter ending March 31, 2002 and for each fiscal quarter
thereafter, the Applicable Margin shall be reset to the percentage designated in
Schedule I based on the Borrower's ratio of Consolidated Total Debt to
Consolidated Total Capital as of the last day of such fiscal quarter then ended,
such Applicable Margin being effective as of the second Business Day following
the date that the Administrative Agent receives such financial statements and
certificate; and provided further, however, that if at any time the Borrower
shall have failed to deliver such financial statements and certificate when due,
the Applicable Margin shall be at the initial level specified above from such
due date until such time as such financial statements and certificate are
delivered, at which time the Applicable Margin shall be determined as provided
above.
"Applicable Percentage" shall mean, as of any date, with
respect to the commitment fee, the percentage per annum designated in the
"Pricing Grid" attached hereto as Schedule I based on the Borrower's ratio of
Consolidated Total Debt to Consolidated Total Capital. The Applicable Percentage
shall initially be 0.30%; provided, however, that commencing with delivery to
the Administrative Agent of the Borrower's financial statements required by
Section 5.1(a) or (b) and the compliance certificate required by section 5.1(e)
for the fiscal quarter ending March 31, 2002 and for each fiscal quarter
thereafter, the Applicable Percentage shall be reset to the percentage
designated in Schedule I based on the Borrower's ratio of Consolidated Total
Debt to Consolidated Total Capital as of the last day of such fiscal quarter
then ended from such due date; such Applicable Percentage being effective as of
the second Business Day following the date that the Administrative Agent
receives such financial statements and certificate; and provided further,
however, that if any time the Borrower shall have failed to deliver such
financial statements and certificate when due, the Applicable Percentage shall
be at the initial level specified above from such due date until such time as
such financial statements and certificate are delivered, at which time the
Applicable Percentage shall be determined as provided above.
"Approved Reinsurer" shall mean any reinsurer that either:
(a) has a rating of "A-" or better by A.M. Best & Company
or S&P,
(b) is a Lloyd's Syndicate that is operating as part of
the Lloyd's Insurance Market during such period that the Lloyd's
Insurance Market maintains a rating of "A-" or better by ▇.▇.▇▇▇▇ &
Company or S&P,
(c) has provided a letter of credit, issued by a United
States bank having a long-term senior debt rating of "A" or better by
S&P or ▇▇▇▇▇'▇, in favor of the Borrower or the Insurance Subsidiary
entering into a Reinsurance Agreement with such reinsurer in an amount,
estimated by the Insurance Subsidiary in good faith, at least equal to
the amount required to obtain substantially full credit for the
reinsurance in the ceding Insurance Subsidiary's annual statutory
financial statements,
(d) has, under the Reinsurance Agreement, placed assets
in trust with a fiduciary under terms, including investment
restrictions consistent with this Agreement, in an amount, estimated by
the Insurance Subsidiary in good faith, at least equal to the amount
required to obtain substantially full credit for the reinsurance in the
ceding Insurance Subsidiary's annual statutory financial statements,
2
(e) has entered into a written agreement with an
Insurance Subsidiary pursuant to which assets are retained by the
Insurance Subsidiary on a funds withheld basis, and the value of such
withheld funds (as set forth in the statutory statements for the most
recent quarter) together with the value of any other security described
in this definition, are at least equal to the liabilities owed by such
reinsurer to such Insurance Subsidiary, or
(f) has otherwise provided collateral in favor of the
Borrower or the applicable Insurance Subsidiary in form and amount
satisfactory to the Required Lenders.
"Asset Disposition" shall mean the disposition of any or all
of the assets (including, without limitation, the Capital Stock of a Subsidiary
or any ownership interest in a joint venture) of any Loan Party whether by sale,
lease, transfer or otherwise. The term "Asset Disposition" shall not include (a)
the sale, lease or transfer of assets permitted by Section 7.6(a), (b), (c) or
(d) or (b) any Equity Issuance.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 10.4(b)) and accepted by the
Administrative Agent, in the form of Exhibit C attached hereto or any other form
approved by the Administrative Agent.
"Availability Period" shall mean the period from the Closing
Date to the Commitment Termination Date.
"Base Rate" shall mean the higher of (a) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent (0.50%), and
(b) the per annum rate which the Administrative Agent publicly announces from
time to time to be its prime lending rate, as in effect from time to time. The
Administrative Agent's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate shall be effective from
and including the date such change is publicly announced as being effective.
"Borrower" shall have the meaning in the introductory
paragraph hereof.
"Borrowing" shall mean a borrowing consisting of Loans of the
same Class and Type, made, converted or continued on the same date and in case
of Eurodollar Loans, as to which a single Interest Period is in effect.
"Business Day" shall mean (a) any day other than a Saturday,
Sunday or other day on which commercial banks in Atlanta, Georgia and New York,
New York are authorized or required by law to close and (b) if such day relates
to a Borrowing of, a payment or prepayment of principal or interest on, a
conversion of or into, or an Interest Period for, a Eurodollar Loan or a notice
with respect to any of the foregoing, any day on which dealings in Dollars are
carried on in the London interbank market.
"Capital Lease Obligations" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any lease (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" shall mean (a) in the case of a corporation,
capital stock, (b) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (c) in the case of a partnership, partnership
interests (whether general or limited), (d) in the case of a limited liability
company, membership interests and (e) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.
3
"Cash Flow Available for Debt Service" shall mean, as
measured for the Borrower and its Subsidiaries on a non-consolidated basis
(without duplication) for any rolling four-quarter period, the sum of the
following: (a) all dividends which may be paid during such period to the
Borrower without regulatory consent by its Insurance Subsidiaries, less the
amount actually paid to the Borrower during such period, (b) net income of all
non-Insurance Subsidiaries for such period, less the amount of dividends
actually paid by such Subsidiaries to the Borrower, and (c) the Net Income of
the Borrower (including dividends actually received) on a stand-alone,
non-consolidated basis less dividends actually paid by the Borrower to its
shareholders, plus to the extent deducted in determining Net Income of the
Borrower and its non-Insurance Subsidiaries for such period (i) depreciation and
amortization, (ii) with respect to the fiscal quarter indicated (A) second
quarter of 2000 - $300,000 (severance charges), (B) third quarter of 2000 -
$1,514,536 (severance charges), (C) fourth quarter of 2000 - $20,814,244
(reserve strengthening), (D) fourth quarter of 2000 - $2,497,511 (premium
adjustments with respect to Physicians Reciprocal Insurers contracts) and (E)
fourth quarter of 2000 - $500,000 (restructuring one of the Borrower's third
party administrators), and (iii) all other non-cash charges determined on a
non-consolidated basis in accordance with GAAP in each case for such period.
"Change in Control" shall mean the occurrence of one or more
of the following events: (a) any sale, lease, exchange or other transfer (in a
single transaction or a series of related transactions) of all or substantially
all of the assets of the Borrower to any Person or "group" (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or "group" (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof) of 30% or more of the outstanding shares of the voting stock
of the Borrower; or (c) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated or appointed by the current board of directors or (ii) appointed by
directors so nominated or appointed.
"Change in Law" shall mean (a) the adoption of any applicable
law, rule or regulation after the date of this Agreement, (b) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (c) compliance by any Lender (or its Applicable Lending Office) or
the Issuing Bank (or for purposes of Section 2.16(b), by such Lender's or the
Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans or Term Loans and when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or a Term Loan
Commitment.
"Closing Date" shall mean the date on which the conditions
precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived
in accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Collateral" shall mean a collective reference to the
"Collateral" which is identified in, and at any time will be covered by, each
Stock Pledge Agreement.
"Collateral Agent" shall have the meaning assigned to such
term in the opening paragraph hereof.
"Commitment" shall mean a Revolving Commitment or a Term Loan
Commitment or any combination thereof (as the context shall permit or require).
"Commitment Termination Date" shall mean the earliest of (a)
three (3) years from the Closing Date, (b) the date on which the Revolving
Commitments are terminated pursuant to Section 2.7 and (c) the date on which all
amounts outstanding under this Agreement have been declared or have
automatically become due and payable (whether by acceleration or otherwise) in
accordance with Section 8.1.
4
"Combined Adjusted Capital" shall mean, with respect to the
Insurance Subsidiaries as of any date on a combined basis, the sum of the
amounts shown on line 25, column 1, page 21 of the Annual Statement of each such
Insurance Subsidiary, or the sum of amounts determined in a consistent manner in
case of any change in the Annual Report form mandated under Requirements of Law
or in case of a determination for any date other than as of which an Annual
Statement is prepared.
"Combined Authorized Control Level Risk-Based Capital" shall
mean, with respect to the Insurance Subsidiaries as of any date on a combined
basis, the sum of the amounts shown on line 26, column 1, page 21 of the Annual
Statement of each such Insurance Subsidiary, or the sum of amounts determined in
a consistent manner in case of any change in the Annual Report form mandated
under Requirements of Law or in case of a determination for any date other than
one as of which an Annual Statement is prepared.
"Combined Net Premiums Written" shall mean, with respect to
the Insurance Subsidiaries as of any date on a combined basis, the sum of the
amounts shown as of such date on line 32, column 4, page 9 of the Annual
Statement of each such Insurance Subsidiary, or the sum of amounts determined in
a consistent manner in case of any change in the Annual Report form mandated
under Requirements of Law or in case of a determination for any date other than
one as of which an Annual Statement is prepared.
"Combined Statutory Capital and Surplus" shall mean, with
respect to the Insurance Subsidiaries as of any date on a combined basis, the
sum of (a) for each Insurance Subsidiary not legally domiciled in the United
States, the shareholders' equity of such Insurance Subsidiary as determined in
accordance with GAAP (without regard to the requirements of FAS 115), and (b)
for each other Insurance Subsidiary, the sum of the amounts shown on line 27,
column 1, page 3 of the Annual Statement of such Insurance Subsidiary, or the
sum of the amounts determined in a consistent manner in case of any change in
the Annual Report form mandated under Requirements of Law or in case of a
determination for any other date other than one as of which Annual Statement is
prepared.
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii)
income tax expense, (iii) depreciation and amortization, (iv) with respect to
the fiscal quarter indicated (A) second quarter of 2000 - $300,000 (severance
charges), (B) third quarter of 2000 - $1,514,536 (severance charges), (C) fourth
quarter of 2000 - $20,814,244 (reserve strengthening), (D) fourth quarter of
2000 - $2,497,511 (premium adjustments with respect to Physicians Reciprocal
Insurers contracts) and (E) fourth quarter of 2000 - $500,000 (restructuring one
of the Borrower's third party administrators), and (v) all other non-cash
charges, determined on a consolidated basis in accordance with GAAP in each case
for such period and minus (c) to the extent added in determining Consolidated
Net Income, income tax benefit.
"Consolidated Fixed Charges" shall mean, for the Borrower and
its Subsidiaries for any period, the sum (without duplication) of (a)
Consolidated Interest Expense for such period and (b) scheduled principal
payments made on Consolidated Total Debt during such period.
"Consolidated Interest Expense" shall mean, for the Borrower
and its Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the sum of (a) total cash interest expense, including
without limitation the interest component of any payments in respect of Capital
Lease Obligations capitalized or expensed during such period (whether or not
actually paid during such period) plus (b) the net amount payable (or minus the
net amount receivable) under Hedging Agreements during such period (whether or
not actually paid or received during such period).
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the Borrower and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (a) any extraordinary gains or losses, (b)
any gains attributable to write-ups of assets (except to the extent such
write-up restores any part of a previous write-down of a particular asset which
write-down was at any time taken into account with respect to any determination
of Consolidated Net Income under this Agreement), and (c) any income (or loss)
of any Person accrued prior to the date it becomes a Subsidiary or is merged
into or consolidated with the Borrower or any Subsidiary on the date that such
Person's assets are acquired by the Borrower or any Subsidiary.
5
"Consolidated Net Worth" shall mean, as of any date, (a) the
total assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, minus (b) the total liabilities of the Borrower and its Subsidiaries
(including all amounts properly attributable to minority interests, if any, in
the stock and surplus of subsidiaries) that would be reflected on the Borrower's
consolidated balance sheet as of such date prepared in accordance with GAAP.
"Consolidated Total Capital" shall mean, as of any date of
determination with respect to the Borrower and its Subsidiaries, the sum of (a)
Consolidated Total Debt and (b) Consolidated Net Worth.
"Consolidated Total Debt" shall mean, as of any date of
determination, all Indebtedness of the Borrower and its Subsidiaries that would
be reflected on a consolidated balance sheet of the Borrower prepared in
accordance with GAAP as of such date (other than Indebtedness described in
clause (k) of the definition thereof); provided, that there shall be excluded
from Consolidated Total Debt the stated amount of Letters of Credit provided in
connection with reinsurance arrangements as to those states in which any of the
Insurance Subsidiaries are not qualified to sell insurance products.
"Control" shall mean the power, directly or indirectly, either
to (a) vote 5% or more (other than when making a determination as to whether a
Person is a Subsidiary of the Borrower or of a Subsidiary of the Borrower), or
50% or more (when making a determination as to whether a Person is a Subsidiary
of the Borrower or of a Subsidiary of the Borrower) of securities having
ordinary voting power for the election of directors (or persons performing
similar functions) of a Person or (b) direct or cause the direction of the
management and policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. The terms "Controlled", "Controlling",
"Controlled by", and "under common Control with" have meanings correlative
thereto.
"Debt Issuance" shall mean the issuance of any Indebtedness
for borrowed money by any Loan Party (excluding any Equity Issuance or any
Indebtedness permitted to be incurred under Section 7.1).
"Default" shall mean any condition or event that, with the
giving of notice or the lapse of time or both, would constitute an Event of
Default.
"Default Interest" shall have the meaning set forth in Section
2.11(b).
"Dollar(s)" and the sign "$" shall mean lawful money of the
United States of America.
"EMI" shall mean Employers Mutual, Inc., a Florida corporation
and a wholly-owned Subsidiary of ▇▇▇▇▇▇▇▇, and its successors and assigns.
"Environmental Laws" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent
or otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Issuance" shall mean any issuance by any Loan Party to
any Person which is not a Loan Party of (a) shares of its Capital Stock, (b) any
shares of its Capital Stock pursuant to the exercise of options or warrants or
(c) any shares of its Capital Stock pursuant to the conversion of any debt
securities to equity (excluding
6
in the case of clauses (a) and (b) hereof the issuance of any such shares by the
Borrower under or in connection with its employee stock purchase plan or
pursuant to the exercise of employee or director stock options).
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice period is
waived); (b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator appointed by the PBGC of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of
the maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Event of Default" shall have the meaning provided in Article
VIII.
"Excluded Taxes" shall mean with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located, (c) in the case of a
Foreign Lender, any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.18(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.18(a) and
(d) except as otherwise provided herein, any gross receipts or value added taxes
relating to any amounts paid by the Borrower to any Lender.
7
"FAS" shall mean the Statements of Financial Accounting
Standards issued by the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants.
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers, as
published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"First Professionals" shall mean First Professionals Insurance
Company, Inc. f/k/a Florida Physicians Insurance Company, Inc., a Florida
corporation and a wholly-owned Subsidiary of the Borrower, and its successors
and assigns.
"Fixed Charge Coverage Ratio" shall mean, for any period of
four consecutive fiscal quarters of the Borrower, the ratio of (a) Consolidated
EBITDA for such period to (b) Consolidated Fixed Charges for such period.
"Foreign Lender" shall mean any Lender that is organized
under the laws of a jurisdiction other than that of the Borrower. For purposes
of this definition, the United States of America or any State thereof or the
District of Columbia shall constitute one jurisdiction.
"GAAP" shall mean generally accepted accounting principles in
the United States applied on a consistent basis and subject to the terms of
Section 1.3.
"Governmental Approvals" shall mean all authorizations,
consents, approvals, permits, licenses and exemptions of, registrations and
filings with, and reports to, all Governmental Authorities including, without
limitation, all licenses, permits, authorizations, waivers, privileges and
franchises which are necessary under any applicable Requirement of Law for any
Insurance Subsidiary to legally own and operate its property and carry on its
business.
"Governmental Authority" shall mean the government of the
United States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") shall mean
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guarantee" shall not
include endorsements for collection of deposits or any obligations under leases
to reimburse landlords for common area expenses, taxes, insurance and the like,
in each case, in the ordinary course of business. The amount of any Guarantee
shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which Guarantee is made or, if not so
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith. The term "Guarantee" used as a verb has a
corresponding meaning.
8
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or
collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, foreign exchange agreements,
commodity agreements and other similar agreements or arrangements designed to
protect against fluctuations in interest rates, currency values or commodity
values.
"Indebtedness" of any Person shall mean, without duplication
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(c) all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(f), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (d) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (e) all Capital Lease Obligations of such Person, (f) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (g) all Guarantees of such Person
of the type of Indebtedness described in clauses (a) through (d) above, (h) all
Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (i)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (j)
Off-Balance Sheet Liabilities, and (k) all obligations under any Hedging
Agreements. The Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner or a
joint venturer, except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded
Taxes.
"Indemnity and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E, among the Borrower, the Subsidiary Guarantors and the Administrative
Agent, and any and all modifications, amendments, supplements or restatements
thereof.
"Information Memorandum" shall mean the Confidential
Information Memorandum dated July 2001, relating to the Borrower and the
transactions contemplated by this Agreement and the other Loan Documents.
"Insurance Regulatory Authority" shall mean, with respect to
any Insurance Subsidiary, the insurance department or similar Governmental
Authority charged with regulating insurance companies or insurance holding
companies, in its jurisdiction of domicile and, to the extent that it has
regulatory authority over such Insurance Subsidiary, in each other jurisdiction
in which such Insurance Subsidiary conducts business or is licensed to conduct
business.
"Insurance Subsidiary" shall mean any direct or indirect
Subsidiary of the Borrower the ability of which to pay dividends is regulated by
an Insurance Regulatory Authority or that is otherwise required to be regulated
thereby in accordance with the applicable Requirements of Law of its
jurisdiction or domicile.
"Interest Period" shall mean with respect to any Eurodollar
Borrowing, a period of one, two, three or six months as selected by the Borrower
in accordance with Section 2.3; provided, that:
(a) the initial Interest Period for such Borrowing shall
commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of another Type) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the
day on which the next preceding Interest Period expires;
9
(b) if any Interest Period would otherwise end on a day
other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless, in the case of a Eurodollar
Borrowing, such Business Day falls in another calendar month, in which
case such Interest Period would end on the next preceding Business Day;
(c) any Interest Period which begins on the last Business
Day of a calendar month or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period shall end on the last Business Day of such calendar month;
(d) each principal installment of the Term Eurodollar Loans
shall have an Interest Period ending on each installment payment date
and the remaining principal balance (if any) of the Term Eurodollar
Loans shall have an Interest Period determined as set forth above; and
(e) no Interest Period may extend beyond the Commitment
Termination Date or the Maturity Date, as the case may be.
"Issuing Bank" shall mean SunTrust Bank or any other Lender,
each in its capacity as an issuer of Letters of Credit pursuant to Section 2.21.
"LC Commitment" shall mean that portion of the Aggregate
Revolving Commitments that may be used by the Borrower for the issuance of
Letters of Credit in an aggregate face amount not to exceed $15,000,000.
"LC Disbursement" shall mean a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit at such time, plus
(ii) the aggregate amount of all LC Disbursements that have not been reimbursed
by or on behalf of the Borrower at such time. The LC Exposure of any Lender
shall be its Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the
opening paragraph of this Agreement.
"Letter of Credit" shall mean (a) that certain outstanding
letter of credit heretofore issued by the Issuing Bank prior to the date hereof
for the account of the Borrower on behalf of AFP in favor of Manhasset
Associates, L.L.C. in the current face amount of $500,000 and continued by the
Issuing Bank after the date hereof pursuant to Section 2.21 or (b) any other
letter of credit hereafter issued by the Issuing Bank pursuant to Section 2.21
for the account of the Borrower, in each case, pursuant to the LC Commitment;
provided, however, as permitted by Section 2.21(a), at the Borrower's request,
any such letter of credit may be issued on behalf of a Subsidiary if the
Borrower is obligated to reimburse any LC Disbursements related to such letter
of credit.
"Leverage Ratio" shall mean, as of any date of determination
with respect to the Borrower, the ratio of (i) Consolidated Total Debt as of
such date to (ii) Consolidated Total Capital as of such date.
"LIBOR" shall mean, for any applicable Interest Period with
respect to any Eurodollar Loan, the rate per annum for deposits in Dollars for a
period equal to such Interest Period appearing on the display designated as Page
3750 on the Dow ▇▇▇▇▇ Markets Service (or such other page on that service or
such other service designated by the British Banker's Association for the
display of such Association's Interest Settlement Rates for Dollar deposits) as
of 11:00 a.m. (London, England time) on the day that is two Business Days prior
to the first day of the Interest Period or if such Page 3750 is unavailable for
any reason at such time, the rate which appears on the Reuters Screen ISDA Page
as of such date and such time; provided, that if the Administrative Agent
determines that the relevant foregoing sources are unavailable for the relevant
Interest Period, LIBOR shall mean the rate of interest
10
determined by the Administrative Agent to be the average (rounded upward, if
necessary, to the nearest 1/100th of 1%) of the rates per annum at which
deposits in Dollars are offered to the Administrative Agent two (2) Business
Days preceding the first day of such Interest Period by leading banks in the
London interbank market as of 10:00 a.m. for delivery on the first day of such
Interest Period, for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest,
lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"Loan Documents" shall mean, collectively, this Agreement, the
Notes (if any), the LC Documents, all Notices of Borrowing, the Subsidiary
Guarantee Agreement, the Indemnity and Contribution Agreement, all Stock Pledge
Agreements and any and all other instruments, agreements, documents and writings
executed in connection with any of the foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
"Loans" shall mean all Revolving Loans and Term Loans in the
aggregate or any of them, as the context shall require.
"Material Adverse Effect" shall mean, with respect to any
event, act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences whether or not
related, a material adverse change in, or a material adverse effect on, (a) the
business, results of operations, financial condition, assets, liabilities or
prospects of the Borrower and of the Borrower and its Subsidiaries taken as a
whole, (b) the ability of the Loan Parties to perform any of their respective
obligations under the Loan Documents, (c) the rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders under any of the Loan
Documents or (d) the legality, validity or enforceability of any of the Loan
Documents.
"Material Contracts" shall mean any contract or other
agreement, written or oral, of the Borrower or any of its Subsidiaries that are
required to be disclosed as "material" in the Borrower's filings with the SEC
and any other contract or agreement, written or oral, of the Borrower or any of
its Subsidiaries the failure to comply with which could reasonably be expected
to have a Material Adverse Effect.
"Material Indebtedness" shall mean Indebtedness (other than
the Loans and Letters of Credit) to a single Person and such Person's Affiliates
or obligations in respect of one or more Hedging Agreements, of any one or more
of the Borrower and the Subsidiaries in an aggregate principal amount exceeding
$500,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect to any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Material Subsidiary" shall mean at any time any direct or
indirect Subsidiary of the Borrower having at such time: (a) assets in an amount
equal to at least 5% of the total assets of the Borrower and its Subsidiaries
determined on a consolidated basis as of the last day of the most recent fiscal
quarter of the Borrower as reflected in the Borrower's most recent financial
statements required by Section 5.1(a) or (b) to be delivered to the
Administrative Agent; or (b) revenues or net income in an amount equal to at
least 5% of the total revenues or net income of the Borrower and its
Subsidiaries on a consolidated basis for the 12-month period ending on the last
day of the most recent fiscal quarter of the Borrower as reflected in the
Borrower's most recent financial statements required by Section 5.1(a) or (b) to
be delivered to the Administrative Agent.
11
"Maturity Date" shall mean, with respect to the Term Loans,
the earlier of (a) three (3) years from the Closing Date or (b) the date on
which the principal amount of all outstanding Term Loans have been declared or
automatically have become due and payable (whether by acceleration or
otherwise).
"▇▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇▇ Corporation, a Florida
corporation and a wholly-owned Subsidiary of the Borrower, and its successors
and assigns.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"NAIC" shall mean the National Association of Insurance
Commissioners and any successor thereto.
"Net Cash Proceeds" shall mean the aggregate cash proceeds
received by the Borrower or any Subsidiary in respect of any Asset Disposition
or Debt Issuance in which such aggregate cash proceeds exceed $2,000,000 or in
Equity Issuance, net of (a) direct costs (including, without limitation, legal,
accounting and investment banking fees, and sales commissions), (b) amounts held
in escrow to be applied as part of the purchase price, or otherwise subject,
pursuant to contract, to rights of the purchaser as a reduction or return of the
purchase price, of any Asset Disposition, (c) in the case of any Asset
Disposition, amounts required to be paid to the holder of any Indebtedness
permitted by Section 7.1 and secured by a Lien on the assets being sold or
otherwise disposed of in such Asset Disposition, or (d) taxes paid or payable as
a result thereof; it being understood that "Net Cash Proceeds" shall include,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received by the Borrower or any Subsidiary in any Asset
Disposition, Debt Issuance or Equity Issuance and any cash released from escrow
or from adjustment rights of the purchaser as part of the purchase price in
connection with any Asset Disposition.
"Notes" shall mean, collectively, the Revolving Credit Notes
and the Term Notes.
"Notices of Borrowing" shall mean the Notices of Revolving
Borrowing.
"Notice of Conversion/Continuation" shall mean the notice
given by the Borrower to the Administrative Agent in respect of the conversion
or continuation of an outstanding Borrowing as provided in Section 2.6(b)
hereof.
"Notice of Revolving Borrowing" shall have the meaning as set
forth in Section 2.3.
"Obligations" shall mean all amounts owing by the Borrower to
the Administrative Agent, the Issuing Bank or any Lender pursuant to or in
connection with this Agreement or any other Loan Document, including without
limitation, all principal, interest (including any interest accruing after the
filing of any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding),
all reimbursement obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all fees and expenses of counsel to the
Administrative Agent and any Lender incurred pursuant to this Agreement or any
other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, together with all renewals, extensions, modifications or
refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean all
liabilities of such Person retained in connection with asset securitization
programs, synthetic leases, sale and leaseback transactions or other similar
obligations arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the consolidated balance sheet of such Person and its
subsidiaries.
12
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant" shall have the meaning set forth in Section
10.4(c).
"Payment Office" shall mean the office of the Administrative
Agent located at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
location as to which the Administrative Agent shall have given written notice to
the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any successor entity performing similar
functions.
"Permitted Encumbrances" shall mean:
(a) Liens imposed by law for taxes not yet due or which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance
with GAAP;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being maintained in
accordance with GAAP;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) Liens on assets of any Insurance Subsidiary arising in
the ordinary course of business in connection with the acquisition,
disposition or other transfer or allocation, including by assumption,
cession or retrocession, of insurance risks;
(f) bank Liens with respect to collection of deposits and
credit card receivables in the ordinary course of business;
(g) judgment and attachment liens not giving rise to an
Event of Default or Liens created by or existing from any litigation or
legal proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(h) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations
and do not materially detract from the value of the affected property
or materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole;
(i) Liens created in the ordinary course of business under
leases and licenses of real or personal property (including intangible
personal property), whether as lessor, licensor, lessee or licensee;
and
(j) Liens created by or pursuant to the Stock Pledge
Agreements or any of the other Loan Documents.
13
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United
States (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;
(b) commercial paper having the highest rating, at the time
of acquisition thereof, of S&P or ▇▇▇▇▇'▇ and in either case maturing
within six months from the date of acquisition thereof;
(c) certificates of deposit, bankers' acceptances and time
deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States or any state thereof
which has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(d) fully collateralized repurchase agreements with a term
of not more than 30 days for securities described in clause (i) above
and entered into with a financial institution satisfying the criteria
described in clause (c) above; and
(e) mutual funds investing solely in any one or more of
the Permitted Investments described in clauses (a) through (d) above.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledged Shares" shall mean, collectively, all issued and
outstanding shares of Capital Stock of the Subsidiary Pledgees.
"Pro Rata Share" shall mean, with respect to any Lender at any
time, a percentage, the numerator of which shall be the sum of such Lender's
Revolving Commitment and Term Loan Commitment and the denominator of which shall
be the sum of all Lenders' Revolving Commitments and Term Loan Commitments; or
if the Revolving Commitments have been terminated or expired or if the Loans
have been declared to be due and payable, a percentage, the numerator of which
shall be the sum of such Lender's Revolving Credit Exposure and outstanding Term
Loan and the denominator of which shall be the sum of the aggregate Revolving
Credit Exposure and the aggregate outstanding Term Loans of all Lenders.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time, and any successor regulations.
"Reinsurance Agreement" shall mean any agreement, contract,
treaty, certificate or other arrangement whereby any Insurance Subsidiary agrees
to transfer, cede or retrocede to another insurer or reinsurer all or part of
the liability assumed or assets held by such Insurance Subsidiary under a policy
or policies of insurance issued by such Insurance Subsidiary or under a
reinsurance agreement whereby such Insurance Subsidiary assumes any such
liability of any other insurer or reinsurer.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
partners, employees, agents and advisors of such Person and such Person's
Affiliates, provided, that for purposes of Section 10.11, "Related Parties"
shall specifically exclude those Persons set
14
forth in paragraph (b)(1) of Rule 100 under Regulation FD promulgated by the
SEC, except as otherwise set forth in paragraph (b)(2) of such Rule.
"Release" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding
more than 66 2/3% of the aggregate outstanding Revolving Credit Exposures and
Term Loans at such time or if the Lenders have no Revolving Credit Exposure or
Term Loans outstanding, then Lenders holding more than 66 2/3% of the Aggregate
Revolving Commitments.
"Requirement of Law" shall mean, as to any Person, the
articles or certificate of incorporation and bylaws or other organizational or
governing documents of such Person, and each law, rule, regulation or treaty, or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable to or binding upon such Person or any of its property or to
which Person or any of its property is subject.
"Responsible Officer" shall mean any of the president, the
chief executive officer, the chief operating officer, the chief financial
officer, the treasurer or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of the
foregoing with the consent of the Administrative Agent; and, with respect to the
financial covenants only, the chief financial officer or the treasurer of the
Borrower.
"Restricted Payment" shall have the meaning set forth in
Section 7.5.
"Revolving Borrowing" shall mean a Borrowing under a Revolving
Loan.
"Revolving Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the Borrower
and to participate in Letters of Credit in an aggregate principal amount not
exceeding the amount set forth with respect to such Lender on the signature
pages to this Agreement, or in the case of a Person becoming a Lender after the
Closing Date as permitted by (a) Section 2.1, the amount of the new "Revolving
Commitment" as provided in the Lender Addition Agreement executed by such Person
as a New Lender or (b) Section 10.4, the amount of the assigned "Revolving
Commitment" as provided in the Assignment and Acceptance Agreement executed by
such Person as an assignee, as the same may be changed pursuant to terms hereof.
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and such Lender's LC Exposure.
"Revolving Credit Note" shall mean a promissory note of the
Borrower payable to the order of a requesting Lender in the principal amount of
such Lender's Revolving Commitment, in substantially the form of Exhibit A, and
any and all renewals, extensions or modifications thereof.
"Revolving Loan" shall mean a loan made by a Lender to the
Borrower under its Revolving Commitment, which may either be a Base Rate Loan or
a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"SAP" shall mean the statutory accounting procedures and
practices prescribed or permitted by the Florida Department of Insurance or the
insurance department or commission of any other applicable state.
"SEC" shall mean the Securities and Exchange Commission.
"Statutory Capital" shall be defined according to SAP.
15
"Stock Pledge Agreements" shall mean, collectively, each
separate Stock Pledge Agreement, substantially in the form of Exhibit F, made by
the Borrower or a Subsidiary Pledgor in favor of the Collateral Agent for the
benefit of the Lenders, and any and all modifications, amendments, supplements
or restatements thereof.
"Subsidiary" shall mean, with respect to any Person (the
"parent"), any corporation, partnership, joint venture, limited liability
company, association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, partnership, joint venture, limited liability
company, association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent. Unless otherwise indicated, all references to "Subsidiary" hereunder
shall mean a Subsidiary of the Borrower.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary
Guarantee Agreement, substantially in the form of Exhibit D, made by the
Subsidiary Guarantors in favor of the Administrative Agent for the benefit of
the Lenders, and any and all modifications, amendments, supplements or
restatements thereof.
"Subsidiary Loan Party" shall mean each Subsidiary Guarantor
and Subsidiary Pledgor.
"Subsidiary Guarantors" shall mean, collectively, FPIC
Insurance Agency, Inc., a Florida corporation, ▇▇▇▇▇▇▇▇, EMI, Professional
Strategy Options, Inc., a Florida corporation, AFP, Group Data Corporation, a
New York corporation, FPIC Intermediaries, Inc., a New York corporation, and all
other direct and indirect non-Insurance Subsidiaries of the Borrower, other than
Subsidiaries directly or indirectly Controlled by any Insurance Subsidiary, now
or at any time hereafter in existence (excluding Professional Medical
Administrators, LLC, a New York limited liability company, and FPIC Services,
Inc., a Florida corporation).
"Subsidiary Pledgees" shall mean, collectively, First
Professionals, FPIC Insurance Agency, Inc., a Florida corporation, APAC,
▇▇▇▇▇▇▇▇, EMI, AFP and all other direct and indirect Material Subsidiaries of
the Borrower, other than Subsidiaries directly or indirectly Controlled by any
Insurance Subsidiary, now or at any time hereafter in existence.
"Subsidiary Pledgors" shall mean, collectively, ▇▇▇▇▇▇▇▇ and
all other direct and indirect Material Subsidiaries of the Borrower, other than
Insurance Subsidiaries or Subsidiaries directly or indirectly Controlled by an
Insurance Subsidiary, now or at time hereafter in existence.
"Surplus Relief Reinsurance Agreement" shall mean any
Reinsurance Agreement that would not be considered a transaction that
indemnifies an insurer against loss or liability relating to insurance risk, as
determined in accordance with FAS 113 (without regard to the effective date of
FAS 113).
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Term Loan" shall have the meaning set forth in Section 2.4.
"Term Loan Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to make a Term Loan hereunder on the
Closing Date, in a principal amount not exceeding the amount set forth with
respect to such Lender on the signature pages to this Agreement. The aggregate
principal amount of all Lenders' Term Loan Commitments is $17,500,000.
"Term Note" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Term Loan Commitment, in substantially the form of Exhibit B, and any
and all renewals, extensions or modifications thereof.
16
"Type", when used in reference to a Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classifications of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g. a "Revolving Loan" or "Term Loan") or by Type (e.g. a "Eurodollar Loan"
or "Base Rate Loan") or by Class and Type (e.g. "Revolving Eurodollar Loan").
Borrowings also may be classified and referred to by Class (e.g. "Revolving
Borrowing") or by Type (e.g. "Eurodollar Borrowing") or by Class and Type (e.g.
"Revolving Eurodollar Borrowing").
Section 1.3 Accounting Terms and Determination. Unless
otherwise defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP or SAP, as the context may require, as in effect from time
to time, applied on a basis consistent (except for such changes approved by the
Borrower's independent public accountants) with the most recent audited
consolidated financial statements of the Borrower delivered pursuant to Section
5.1(a); provided, that if the Borrower notifies the Administrative Agent that
the Borrower wishes to amend any covenant in Article VI to eliminate the effect
of any change in GAAP or, if applicable, SAP, on the operation of such covenant
(or if the Administrative Agent notifies the Borrower that the Required Lenders
wish to amend Article VI for such purpose), then the Borrower's compliance with
such covenant shall be determined on the basis of GAAP or, if applicable, SAP,
in effect immediately before the relevant change in GAAP of, if applicable, SAP,
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
Section 1.4 Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the word
"to" means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as it was originally executed or as it may from time to time be amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
ARTICLE II
----------
AMOUNT AND TERMS OF THE COMMITMENTS
-----------------------------------
Section 2.1 General Description of Facilities. Subject to
and upon the terms and conditions herein set forth, (a) the Lenders hereby
establish in favor of the Borrower a revolving credit facility pursuant to which
the Lenders severally agree (to the extent of each Lender's Pro Rata Share up to
such Lender's Revolving Commitment) to make Revolving Loans to the Borrower in
accordance with Section 2.2, (ii) the Issuing Bank agrees to issue Letters of
Credit in accordance with Section 2.21, (iii) each Lender agrees to purchase a
participation interest in the Letters of Credit pursuant to the terms and
conditions hereof; provided, that in no event
17
shall the aggregate principal amount of all outstanding Revolving Loans and
outstanding LC Obligations exceed at any time the Aggregate Revolving
Commitments from time to time in effect; and (iv) each Lender severally agrees
to make a Term Loan to the Borrower in accordance with Section 2.4 in a
principal amount not exceeding such Lender's Term Loan Commitment on the Closing
Date. The Aggregate Revolving Commitments may be increased from time to time
following additional syndication to banks and other financial institutions
acceptable to the Borrower and the Administrative Agent; provided, that the
Aggregate Revolving Commitments shall not exceed $47,500,000. In order to
effectuate such increase in the Aggregate Revolving Commitments, the Borrower,
the Administrative Agent and each bank or financial institution which will
become a Lender hereunder (a "New Lender") shall execute and deliver a Lender
Addition Agreement, substantially in the form of Exhibit 2.1 attached hereto (a
"Lender Addition Agreement"). The increased Aggregate Revolving Commitments as
well as the Revolving Commitment for the New Lender shall be set forth in the
Lender Addition Agreement. As a condition to the effectiveness of such Lender
Addition Agreement, the Borrower shall deliver to the Administrative Agent a
Revolving Credit Note payable to the New Lender in the face amount of the New
Lender's Revolving Commitment.
Section 2.2 Revolving Loans. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make Revolving
Loans to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time that will not result in (a)
such Lender's Revolving Credit Exposure exceeding such Lender's Revolving
Commitment or (b) the sum of the aggregate Revolving Credit Exposures of all
Lenders exceeding the Aggregate Revolving Commitments. During the Availability
Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving
Loans in accordance with the terms and conditions of this Agreement; provided,
that the Borrower may not borrow or reborrow should there exist a Default or
Event of Default.
Section 2.3 Procedure for Revolving Borrowings. The Borrower
shall give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Revolving Borrowing substantially in the
form of Exhibit 2.3 attached hereto (a "Notice of Revolving Borrowing") (x)
prior to 11:00 a.m. one (1) Business Day prior to the requested date of each
Base Rate Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to
the requested date of each Eurodollar Borrowing. Each Notice of Revolving
Borrowing shall be irrevocable and shall specify: (i) the aggregate principal
amount of such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing
and (iv) in the case of a Eurodollar Borrowing, the duration of the initial
Interest Period applicable thereto (subject to the provisions of the definition
of Interest Period). Each Revolving Borrowing shall consist entirely of Base
Rate Loans or Eurodollar Loans, as the Borrower may request. The aggregate
principal amount of each Eurodollar Borrowing shall be not less than $2,000,000
or a larger multiple of $1,000,000, and the aggregate principal amount of each
Base Rate Borrowing shall not be less than $1,000,000 or a larger multiple of
$100,000; provided, that Base Rate Loans made pursuant to Section 2.21(d) may be
made in lesser amounts as provided therein. At no time shall the total number of
Eurodollar Borrowings outstanding at any time exceed six (6). Promptly following
the receipt of a Notice of Revolving Borrowing in accordance herewith, the
Administrative Agent shall advise each Lender of the details thereof and the
amount of such Lender's Revolving Loan to be made as part of the requested
Revolving Borrowing.
Section 2.4 Term Loan Commitments. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make a single loan
(each, a "Term Loan") to the Borrower on the Closing Date in a principal amount
not to exceed the Term Loan Commitment of such Lender; provided, that if for any
reason the full amount of such Lender's Term Loan Commitment is not fully drawn
on the Closing Date, the undrawn portion thereof shall automatically be
cancelled. The Term Loans may be, from time to time, Base Rate Loans or
Eurodollar Loans or a combination thereof. The execution and delivery of this
Agreement by the Borrower and the satisfaction of all conditions precedent
pursuant to Section 3.1 shall be deemed to constitute the Borrower's request to
borrow the Term Loans on the Closing Date.
Section 2.5 Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by
it hereunder on the proposed date thereof by wire transfer in immediately
available funds by 11:00 a.m. to the Administrative Agent at the Payment Office.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts that it receives, in like funds by the close of
business on such proposed date, to an account maintained
18
by the Borrower with the Administrative Agent or at the Borrower's option, by
effecting a wire transfer of such amounts to an account designated by the
Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been
notified by any Lender prior to 5 p.m. one (1) Business Day prior to the date of
a Borrowing in which such Lender is participating that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender on the date of such
Borrowing, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest at the
Federal Funds Rate for up to two (2) days and thereafter at the rate specified
for such Borrowing. If such Lender does not pay such corresponding amount
forthwith upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the Borrower, and the Borrower shall immediately pay
such corresponding amount to the Administrative Agent together with interest at
the rate specified for such Borrowing. Nothing in this subsection shall be
deemed to relieve any Lender from its obligation to fund its Pro Rata Share of
any Borrowing hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on
the basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.6 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified
in the applicable Notice of Borrowing, and in the case of a Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Notice of
Borrowing. Thereafter, the Borrower may elect to convert such Borrowing into a
different Type or to continue such Borrowing, and in the case of a Eurodollar
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the
Borrower shall give the Administrative Agent prior written notice (or telephonic
notice promptly confirmed in writing) of each Borrowing (a "Notice of
Conversion/Continuation") that is to be converted or continued, as the case may
be, (x) prior to 11:00 a.m. one (1) Business Day prior to the requested date of
a conversion into a Base Rate Borrowing and (y) prior to 11:00 a.m. three (3)
Business Days prior to a continuation of or conversion into a Eurodollar
Borrowing. Each such Notice of Conversion/Continuation shall be irrevocable and
shall specify (i) the Borrowing to which such Notice of Continuation/Conversion
applies and if different options are being elected with respect to different
portions thereof, the portions thereof that are to be allocated to each
resulting Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) shall be specified for each resulting Borrowing); (ii)
the effective date of the election made pursuant to such Notice of Continuation/
Conversion, which shall be a Business Day, (iii) whether the resulting Borrowing
is to be a Base Rate Borrowing or a Eurodollar Borrowing; and (iv) if the
resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of "Interest Period". If any such Notice of
Continuation/Conversion requests a Eurodollar Borrowing but does not specify an
Interest Period, the Borrower shall be deemed to have selected an Interest
Period of one month. The principal amount of any resulting Borrowing shall
satisfy the minimum borrowing amount for Eurodollar Borrowings and Base Rate
Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect
of any Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice
of Conversion/Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
19
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation,
the Administrative Agent shall promptly notify each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
Section 2.7 Optional Reduction and Termination of
Commitments.
(a) Unless previously terminated, all Revolving Commitments
shall terminate on the Commitment Termination Date. The Term Loan Commitments
shall terminate on the Closing Date upon the making of the Term Loans pursuant
to Section 2.4.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower may
reduce the Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided, that (i) any partial reduction shall
apply to reduce proportionately and permanently the Revolving Commitment of each
Lender, (ii) any partial reduction pursuant to this Section 2.7 shall be in an
amount of at least $2,000,000 and any larger multiple of $1,000,000, and (iii)
no such reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures of
all Lenders.
Section 2.8 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid interest thereon) on
the Commitment Termination Date.
(b) The Borrower unconditionally promises to pay to the
Administrative Agent for the account of each Lender the principal amount of the
Term Loan of such Lender in twelve (12) equal installments payable on the dates
set forth below, with each such installment being in the aggregate principal
amount for all Lenders set forth opposite such date below (and on such other
date(s) and in such other amounts as may be required from time to time pursuant
to this Agreement):
Installment Date Aggregate Principal Amount
---------------- --------------------------
--------------------------------------------------------------------------------
December 31, 2001 $1,458,333.33
--------------------------------------------------------------------------------
March 31, 2002 $1,458,333.33
--------------------------------------------------------------------------------
June 30, 2002 $1,458,333.33
--------------------------------------------------------------------------------
September 30, 2002 $1,458,333.33
--------------------------------------------------------------------------------
December 31, 2002 $1,458,333.33
--------------------------------------------------------------------------------
March 31, 2003 $1,458,333.33
--------------------------------------------------------------------------------
June 30, 2003 $1,458,333.33
--------------------------------------------------------------------------------
September 30, 2003 $1,458,333.33
--------------------------------------------------------------------------------
December 31, 2003 $1,458,333.33
--------------------------------------------------------------------------------
March 31, 2004 $1,458,333.33
--------------------------------------------------------------------------------
June 30, 2004 $1,458,333.33
--------------------------------------------------------------------------------
20
Installment Date Aggregate Principal Amount
---------------- --------------------------
--------------------------------------------------------------------------------
Maturity Date $1,458,333.37
--------------------------------------------------------------------------------
provided, that, to the extent not previously paid, the aggregate unpaid
principal balance of the Term Loans shall be due and payable on the Maturity
Date.
Section 2.9 Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice appropriate records evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including
the amounts of principal and interest payable thereon and paid to such Lender
from time to time under this Agreement. The Administrative Agent shall maintain
appropriate records in which shall be recorded (i) the Revolving Commitment and
Term Loan Commitment of each Lender, (ii) the amount of each Loan made hereunder
by each Lender, the Class and Type thereof and the Interest Period applicable
thereto, (iii) the date of each continuation of all or a portion thereof
pursuant to Section 2.6, (iv) the date of each conversion of all or a portion
thereof to another Type pursuant to Section 2.6, (v) the date and amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder in respect of such Loans and (vi) both the
date and amount of any sum received by the Administrative Agent hereunder from
the Borrower in respect of the Loans and each Lender's Pro Rata Share thereof.
The entries made in such records shall be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded; provided, that
the failure or delay of any Lender or the Administrative Agent in maintaining or
making entries into any such record or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans (both principal and
unpaid accrued interest) of such Lender in accordance with the terms of this
Agreement.
(b) At the request of any Lender at any time, the Borrower
agrees that it will execute and deliver to such Lender a Revolving Credit Note
and/or a Term Loan Note payable to the order of such Lender. At the request of
the Borrower, any such Note may be executed and delivered by the Borrower
outside of the State of Florida in such location within the continental United
States as may be acceptable to the Administrative Agent, and the Administrative
Agent or such Lender will provide, if requested by the Borrower, reasonable
documentation, including affidavits, evidencing acceptance of such delivery in
such location.
Section 2.10 Prepayments.
(a) Mandatory Prepayments. The Borrower shall be required
to make mandatory principal prepayments from (i) 100% of the Net Cash Proceeds
(including all Net Cash Proceeds received on any purchase money Indebtedness
held by the recipient of such Net Cash Proceeds) from any Asset Disposition, and
(ii) 100% of Net Cash Proceeds received from any Equity Issuance or Debt
Issuance. In each such case, the Borrower will deliver to the Administrative
Agent, concurrently with such prepayment, a certificate signed by a Responsible
Officer, in form and substance satisfactory to the Administrative Agent, setting
the forth the calculation of such Net Cash Proceeds. All such prepayments shall
be applied as follows: first, to the Term Loans to the remaining amortization
payments in inverse order of maturity, second, after all Term Loans have been
repaid, to the Revolving Loans (with a corresponding permanent reduction in the
Revolving Commitments), and last, after all Revolving Loans have been repaid, to
a cash collateral account in respect of the LC Exposure. Further, if at any time
after the Closing Date, the sum of the aggregate outstanding Revolving Credit
Exposures of all Lenders shall exceed the aggregate Revolving Commitments of all
Lenders, the Borrower shall immediately prepay the Revolving Loans in an amount
sufficient to eliminate such excess. Within the parameters of the application
set forth above, prepayments shall be applied first to Base Rate Loans and then
to Eurodollar Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.10(a) shall be subject to Section 2.17 and be
accompanied by interest on the principal amount prepaid through the date of
prepayment in accordance with Section 2.11(c).
(b) Optional Prepayments. The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, without premium or penalty, by giving irrevocable written notice
21
(or telephonic notice promptly confirmed in writing) to the Administrative Agent
no later than (i) in the case of prepayment of any Eurodollar Borrowing, 11:00
a.m. not less than three (3) Business Days prior to any such prepayment, and
(ii) in the case of any prepayment of any Base Rate Borrowing, not less than one
Business Day prior to the date of such prepayment. Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender's Pro Rata Share of
any such prepayment. If such notice is given, the aggregate amount specified in
such notice shall be due and payable on the date designated in such notice,
together with accrued interest to such date on the amount so prepaid in
accordance with Section 2.11(c); provided, that if a Eurodollar Borrowing is
prepaid on a date other than the last day of an Interest Period applicable
thereto, the Borrower shall also pay all amounts required pursuant to Section
2.17. Each partial prepayment of any Loan shall be in an amount that would be
permitted in the case of an advance of a Revolving Borrowing of the same Type
pursuant to Section 2.2. Each prepayment of a Borrowing shall be applied ratably
to the Loans comprising such Borrowing, and in the case of a prepayment of a
Term Loan Borrowing, to principal installments in inverse order of maturity.
Section 2.11 Interest on Loans.
(a) The Borrower shall pay interest on each Base Rate Loan
at the Base Rate in effect from time to time and on each Eurodollar Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for such Loan,
plus, in each case, the Applicable Margin in effect from time to time.
(b) While an Event of Default exists or after acceleration,
at the option of the Required Lenders, the Borrower shall pay interest ("Default
Interest") with respect to all Eurodollar Loans at the rate otherwise applicable
for the then-current Interest Period plus an additional 2% per annum until the
last day of such Interest Period, and thereafter, and with respect to all Base
Rate Loans and all other Obligations hereunder (other than Loans), at an all-in
rate in effect for Base Rate Loans, plus an additional 2% per annum.
(c) Interest on the principal amount of all Loans shall
accrue from and including the date such Loans are made to but excluding the date
of any repayment thereof. Interest on all outstanding Base Rate Loans shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the Commitment Termination Date or the Maturity Date, as the
case may be. Interest on all outstanding Eurodollar Loans shall be payable on
the last day of each Interest Period applicable thereto, and, in the case of any
Eurodollar Loans having an Interest Period in excess of three months, on each
day which occurs every three months after the initial date of such Interest
Period, and on the Commitment Termination Date or the Maturity Date, as the case
may be. Interest on any Loan which is converted into a Loan of another Type or
which is repaid or prepaid shall be payable on the date of such conversion or on
the date of any such repayment or prepayment (on the amount repaid or prepaid)
thereof. All Default Interest shall be payable on demand.
(d) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder and shall promptly notify the Borrower
and the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
Section 2.12 Fees.
(a) Administrative Agent Fees. The Borrower shall pay to
the Administrative Agent for its own account fees in the amounts and at the
times previously agreed upon by the Borrower and the Administrative Agent.
(b) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Percentage (determined quarterly in accordance
with Schedule I) on the average daily amount of the unused Revolving Commitment
of such Lender during the Availability Period; provided, that if such Lender
continues to have any Revolving Credit Exposure after the Commitment Termination
Date, then the commitment fee shall continue to accrue on the amount of such
Lender's unused Revolving Commitment from and after the Commitment Termination
Date to the date that all of such Lender's Revolving Credit Exposure has been
22
paid in full. The Applicable Percentage shall initially be 0.30%, but shall be
reset from time to time as provided in the definition of "Applicable Percentage"
herein. Accrued commitment fees shall be payable in arrears on the last day of
each March, June, September and December of each year and on the Commitment
Termination Date, commencing on the first such date after the Closing Date;
provided, that any commitment fees accruing after the Commitment Termination
Date shall be payable on demand. For purposes of computing commitment fees with
respect to the Revolving Commitments, the Revolving Commitment of each Lender
shall be deemed used to the extent of the outstanding Revolving Loans and LC
Exposure of such Lender.
(c) Letter of Credit Fees. The Borrower agrees to pay (i) to
the Administrative Agent, for the account of each Lender, a letter of credit fee
with respect to its participation in each Letter of Credit, which shall accrue
at the Applicable Margin for Eurodollar Borrowings then in effect on the average
daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) attributable to such Letter of
Credit during the period from and including the date of issuance of such Letter
of Credit to but excluding the date on which such Letter expires or is drawn in
full (including without limitation any LC Exposure that remains outstanding
after the Commitment Termination Date) and (ii) to the Issuing Bank for its own
account a fronting fee, which shall accrue at the rate of 0.125% per annum on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the Availability Period
(or until the date that such Letter of Credit is irrevocably cancelled,
whichever is later), as well as the Issuing Bank's standard fees with respect to
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. While an Event of Default exists or after acceleration,
at the option of the Required Lenders, the fees payable by the Borrower under
this Section 2.12(c) shall be increased an additional 2% per annum.
(d) Payments. Accrued fees shall be payable quarterly in
arrears on the last day of each March, June, September and December, commencing
on September 30, 2001 and on the Commitment Termination Date (and if later, the
date the Loans and LC Exposure shall be repaid in their entirety).
Section 2.13 Computation of Interest and Fees. All
computations of interest and fees hereunder shall be made on the basis of a year
of 360 days for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or fees are
payable (to the extent computed on the basis of days elapsed). Each
determination by the Administrative Agent of an interest amount or fee hereunder
shall be made in good faith and, except for manifest error, shall be final,
conclusive and binding for all purposes.
Section 2.14 Inability to Determine Interest Rates. If prior
to the commencement of any Interest Period for any Eurodollar Borrowing,
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant interbank market,
adequate means do not exist for ascertaining LIBOR for such Interest
Period, or
(b) the Administrative Agent shall have received notice from
the Required Lenders that the Adjusted LIBO Rate does not adequately and
fairly reflect the cost to such Lenders (or Lender, as the case may be)
of making, funding or maintaining their (or its, as the case may be)
Eurodollar Loans for such Interest Period,
the Administrative Agent shall give written notice (or
telephonic notice, promptly confirmed in writing) to the Borrower and
to the Lenders as soon as practicable thereafter. In the case of
Eurodollar Loans, until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, (i) the obligations of the Lenders to make
Eurodollar Revolving Loans or to continue or convert outstanding Loans
as or into Eurodollar Loans shall be suspended and (ii) all such
affected Loans shall be converted into Base Rate Loans on the last day
of the then current Interest Period applicable thereto unless the
Borrower prepays such Loans in accordance with this Agreement. Unless
the Borrower notifies the Administrative Agent at least one Business
Day before the date of any Eurodollar Revolving Borrowing for which a
Notice of Revolving Borrowing has previously
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been given that it elects not to borrow on such date, then such
Revolving Borrowing shall be made as a Base Rate Borrowing.
Section 2.15 Illegality. If any Change in Law shall make in
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Eurodollar Revolving Loans, or to
continue or convert outstanding Loans as or into Eurodollar Loans, shall be
suspended. In the case of the making of a Eurodollar Revolving Borrowing, such
Lender's Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar
Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding
the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
Section 2.16 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement that is not otherwise
included in the determination of the Adjusted LIBO Rate
hereunder against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or on the Issuing Bank or
the eurodollar interbank market any other condition affecting
this Agreement or any Eurodollar Loans made by such Lender or
any Letter of Credit or any participation therein;
and the result of the foregoing is to increase the cost to such Lender
of making, converting into, continuing or maintaining a Eurodollar Loan
or to increase the cost to such Lender or the Issuing Bank of
participating in or issuing any Letter of Credit or to reduce the
amount received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or any other amount), then
the Borrower shall promptly pay, upon written notice from and demand by
such Lender or the Issuing Bank on the Borrower (with a copy of such
notice and demand to the Administrative Agent), to the Administrative
Agent for the account of such Lender or the Issuing Bank, within five
(5) Business Days after the date of such notice and demand, additional
amount or amounts sufficient to compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined
that on or after the date of this Agreement any Change in Law regarding
capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital (or on the
capital of such Lender's or the Issuing Bank's parent corporation) as a
consequence of its obligations hereunder or under or in respect of any
Letter of Credit to a level below that which such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation could
have achieved but for such Change in Law (taking into consideration
such Lender's or the Issuing Bank's policies or the policies of such
Lender's or the Issuing Bank's parent corporation with respect to
capital adequacy) then, from time to time, within five (5) Business
Days after receipt by the Borrower of written demand by such Lender
(with a copy thereof to the Administrative Agent), the Borrower shall
pay to such Lender or the Issuing Bank such additional amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's parent corporation for any such reduction suffered.
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(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's parent corporation,
as the case may be, specified in paragraph (a) or (b) of this Section
shall be delivered to the Borrower (with a copy to the Administrative
Agent) and shall be conclusive, absent manifest error. The Borrower
shall pay any such Lender or the Issuing Bank, as the case may be, such
amount or amounts within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to
demand such compensation.
Section 2.17 Funding Indemnity. In the event of (a) the
payment of any principal of a Eurodollar Loan other than on the last day of the
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion or continuation of a Eurodollar Loan other than on
the last day of the Interest Period applicable thereto or (c) the failure by the
Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the date
specified by the Borrower in any applicable notice (regardless of whether such
notice is withdrawn or revoked), then, in any such event, the Borrower shall
compensate each Lender, within five (5) Business Days after written demand from
such Lender, for any loss, cost or expense attributable to such event. In the
case of a Eurodollar Loan, such loss, cost or expense shall be deemed to include
an amount determined by such Lender to be the excess, if any, of (A) the amount
of interest that would have accrued on the principal amount of such Eurodollar
Loan if such event had not occurred at the Adjusted LIBO Rate applicable to such
Eurodollar Loan for the period from the date of such event to the last day of
the then current Interest Period therefor (or in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest
Period for such Eurodollar Loan) over (B) the amount of interest that would
accrue on the principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or
converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional amount payable
under this Section 2.17 submitted to the Borrower by any Lender shall be
conclusive, absent manifest error.
Section 2.18 Taxes.
(a) Any and all payments by or on account of any obligation
of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided, that if
the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section)
the Administrative Agent, any Lender or the Issuing Bank (as the case
may be) shall receive an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within five (5) Business Days after
written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent, such Lender or the
Issuing Bank, as the case may be, on or with respect to any payment by
or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable
to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender or the Issuing Bank, or by the Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Bank,
shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Administrative Agent the original
25
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Each Foreign Lender shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as
will permit such payments to be made without withholding or at a
reduced rate. Without limiting the generality of the foregoing, each
Foreign Lender agrees that it will deliver to the Administrative Agent
and the Borrower (or in the case of a Participant, to the Lender from
which the related participation shall have been purchased) (i) two (2)
duly completed copies of Internal Revenue Service Form 1001 or 4224, or
any successor form thereto, as the case may be, certifying in each case
that such Foreign Lender is entitled to receive payments made by the
Borrower hereunder and under the Notes payable to it, without deduction
or withholding of any United States federal income taxes and (ii) a
duly completed Internal Revenue Service Form W-8 or W-9, or any
successor form thereto, as the case may be, to establish an exemption
from United State backup withholding tax. Each such Foreign Lender
shall deliver to the Borrower and the Administrative Agent such forms
on or before the date that it becomes a party to this Agreement (or in
the case of a Participant, on or before the date such Participant
purchases the related participation). In addition, each such Lender
shall deliver such forms promptly upon the obsolescence or invalidity
of any form previously delivered by such Lender. Each such Lender
shall promptly notify the Borrower and the Administrative Agent at any
time that it determines that it is no longer in a position to provide
any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such
purpose).
(f) The Borrower shall not be obligated to pay any
additional amounts to any Lender pursuant to this Section in respect of
United States federal withholding taxes to the extent imposed as a
result of (i) the failure of such Lender to deliver to the Borrower the
form or forms, as applicable to such Lender, pursuant to clause (e),
(ii) such form or forms not establishing a complete exemption from U.S.
federal withholding tax or the information or certifications made
therein by the Lender being untrue or inaccurate on the date delivered
in any material respect, or (iii) the Lender designating a successor
lending office at which it maintains its Loans which has the effect of
causing such Lender to become obligated for tax payments in excess of
those in effect immediately prior to such designation; provided,
however, that the Borrower shall be obligated to gross up any payments
to any such Lender pursuant to this Section in respect of United States
federal withholding taxes, if any such failure to deliver a form or
forms or the failure of such form or forms to establish a complete
exemption from U.S. federal withholding tax or inaccuracy or untruth
contained therein resulted from a change in any applicable statute,
treaty, regulation or other applicable law or any interpretation of any
of the foregoing occurring after the Closing Date, which change
rendered such Lender no longer legally entitled to deliver such form or
forms or otherwise ineligible for a complete exemption from U.S.
federal withholding tax, or rendered the information or certification
made in such form or forms untrue or inaccurate in a material respect.
Section 2.19 Payments Generally; Pro Rata Treatment; Sharing
of Set-offs.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement
of LC Disbursements, or of amounts payable under Section 2.16, 2.17 or
2.18, or otherwise) prior to 12:00 noon, on the date when due, in
immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of
the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon.
All such payments shall be made to the Administrative Agent at the
26
Payment Office, except payments to be made directly to the Issuing Bank
as expressly provided herein and except that payments pursuant to
Sections 2.16, 2.17 and 2.18 and 10.3 shall be made directly to the
Persons entitled thereto. The Administrative Agent shall distribute
any such payments received by it for the account of any other Person to
the appropriate recipient promptly following receipt thereof. If any
payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon
shall be made payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal
and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-of
or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Revolving Loans or
participations in LC Disbursements that would result in such Lender
receiving payment of a greater proportion of the aggregate amount of
its Revolving Loans and participations in LC Disbursements and accrued
interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash
at face value) participations in the Revolving Loans and participations
in LC Disbursements of other Lenders to the extent necessary so that
the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Loans and participations in LC
Disbursements; provided, that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with
the express terms of this Agreement or any payment obtained by a Lender
as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Disbursements to any assignee
or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment,
the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing Bank, as the
case may be, the amount or amounts due. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders or the
Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from
and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on
interbank compensation.
27
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.5(b), 2.19(d), 2.21(d) or (e) or
10.3(d), then the Administrative Agent may, in its discretion (notwith-
standing any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to
satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
Section 2.20 Mitigation of Obligations; Replacement of
Lenders. If any Lender requests compensation under Section 2.16, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.18,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the sole judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable under Section 2.16 or Section 2.18, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any
Lender in connection with such designation or assignment.
Section 2.21 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section
2.21(d), agrees to issue or, in the case of that certain Letter of
Credit referenced in clause (a) of the definition thereof, to continue
the prior issuance of, at the request and for the account of the
Borrower, Letters of Credit on behalf of the Borrower or, if so
requested by the Borrower, on behalf of any Subsidiary (provided,
however, if any such Letter of Credit is issued on behalf of a
Subsidiary, the Borrower shall be obligated to make reimbursement for
any LC Disbursements as set forth in paragraph (d) of this Section
2.21) on the terms and conditions hereinafter set forth; provided, that
(i) each Letter of Credit shall expire on the earlier of (A) the date
one year after the date of issuance of such Letter of Credit (or in the
case of any renewal or extension thereof, one year after such renewal
or extension) and (B) the date that is five (5) Business Days prior to
the Commitment Termination Date; (ii) each Letter of Credit shall be in
a stated amount of at least $500,000; and (iii) the Borrower may not
request any Letter of Credit, if, after giving effect to such issuance
(A) the aggregate LC Exposure would exceed the LC Commitment or (B) the
aggregate LC Exposure plus the aggregate outstanding Revolving Loans of
all Lenders would exceed the Aggregate Revolving Commitments. Upon the
issuance of each Letter of Credit each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the
Issuing Bank without recourse a participation in such Letter of Credit
equal to such Lender's Pro Rata Share of the aggregate amount available
to be drawn under such Letter of Credit. Each issuance of a Letter of
Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall give the Issuing Bank and the Administrative Agent
irrevocable written notice at least three (3) Business Days prior to
the requested date of such issuance specifying the date (which shall be
a Business Day) such Letter of Credit is to be issued (or amended,
extended or renewed, as the case may be), the expiration date of such
Letter of Credit, the amount of such Letter of Credit, if the Letter of
Credit is to be issued on behalf of a Subsidiary, the name and address
of such Subsidiary, the name and address of the beneficiary thereof and
such other information as shall be necessary to prepare, amend, renew
or extend such Letter of Credit. In addition to the satisfaction of the
conditions in Article III, the issuance of such Letter of Credit (or
any amendment which increases the amount of such Letter of Credit) will
be subject to the further conditions that such Letter of Credit shall
be in such form and contain such terms as the Issuing Bank shall
approve and that the Borrower and, if applicable, such Subsidiary on
28
whose behalf such Letter of Credit is being issued, shall have executed
and delivered any additional applications, agreements and instruments
relating to such Letter of Credit as the Issuing Bank shall reasonably
require; provided, that in the event of any conflict between such
applications, agreements or instruments and this Agreement, the terms
of this Agreement shall control.
(c) At least two (2) Business Days prior to the issuance of
any Letter of Credit, the Issuing Bank will confirm with the
Administrative Agent (by telephone or in writing) that the
Administrative Agent has received such notice and if not, the Issuing
Bank will provide the Administrative Agent with a copy thereof. Unless
the Issuing Bank has received notice from the Administrative Agent on
or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit (1) directing the
Issuing Bank not to issue the Letter of Credit because such issuance is
not then permitted hereunder because of the limitations set forth in
Section 2.21(a) or that one or more conditions specified in Article III
are not then satisfied, then, subject to the terms and conditions
hereof, the Issuing Bank shall, on the requested date, issue such
Letter of Credit in accordance with the Issuing Bank's usual and
customary business practices.
(d) The Issuing Bank shall examine all documents purporting
to represent a demand for payment under a Letter of Credit promptly
following its receipt thereof. The Issuing Bank shall notify the
Borrower and the Administrative Agent of such demand for payment and
whether the Issuing Bank has made or will make a LC Disbursement
thereunder; provided, that any failure to give or delay in giving such
notice shall not relieve the Borrower of its obligation to reimburse
the Issuing Bank and the Lenders with respect to such LC Disbursement.
The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing
Bank in respect of such drawing (whether or not the applicable Letter
of Credit has been issued on behalf of the Borrower or, at the request
of the Borrower, on behalf of any Subsidiary pursuant to paragraph (a)
of this Section 2.21), without presentment, demand or other formalities
of any kind. Unless the Borrower shall have notified the Issuing Bank
and the Administrative Agent prior to 11:00 a.m. on the Business Day
immediately prior to the date on which such drawing is honored that the
Borrower intends to reimburse the Issuing Bank for the amount of such
drawing in funds other than from the proceeds of Revolving Loans, the
Borrower shall be deemed to have timely given a Notice of Revolving
Borrowing to the Administrative Agent requesting the Lenders to make a
Base Rate Borrowing on the date on which such drawing is honored in an
exact amount due to the Issuing Bank; provided, that for purposes
solely of such Borrowing, the conditions precedents set forth in
Section 3.2 hereof shall not be applicable. The Administrative Agent
shall notify the Lenders of such Borrowing in accordance with Section
2.3, and each Lender shall make the proceeds of its Base Rate Loan
included in such Borrowing available to the Administrative Agent for
the account of the Issuing Bank in accordance with Section 2.5. The
proceeds of such Borrowing shall be applied directly by the
Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is
not, made in accordance with the foregoing provisions, then each Lender
(other than the Issuing Bank) shall be obligated to fund the
participation that such Lender purchased pursuant to subsection (a) in
an amount equal to its Pro Rata Share of such LC Disbursement on and as
of the date which such Base Rate Borrowing should have occurred. Each
Lender's obligation to fund its participation shall be absolute and
unconditional and shall not be affected by any circumstance, including
without limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have against the
Issuing Bank or any other Person for any reason whatsoever, (ii) the
existence of a Default or an Event of Default or the termination of the
Aggregate Revolving Commitments, (iii) any adverse change in the
condition (financial or otherwise) of the Borrower or any of its
Subsidiaries, (iv) any breach of this Agreement by the Borrower or any
other Lender, (v) any amendment, renewal or extension of any Letter of
Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly
transfer, in immediately available funds, the amount of its
participation to the Administrative Agent for the account of the
29
Issuing Bank. Whenever, at any time after the Issuing Bank has
received from any such Lender the funds for its participation in a LC
Disbursement, the Issuing Bank (or the Administrative Agent on its
behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such
Lender its Pro Rata Share of such payment; provided, that if such
payment is required to be returned for any reason to the Borrower or to
a trustee, receiver, liquidator, custodian or similar official in any
bankruptcy proceeding, such Lender will return to the Administrative
Agent or the Issuing Bank any portion thereof previously distributed by
the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any
amount required to be paid pursuant to paragraph (d) of this Section
2.21 on the due date therefor, such Lender shall pay interest to the
Issuing Bank (through the Administrative Agent) on such amount from
such due date to the date such payment is made at a rate per annum
equal to the Federal Funds Rate; provided, that if such Lender shall
fail to make such payment to the Issuing Bank within three (3) Business
Days of such due date, then, retroactively to the due date, such Lender
shall be obligated to pay interest on such amount at the Default Rate.
(g) If any Event of Default shall occur and be continuing,
on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit
in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and
unpaid interest thereon; provided, that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, with demand or notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (g) or (h) of Section 8.1. Such deposit
shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this
Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such
deposits in interest-bearing money market or bank demand accounts,
which investments shall be made at the request of the Borrower,
subject, however, to the reasonable approval of the Administrative
Agent, and at the Borrower's risk and expense, such deposits shall not
bear interest. Interest and profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall applied by
the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it had not been reimbursed and to the extent so
applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the
Borrower under this Agreement. If the Borrower is required to provide
an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default, such amount (to the extent not so applied as
aforesaid) shall be returned to the Borrower with three Business Days
after all Events of Default have been cured or waived.
30
(h) Promptly following the end of each fiscal quarter, the
Issuing Bank shall deliver (through the Administrative Agent) to each
Lender and the Borrower a report describing the aggregate Letters of
Credit outstanding at the end of such fiscal quarter. Upon the request
of any Lender from time to time, the Issuing Bank shall deliver to such
Lender any other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under
all circumstances whatsoever and irrespective of any of the following
circumstances:
(i) Any lack of validity or enforceability of any
Letter of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense
or other right which the Borrower or any Subsidiary or
Affiliate of the Borrower may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any
Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including the Issuing
Bank) or any other Person, whether in connection with this
Agreement or the Letter of Credit or any document related
hereto or thereto or any unrelated transaction;
(iii) Any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document to
the Issuing Bank that does not comply with the terms of such
Letter of Credit;
(v) Any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might,
but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against,
the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of
Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any
Related Party of any of the foregoing shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred
to above), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the
control of the Issuing Bank; provided, that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when determining
whether drafts or other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree, that
in the absence of gross negligence or willful misconduct on the part of
the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect
to documents presented that appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may,
in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless
of any notice or information to the contrary, or refuse to accept and
make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.
31
(j) Each Letter of Credit shall be subject to the Uniform
Customs and Practices for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No.500, as the same may
be amended from time to time, and, to the extent not inconsistent
therewith, the governing law of this Agreement set forth in Section
10.5.
ARTICLE III
-----------
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
---------------------------------------------------
Section 3.1 Conditions To Effectiveness. The obligations of
the Lenders to make Loans and the obligation of the Issuing Bank to issue any
Letter of Credit hereunder shall not become effective until the date on which
each of the following conditions is satisfied (or waived in accordance with
Section 10.2).
(a) The Administrative Agent and the Collateral Agent each
shall have received all fees and other amounts due and payable on or
prior to the Closing Date, including reimbursement or payment of all
out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent and the Collateral
Agent) required to be reimbursed or paid by the Borrower hereunder,
under any other Loan Document and under any agreement with the
Administrative Agent, the Collateral Agent or SunTrust Equitable
Securities Corporation, as Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following, each of which shall be in form and substance
reasonably satisfactory to the Administrative Agent (and its counsel):
(i) a counterpart of this Agreement signed by or on
behalf of each party thereto or written evidence satisfactory
to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement;
(ii) if requested by any Lender, duly executed Notes
payable to such Lender;
(iii) a duly executed Subsidiary Guarantee Agreement
and Indemnity and Contribution Agreement of each Subsidiary
Guarantor;
(iv) a separate duly executed Stock Pledge Agreement
of the Borrower and each Subsidiary Pledgor, together with
original stock certificates evidencing all of the Pledged
Shares, accompanied by all necessary instruments of transfer
or assignment, duly executed in blank and, if the
Administrative Agent shall so request, with signatures
guaranteed by a member of a registered national securities
exchange or the National Association of Securities Dealers,
Inc. or by a commercial bank or trust company having an office
or correspondent in the United States;
(v) any financing statement which may be required
under Section 9-306 of the former U.C.C. and Section 9-315
of the revised U.C.C. to perfect a security interest in
certain proceeds of the Collateral that do not constitute
Pledged Shares or other securities or instruments;
(vi) a certificate of the Secretary or Assistant
Secretary of each Loan Party, attaching and certifying copies
of its bylaws and of the resolutions of its boards of
directors, authorizing the execution, delivery and performance
of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of such
Loan Party executing the Loan Documents to which it is a
party;
32
(vii) certified copies of the articles of
incorporation or other charter documents of each Loan Party,
together with certificates of good standing or existence, as
may be available from the Secretary of State of the
jurisdiction of incorporation of such Loan Party and each
other jurisdiction where such Loan Party is required to be
qualified to do business as a foreign corporation;
(viii) a favorable written opinion of ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.A., counsel to the Loan Parties, addressed to the
Administrative Agent and each of the Lenders, and covering
such matters relating to the Loan Parties, the Loan Documents
and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably
request;
(ix) a certificate, dated the Closing Date and signed
by a Responsible Officer, confirming compliance with the
conditions set forth in paragraphs (a), (b) and (c) of Section
3.2;
(x) duly executed payoff letters with respect to all
Indebtedness of the Borrower to be refinanced at closing,
together with all releases or terminations of all Liens
related thereto;
(xi) duly executed Notices of Borrowing, if
applicable;
(xii) certified copies of all Governmental Approvals,
including any required Governmental Approvals in connection
with the execution, delivery, performance, validity and
enforceability of this Agreement and each of the other Loan
Documents or the use of the proceeds of any of the Loans
hereunder;
(xiii) UCC, judgment and tax lien searches in the
jurisdiction of the chief executive office and state of
incorporation or formation of each Loan Party, together with
copies of all financing statements on file in such
jurisdictions (with all attachments) and evidence that no
Liens exist on any assets or properties of any such Loan Party
(other than Liens permitted by Section 7.2);
(xiv) a certificate of insurance issued by or on
behalf of insurers of the Loan Parties describing in
reasonable detail the types and amounts of insurance (property
and liability) maintained by each Loan Party, naming the
Administrative Agent as additional insured, as appropriate;
(xv) a certificate of a Responsible Officer
certifying material compliance by the Loan Parties with
environmental, OSHA and other public health, safety and
welfare laws and regulations, employee benefit plans and
insurance policies and coverages;
(xvi) a copy of the current (and proposed revised)
Statement of Investment Policy of Borrower with respect to its
Insurance Subsidiaries, certified by a Responsible Officer as
being true, correct and complete;
(xvii) a list of any material pending and/or threatened
litigation against the Borrower or any Subsidiary including,
but not limited to, any material outstanding claims, demands
or
33
proceedings against any Insurance Subsidiary, dated the
Closing Date and certified by a Responsible Officer;
(xviii) a list of any Reinsurance Agreements currently
in effect and not otherwise reflected in the most current
annual statutory financial statements delivered to the
Administrative Agent by the Borrower pursuant to Section 4.5,
dated the Closing Date and certified by a Responsible Officer;
and
(xix) a duly executed loan closing statement and
disbursement authorization agreement.
Section 3.2 Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing and of the Issuing Bank
to issue, amend, renew or extend any Letter of Credit is subject to the
satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default or Event of Default shall
exist;
(b) all representations and warranties of each Loan Party
set forth in the Loan Documents shall be true and correct in all
material respects on and as of the date of such Borrowing or the date
of issuance, amendment, extension or renewal of such Letter of Credit,
in each case before and after giving effect thereto;
(c) since the date of the most recent financial statements
of the Borrower described in Section 5.1(a) or (b), there shall have
been no change which has had or could reasonably be expected to have a
Material Adverse Effect; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably request,
all in form and substance reasonably satisfactory to the Administrative
Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or
renewal of any Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
Section 3.3 Delivery of Documents. All of the Loan
Documents, certificates, legal opinions and other documents and papers referred
to in this Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Administrative
Agent and each Lender as follows:
Section 4.1 Existence; Power. The Borrower and each of
its Subsidiaries (i) is duly organized, validly existing and in good standing as
a corporation under the laws of the jurisdiction of its organization, (ii) has
all requisite power and authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to be
so qualified could not reasonably be expected to result in a Material Adverse
Effect.
34
Section 4.2 Organizational Power; Authorization. The
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party are within such Loan Party's organizational powers and have
been duly authorized by all necessary organizational, and if required, stock-
holder action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Loan Document to which any Loan Party
is a party, when executed and delivered by such Loan Party, will constitute,
valid and binding obligations of the Borrower or such Loan Party (as the case
may be), enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
Section 4.3 Governmental Approvals; No Conflicts. The
execution, delivery and performance by the Borrower of this Agreement, and by
each Loan Party of the other Loan Documents to which it is a party (a) do not
require Governmental Approvals, except those as have been obtained or made and
are in full force and effect or where the failure to do so, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (b) will not violate any applicable Requirement of Law, (c) will not
violate or result in a default under any indenture, material agreement or other
material instrument binding on the Borrower or any of its Subsidiaries or any of
its assets or give rise to a right thereunder to require any payment to be made
by the Borrower or any of its Subsidiaries and (d) will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries, except Liens (if any) created under the Loan Documents.
Section 4.4 Financial Statements. The Borrower has furnished
to each Lender (a) the consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 2000 and the related consolidated statements of
income, shareholders' equity and cash flows for the fiscal year then ended
audited by PricewaterhouseCoopers LLP and (b) the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of the June 30, 2001,
and the related unaudited consolidated statements of income and cash flows for
the fiscal quarter and year-to-date period then ending, certified by a
Responsible Officer. Such financial statements fairly present the consolidated
financial condition of the Borrower and its Subsidiaries as of such dates and
the consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (b). Since
December 31, 2000, there have been no changes with respect to the Borrower and
its Subsidiaries which have had or could reasonably be expected to have, singly
or in the aggregate, a Material Adverse Effect.
Section 4.5 Annual Statutory Statements. The Borrower has
furnished to the Administrative Agent copies of the combined annual statutory
financial statements of its Insurance Subsidiaries as of December 31, 1998, 1999
and 2000, and for the fiscal years then ended, each as filed with the applicable
Insurance Regulatory Authority (collectively, the "Historical Annual
Statements"). The Historical Annual Statements (including, without limitation,
the provisions made therein for investments and the valuation thereof, reserves,
policy and contract claims and statutory liabilities) have been prepared in
accordance with SAP (except as may be reflected on the notes thereto and subject
with respect to the quarterly statements, to the absence of notes required by
SAP and to normal year-end adjustments), were in compliance with applicable
Requirements of Law when filed and present fairly the financial condition of the
respective Insurance Subsidiaries covered thereby as of the respective dates
thereof and the results of operations, changes in capital and surplus and cash
flow of the respective Insurance Subsidiaries covered thereby for the respective
periods then ended. Except for liabilities and obligations disclosed or
provided for in the Historical Annual Statements (including, without limitation,
reserves, policy and contract claims and statutory liabilities), no Insurance
Subsidiary has, as of the date of the respective Historical Annual Statements,
any material liabilities or obligations of any nature whatsoever (whether or not
absolute, contingent or otherwise and whether or not due) that, in accordance
with SAP, would have been required to have been disclosed or provided for in
such Historical Annual Statements. All books of account of each Insurance
Subsidiary fully and fairly disclose all of its material transactions,
properties, assets, investments, liabilities and obligations, are in its
possession and are true, correct and complete in all material respects.
35
Section 4.6 Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before
any arbitrators or Governmental Authorities is pending against or, to
the knowledge of the Borrower, threatened against or affecting the
Borrower or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination that could
reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect or (ii) which in any manner draws
into question the validity or enforceability of this Agreement or any
other Loan Document.
(b) Neither the Borrower nor any of its Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain
or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any
Environmental Liability, except where such events, either singly or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
Section 4.7 Compliance with Laws and Agreements. The
Borrower and each Subsidiary are in compliance with (a) all applicable
Requirements of Law (including, without limitation, those of all applicable
Insurance Regulatory Authorities), and (b) all indentures, agreements or other
instruments binding upon it or its properties, except where non-compliance,
either singly or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
Section 4.8 Investment Company Act, Etc. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company", as defined
in, or subject to regulation under, the Investment Company Act of 1940, as
amended, (b) a "holding company" as defined in, or subject to regulation under,
the Public Utility Holding Company Act of 1935, as amended or (c) otherwise
subject to any other regulatory scheme limiting its ability to incur debt.
Section 4.9 Taxes. The Borrower and its Subsidiaries and
each other Person for whose taxes the Borrower or any Subsidiary could become
liable have timely filed or caused to be filed all Federal income tax returns
and all other material tax returns that are required to be filed by them, and
have paid all taxes shown to be due and payable on such returns or on any
assessments made against it or its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority,
except (a) to the extent the failure to do so would not have a Material Adverse
Effect or (b) where the same are currently being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as the
case may be, has set aside on its books adequate reserves. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in respect of
such taxes are adequate, and no tax liabilities that could be materially in
excess of the amount so provided are anticipated.
Section 4.10 Margin Regulations. None of the proceeds of any
of the Loans or Letters of Credit will be used for "purchasing" or "carrying"
any "margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin Regulations.
Section 4.11 ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $500,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $500,000 the fair market value of the assets of all
such underfunded Plans.
36
Section 4.12 Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title
to, or valid leasehold interests in, all of its real and personal
property material to the operation of its business.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks,
service marks, trade names, copyrights and other intellectual property
material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person,
except for any such infringements that, individually or in the
aggregate, would not have a Material Adverse Effect.
Section 4.13 Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments, and corporate or other restrictions to
which the Borrower or any of its Subsidiaries is subject, and all other matters
known to any of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including, without limitation, all reports
that the Borrower or any of its Subsidiaries are required to file with the
Securities and Exchange Commission or any Insurance Regulatory Authority),
financial statements, annual statutory statements of each Insurance Subsidiary
(including, without limitation, the provisions made therein for investments and
the valuation thereof, reserves, policy and contract claims and statutory
liabilities) certificates or other information furnished by or on behalf of the
Borrower or any such Subsidiary to the Administrative Agent or any Lender in
connection with the negotiation or syndication of this Agreement or any other
Loan Document or delivered hereunder or thereunder (as modified or supplemented
by any other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements
therein, taken as a whole, in light of the circumstances under which they were
made, not misleading.
Section 4.14 Labor Relations. There are no strikes, lockouts
or other material labor disputes or grievances against the Borrower or any of
its Subsidiaries, or, to the Borrower's knowledge, threatened against or
affecting the Borrower or any of its Subsidiaries, and no significant unfair
labor practice, charges or grievances are pending against the Borrower or any of
its Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority. All payments due from the Borrower or any of
its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
Section 4.15 Indebtedness. Except as otherwise permitted
under Section 7.1, neither the Borrower nor any of its Subsidiaries has any
Indebtedness.
Section 4.16 Insurance. Each of the Borrower and its
Subsidiaries currently maintains insurance with respect to its properties and
businesses with financially sound and reputable insurers, having coverages
against losses or damages against loss or damage of the kinds customarily
insured against by companies in the same or similar businesses operating in the
same or similar locations, has paid all material amounts of insurance premiums
now due and owing with respect to such insurance policies and coverages and such
policies and coverages are in full force and effect.
Section 4.17 Subsidiaries. Schedule 4.17 sets forth the name
of each direct and indirect Subsidiary of the Borrower and, as to each
Subsidiary, the type of entity, jurisdiction of its incorporation or
organization, the number of shares of each class of Capital Stock or other
equity interests outstanding, the number and percentage of outstanding shares of
each class of Capital Stock or other equity interests owned, directly or
indirectly, by the Borrower or any of its Subsidiaries, and identifies whether
such Subsidiary is a Subsidiary Loan Party (and, if so, whether such Subsidiary
is a Subsidiary Guarantor and/or a Subsidiary Pledgor) or a Subsidiary Pledgee,
in each case as of the Closing Date. The outstanding Capital Stock and other
equity interests of all such Subsidiaries is validly issued, fully paid and non-
assessable and is owned free and clear of all Liens (other than those arising
under or contemplated by any Stock Pledge Agreement).
Section 4.18 Investments. All investments of the Borrower and
each of its Subsidiaries are allowed under Section 7.4.
37
Section 4.19 Licenses and Permits. Each of the Borrower and
its Subsidiaries has obtained and is in good standing under all Governmental
Approvals, except for those the failure to obtain could not reasonably be
expected to result in a Material Adverse Effect. No such Governmental Approval
is the subject of a proceeding for suspension, revocation or limitation or any
similar proceedings nor is there an sustainable basis for
such a suspension, revocation or limitation, and no such suspension, revocation
or limitation is threatened by any relevant Insurance Regulatory Authority. No
Insurance Subsidiary transacts any business, directly or indirectly, in any
jurisdiction other than those listed on Schedule 4.19, where such business
requires any license, permit or other authorization of an Insurance Regulatory
Authority of such jurisdiction.
Section 4.20 Material Contracts. Schedule 4.20 sets forth a
complete and accurate list of all Material Contracts of the Borrower and its
Subsidiaries in effect as of the Closing Date. Other than as set forth in
Schedule 4.20, each such Material Contract is, and after giving effect to the
confirmation of the transactions contemplated by the Loan Documents will be, in
full force and effect in accordance with the terms thereof. If requested by the
Administrative Agent, the Borrower and its Subsidiaries have delivered to the
Administrative Agent a true and complete copy of each Material Contract so
requested.
Section 4.21 Principal Place of Business. Schedule 4.21 sets
forth the chief executive office and principal place of business of each of the
Borrower and its Subsidiaries.
Section 4.22 Solvency The fair saleable value of each Loan
Parties' assets, measured on a going concern basis, exceeds all probable
liabilities, including those to be incurred pursuant to this Agreement. None of
the Loan Parties (a) has unreasonably small capital in relation to the business
in which it is or proposes to be engaged, or (b) has incurred, or believes that
it will incur after giving effect to the transactions contemplated by this
Agreement, debts beyond its ability to pay such debts as they become due. In
executing the Loan Documents and consummating the transactions contemplated
thereby, none of the Loan Parties intends to hinder, delay or defraud either
present or future creditors or other Persons to which one or more of the Loan
Parties is or will become indebted.
Section 4.23 Reinsurance Agreements.
(a) Except with respect to normal changes in liabilities in
the ordinary course of business under Reinsurance Agreements in regard
to liabilities reflected on Schedule F to the Annual Statements for the
Insurance Subsidiaries for the fiscal year ending December 31, 2000, or
on Schedule 4.23, there are no material liabilities owed to any such
Insurance Subsidiaries in the aggregate in excess of $5,000,000
outstanding as of the effective date under any Reinsurance Agreement.
Each Reinsurance Agreement is in full force and effect; none of the
Insurance Subsidiaries and, to the knowledge of the Borrower, no other
party thereto, is in breach of or default under any such contract,
other than breaches and defaults that are being contested in good faith
and by proper proceeding; and the Borrower has no reason to believe
that the financial condition of any other party to any such contract is
impaired such that a default thereunder by such party could reasonably
be anticipated. Each Reinsurance Agreement is qualified under all
applicable Requirements of Law to receive the statutory credit assigned
to such Reinsurance Agreement in the relevant annual statement or
quarterly statement at the time prepared. As of the Closing Date, each
Person to whom any of the Insurance Subsidiaries has ceded any material
liability pursuant to any Reinsurance Agreement either (i) is an
Approved Reinsurer or (ii) is not an Approved Reinsurer but the
reinsurnace receivables under all Reinsurance Agreements with such
reinsurers, in the aggregate, do not exceed $5,000,000.
(b) As of the Closing Date, no Insurance Subsidiary is a
party to any Surplus Relief Reinsurance Agreement.
Section 4.24 Stock Pledge Agreements. Upon the execution and
delivery of each Stock Pledge Agreement, the delivery to the Collateral Agent of
the stock certificates evidencing the Pledged Shares and the delivery of any
required notices to applicable Insurance Regulatory Authorities having
jurisdiction over any Material Subsidiary, the Collateral Agent shall have a
valid, perfected first priority and enforceable Lien on the Collateral,
provided, that prior to the Collateral Agent (a) realizing upon the Pledged
Shares, (b) taking title to the Pledged Shares, (c) exerting any control over
any Insurance Subsidiary, or (d) voting the Capital Stock of any such Insurance
Subsidiary, the Collateral Agent and, if applicable, the Lenders, must comply
with all applicable Requirements of Law relating to the acquisition of a
controlling interest in an insurance company.
38
ARTICLE V
---------
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of and interest on any Loan or any
fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
Section 5.1 Financial Statements and Other Information. The
Borrower will deliver to the Administrative Agent and each Lender (which
delivery may be effected by electronic means provided that the Administrative
Agent and each Lender actually receive such delivery):
(a) as soon as available and in any event within 90 days
after the end of each fiscal year of Borrower, (i) a copy of the annual
audited report for such fiscal year for the Borrower and its
Subsidiaries, containing a consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, comprehensive income, shareholders'
equity and cash flows (together with all footnotes thereto) of the
Borrower and its Subsidiaries for such fiscal year, setting forth in
each case in comparative form the figures for the previous fiscal year,
all in reasonable detail and reported on by PricewaterhouseCoopers LLP
or other independent public accountants of nationally recognized
standing (without a "going concern" or like qualification and without
any qualification as to scope of such audit) to the effect that such
financial statements present fairly in all material respects the
financial condition and the results of operations of the Borrower and
its Subsidiaries for such fiscal year on a consolidated basis in
accordance with GAAP and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards, and (ii) a copy
of the annual unaudited consolidating balance sheet and related
statement of income, all certified by the chief financial officer or
treasurer of the Borrower as presenting fairly in all material respects
the financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidating basis in accordance with GAAP,
except for the absence of footnotes;
(b) as soon as available and in any event within 45 days
after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, an unaudited consolidated and consolidating
balance sheet of the Borrower and its Subsidiaries as of the end of
such fiscal quarter and the related unaudited consolidated and, except
with respect to cash flows, consolidating statements of income and cash
flows of the Borrower and its Subsidiaries for such fiscal quarter and
the then elapsed portion of such fiscal year, setting forth in each
case (except with respect to the consolidating information) in
comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous fiscal year, all certified
by the chief financial officer or treasurer of the Borrower as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its Subsidiaries on a
consolidated and, where applicable, consolidating basis in accordance
with GAAP, subject to normal year-end audit adjustments and the absence
of footnotes;
(c) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower, copies of any annual
statutory financial statements or other annual report (other than the
financial statements referred in clause (a) above) that the Borrower or
any of the Insurance Subsidiaries are required to file with the Florida
Department of Insurance or any similar Governmental Authority in the
State of Florida or other state(s) by such 90th day, and a copy of such
Person's management discussion and analysis related thereto promptly
after such document is required to be filed with the relevant
Governmental Authority;
(d) as soon as available and in any event within 45 days
after the end of each fiscal quarter of the Borrower, copies of any
statutory financial statements or other regular or periodic reports
(other than the quarterly financial statements referred to clause (b)
above) that the Borrower or any of the Insurance Subsidiaries is
required to file with the Florida Department of Insurance or any
similar Governmental Authority in the State of Florida or other
state(s);
39
(e) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b) above, a certificate of a
Responsible Officer, (i) certifying as to whether there exists a
Default or Event of Default on the date of such certificate, and if a
Default or an Event of Default then exists, specifying the details
thereof and the action which the Borrower has taken or proposes to take
with respect thereto, (ii) setting forth in reasonable detail
calculations demonstrating compliance with Article VI and (iii) stating
whether any change in GAAP or the application thereof has occurred
since the date of the Borrower's audited financial statements referred
to in Section 4.4 and, if any change has occurred, specifying the
effect of such change on the financial statements accompanying such
certificate;
(f) concurrently with the delivery of the financial
statements referred to in clause (a) above, a certificate of the
accounting firm that reported on such financial statements stating
whether they obtained any knowledge during the course of their
examination of such financial statements of any Default or Event of
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(g) promptly after any Responsible Officer has notice or
knowledge of any adverse change in First Professionals' rating by A.M.
Best & Company as in effect on the Closing Date;
(h) as soon as available and in any event on or before
February 15 in each fiscal year of the Borrower and its Subsidiaries,
an annual operating budget and business plan for the Borrower and its
Subsidiaries, each in reasonable detail and with appropriate discussion
of the principal assumptions upon which such operating budget and
business plan are based;
(i) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
"Statement of Actuarial Opinion" and, further, as soon as available and
in any event within 150 days after the end of each fiscal year of the
Borrower, copies of the actuarial reports, in each case for each
Insurance Subsidiary and prepared by an independent actuary or
actuaries reasonably acceptable to the Administrative Agent.
(j) promptly after the same become publicly available, (i)
copies of all periodic and other reports, proxy statements and other
materials filed with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all functions of said
Commission, or with any national securities exchange, or distributed by
the Borrower to its shareholders generally, as the case may be;
provided, that if any such materials are readily available over the
internet and the Borrower gives notice thereof to the Administrative
Agent and each Lender, with disclosure of the internet location of such
materials, then the Borrower shall not be required to provide hard
copies of such materials to the Administrative Agent and each Lender,
(ii) all significant reports of examination or other similar
significant reports, financial examination reports or market conduct
examination reports by the NAIC or any Insurance Regulatory Authority
or other Governmental Authority with respect to any Insurance
Subsidiary's insurance business, (iii) all significant filings made
under applicable state insurance holding company acts by the Borrower
or any of its Subsidiaries including, without limitation, filings
seeking approval of transactions with Affiliates, and (iv) all
information sent by the Borrower or any of its Subsidiaries to rating
agencies including, without limitation, ▇▇▇▇▇'▇, Standard & Poor's,
A.M. Best & Company and Duff & ▇▇▇▇▇▇;
(k) promptly upon receipt thereof, (i) each report or
"management" letter submitted to the Borrower by its independent
accountants in connection with any annual, interim or special audit
made by it of the books of the Borrower or any of its Subsidiaries, and
(ii) the "Executive Summary" portion of the independent actuarial
report as of each year-end submitted to the Borrower by its independent
actuaries; and
(l) promptly following any request therefor, such other
information regarding the results of operations, business affairs and
financial condition of the Borrower or any Subsidiary as the
Administrative Agent or any Lender may reasonably request.
40
Section 5.2 Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender written notice of each of
the following, promptly after it becomes known to a Responsible Officer:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
(including, without limitation, any action, suit or proceeding
instituted by the Florida Department of Insurance or the Insurance
Regulatory Authority of any other applicable state) against or, to the
knowledge of the Borrower, affecting the Borrower or any Subsidiary
which, if adversely determined, could reasonably be expected to result
in a Material Adverse Effect;
(c) the occurrence of any event or any other development by
which the Borrower or any of its Subsidiaries (i) fails to comply with
any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii)
becomes subject to any Environmental Liability, (iii) receives notice
of any claim with respect to any Environmental Liability, or (iv)
becomes aware of any basis for any Environmental Liability and in each
of the preceding clauses, which individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $500,000;
(e) the forfeiture, non-renewal, cancellation, termination,
revocation, suspension, impairment or material modification of any
Governmental Approval held by the Borrower or any Subsidiary or the
occurrence of any event or the existence of any circumstances which is
likely to lead to the forfeiture, non-renewal, cancellation,
termination, revocation, suspension, impairment or material
modification of any Governmental Approval held by the Borrower or any
Subsidiary, the result of which could reasonably be expected to have a
Material Adverse Effect;
(f) the receipt of any notice or other communication from
any Governmental Authority of a material violation of any Requirement
of Law by the Borrower or any of its Subsidiaries including, without
limitation, any such notice from any Insurance Regulatory Authority;
and
(g) any other development (including, without limitation,
any change in any Requirement of Law applicable to the Borrower or any
of its Subsidiaries such as, by way of illustration and not limitation,
any actual changes in any insurance statute, rule or regulation
governing the investment or dividend practices of any Insurance
Subsidiary) that results in, or could reasonably be expected to result
in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied
by a written statement of a Responsible Officer setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and maintain in full force and effect its
legal existence and its respective rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business (including, without limitation, all required
Governmental Approvals) and will continue to engage in the same business as
presently conducted or such other businesses that are reasonably related
thereto; provided, that nothing in this Section shall prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.3.
Section 5.4 Compliance with Laws, Etc. The Borrower will,
and will cause each of its Subsidiaries to, comply with all Requirements of Law
applicable to it, its properties or assets or the conduct of its business
(including, without limitation, all Requirements of Law of any applicable
Insurance Regulatory Authority),
41
except where the failure to do so, either individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
Section 5.5 Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay and discharge at or before maturity,
all of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate measures, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and, if applicable, SAP, (c) the failure
to make payment pending such contest could not reasonably be expected to result
in a Material Adverse Effect.
Section 5.6 Books and Records. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of Borrower in conformity with
GAAP and, if applicable, SAP.
Section 5.7 Visitation, Inspection, Etc. The Borrower will,
and will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent or any Lender may reasonably request
after reasonable prior notice to the Borrower, provided that at any time
following the occurrence and during the continuance of a Default or an Event of
Default, no prior notice to the Borrower shall be required.
Section 5.8 Maintenance of Properties; Insurance. The
Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear except where the failure to do so, either
individually or it the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (b) maintain with financially sound and reputable
insurance companies, insurance with respect to its properties and business, and
the properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations and cause the Administrative Agent to
be named as an additional insured with respect to any insurance providing for
liability coverage.
Section 5.9 Use of Proceeds and Letters of Credit. The
Borrower will use the proceeds of all Loans to pay off and refinance all
outstanding amounts under the Borrower's existing credit facilities with
SunTrust Bank and certain other lenders and for other general corporate purposes
of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that would violate any
rule or regulation of the Board of Governors of the Federal Reserve System,
including Regulations T, U or X. All Letters of Credit will be used for general
corporate purposes of the Borrower or a Subsidiary.
Section 5.10 Additional Subsidiaries. If any additional
Subsidiary is acquired or formed after the Closing Date, the Borrower, within
ten (10) Business Days after such Subsidiary is acquired or formed, (a) will
notify the Administrative Agent and the Lenders thereof and, (i) if such
Subsidiary meets the definition of a "Subsidiary Guarantor" herein, will cause
such Subsidiary to become a Subsidiary Guarantor by executing agreements
reasonably acceptable to the Administrative Agent and substantially in the forms
of Annex I to Exhibit D and Annex I to Exhibit E, (ii) if such Subsidiary meets
the definition of a "Subsidiary Pledgor" herein and is the holder of the Capital
Stock of any Subsidiary which meets the definition of a "Subsidiary Pledgee"
herein, will cause such Subsidiary to become a Subsidiary Pledgor by executing
an agreement reasonably acceptable to the Administrative Agent and substantially
in the form of Exhibit F, and (iii) if such Subsidiary meets the definition of a
"Subsidiary Pledgee" herein and is a direct Subsidiary of the Borrower, will
execute a supplemental schedule reasonably acceptable to the Administrative
Agent and substantially in the form of Schedule II to Exhibit F, and (b) will
deliver, or will cause such Subsidiary to deliver, simultaneously therewith
similar documents applicable to such Subsidiary required under Section 3.1 as
reasonably requested by the Administrative Agent.
42
Section 5.11 Pledged Shares. The Borrower will pledge, and
will cause each Subsidiary to pledge, 100% of the Capital Stock or other equity
interest of each Subsidiary Pledgee to the Collateral Agent by executing an
agreement reasonably acceptable to the Administrative Agent and substantially in
the form of Exhibit F, and (b) will deliver or, if applicable, will cause such
Subsidiary to deliver, simultaneously therewith the documents and other items
required under Section 3.1(b)(iv) as reasonably requested by the Administrative
Agent.
Section 5.12 A.M. Best Rating. The Borrower will cause First
Professionals at all times to be rated "A-" or higher, itself or as part of an
insurance company group so rated, by A.M. Best Company.
Section 5.13 Dividends. The Borrower will take all action
necessary to cause its Subsidiaries to make such dividends, distributions or
payments to the Borrower as shall be necessary for the Borrower to make payments
of the principal of and interest on the Loans in accordance with this Agreement.
In the event the approval of any Governmental Authority (including any Insurance
Regulatory Authority) or other Person is required in order for any such
Subsidiary to make any such dividends, distributions or other payments to the
Borrower, or for the Borrower to make any such principal or interest payments,
the Borrower forthwith will exercise its best efforts and take all reasonable
actions permitted by law and necessary to obtain such approval. With regard to
the dividend made by First Professionals to Borrower on or about the Closing
Date to enable Borrower to pay off the existing Indebtedness which is being
refinanced at closing, Borrower acknowledges that it has contributed (or will
contribute) certain Investments, identified in footnote 1 to Schedule 7.4, to
First Professionals as additional paid-in capital (surplus) and agrees that,
following such contribution, it will cause First Professionals to use
commercially reasonable efforts to dispose of such Investments within a
reasonable period of time.
Section 5.14 Further Assurances. The Borrower will, and will
cause each of its Subsidiaries to, make, execute, endorse, acknowledge and
deliver any amendments, modifications or supplements hereto and restatements
hereof and any other agreements, instruments or documents, and take any and all
such actions, as may from time to time be reasonably requested by the Collateral
Agent or the Required Lenders to perfect and maintain the validity and priority
of the Liens granted pursuant to the Stock Pledge Agreement and to effect,
confirm or further assure or protect and preserve the interests, rights and
remedies of the Administrative Agent, the Collateral Agent and the Lenders under
this Agreement and the other Loan Documents (including, without limitation, any
and all instruments necessary or appropriate to effect the guarantee of the
Obligations by all Subsidiaries Loan Parties created or acquired after the date
hereof and the pledge of Capital Stock of all Subsidiary Pledgees created or
acquired after the date hereof).
ARTICLE VI
----------
FINANCIAL COVENANTS
-------------------
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of or interest on or any Loan
remains unpaid or any fee or any LC Disbursement remains unpaid or any Letter of
Credit remains outstanding:
Section 6.1 Leverage Ratio. The Borrower and its
Subsidiaries will have, as of the end of each fiscal quarter of the Borrower,
commencing with the fiscal quarter ending September 30, 2001, a Leverage Ratio
of not greater than 0.27:1.0; provided, that such ratio shall be increased by
0.003, up to 0.30:1.0, for each $1,000,000 in the Aggregate Revolving
Commitments in excess of $37,500,000, if any, as contemplated by Section 2.1.
Section 6.2 Consolidated Total Debt to Cash Flow Available
for Debt Service Ratio. The Borrower and its Subsidiaries will have, as of the
end of each fiscal quarter of the Borrower, commencing with the fiscal quarter
ending September 30, 2001, a Consolidated Total Debt to Cash Flow Available for
Debt Service Ratio of not less than:
43
---------------------------------------------------------------
Fiscal Quarter Required Ratio
-------------- --------------
---------------------------------------------------------------
The fiscal quarter ending on 4.25:1.0
September 30, 2001
---------------------------------------------------------------
Each fiscal quarter ending 4.00:1.0
after September 30, 2001 and
on or prior to December 31,
2001
---------------------------------------------------------------
Each fiscal quarter ending 3.50:1.0
after December 31, 2001
---------------------------------------------------------------
in each case, calculated on a rolling four-quarter basis.
Section 6.3 Fixed Charge Coverage Ratio. The Borrower and
its Subsidiaries will have, as of the end of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending September 30, 2001, a Fixed
Charge Coverage Ratio of not less than 2.50:1.0, calculated on a rolling four-
quarter basis and determined in accordance with GAAP.
Section 6.4 Consolidated Net Worth. The Borrower and its
Subsidiaries will have, as of the end of each fiscal quarter of the Borrower, a
Consolidated Net Worth (excluding other comprehensive income/loss) in an amount
equal to or greater than the sum of (a) $150,000,000, plus 50% of Consolidated
Net Income on a cumulative basis accrued since December 31, 2000, commencing
with the fiscal quarter ending March 31, 2001, all determined in accordance with
GAAP; provided, that if Consolidated Net Income is negative in any fiscal
quarter the amount added for such fiscal quarter shall be zero and such negative
Consolidated Net Income shall not reduce the amount of Consolidated Net Income
added from any previous fiscal quarter, plus (c) 100% of the Net Cash Proceeds
from any Equity Issuance.
Section 6.5 Combined Adjusted Capital to Combined Risk-Based
Capital Ratio. The Insurance Subsidiaries will have, as of the end of each
fiscal year of the Borrower, commencing with the fiscal year ending December 31,
2001, a Combined Adjusted Capital to Combined Risk-Based Capital Ratio of not
less than 3.75:1.0 determined in accordance with SAP.
Section 6.6 Combined Net Premiums Written to Combined
Statutory Capital and Surplus Ratio. The Insurance Subsidiaries will have, as of
the end of each fiscal quarter of the Borrower, commencing with the fiscal
quarter ending September 30, 2001, a Combined Net Premiums Written to Combined
Statutory Capital and Surplus Ratio of not greater than 2.00:1.0, calculated on
a rolling four-quarter basis and determined in accordance with SAP.
ARTICLE VII
-----------
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of or interest on any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
Section 7.1 Indebtedness. The Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents
(including Letters of Credit);
44
(b) Indebtedness existing on the date hereof and set forth
on Schedule 7.1 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal
or replacement) or shorten the maturity or the weighted average life
thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred
to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof; provided, that such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvements or extensions, renewals, and replacements
of any such Indebtedness that do not increase the outstanding principal
amount thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average
life thereof; provided further, that the aggregate principal amount
of such Indebtedness does not exceed $1,000,000 at any time
outstanding;
(d) Indebtedness of the Borrower owing to any Subsidiary and
of any Subsidiary owing to the Borrower or any other Subsidiary;
provided, that any such Indebtedness (other than Indebtedness of (i) an
Insurance Subsidiary that is owed to a Subsidiary Controlled by such
Insurance Subsidiary or (ii) a Subsidiary Controlled by an Insurance
Subsidiary) that is owed to such Insurance Subsidiary or to another
Subsidiary Controlled by such Insurance Subsidiary, that is owed to a
Subsidiary that is not a Subsidiary Loan Party shall be subject to
Section 7.4;
(e) Guarantees by the Borrower of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any
other Subsidiary; provided, that Guarantees by any Loan Party of
Indebtedness of any Subsidiary that is not a Subsidiary Loan Party
shall be subject to Section 7.4;
(f) Indebtedness in respect of obligations under Hedging
Agreements permitted by Section 7.10;
(g) Indebtedness of any Insurance Subsidiary in respect of
the stated amount of Letters of Credit provided in connection with
reinsurance arrangements in those states in which such Insurance
Subsidiary is not qualified to sell insurance products; and
(h) other unsecured Indebtedness in an aggregate principal
amount not to exceed $500,000 at any time outstanding.
Section 7.2 Negative Pledge. The Borrower will not, and
will not permit any of its Subsidiaries to, create, incur, assume or
suffer to exist any Lien on any of its assets or property now owned or
hereafter acquired, except:
(a) Liens created in favor of the Collateral Agent for the
benefit of the Lenders pursuant to the Stock Pledge Agreement or any of
the other Loan Documents;
(b) Permitted Encumbrances;
(c) any Liens on any property or asset of the Borrower or
any Subsidiary existing on the Closing Date set forth on Schedule 7.2;
provided, that such Lien shall not apply to any other property or asset
of the Borrower or any Subsidiary;
(d) purchase money Liens upon or in any fixed or capital
assets to secure the purchase price or the cost of construction or
improvement of such fixed or capital assets or to secure Indebtedness
incurred solely for the purpose of financing the acquisition,
construction or improvement of such fixed or capital assets (including
Liens securing any Capital Lease Obligations); provided, that (i) such
Lien secures Indebtedness permitted by Section 7.1(c), (ii) such Lien
attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof;
(iii) such Lien does not
45
extend to any other asset; and (iv) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets;
(e) any Lien (i) existing on any asset of any Person at the
time such Person becomes a Subsidiary of the Borrower, (ii) existing on
any asset of any Person at the time such Person is merged with or into
the Borrower or any Subsidiary of the Borrower or (iii) existing on any
asset prior to the acquisition thereof by the Borrower or any
Subsidiary of the Borrower; provided, that any such Lien was not
created in the contemplation of any of the foregoing and any such Lien
secures only those obligations which it secures on the date that such
Person becomes a Subsidiary or the date of such merger or the date of
such acquisition; and
(f) extensions, renewals, or replacements of any Lien
referred to in paragraphs (b) through (e) of this Section; provided,
that the principal amount of the Indebtedness secured thereby is not
increased and that any such extension, renewal or replacement is
limited to the assets originally encumbered thereby.
Section 7.3 Fundamental Changes.
(a) The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate into any other Person, or
permit any other Person to merge into or consolidate with it, or
liquidate or dissolve; provided, that if at the time thereof and
immediately after giving effect thereto, no Default or Event of Default
shall have occurred and be continuing (i) the Borrower or any
Subsidiary may merge with a Person if the Borrower (or such Subsidiary
if the Borrower is not a party to such merger or if the Borrower is a
party to such merger but is not merged in such transaction) is the
surviving Person, (ii) any Subsidiary may merge into another Subsidiary
(including, without limitation, ▇▇▇▇▇▇▇▇ may merge with and into EMI,
or vise versa); provided, that if any party to such merger is a
Subsidiary Loan Party, the surviving Person shall be or become a
Subsidiary Loan Party, (iii) any Subsidiary may liquidate or dissolve
if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided, that any such
merger involving a Person that is not a wholly-owned Subsidiary
immediately prior to such merger shall not be permitted unless also
permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other
than (i) businesses of the type conducted by the Borrower and its
Subsidiaries on the date hereof and businesses reasonably related
thereto and (ii) in the case of any Insurance Subsidiary, the sale of
any of the insurance products within the lines of business described in
Schedule 7.3.
Section 7.4 Investments, Loans, Etc. The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly-owned
Subsidiary prior to such merger), any common stock, evidence of indebtedness or
other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to,
Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person (all of the foregoing being collectively
called "Investments"), or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person that constitute a
business unit, except:
(a) Investments (other than Permitted Investments) existing
on the date hereof and set forth on Schedule 7.4 (including Investments
in Subsidiaries) and increases in such Investments arising as a result
of increases in retained earnings of the Person in which the Investment
is made or arising as a result of a capital contribution or an Equity
Issuance not prohibited by this Agreement;
(b) Permitted Investments;
(c) Investments by Insurance Subsidiaries in the ordinary
course of business that comply with all Requirements of Law applicable
to such Insurance Subsidiaries and with the current (and proposed
revised) Statement of Investment Policy of Borrower with respect to its
Insurance Subsidiaries delivered to
46
Administrative Agent pursuant to Section 3.1(b)(xvi) and attached to
the Section 3.1(b)(xvi) Officer's Certificate delivered to the
Administrative Agent on the Closing Date;
(d) Guarantees constituting Indebtedness permitted by
Section 7.1; provided, that the aggregate principal amount of
Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that
is Guaranteed by any Loan Party shall be subject to the limitation set
forth in clause (e) of this Section 7.4;
(e) Investments made by the Borrower in or to any Subsidiary
and by any Subsidiary to the Borrower or in or to another Subsidiary;
provided, that (i) any common stock held by any Loan Party shall be
pledged pursuant to the Stock Pledge Agreement (subject, in the case of
any Insurance Subsidiary, to any limitations under applicable law) and
(ii) the aggregate amount of Investments by Loan Parties in or to,
and Guarantees by Loan Parties of Indebtedness of any Subsidiary that
is not a Subsidiary Loan Party (excluding all such Investments and
Guarantees permitted under clause (a) of this Section 7.4 and, in
the case of the Borrower's proposed Investment in First Professionals,
already planned as of the Closing Date, and set forth on Schedule 7.4)
shall not exceed $500,000 at any time outstanding;
(f) loans or advances to employees, officers or directors of
the Borrower or any Subsidiary in the ordinary course of business for
travel, relocation and related expenses;
(g) Hedging Agreements permitted by Section 7.10; and
(h) other Investments made by the Borrower which in the
aggregate do not exceed 5% of Consolidated Net Worth at any time during
the term of this Agreement.
Notwithstanding the foregoing, all Investments by the Insurance
Subsidiaries shall comply with all Requirements of Law applicable to insurance
companies.
Section 7.5 Restricted Payments. The Borrower will not, and
will not permit its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of common stock or Indebtedness subordinated to the Obligations of
the Borrower or any options, warrants, or other rights to purchase such common
stock or such Indebtedness, whether now or hereafter outstanding (each, a
"Restricted Payment"), except for (a) dividends payable by the Borrower solely
in shares of any class of its common stock, (b) Restricted Payments made by any
Subsidiary to the Borrower or to another Subsidiary Loan Party and by any
Subsidiary Controlled by an Insurance Subsidiary to such Insurance Subsidiary or
to another Subsidiary Controlled by such Insurance Subsidiary and (c) cash
dividends paid on, and cash redemptions of, the common stock of the Borrower;
provided, that (i) no Default or Event of Default has occurred and is continuing
at the time such dividend is paid or redemption is made, and (ii) the aggregate
amount of all such Restricted Payments made by the Borrower in any fiscal year
does not exceed 50% of Consolidated Net Income (if greater than $0) earned
during the immediately preceding fiscal year.
Section 7.6 Sale of Assets The Borrower will not, and will
not permit any of its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now owned
or hereafter acquired or issue, sell or otherwise transfer any shares of a
Subsidiary's Capital Stock to any Person other than the Borrower or a Subsidiary
Loan Party (or to qualify directors if required by applicable law), except:
(a) the disposition for fair market value of obsolete or
worn out property or other property not necessary for operations
disposed of in the ordinary course of business;
(b) the disposition of Investments in the ordinary course of
business;
(c) the disposition of any asset in connection with the
making of an Investment permitted by this Agreement;
47
(d) the disposition of any or all of the assets of a
Subsidiary to the Borrower or to a Subsidiary Loan Party or of any or
all of the assets of a Subsidiary Controlled by an Insurance Subsidiary
to such Insurance Subsidiary or another Subsidiary Controlled by such
Insurance Subsidiary, provided, that immediately after giving effect
thereto, no Default or Event of Default shall have occurred and be
continuing; and
(e) the disposition of assets in an aggregate amount not to
exceed, at any time during the term of this Agreement, 5% of the total
assets of the Borrower and its Subsidiaries on a consolidated basis as
reflected on the Borrower's most recent annual consolidated balance
sheet delivered to the Administrative Agent pursuant to Section 5.1(a).
Section 7.7 Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its Subsidiaries not
involving any other Affiliates and (c) any Restricted Payment permitted by
Section 7.5.
Section 7.8 Restrictive Agreements. The Borrower will not,
and will not permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit any Lien upon any of its assets or properties, whether now owned
or hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its Capital Stock (including, without
limitation, those required by Section 5.13), to make or repay loans or advances
to the Borrower or any other Subsidiary, to Guarantee Indebtedness of the
Borrower or any other Subsidiary or to transfer any of its property or assets to
the Borrower or any Subsidiary of the Borrower; provided, that (i) the foregoing
shall not apply to restrictions or conditions imposed by law or by this
Agreement or any other Loan Document, (ii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary, or of any assets, pending such sale, provided such
restrictions and conditions apply only to the Subsidiary or assets that are sold
and such sale is permitted hereunder, (iii) clause (a) shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions and conditions
apply only to the property or assets securing such Indebtedness and (iv) clause
(a) shall not apply to customary provisions in leases and other contracts
restricting the assignment thereof or to customary provisions in contracts
relating to the purchase, sale, cession, retrocession or assumption of interests
in insurance risks.
Section 7.9 Sale and Leaseback Transactions. The Borrower
will not, and will not permit any of the Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred.
Section 7.10 Hedging Agreements. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Agreement entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Agreement under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (a) in connection with
the purchase by any third party of any common stock or any Indebtedness or (b)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
Section 7.11 Amendment to Material Documents. The Borrower
will not, and will not permit any Subsidiary to, amend, modify or waive any of
its rights in a manner materially adverse to the Lenders under (a) its
certificate of incorporation, bylaws or other organizational documents or (b)
Material Contracts.
48
Section 7.12 Accounting Changes. The Borrower will not, and
will not permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP or, if applicable,
SAP, or change the fiscal year of the Borrower or of any Subsidiary, except to
change the fiscal year of a Subsidiary to conform its fiscal year to that of the
Borrower.
Section 7.13 Certain Covenants Relating to Reinsurance. The
Borrower will not, and will not permit or cause any of its Insurance
Subsidiaries to:
(a) enter into any Reinsurance Agreement, or remain a party
to any Reinsurance Agreement (whether in effect as of the Closing Date
or at any time thereafter) for any period longer than the period
legally required under the terms of such Reinsurance Agreement (after
taking into account all rights to withdraw from or terminate without
material penalty, or to not renew such Reinsurance Agreement), with any
reinsurer that is not an Approved Reinsurer, except where the
participation of such reinsurer in such Reinsurance Agreement could not
reasonably be expected to have a Material Adverse Effect.
(b) enter into any Reinsurance Agreements, or make any
amendment or modification to or waiver of any Reinsurance Agreements,
that would individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; or
(c) be or become a party to any Surplus Relief Reinsurance
Agreement if the increase in Combined Statutory Capital and Surplus as
a result of or arising from such Surplus Relief Reinsurance Agreement,
when added to the increase in Combined Statutory Capital and Surplus
existing as a result of all other Surplus Relief Reinsurance Agreements
theretofore entered into by any Insurance Subsidiary, net of any
surplus relief recaptured in respect of such Surplus Relief Reinsurance
Agreements, exceeds 10% of Combined Statutory Capital and Surplus as of
the most recent fiscal year end.
(d) upon a Responsible Officer's obtaining knowledge
thereof, the Borrower shall promptly provide notice to the
Administrative Agent if any formerly Approved Reinsurer is no longer an
Approved Reinsurer and the reason therefor.
ARTICLE VII
-----------
EVENTS OF DEFAULT
-----------------
Section 8.1 Events of Default. If any of the following
events (each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or of any reimbursement obligation in respect of any LC Disbursement
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount payable under
clause (a) of this Article) payable under this Agreement or any other
Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three (3)
Business Days; or
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with
this Agreement or any other Loan Document (including the Schedules
attached thereto) and any amendments or modifications hereof or waivers
hereunder, or in any certificate, report, financial statement or other
document submitted to the Administrative Agent or the Lenders by any
Loan Party or any representative of any Loan Party pursuant to or in
connection with this Agreement or any other Loan Document shall prove
to be incorrect in any material respect when made or deemed made or
submitted; or
49
(d) the Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 5.1 (a) through (g),
inclusive, 5.2, 5.3 (with respect to the Borrower's existence), 5.9,
5.10, 5.11, 5.12 or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those
referred to in clauses (a), (b) and (d) above), and such failure shall
remain unremedied for 30 days after the earlier of (i) any Responsible
Officer of the Borrower becomes aware of such failure, or (ii) notice
thereof shall have been given to the Borrower by the Administrative
Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary
obligor or as guarantor or other surety) shall fail to pay any
principal of or premium or interest on any Material Indebtedness that
is outstanding, when and as the same shall become due and payable
(whether at scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument evidencing such Indebtedness; or any other event shall
occur or condition shall exist under any agreement or instrument
relating to such Indebtedness and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable or required to be
prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or any offer to
prepay, redeem, purchase or defease such Indebtedness shall be required
to be made, in each case prior to the stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a
voluntary case or other proceeding or file any petition seeking
liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of
its property, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or petition described
in clause (i) of this Section, (iii) apply for or consent to the
appointment of a custodian, trustee, receiver, liquidator or other
similar official for the Borrower or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors,
or (vi) take any action for the purpose of effecting any of the
foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets, under
any federal, state or foreign bankruptcy, insolvency or other similar
law now or hereafter in effect or (ii) the appointment of a custodian,
trustee, receiver, liquidator or other similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, and
in any such case, such proceeding or petition shall remain undismissed
for a period of 60 days or an order or decree approving or ordering any
of the foregoing shall be entered; or
(i) the Borrower or any Subsidiary shall become unable to
pay, shall admit in writing its inability to pay, or shall fail to pay,
its debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with other ERISA Events
that have occurred, could reasonably be expected to result in liability
to the Borrower and the Subsidiaries in an aggregate amount exceeding
$500,000; or
(k) any judgment or order for the payment of money that
exceeds $1,000,000 in the aggregate or that has, or could reasonably be
expected to have, a Material Adverse Effect shall be rendered against
the Borrower or any Subsidiary (including, without limitation, any such
judgment or order against any Insurance Subsidiary relating to claims
for insurance coverage), and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or (ii)
there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
50
(l) any non-monetary judgment or order shall be rendered
against the Borrower or any Subsidiary that has, or could reasonably be
expected to have, a Material Adverse Effect, and there shall be a
period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any material provision of the Subsidiary Guarantee
Agreement shall for any reason cease to be valid and binding on, or
enforceable against, any Subsidiary Guarantor, or any Subsidiary
Guarantor shall so state in writing, or any Subsidiary Guarantor shall
seek to terminate its Subsidiary Guarantee Agreement or any of its
covenants and agreements thereunder; or
(o) any material provision of any Stock Pledge Agreement
shall for any reason cease to be valid and binding on, or enforceable
against, the Borrower or any Subsidiary Pledgor or shall cease to give
the Collateral Agent the Liens, rights, powers and privileges purported
to be created thereby in favor of the Collateral Agent for the benefit
of the Lenders, or the Borrower or any such Subsidiary Pledgor shall so
state in writing, or the Borrower or any such Subsidiary Pledgor shall
seek to terminate any Stock Pledge Agreement or any of its covenants
and agreements thereunder; or
(p) the forfeiture, non-renewal, cancellation, termination,
revocation, suspension, impairment or material modification of any
Governmental Approval (including, without limitation, any such
Governmental Approval issued by an Insurance Regulatory Authority) held
by the Borrower or any Subsidiary Loan Party which is necessary for the
conduct of its business, or the occurrence of any event or the
existence of any circumstances which is likely to lead to any such
forfeiture, non-renewal, cancellation, termination, revocation,
suspension, impairment or material modification and, in each such case,
which could reasonably be expected to result in a Material Adverse
Effect; or
(q) the Borrower or any of its Subsidiaries shall default in
the performance or observance of any term, condition or provision of
any Material Contract which could reasonably be expected to result in a
Material Adverse Effect; or
(r) an event of default shall have occurred under any other
Loan Document;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become, due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower,
(iii) enforce, or direct the Collateral Agent to enforce, any or all of the
Liens created pursuant to the Stock Pledge Agreement and (iv) exercise all
remedies contained in any other Loan Document; and that, if an Event of Default
specified in either clause (g) or (h) shall occur, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
----------
THE ADMINISTRATIVE AGENT
------------------------
Section 9.1 Appointment of Administrative Agent.
51
(a) Each Lender irrevocably appoints SunTrust Bank as the
Administrative Agent (for purposes of this Article IX, the term
"Administrative Agent" shall also include SunTrust Bank in its capacity
as Collateral Agent under the Stock Pledge Agreement) and authorizes it
to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent under this Agreement and the
other Loan Documents, together with all such actions and powers that
are reasonably incidental thereto. The Administrative Agent may perform
any of its duties hereunder by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its
rights and powers through their respective Related Parties. The
exculpatory provisions set forth in this Article shall apply to any
such sub-agent and the Related Parties of the Administrative Agent and
any such sub-agent and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for
herein as well as activities as Administrative Agent.
(b) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders
to act for the Issuing Bank with respect thereto; provided, that the
Issuing Bank shall have all the benefits and immunities (i) provided to
the Administrative Agent in this Article IX with respect to any acts
taken or omissions suffered by the Issuing Bank in connection with
Letters of Credit issued by it or proposed to be issued by it and the
application and agreements pertaining to the Letters of Credit as fully
as the term "Administrative Agent" as used in this Article IX included
the Issuing Bank with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Issuing
Bank.
Section 9.2 Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
Section 9.3 Lack of Reliance on the Administrative Agent.
Each of the Lenders and the Issuing Bank acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each of the Lenders
and the Issuing Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, continue to make its own
decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
52
Section 9.4 Certain Rights of the Administrative Agent. If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any liability
for relying thereon. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or not taken
by it in accordance with the advice of such counsel, accountants or experts.
Section 9.6 The Administrative Agent in its Individual
Capacity. The bank serving as the Administrative Agent shall have the same
rights and powers under this Agreement and any other Loan Document in its
capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the
terms "Lenders", "Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or Affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
Section 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by
giving notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right to appoint a
successor Administrative Agent, subject to the approval by the Borrower
provided that no Default or Event of Default shall exist at such time.
If no successor Administrative Agent shall have been so appointed,
and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Administrative Agent, which shall be
(i) one of the other Lenders under this Agreement or (ii) a commercial
bank organized under the laws of the United States of America or any
state thereof or a bank which maintains an office in the United States,
having a combined capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the
other Loan Documents. If within 45 days after written notice is given
of the retiring Administrative Agent's resignation under this Section
9.7 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the
retiring Administrative Agent's resignation shall become effective,
(ii) the retiring Administrative Agent shall thereupon be discharged
from its duties and obligations under the Loan Documents and (iii) the
Required Lenders shall thereafter perform all duties of the retiring
Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided
above. After any retiring Administrative Agent's resignation hereunder,
the provisions of this Article IX shall continue in effect for the
benefit of such retiring Administrative Agent and its representatives
and agents in respect of any actions taken or not taken by any of them
while it was serving as the Administrative Agent.
53
ARTICLE X
---------
MISCELLANEOUS
-------------
Section 10.1 Notices.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:
To the Borrower: FPIC Insurance Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇,
Executive Vice President
Chief Financial Officer
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: FPIC Insurance Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
& Corporate Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent,
Collateral Agent and
Issuing Bank: SunTrust Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Director
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: SunTrust Capital Markets, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇. E.,
25th Floor
Atlanta, Georgia 30308
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties
hereto. All such notices and other communications shall, when
transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the mails or if delivered,
upon delivery; provided, that notices delivered to the Administrative
Agent or the Issuing Bank shall not be effective until actually
received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the
Lenders herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Borrower. The
Administrative Agent and the Lenders shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the
Borrower to give such notice and the Administrative Agent and Lenders
shall
54
not have any liability to the Borrower or other Person on account of
any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any
failure of the Administrative Agent and the Lenders to receive written
confirmation of any telephonic or facsimile notice or the receipt by
the Administrative Agent and the Lenders of a confirmation which is at
variance with the terms understood by the Administrative Agent and the
Lenders to be contained in any such telephonic or facsimile notice.
Section 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder
or any other Loan Document, and no course of dealing between the
Borrower and the Administrative Agent or any Lender, shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
right or power or any abandonment or discontinuance of steps to enforce
such right or power, preclude any other or further exercise thereof or
the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and
the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies provided by law. No
waiver of any provision of this Agreement or any other Loan Document or
consent to any departure by the Borrower therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan or the
issuance of a Letter of Credit shall not be construed as a waiver of
any Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this
Agreement or the other Loan Documents, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Borrower and the Required Lenders
or the Borrower and the Administrative Agent with the consent of the
Required Lenders and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which
given; provided, that no amendment or waiver shall: (i) increase the
Commitment of any Lender without the written consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any
fees hereunder or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date for the termination or
reduction of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.19(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without
the written consent of each Lender affected thereby, (v) change any of
the provisions of this Section or the definition of "Required Lenders"
or any other provision hereof specifying the number or percentage of
Lenders which are required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit
the liability of any such guarantor under any guaranty agreement; (vii)
except as a result of any merger of a Subsidiary Pledgee permitted by
Section 7.3 where such Subsidiary Pledgee is not the surviving Person,
release any of the Collateral securing any of the Obligations or agree
to subordinate any Lien in such Collateral to any other creditor of the
Borrower or any Subsidiary; provided further, that no such agreement
shall amend, modify or otherwise affect the rights, duties or
obligations of the Administrative Agent or the Issuing Bank without the
prior written consent of such Person.
55
Section 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket
costs and expenses of the Administrative Agent, the Collateral Agent
and their respective Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, the
Collateral Agent and their respective Affiliates, in connection with
the syndication of the credit facilities provided for herein, the
preparation and administration of the Loan Documents and any
amendments, modifications or waivers thereof (whether or not the
transactions contemplated in this Agreement or any other Loan Document
shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and
disbursements of outside counsel and the reasonable allocated cost of
inside counsel) incurred by the Administrative Agent, the Collateral
Agent, the Issuing Bank or any Lender in connection with the
enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in connection
with the Loans made or any Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Administrative Agent,
the Collateral Agent, the Issuing Bank and each Lender, and each
Related Party of any of the foregoing (each, an "Indemnitee") against,
and hold each of them harmless from, any and all costs, losses,
liabilities, claims, damages and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, which may
be incurred by or asserted against any Indemnitee arising out of, in
connection with or as a result of (i) the execution or delivery of this
Agreement or any other agreement or instrument contemplated hereby, the
performance by the parties hereto of their respective obligations
hereunder or the consummation of any of the transactions contemplated
hereby, (ii) any Loan or Letter of Credit or any actual or proposed use
of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property
owned by the Borrower or any Subsidiary or any Environmental Liability
related in any way to the Borrower or any Subsidiary or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto;
provided, that the Borrower shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such Indemnitee's
gross negligence or willful misconduct as determined by a court of
competent jurisdiction in a final and nonappealable judgment.
(c) The Borrower shall pay, and hold the Administrative
Agent, the Collateral Agent and each of the Lenders harmless from and
against, any and all present and future stamp, documentary, and other
similar taxes with respect to this Agreement and any other Loan
Documents, any collateral described therein, or any payments due
thereunder, and save the Administrative Agent and each Lender harmless
from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent, the Collateral Agent,
or the Issuing Bank under clauses (a), (b) or (c) hereof, each Lender
severally agrees to pay to the Administrative Agent, the Collateral
Agent, or the Issuing Bank, as the case may be, such Lender's Pro Rata
Share (determined as of the time that the unreimbursed expense or
indemnity payment is sought) of such unpaid amount; provided, that the
unreimbursed expense or indemnified payment, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Collateral Agent, or the Issuing
Bank in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to actual or direct damages) arising out
of, in connection with or as a result
56
of, this Agreement or any agreement or instrument contemplated hereby,
the transactions contemplated therein, any Loan or any Letter of Credit
or the use of proceeds thereof.
(f) All amounts due under this Section shall be payable
promptly after written demand therefor.
Section 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or
transfer any of its rights hereunder without the prior written consent
of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void).
(b) Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of
its Commitment and the Loans and LC Exposure at the time owing to it);
provided, that (i) except in the case of an assignment to a Lender or
an Affiliate of a Lender, each of the Borrower and the Administrative
Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its LC Exposure,
the Issuing Bank) must give their prior written consent (which consent
shall not be unreasonably withheld or delayed), (ii) except in the case
of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire amount of the assigning Lender's Commitment
hereunder or an assignment while an Event of Default has occurred and
is continuing, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $1,000,000 (unless
the Borrower and the Administrative Agent shall otherwise consent),
(iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement and the other Loan Documents, (iv) the assigning
Lender and the assignee shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and
recordation fee payable by the assigning Lender or the assignee (as
determined between such Persons) in an amount equal to $1,000, (v) such
assignee, if it is not a Lender, shall deliver a duly completed
Administrative Questionnaire to the Administrative Agent; and (vi) such
assignee, if a Foreign Lender, shall have complied with its obligations
under Section 2.18(e); provided, that any consent of the Borrower
otherwise required hereunder shall not be required if an Event of
Default has occurred and is continuing. Upon the execution and delivery
of the Assignment and Acceptance and payment by such assignee to the
assigning Lender of an amount equal to the purchase price agreed
between such Persons, such assignee shall become a party to this
Agreement and any other Loan Documents to which such assigning Lender
is a party and, to the extent of such interest assigned by such
Assignment and Acceptance, shall have the rights and obligations of a
Lender under this Agreement, and the assigning Lender shall be released
from its obligations hereunder to a corresponding extent (and, in the
case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.16, 2.17 and 2.18 and 10.3. Upon the
consummation of any such assignment hereunder, the assigning Lender,
the Administrative Agent and the Borrower shall make appropriate
arrangements to have new Notes issued in exchange for the existing
Notes if so requested by either or both the assigning Lender or the
assignee. Any assignment or other transfer by a Lender that does not
fully comply with the terms of this clause (b) shall be treated for
purposes of this Agreement as a sale of a participation pursuant to
clause (c) below.
(c) Any Lender may at any time, without the consent of the
Borrower, the Administrative Agent, the Collateral Agent, or the
Issuing Bank, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement (including all or a portion of its
Commitment, the Loans owing to it and its LC Exposure); provided, that
(i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of its obligations hereunder,
and (iii) the Borrower, the Administrative Agent, the Collateral Agent,
the Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and the other Loan Documents. Any
agreement between such Lender and
57
the Participant with respect to such participation shall provide that
such Lender shall retain the sole right and responsibility to enforce
this Agreement and the other Loan Documents and the right to approve
any amendment, modification or waiver of this Agreement and the other
Loan Documents; provided, that such participation agreement may provide
that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver of this Agreement
described in the first proviso of Section 10.2(b) that affects the
Participant. The Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.16, 2.17 and 2.18 to the same
extent as if it were a Lender hereunder and had acquired its interest
by assignment pursuant to paragraph (b); provided, that no Participant
shall be entitled to receive any greater payment under Section 2.16 or
2.18 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant unless the
sale of such participation is made with the Borrower's prior written
consent. To the extent permitted by law, the Borrower agrees that each
Participant shall be entitled to the benefits of Section 2.19 as though
it were a Lender, provided, that such Participant agrees to share
with the Lenders the proceeds thereof in accordance with Section 2.19
as fully as if it were a Lender hereunder. Notwithstanding the
foregoing, a Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.18 unless the
Borrower is notified of such participation sold to such Participant and
such Participant first complies, for the benefit of the Borrower, with
Section 2.18(e) as though it were a Lender hereunder.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement and
its Notes (if any) to secure its obligations to a Federal Reserve Bank
without complying with this Section; provided, that no such pledge or
assignment shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party
hereto.
(e) Notwithstanding anything to the contrary contained
herein, any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPV"), identified as such in writing from time to
time by the Granting Lender to the Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part of any
Loan that such Granting Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided, that (i) nothing
herein shall constitute a commitment by any SPV to make any Loan, (ii)
if an SPV elects not to exercise such option or otherwise fails to
provide all or any part of any Loan, the Granting Lender shall be
obligated to make such Loan pursuant to the terms hereof and (iii) if
such SPV would be a Foreign Lender if it were a Lender hereunder, such
SPV shall comply, for the benefit of the Borrower, with Section 2.18(e)
as though it were a Lender hereunder. The making of a Loan by an SPV
hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if such Loan were made by such Granting Lender.
Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or similar payment obligation under this Agreement (all
liability for which shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior indebtedness of any
SPV, it will not institute against, or join any other person in
instituting against, such SPV any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of
the United States or any State. Notwithstanding anything to the
contrary in this Section 10.4, any SPV may (i) with notice to, but
without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor,
assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower
and the Administrative Agent) providing liquidity and/or credit support
to or for the account of such SPV to support the funding or maintenance
of Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPV. As this Section 10.4(e) applies to
any particular SPV, this Section may not be amended without the written
consent of such SPV.
58
Section 10.5 Governing Law; Jurisdiction; Consent to Service
of Process.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without giving
effect to the conflict of law principles thereof) of the State of
Florida.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction
of the United States District Court of the Middle District of Florida,
and of any state court of the State of Florida located in ▇▇▇▇▇ County
and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any other Loan Document
or the transactions contemplated hereby or thereby, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such
Florida state court or, to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of
any such suit, action or proceeding described in paragraph (b) of this
Section and brought in any court referred to in the first sentence of
paragraph (b) of this Section. Each of the parties hereto irrevocably
waives, to the fullest extent permitted by applicable law, the defense
of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1.
Nothing in this Agreement or in any other Loan Document will affect the
right of any party hereto to serve process in any other manner
permitted by law.
Section 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.8 Right of Setoff. In addition to any rights
now or hereafter granted under applicable law and not by way of limitation of
any such rights, each Lender and the Issuing Bank shall have the right, at any
time or from time to time upon the occurrence and during the continuance of an
Event of Default, without prior notice to the Borrower, any such notice being
expressly waived by the Borrower to the extent permitted by applicable law, to
set off and apply against all deposits (general or special, time or demand,
provisional or final) of the Borrower and any Subsidiary at any time held or
other obligations at any time owing by such Lender and the Issuing Bank to or
for the credit or the account of the Borrower against any and all Obligations
held by such Lender or the Issuing Bank, as the case may be, irrespective of
whether such Lender or the Issuing Bank shall have made demand hereunder and
although such Obligations may be unmatured. Each Lender and the Issuing Bank
agree promptly to notify the Administrative Agent and the Borrower after any
such set-off and any application made by such Lender and the Issuing Bank, as
the case may be; provided, that the failure to give such notice shall not affect
the validity of such set-off and application.
59
Section 10.8 Counterparts; Effectiveness; Integration. This
Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Notwithstanding execution of this Agreement by the Borrower and each
of the Lenders party hereto and satisfaction (or waiver) of each of the
conditions set forth in Section 3.1, this Agreement shall not be or become
effective and binding upon the parties until executed and accepted by the
Administrative Agent in its capacity as such on behalf of the Lenders. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Administrative Agent constitute the entire
agreement among the parties hereto and thereto regarding the subject matters
hereof and thereof and supersede all prior agreements and understandings, oral
or written, regarding such subject matters.
Section 10.9 Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.16, 2.17, 2.18, and 10.3 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
Section 10.10 Severability. Any provision of this Agreement
or any other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 10.11 Confidentiality. Each of the Administrative
Agent, the Issuing Bank and each Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information designated in
writing as confidential and provided to it by the Borrower or any Subsidiary,
except that such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Collateral Agent, the Issuing Bank or any such Lender,
including without limitation accountants, legal counsel and other advisors, (ii)
to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (iii) to the extent requested by any regulatory agency or
authority, (iv) to the extent that such information becomes publicly available
other than as a result of a breach of this Section, or which becomes available
to the Administrative Agent, the Collateral Agent, the Issuing Bank, any Lender
or any Related Party of any of the foregoing on a nonconfidential basis from a
source other than the Borrower, (v) in connection with the exercise of any
remedy hereunder or any suit, action or proceeding relating to this Agreement or
the enforcement of rights hereunder, (vi) subject to provisions substantially
similar to this Section 10.11, to any actual or prospective assignee or
Participant, or (vii) with the consent of the Borrower. Any Person required to
maintain the confidentiality of any information as provided for in this Section
shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
Section 10.12 Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which may be treated
as interest on such Loan under applicable law (collectively, the "Charges"),
shall exceed the maximum lawful rate of interest (the "Maximum Rate") which may
be contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the
60
extent lawful, the interest and Charges that would have been payable in respect
of such Loan but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount, together with interest thereon at
the Federal Funds Rate to the date of repayment, shall have been received by
such Lender.
[Remainder of Page Intentionally Left Blank]
61
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed [under seal in the case of the Borrower] by their
respective authorized officers as of the day and year first above written.
FPIC INSURANCE GROUP, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
[SEAL]
SUNTRUST BANK
as Administrative Agent, as Collateral
Agent, as Issuing Bank, and as a Lender
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
Revolving Commitment: $19,431,818
Term Loan Commitment: $ 9,068,182
S-1
COMPASS BANK
By: /s/ C. French ▇▇▇▇▇▇▇▇▇, Jr.
-------------------------------------
Name: C. French ▇▇▇▇▇▇▇▇▇, Jr.
Title: Senior Vice President
Revolving Commitment: $6,818,182
Term Loan Commitment: $3,181,818
S-2
▇▇▇▇▇ BROTHERS ▇▇▇▇▇▇▇▇ & CO.
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Partner
Revolving Commitment: $4,431,818
Term Loan Commitment: $2,068,182
S-3
REGIONS BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Revolving Commitment: $3,409,091
Term Loan Commitment: $1,590,909
S-4
CAROLINA FIRST BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
Revolving Commitment: $3,409,091
Term Loan Commitment: $1,590,909
Schedule I
PRICING GRID
---------------------------------------- ------------------------------------------------ ----------------------------
Consolidated Total Debt Applicable Margin Applicable Percentage
to (per annum) (per annum)
Consolidated Total Capital
---------------------------------------- ------------------------------------------------ ----------------------------
Base Rate Eurodollar Commitment Fee
---------------------------------------- ------------------------ ----------------------- ----------------------------
Level I: < 20% 0.75% 1.75% 0.20%
---------------------------------------- ------------------------ ----------------------- ----------------------------
Level II: => 20% and < 25% 1.00% 2.00% 0.25%
---------------------------------------- ------------------------ ----------------------- ----------------------------
Level III: => 25% 1.25% 2.25% 0.30%
---------------------------------------- ------------------------ ----------------------- ----------------------------
Schedule I-1
Schedule 4.17
Subsidiaries (1)
------------------------------------------------------------------------------------------------------------------------------------
State of Outstanding
Name Type of Entity Organization Shares (2) Percentage Owned By
------------------------------------------------------------------------------------------------------------------------------------
Loan Party
------------------------------------------------------------------------------------------------------------------------------------
Borrower
------------------------------------------------------------------------------------------------------------------------------------
FPIC Insurance Group, Inc. Corporation Florida 9,401,255 Publicly Held (3)
------------------------------------------------------------------------------------------------------------------------------------
Subsidiary Loan Party
------------------------------------------------------------------------------------------------------------------------------------
Subsidiary Guarantor
------------------------------------------------------------------------------------------------------------------------------------
FPIC Insurance Agency, Inc. Corporation Florida 100 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ Corporation (MCC) Corporation Florida 1,000 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Employers Mutual, Inc. (EMI) Corporation Florida 236,000 100% by MCC
------------------------------------------------------------------------------------------------------------------------------------
Professional Strategy Options, Inc. Corporation Florida 100 100% by EMI
------------------------------------------------------------------------------------------------------------------------------------
Administrators for the
Professions, Inc. (AFP) Corporation New York 98 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Group Data Corporation Corporation New York 100 100% by AFP
------------------------------------------------------------------------------------------------------------------------------------
FPIC Intermediaries, Inc. Corporation New York 200 100% by AFP
------------------------------------------------------------------------------------------------------------------------------------
Subsidiary Pledgor
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ Corporation (MCC) Corporation Florida 1,000 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Insurance Subsidiary
------------------------------------------------------------------------------------------------------------------------------------
First Professionals Insurance
Company, Inc. (First Professionals) Corporation Florida 5,000,000 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Anesthesiologists Professional
Assurance Company Corporation Florida 5,000,000 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Intermed Insurance Company Corporation Missouri 800,000 100% by Tenere
------------------------------------------------------------------------------------------------------------------------------------
Interlex Insurance Company Corporation Missouri 800,000 100% by Intermed
------------------------------------------------------------------------------------------------------------------------------------
Subsidiary Pledgee 4
------------------------------------------------------------------------------------------------------------------------------------
FPIC Insurance Agency, Inc. Corporation Florida 100 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ Corporation (MCC) Corporation Florida 1,000 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Employers Mutual, Inc. (EMI) Corporation Florida 236,000 100% by MCC
------------------------------------------------------------------------------------------------------------------------------------
First Professionals Insurance
Company, Inc. (First
Professionals) Corporation Florida 5,000,000 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Anesthesiologists Professional
Assurance Company Corporation Florida 5,000,000 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Administrators for the Professions,
Inc. (AFP) Corporation New York 98 100% by Borrower
------------------------------------------------------------------------------------------------------------------------------------
Other
------------------------------------------------------------------------------------------------------------------------------------
The Tenere Group, Inc. Corporation Missouri 100 100% by First
Professionals
------------------------------------------------------------------------------------------------------------------------------------
Trout Insurance Services, Inc. Corporation Missouri 500 100% by Intermed
------------------------------------------------------------------------------------------------------------------------------------
Insurance Services, Inc. Corporation Missouri 5 100% by Intermed
------------------------------------------------------------------------------------------------------------------------------------
Professional Medical Administrators, LLC Limited Liability New York N/A 70% by Borrower
Corporation
------------------------------------------------------------------------------------------------------------------------------------
FPIC Services, Inc. Corporation Florida 200 87.5% by EMI
------------------------------------------------------------------------------------------------------------------------------------
1 Excluded are investments less than 50% owned by Borrower, as follows: APS
Insurance Services, Inc., a Delaware corporation, 20% owned by Borrower
HCIF Management Co., a Minnesota corporation, 13.2% owned by First
Professionals American Professional Assurance, Ltd., a Cayman Island
corporation, 9.9% owned by Borrower
2 As of June 30, 2001
3 Traded on Nasdaq under ticker symbol FPIC
4 Excluded are subsidiaries that do not meet the definition of Material
Subsidiaries, as follows:
Professional Strategy Options, Inc.
Group Data Corporation
FPIC Intermediaries, Inc.
Schedule 4.19
SCHEDULE 4.19
JURISDICTIONS IN WHICH INSURANCE SUBSIDIARIES CONDUCT BUSINESS
(as of August 15, 2001)
------------------------ ---------------------- ----------------------- ------------------- -----------------
State First Professionals Anesthesiologists Intermed Interlex
Insurance Company, Professional Insurance Company Insurance
Inc. Assurance Company Company
------------------------ ---------------------- ----------------------- ------------------- -----------------
Current states with
insureds
------------------------ ---------------------- ----------------------- ------------------- -----------------
Alabama X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Arizona X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Florida X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Georgia X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Illinois X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Indiana X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Kansas X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Kentucky X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Louisiana X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Maryland X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Michigan X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Mississippi X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Missouri X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
North Carolina X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Ohio X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Pennsylvania X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Tennessee X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Texas X X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Virginia X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Licensed, currently no
insureds
------------------------ ---------------------- ----------------------- ------------------- -----------------
Arizona X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Arkansas X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Delaware X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Florida X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Indiana X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Kansas X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Kentucky X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Maine X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Maryland X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Michigan X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Mississippi X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Missouri X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Montana X
------------------------ ---------------------- ----------------------- ------------------- -----------------
North Carolina X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Tennessee X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Utah X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Virginia X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Washington X
------------------------ ---------------------- ----------------------- ------------------- -----------------
West Virginia X
------------------------ ---------------------- ----------------------- ------------------- -----------------
License Pending
------------------------ ---------------------- ----------------------- ------------------- -----------------
California X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Connecticut X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Illinois X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Minnesota X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Nevada X
------------------------ ---------------------- ----------------------- ------------------- -----------------
New Jersey X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Oregon X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Wisconsin X
------------------------ ---------------------- ----------------------- ------------------- -----------------
Schedule 4.20
SCHEDULE 4.20
MATERIAL CONTRACTS
SEC
Exhibit No.
10(f)Supplemental Executive Retirement Plan, as amended, incorporated by
reference to the Company's Form 10-Q (Commission File No. 1-11983) filed on
May 17, 1999.
10(g)Excess Benefit Plan, incorporated by reference to the Company's
Registration Statement on Form S-4 (Registration No. 333-02040) first filed
on March 7, 1996.
10(h)Deferred Compensation Plan, incorporated by reference to the Company's
Registration Statement on Form S-1 (Registration No. 333-04585) first filed
on May 24, 1996.
10(i)Agreement and Plan of Merger dated as of April 14, 1998 among the Company,
Anesthesiologists' Professional Assurance Association, Inc., the APAA
Liquidating Trust and Anesthesiologists' Professional Assurance Company,
incorporated by reference to the Company's filing on Form 10-K (Commission
File No. 1-11983) filed on March 31, 1999.
10(j)Stock Purchase Agreement dated as of November 25, 1998 and First Amendment
to Stock Purchase Agreement dated as of December 23, 1998 among the Company
and the Shareholders of Administrators For the Professions, Inc.,
incorporated by reference to the Company's filing on Form 8-K, first filed
on January 21, 1999.
10(k)Agreement and Plan of Merger dated as of October 2, 1998 and First
Amendment to Agreement and Plan of Merger dated as of January 1999 and
Second Amendment to Agreement and Plan of Merger dated as of March 17, 1999
among Florida Physicians Insurance Company, Inc., TGI Acquisition
Corporation and Tenere Group, Inc., incorporated by reference to the
Company's filing on Form 10-K (Commission File No. 1-11983) filed on March
31, 1999.
10(l)Form of Severance Agreement dated January 1, 1999 between the Registrant
and ▇▇▇▇ ▇. ▇▇▇▇▇ incorporated by reference to the Company's Form 10-Q
(Commission File No. 1-11983) filed on May 17, 1999.
10(m)Form of Employment Agreement dated January 1, 1999 between the Registrant
and ▇▇▇▇ ▇. ▇▇▇▇▇ incorporated by reference to the Company's Form 10-Q
(Commission File No. 1-11983) filed on May 17, 1999.
10(n)Form of Employment Agreement dated November 22, 1999 between the
Registrant and ▇▇▇ ▇. ▇▇▇▇▇▇ incorporated by reference to the Company's
Form 10-K (Commission File No.1-11983) filed on March 30, 2000.
10(o)Form of Severance Agreement dated November 22, 1999 between the Registrant
and ▇▇▇ ▇. ▇▇▇▇▇▇ incorporated by reference to the Company's Form 10-K
(Commission File No.1-11983) filed on March 30, 2000.
10(t)Reinsurance agreement between Physicians' Reciprocal Insurers and Florida
Physicians Insurance Company, Inc. incorporated by reference to the
Company's Form 10-Q (Commission File No. 1-11983) filed on May 15, 2000.
10(u)Form of Employment Agreement dated November 6, 1999 between the Registrant
and ▇▇▇▇ ▇▇▇▇▇.
10(v)Form of Employment Agreement dated May 1, 2000 between the Registrant and
▇▇▇▇▇ ▇. ▇▇▇▇▇
10(w)Form of Employment Agreement dated May 1, 2000 between the Registrant and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
10(x)Form of Severance Agreement dated June 19, 2000 between the Registrant and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ III.
10(aa)Form of Severance Agreement dated December 16, 2000 between the
Registrant and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
10(bb)Form of Severance Agreement dated December 22, 2000 between the
Registrant and ▇▇▇▇▇▇ ▇. ▇▇▇▇.
10(cc)Waiver and Modification Agreement dated as of March 30, 2001, by and
among FPIC Insurance Group, Inc., and The Banks Listed Herein, and SunTrust
Bank, as Issuing Bank, Administrative Agent and as Collateral Agent.
10(dd)Director Stock Option Plan, an amended, incorporated by reference to the
Company's definitive proxy statement filed on April 30, 2001.
10(ee)Omnibus Incentive Plan, as amended, incorporated by reference to the
Company's definitive proxy statement filed on April 30, 2001.
Schedule 4.21
SCHEDULE 4.21
PRINCIPAL PLACE OF BUSINESS(1)(2)
FPIC Insurance Group, Inc. (the "Borrower"), a Florida corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
FPIC Insurance Agency, Inc., a Florida corporation, 100% owned by the
Borrower
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Corporation ("▇▇▇▇▇▇▇▇"), a Florida corporation, 100% owned by the
Borrower
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Employers Mutual, Inc. ("EMI"), a Florida corporation, 100% owned by
▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 2257
FPIC Services, Inc., a Florida corporation, 87.5% owned by EMI
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Professional Strategy Options, Inc., a Florida corporation, 100%
owned by EMI
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
First Professionals Insurance Company, Inc. ("First Professionals"), a
Florida corporation, 100% owned by Borrower
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
The Tenere Group, Inc. ("Tenere"), a Missouri corporation, 100% owned
by First Professionals
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
1 The chief executive office of each of the Borrower and its subsidiaries is
the same as the principal place of business unless otherwise noted.
2 Excluded are investments less than 50% owned by Borrower, as follows:
APS Insurance Services, Inc., a Delaware corporation, 20% owned by
Borrower
HCIF Management Co., a Minnesota corporation, 13.2% owned by First
Professionals
American Professional Assurance, Ltd., a Cayman Island corporation,
9.9% owned by Borrower
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Intermed Insurance Company, a Missouri corporation, 100% owned by
Tenere
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Trout Insurance Services, Inc., a Missouri corporation, 100%
owned by Intermed
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Interlex Insurance Company, a Missouri corporation, 100%
owned by Intermed
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Insurance Services, Inc., a Missouri corporation, 100% owned
by Intermed
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Anesthesiologists Professional Assurance Company, a Florida corporation,
100% owned by Borrower
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Administrators for the Professions, Inc. ("AFP"), a New York corporation,
100% owned by Borrower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Group Data Corporation, a New York corporation, 100% owned by AFP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
FPIC Intermediaries, Inc., a New York corporation, 100% owned by AFP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Professional Medical Administrators, LLC, a New York limited liability
company, 70% owned by Borrower
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
2
SCHEDULE 4.23
MATERIAL LIABILITIES UNDER REIUNSURANCE AGREEMENTS
None.
Schedule 7.1
SCHEDULE 7.1
OUTSTANDING INDEBTEDNESS
Derivative Instruments.
FPIC Insurance Group, Inc. maintains an interest rate swap agreement with a
notional amount of $60,000,000 that converts its floating-rate debt to a
fixed-rate debt. The fixed rate in effect at June 30, 2001 was 5.27%.
FPIC Insurance Group, Inc. maintains an interest rate swap agreement with a
notional amount of $7,219,000 that converts its floating-rate debt to fixed-rate
debt. The fixed rate in effect at June 30, 2001 was 6.68%.
Intercompany Pooling Agreement.
FPIC Insurance Group, Inc.'s insurance subsidiaries, which include First
Professional Insurance Company, Inc. ("First Professionals"), Anesthesiologists
Professional Assurance Company, Intermed Insurance Company and Interlex
Insurance Company, have entered into an intercompany pooling agreement, whereby
each of the smaller affiliates cedes 100% of its net written premium, net losses
and loss adjustment expense and underwriting expense (after reinsurance ceded
outside of the affiliated group) to the highest rated affiliate, First
Professionals. After all net retained business is pooled into First
Professionals, First Professionals then cedes back to the smaller affiliates on
a proportionate basis (based upon the previous year-end's pre-pool statutory
surplus) a percentage of all premiums, losses and loss adjustment expenses and
underwriting expenses.
▇▇▇▇▇▇▇▇▇ Real Estate Fund III, L.P.
FPIC Insurance Group, Inc. has a limited partnership interest in respect of
which it pays management fees of approximately $7,500 per quarter and has
contingent liabilities under the partnership agreement for potential additional
capital contributions and in respect of its indemnification of the general
partner, each of which obligations is secured by a lien on the Borrower's
limited partnership interest.
Schedule 7.2
SCHEDULE 7.2
EXISTING LIENS
▇▇▇▇▇▇▇▇ ▇▇▇▇ Under Lease Obligation.
In order to secure ▇▇▇▇▇▇▇▇'▇ obligations under its building lease,
▇▇▇▇▇▇▇▇'▇ landlord has a lien and security interest in and to all furniture,
fixtures, goods, equipment, and personal property of ▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇▇ Real Estate Fund III, L.P.
FPIC Insurance Group, Inc. has a limited partnership interest in respect of
which it pays management fees of approximately $7,500 per quarter and has
contingent liabilities under the partnership agreement for potential additional
capital contributions and in respect of its indemnification of the general
partner, each of which obligations is secured by a lien on the Borrower's
limited partnership interest.
SCHEDULE 7.3
LINES OF BUSINESS
FPIC Insurance Group, Inc. (the "Company"), through its insurance
subsidiaries, First Professionals Insurance Company, Inc., Anesthesiologists
Professional Assurance Company, Intermed Insurance Company, and Interlex
Insurance Company, hereinafter collectively referred to as "Insurance
Subsidiaries," is a leading provider of professional liability insurance.
The sale of insurance products and services, to any material extent, by the
Company's Insurance Subsidiaries, is generally included within, but is not
limited to, and is reasonably related to, the following lines of business:
|_| Professional liability insurance
|_| Property and casualty insurance, including worker's compensation
|_| Accident and health insurance
|_| Healthcare facilities professional liability insurance
|_| Insurance program business and alternative risk financing arrangements
|_| Assumed reinsurance
|_| Incidental office premises insurance
|_| Broad form investigation defense insurance
|_| Business office package insurance
|_| Risk management and education programs
|_| Captive reinsurance
SCHEDULE 7.4
SCHEDULE OF INVESTMENTS
(Unaudited)
Footnote Percent Book Value
Description of Company Investment No. Owned 06/30/2001
--------------------------------------------------- ----------------------
FPIC Insurance Group, Inc.
Investment in First Professionals Insurance Company 100.00% $ 127,527,657
Investment in Anesthesiologists Professional Assurance
Company 100.00% $ 25,362,915
Investment in FPIC Insurance Agency, Inc. 100.00% $ 17,885
Investment in ▇▇▇▇▇▇▇▇ Corporation 100.00% $ 11,795,554
Investment in Administrators for the Professions, Inc. 100.00% $ 56,485,665
Investment in Professional Medical Administrators, LLC 70.00% $ 21,566
Investment in APS Insurance Services, Inc. 20.00% $ 1,805,431
Investment in WP-VCP St. Augustine, LLC (1) - $ 948,565
Investment in Renaissance Executive Partners, L.P. (1) - $ 2,000,000
Investment in Greystone Capital Partners I, L.P. (1) - $ 2,000,000
Investment in ▇▇▇▇▇▇▇▇▇ Real Estate Fund III, L.P. (1) (2) - $ 1,587,027
Investment in American Professional Assurance, Ltd. 9.90% $ 5,499,996
-------------
-------------
Total $ 235,052,261
First Professionals Insurance Company, Inc.
Investment in The Tenere Group, Inc. 100.00% $ 29,633,692
Investment in HCIF Management Co. 13.20% $ 200,000
Investment in real estate - $ 4,382,338
-------------
-------------
Total $ 34,216,030
The Tenere Group, Inc.
Investment in Intermed Insurance Company 100.00% $ 26,588,499
-------------
-------------
Total $ 26,588,499
Intermed Insurance Company
Investment in Trout Insurance Services, Inc. 100.00% $ 102,980
Investment in Interlex Insurance Company 100.00% $ 6,956,616
Investment in Insurance Services, Inc. 100.00% $ 500
-------------
-------------
Total $ 7,060,096
▇▇▇▇▇▇▇▇ Corporation
Investment in Employers Mutual, Inc. 100.00% $ 2,407,805
-------------
-------------
Total $ 2,407,805
Employers Mutual, Inc.
Investment in FPIC Services, Inc. 87.50% $ (122,297)
Investment in Professional Strategy Options, Inc. 100.00% $ (275,698)
-------------
-------------
Total $ (397,995)
Intercompany Pooling Agreement.
FPIC Insurance Group, Inc.'s insurance subsidiaries, which include First
Professional Insurance Company, Inc. ("First Professionals"), Anesthesiologists
Professional Assurance Company, Intermed Insurance Company and Interlex
Insurance Company, have entered into an intercompany pooling agreement whereby
each of the smaller affiliates cedes 100% of its net written premium, net losses
and loss adjustment expense and underwriting expense (after reinsurance ceded
outside of the affiliated group) to the highest rated affiliate, First
Professionals. After all net retained business is pooled into First
Professionals, First Professionals then cedes back to the smaller affiliates on
a proportionate basis (based upon the previous year-end's pre-pool statutory
surplus) a percentage of all premiums, losses and loss adjustment expenses and
underwriting expenses.
Footnote:
(1) Notwithstanding any other requirements of this Agreement, the invested
assets referenced above as "(1)" may be contributed to the additional paid-in
capital (surplus) of First Professionals by the Borrower at any time, including
after the Closing Date. Such contribution, if made, would be made with full
benefits of ownership and assumption of related risks inuring to First
Professionals, including any proceeds from sale or liquidation, subsequent to
such contribution. (2) The Borrower also has certain contingent obligations
under the partnership agreement.
EXHIBIT A
REVOLVING CREDIT NOTE
[$___________] _____________, Georgia
_________ ___, 2001
FOR VALUE RECEIVED, the undersigned, FPIC Insurance Group, Inc., a Florida
corporation (the "Borrower"), hereby promises to pay to [name of Lender] (the
"Lender") or its registered assigns, at the office of SunTrust Bank ("SunTrust")
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Commitment
Termination Date (as defined in the Revolving Credit and Term Loan Agreement
dated as of ________ ___, 2001 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto and SunTrust, as
administrative agent for the lenders, the lesser of the principal sum of [amount
of such Lender's Revolving Commitment] and the aggregate unpaid principal amount
of all Revolving Loans made by the Lender to the Borrower pursuant to the Credit
Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on such dates as provided in the Credit
Agreement. In addition, should legal action or an attorney-at-law be utilized to
collect any amount due hereunder, the Borrower further promises to pay all costs
of collection, including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is entitled to
the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. THIS REVOLVING
CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF FLORIDA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
FPIC INSURANCE GROUP, INC.
By:
----------------------------------------------
Name:
Title:
[SEAL]
A-1
LOANS AND PAYMENTS
--------------- -------------------------------- ----------------- ----------------------- ---------------------------
Date Amount and Payments of Unpaid Principal Name of Person
----
Type of Loan Principal Balance of Note Making Notation
-------------- -------------------------------- ----------------- ----------------------- ---------------------------
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A-2
EXHIBIT B
TERM NOTE
[$___________] __________, Georgia
_________ ___, 2001
FOR VALUE RECEIVED, the undersigned, FPIC Insurance Group, Inc., a Florida
corporation (the "Borrower"), hereby promises to pay to [name of Lender] (the
"Lender") or its registered assigns, at the office of SunTrust Bank ("SunTrust")
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (i) on the Maturity Date
(as defined in the Revolving Credit and Term Loan Agreement dated as of _______
__, 2001 (as the same may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, the lenders from time
to time party thereto and SunTrust, as administrative agent for the lenders, the
aggregate unpaid principal amount of the Term Loan made by the Lender to the
Borrower pursuant to the Credit Agreement, and (ii) on each date specified in
the Credit Agreement prior to the Maturity Date, the principal amount of the
Term Loan made to the Borrower by the Lender pursuant to the Credit Agreement
and payable to the Lender on such date as specified therein, in each case in
lawful money of the United States of America in immediately available funds, and
to pay interest from the date hereof on the principal amount thereof from time
to time outstanding, in like funds, at said office, at the rate or rates per
annum and payable on such dates as provided in the Credit Agreement. In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, the Borrower further promises to pay all costs of
collection, including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, on any overdue principal
and, to the extent permitted by law, overdue interest from their due dates at a
rate or rates provided in the Credit Agreement.
All borrowings evidenced by this Term Note and all payments and prepayments
of the principal hereof and the date thereof shall be endorsed by the holder
hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Term Note and the
Credit Agreement.
This Term Note is issued in connection with, and is entitled to the
benefits of, the Credit Agreement which, among other things, contains provisions
for the acceleration of the maturity hereof upon the happening of certain
events, for prepayment of the principal hereof prior to the maturity hereof and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. THIS TERM NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF FLORIDA
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
FPIC INSURANCE GROUP, INC.
By:
----------------------------------------------
Name:
Title:
[SEAL]
B-1
LOANS AND PAYMENTS
--------------- -------------------------------- ----------------- ----------------------- ---------------------------
Date Amount and Payments of Unpaid Principal Name of Person
----
Type of Loan Principal Balance of Note Making Notation
--------------- -------------------------------- ----------------- ----------------------- ---------------------------
--------------- -------------------------------- ----------------- ----------------------- ---------------------------
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B-2
EXHIBIT C
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
[date to be supplied]
Reference is made to the Revolving Credit and Term Loan Agreement dated as
of _________ ___, 2001 (as amended and in effect on the date hereof, the "Credit
Agreement"), among FPIC Insurance Group, Inc., a Florida corporation, the
Lenders from time to time party thereto and SunTrust Bank, as Administrative
Agent for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meanings.
The Assignor hereby sells and assigns, without recourse, to the Assignee
designated below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the "Assigned Interest") in the Assignor's
rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Term Loan of the Assignor on
the Assignment Date and the Revolving Commitment of the Assignor on the
Assignment Date and Revolving Loans owing to the Assignor which are outstanding
on the Assignment Date, together with the participations in the LC Exposure of
the Assignor on the Assignment Date, but excluding accrued interest and fees to
and excluding the Assignment Date. The Assignee hereby acknowledges receipt of a
copy of the Credit Agreement. From and after the Assignment Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.18(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.4(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Florida.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment:
("Assignment Date"):
C-1
Percentage Assigned of
Term Loan/Revolving
Commitment(set forth, to at
least 8 decimals, as a
percentage of the aggregate
Term Loans and the aggregate
Revolving Commitments of all
Lenders thereunder)
Facility Principal Amount
of Commitment Assigned
Revolving Loans: $ %
Term Loan:
The terms set forth above are hereby agreed to:
[Name of Assignor], as Assignor
By:
-----------------------------------------------
Name:
Title:
[Name of Assignee], as Assignee
By:
------------------------------------------------
Name:
Title:
The undersigned hereby consents to the within assignment: 1
FPIC Insurance Group, Inc. SunTrust Bank, as
Administrative Agent:
By: By:
------------------------------- --------------------------------
Name: Name:
Title: Title:
SunTrust Bank, as
Issuing Bank:
By:
-----------------------------------
Name:
Title:
----------------------------------
1 Consents to be included to the extent required by Section 10.4(b) of the
Credit Agreement.
C-2
EXHIBIT D
[FORM OF]
SUBSIDIARY GUARANTEE AGREEMENT dated as of [______ ___, 2001], among each
of the Subsidiaries listed on Schedule I hereto (each such subsidiary
individually, a "Guarantor" and collectively, the "Guarantors") of FPIC
INSURANCE GROUP, INC., a Florida corporation (the "Borrower"), and SUNTRUST
BANK, a Georgia banking corporation as administrative agent (the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement referred to below).
Reference is made to the Revolving Credit and Term Loan Agreement dated as
of ________ ___, 2001 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the Borrower, the lenders from time to
time party thereto (the "Lenders") and SunTrust Bank, as administrative agent
for the Lenders (in such capacity, the "Administrative Agent") and issuing bank
(in such capacity, the "Issuing Bank"). Capitalized terms used herein and not
defined herein shall have the meanings assigned to such terms in the Credit
Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing Bank
has agreed to issue Letters of Credit for the account of the Borrower (provided,
subject to the terms and conditions of the Credit Agreement, such Letters of
Credit may be issued on behalf of the Borrower or, if requested by the Borrower,
on behalf of any Subsidiary), pursuant to, and upon the terms and subject to the
conditions specified in, the Credit Agreement. Each of the Guarantors is a
"Subsidiary Guarantor" within the meaning of such term in the Credit Agreement
and acknowledges that it will derive substantial benefit from the making of the
Loans by the Lenders, and the issuance of the Letters of Credit by the Issuing
Bank. The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit are conditioned on, among other things, the execution
and delivery by the Guarantors of a Subsidiary Guarantee Agreement in the form
hereof. As consideration therefor and in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit, the Guarantors are
willing to execute this Subsidiary Guarantee Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of (i) the principal of and premium,
if any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other monetary
obligations, including fees, costs, expenses and indemnities, whether primary,
secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Administrative Agent
and the Lenders under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents; and (c) the due and punctual payment and performance
of all obligations of the Borrower, monetary or otherwise, under each Hedging
Agreement entered into with a counterparty that was a Lender or an Affiliate of
a Lender at the time such Hedging Agreement was entered into (all the monetary
and other obligations referred to in the preceding clauses (a) through (c) being
collectively called the "Obligations"). Each Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest
extent permitted by applicable law, the obligations of each Guarantor hereunder
shall not be affected by (a) the failure of
D-1
the Administrative Agent or any Lender to assert any claim or demand or to
enforce or exercise any right or remedy against the Borrower or any other
Guarantor under the provisions of the Credit Agreement, any other Loan Document
or otherwise, (b) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Agreement, any other Loan
Document, any Guarantee or any other agreement, including with respect to any
other Guarantor under this Agreement, or (c) the failure to perfect any security
interest in, or the release of, any of the security held by or on behalf of the
Administrative Agent or any Lender.
SECTION 3. Security. Each of the Guarantors authorizes the Administrative
Agent and each of the Lenders to (a) take and hold such security for payment of
this Guarantee and the Obligations as may be required by the Credit Agreement,
and exchange, enforce, waive and release any such security, (b) apply such
security and direct the order or manner of sale thereof as they in their sole
discretion may determine and (c) release or substitute any one or more
endorsees, other guarantors or other obligors.
SECTION 4. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Administrative Agent
or any Lender to any of the security held for payment of the Obligations or to
any balance of any deposit account or credit on the books of the Administrative
Agent or any Lender in favor of the Borrower or any other Person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce any remedy under the Credit Agreement,
any other Loan Document or any other agreement, by any waiver or modification of
any provision of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or
omission that may or might in any manner or to the extent vary the risk of any
Guarantor or that would otherwise operate as a discharge of each Guarantor as a
matter of law or equity (other than the indefeasible payment in full in cash of
all the Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest extent permitted by
applicable law, each Guarantor waives any defense based on or arising out of any
defense of the Borrower or the unenforceability of the Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrower, other than the final and indefeasible payment in full in cash of the
Obligations. The Administrative Agent and the Lenders may, at their election,
foreclose on any security held by one or more of them by one or more judicial or
nonjudicial sales, accept an assignment of any such security in lieu of
foreclosure, compromise or adjust any part of the Obligations, make any other
accommodation with the Borrower or any other guarantor, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Obligations have been fully, finally and indefeasibly paid in cash.
Pursuant to applicable law, each Guarantor waives any defense arising out of any
such election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of such Guarantor against the Borrower or any other Guarantor or
guarantor, as the case may be, or any security.
SECTION 7. Agreement to Pay; Subordination. In furtherance of the foregoing
and not in limitation of any other right that the Administrative Agent or any
Lender has at law or in equity against any Guarantor by virtue hereof, upon the
failure of the Borrower or any other Loan Party to pay any Obligation when and
as the same shall become due, whether at maturity, by acceleration, after notice
of prepayment or otherwise, each Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Administrative Agent for the benefit of the
Lenders in cash the amount of such unpaid Obligations. Upon payment by any
Guarantor of any sums to the Administrative Agent, all rights of such Guarantor
against the Borrower arising as a result thereof by way of right of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations. In addition, any indebtedness of the
Borrower now or hereafter held by any Guarantor is hereby subordinated in right
of payment to
D-2
the prior payment in full in cash of the Obligations. If, at any time following
the occurrence and continuance of a Default or an Event of Default, any amount
shall erroneously be paid to any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness of the Borrower, such amount shall be held in trust for the benefit
of the Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Obligations,
whether matured or unmatured, in accordance with the terms of the Loan
Documents.
SECTION 8. Information. Each Guarantor assumes all responsibility for being
and keeping itself informed of the Borrower's financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that such Guarantor
assumes and incurs hereunder, and agrees that none of the Administrative Agent
or the Lenders will have any duty to advise any of the Guarantors of information
known to it or any of them regarding such circumstances or risks.
SECTION 9. Representations and Warranties. Each Guarantor represents and
warrants as to itself that all representations and warranties relating to it (as
a Subsidiary of the Borrower) contained in the Credit Agreement are true and
correct.
SECTION 10. Termination. The guarantees made hereunder (a) shall terminate
when all the Obligations have been paid in full in cash and the Lenders have no
further commitment to lend under the Credit Agreement, the LC Exposure has been
reduced to zero and the Issuing Bank has no further obligation to issue Letters
of Credit under the Credit Agreement and (b) shall continue to be effective or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any Obligation is rescinded or must otherwise be restored by any Lender or
any Guarantor upon the bankruptcy or reorganization of the Borrower, any
Guarantor or otherwise. In connection with the foregoing, the Administrative
Agent shall execute and deliver to such Guarantor or Guarantor's designee, at
such Guarantor's expense, any documents or instruments which such Guarantor
shall reasonably request from time to time to evidence such termination and
release.
SECTION 11. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that no Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). If all of the
capital stock of a Guarantor is sold, transferred or otherwise disposed of
pursuant to a transaction permitted by the Credit Agreement, such Guarantor
shall be released from its obligations under this Agreement without further
action. This Agreement shall be construed as a separate agreement with respect
to each Guarantor and may be amended, modified, supplemented, waived or released
with respect to any Guarantor without the approval of any other Guarantor and
without affecting the obligations of any other Guarantor hereunder.
SECTION 12. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent or of any Lender
in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and of the Administrative
Agent hereunder and of the Lenders under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to
any departure by any Guarantor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such
waiver and consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Guarantor in any
case shall entitle such Guarantor to any other or further notice in similar
or other circumstances.
D-3
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Guarantors with respect to which such waiver, amendment or
modification relates and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit
Agreement).
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
SECTION 14. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 10.01 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
SECTION 15. Survival of Agreement; Severability.
(a) All covenants, agreements representations and warranties made by
the Guarantors herein and in the certificates or other instruments prepared
or delivered in connection with or pursuant to this Agreement or the other
Loan Document shall be considered to have been relied upon by the
Administrative Agent and the Lenders and shall survive the making by the
Lenders of the Loans and the issuance of the Letters of Credit by the
Issuing Bank regardless of any investigation made by any of them or on
their behalf, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or the LC Exposure does not equal zero and as long as the
Commitments have not been terminated.
(b) In the event one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and therein shall not in any way
be affected or impaired thereby (it being understood that the invalidity of
a particular provision in a particular jurisdiction shall not in and of
itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 16. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract (subject to Section 11), and shall become
effective as provided in Section 11. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 17. Rules of Interpretation. The rules of interpretation specified
in Section 1.03 of the Credit Agreement shall be applicable to this Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process.
(a) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of any Florida
state court or Federal court of the United States of America sitting in
▇▇▇▇▇ County, Florida, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or the
other Loan Documents, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be
heard and determined in such Florida state court or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. Nothing in this Agreement shall affect
any right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against any Guarantor or its properties in the
courts of any jurisdiction.
D-4
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any Florida state or Federal court referred to in the first
sentence of paragraph (a) of this Section 18. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 19. Waiver of Jury Trial. EACH PARTY HERETO HERBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
SECTION 20. Additional Guarantors. Pursuant to Section 5.10 of the Credit
Agreement, each Subsidiary Guarantor that was not in existence on the date of
the Credit Agreement is required to enter into this Agreement as a Guarantor
upon becoming Subsidiary Guarantor. Upon execution and delivery after the date
hereof by the Administrative Agent and such Subsidiary of an instrument in the
form of Annex 1, such Subsidiary shall become a Guarantor hereunder with the
same force and effect as if originally named as a Guarantor herein. The
execution and delivery of any instrument adding an additional Guarantor as a
party to this Agreement shall not require the consent of any other Guarantor
hereunder. The rights and obligations of each Guarantor hereunder shall remain
in full force and effect notwithstanding the addition of any new Guarantor as a
party to this Agreement.
SECTION 21. Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Lender and the Issuing Bank are hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other Indebtedness at any time owing by such
Lender or the Issuing Bank to or for the credit or the account of any Guarantor
(or any Subsidiary of any such Guarantor other than an Insurance Subsidiary or a
Subsidiary Controlled by an Insurance Subsidiary) against any or all the
obligations of such Guarantor now or hereafter existing under this Agreement and
the other Loan Documents held by such Lender or the Issuing Bank, irrespective
of whether or not such Person shall have made any demand under this Agreement or
any other Loan Document and although such obligations may be unmatured. The
rights of each Lender and the Issuing Bank under this Section 21 are in addition
to other rights and remedies (including other rights of setoff) which such
Lender or the Issuing Bank, as the case may be, may have.
D-5
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO
By:
------------------------------
Name:
Title:
SUNTRUST BANK, as
Administrative Agent
By:
-------------------------------
Name:
Title:
D-6
SCHEDULE I TO THE
SUBSIDIARY GUARANTEE AGREEMENT
Guarantor(s) Address
Schedule I-D
ANNEX 1 TO THE
SUBSIDIARY GUARANTEE AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Subsidiary Guarantee Agreement
(the "Guarantee Agreement") dated as of ________ ___, 2001 among each of the
Subsidiaries listed on Schedule I thereto (each such Subsidiary individually, a
"Guarantor" and collectively, the "Guarantors") of FPIC INSURANCE GROUP, INC., a
Florida corporation (the "Borrower"), and SUNTRUST BANK, a Georgia banking
corporation, as Administrative Agent (the "Administrative Agent") for the
Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to the Revolving Credit and Term Loan Agreement
dated as of ____________ ___, 2001 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower,
the lenders from time to time party thereto (the "Lenders") and SunTrust
Bank, as Administrative Agent, and issuing bank (in such capacity, the
"Issuing Bank").
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Guarantee Agreement
and the Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in order
to induce the Lenders to make Loans and the Issuing Bank to issue Letters
of Credit. Pursuant to Section 5.10 of the Credit Agreement, each
Subsidiary Loan Party that was not in existence or not a Subsidiary Loan
Party on the date of the Credit Agreement is required to enter into the
Guarantee Agreement as a Guarantor upon becoming a Subsidiary Loan Party.
Section 20 of the Guarantee Agreement provides that additional Subsidiary
Guarantors of the Borrower may become Guarantors under the Guarantee
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary of the Borrower (the "New
Guarantor") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the
Guarantee Agreement in order to induce the Lenders to make additional Loans
and the Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit previously
issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 20 of the Guarantee Agreement,
the New Guarantor by its signature below becomes a Guarantor under the
Guarantee Agreement with the same force and effect as if originally named
therein as a Guarantor and the New Guarantor hereby (a) agrees to all the
terms and provisions of the Guarantee Agreement applicable to it as
Guarantor thereunder and (b) represents and warrants that the
representations and warranties made by it as a Guarantor thereunder are
true and correct on and as of the date hereof. Each reference to a
Guarantor in the Guarantee Agreement shall be deemed to include the New
Guarantor. The Guarantee Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its
terms.
SECTION 3. This Supplement may be executed in counterparts each of
which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Supplement shall become effective
when the Administrative Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New
Guarantor and the Administrative Agent. Delivery of an executed signature
page to this Supplement by facsimile transmission shall be as effective as
delivery of a manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
Annex I-D-1
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions
contained herein and in the Guarantee Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision hereof in a particular jurisdiction shall not in and
of itself affect the validity of such provision in any other jurisdiction).
The parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 14 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to
it at the address set forth under its signature below, with a copy to the
Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the fees, disbursements and other charges of counsel for the
Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Guarantee Agreement as of the day and year
first above written.
[Name of New Guarantor]
By:
-----------------------------------------
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By:
------------------------------------------
Name:
Title:
D-2
SCHEDULE I
TO SUPPLEMENT NO. ____ TO THE
SUBSIDIARY GUARANTEE AGREEMENT
Guarantors
Name Address
Schedule I-D-1
EXHIBIT E
[FORM OF]
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT dated
as of ___________ ___, 2001 among FPIC INSURANCE GROUP,
INC., a Florida corporation (the "Borrower"), each
Subsidiary listed on Schedule I hereto (the "Guarantors"),
and SUNTRUST BANK, a Georgia banking corporation, as
administrative agent (in such capacity, the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
Reference is made to (a) the Revolving Credit and Term Loan Agreement dated
as of ________ ___, 2001 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, the lenders from time
to time party thereto (the "Lenders") and SunTrust Bank, as Administrative
Agent, and issuing bank (in such capacity, the "Issuing Bank"), and (b) the
Subsidiary Guarantee Agreement dated as ___________ __, 2001, among the
Guarantors and the Administrative Agent (as amended, supplemented or otherwise
modified from time to time, the "Guarantee Agreement"). Capitalized terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing Bank
has agreed to issue Letters of Credit for the account of the Borrower, pursuant
to, and upon the terms and subject to the conditions specified in, the Credit
Agreement. The Guarantors have guaranteed such Loans and the other Obligations
(as defined in the Guarantee Agreement) of the Borrower under the Credit
Agreement pursuant to the Guarantee Agreement; certain Guarantors have granted
Liens on and security interests in certain of their assets to secure such
guarantees. The obligations of the Lenders to make Loans and of the Issuing Bank
to issue Letters of Credit are conditioned on, among other things, the execution
and delivery by the Borrower and the Guarantors of an agreement in the form
hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent
agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights
of indemnity and ------------------------- subrogation as the Guarantors
may have under applicable law (but subject to Section 3), the Borrower
agrees that (a) in the event a payment shall be made by any Guarantor under
the Guarantee Agreement, the Borrower shall indemnify such Guarantor for
the full amount of such payment and such Guarantor shall be subrogated to
the rights of the Person to whom such payment shall have been made to the
extent of such payment and, if applicable, (b) in the event any Capital
Stock which is owned or held by any Guarantor in any Subsidiary of such
Guarantor and which is pledged to the Collateral Agent under a Stock Pledge
Agreement shall be sold pursuant to such Stock Pledge Agreement to satisfy
a claim of any Secured Party, the Borrower shall indemnify such Guarantor
in an amount equal to the greater of the book value or the fair market
value of the Capital Stock so sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the
event a payment shall be made by any other Guarantor under the
Guarantee Agreement or assets of any other Guarantor shall be sold
pursuant to any Security Document to satisfy a claim of any Secured
Party and such other Guarantor (the "Claiming Guarantor") shall not
have been fully indemnified by the Borrower as provided in Section 1,
the Contributing Guarantor shall indemnify the Claiming Guarantor in
an amount equal to the amount of such payment or the greater of the
book value or the fair market value of such Capital Stock, as the case
may be, in each case multiplied by a fraction of which the numerator
shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 12, the date of the
Supplement hereto executed and delivered by such Guarantor). Any
Contributing Guarantor making any payment to a Claiming Guarantor
pursuant to this Section 2 shall be subrogated to the rights of such
Claiming Guarantor under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections
1 and 2 and all other rights of indemnity, contribution or
E-1
subrogation under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of the Obligations. No failure on the part
of the Borrower or any Guarantor to make the payments required under applicable
law or otherwise shall in any respect limit the obligations and liabilities of
any Guarantor with respect to its obligations hereunder, and each Guarantor
shall remain liable for the full amount of the obligations of such Guarantor
hereunder.
SECTION 4. Termination. This Agreement shall survive and be in
full force and effect so long as any Obligation is outstanding and has
not been indefeasibly paid in full in cash, and so long as the LC
Exposure has not been reduced to zero or any of the Commitments under
the Credit Agreement have not been terminated, and shall continue to
be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or
otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF FLORIDA.
SECTION 6. No Waiver; Amendment.
(a) No failure on the part of the Administrative Agent or
any Guarantor to exercise, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or
remedy by the Administrative Agent or any Guarantor preclude any
other or further exercise thereof or the exercise of any other
right, power or remedy. All remedies hereunder are cumulative and
are not exclusive of any other remedies provided by law. None of
the Administrative Agent and the Guarantors shall be deemed to
have waived any rights hereunder unless such waiver shall be in
writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written
agreement entered into between the Borrower, the Guarantors and
the Administrative Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit
Agreement).
SECTION 7. Notices. All communications and notices hereunder
shall be in writing and given as provided in the Guarantee
Agreement and addressed as specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this
Agreement any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party;
and all covenants, promises and agreements by or on behalf of the
parties that are contained in this Agreement shall bind and inure to
the benefit of their respective successors and assigns. Neither the
Borrower nor any Guarantor may assign or transfer any of its rights or
obligations hereunder (and any such attempted assignment or transfer
shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is
released from its obligations under the Guarantee Agreement in
accordance with such Guarantee Agreement and the Credit Agreement,
such Guarantor will cease to have any rights or obligations under this
Agreement.
SECTION 9. Survival of Agreement; Severability.
(a) All covenants and agreements made by the Borrower and
each Guarantor herein and in the certificates or other
instruments prepared or delivered in connection with this
Agreement or the other Loan Documents shall be considered to have
been relied upon by the Administrative Agent, the Lenders and
each Guarantor and shall survive the making by the Lenders of the
Loans and the issuance of the Letters of Credit by the Issuing
Bank, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loans or any other
fee or amount payable under the Credit Agreement or this
Agreement or under any of the other Loan Documents is outstanding
and unpaid or the LC Exposure does not equal zero and as long as
the Commitments have not been terminated.
E-2
(b) In case one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any
respect, no party hereto shall be required to comply with such
provision for so long as such provision is held to be invalid,
illegal or unenforceable, but the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
SECTION 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts)
each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement shall be
effective with respect to any Guarantor when a counterpart bearing the
signature of such Guarantor shall have been delivered to the Administrative
Agent. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually
signed counterpart of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement
shall be applicable to this Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary Loan Party of the Borrower that was not
in existence or not such a Subsidiary Loan Party on the date of the Credit
Agreement is required to enter into the Guarantee Agreement as Guarantor
upon becoming such a Subsidiary Loan Party. Upon the execution and
delivery, after the date hereof, by the Administrative Agent and such
Subsidiary of an instrument in the form of Annex I hereto, such Subsidiary
shall become a Guarantor hereunder with the same force and effect as if
originally named as a Guarantor hereunder. The execution and delivery of
any instrument adding an additional Guarantor as a party to this Agreement
shall not require the consent of any Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Guarantor as a party to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
FPIC INSURANCE GROUP, INC.
By:
---------------------------------------
Name:
Title:
EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE I HERETO, as a Guarantor
By:
---------------------------------------
Name:
Title:
SUNTRUST BANK, as
Administrative Agent
By:
---------------------------------------
Name:
Title:
E-3
SCHEDULE I
TO THE INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
Guarantors
Name Address
Schedule I-E
ANNEX I TO
THE INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Indemnity,
Subrogation and Contribution Agreement dated as of _________
___, 2001 (as the same may be amended, supplemented or
otherwise modified from time to time, the "Indemnity,
Subrogation and Contribution Agreement") among FPIC
INSURANCE GROUP, INC., a Florida corporation (the
"Borrower"), each Subsidiary listed on Schedule I thereto
(the "Guarantors") and SUNTRUST BANK, a Georgia banking
corporation, as administrative agent (the "Administrative
Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
A. Reference is made to (a) the Revolving Credit and Term Loan Agreement
dated as of ____________. ___, 2001 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
lenders from time to time party thereto (the "Lenders") and SunTrust Bank, as
the Administrative Agent and issuing bank (in such capacity, the "Issuing
Bank"), and (b) the Subsidiary Guarantee Agreement dated as _________ __, 2001,
among the Guarantors and the Administrative Agent (as amended, supplemented or
otherwise modified from time to time, the "Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.10
of the Credit Agreement, each Subsidiary Loan Party that was not in existence or
not such a Subsidiary Loan Party on the date of the Credit Agreement is required
to enter into the Guarantee Agreement as a Guarantor upon becoming a Subsidiary
Loan Party. Section 12 of the Indemnity, Subrogation and Contribution Agreement
provides that additional Subsidiaries may become Guarantors under the Indemnity,
Subrogation and Contribution Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary (the "New
Guarantor") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Lenders to make additional Loans
and the Issuing Bank to issue additional Letters of Credit and as consideration
for Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below
becomes a Guarantor under the Indemnity, Subrogation and Contribution
Agreement with the same force and effect as if originally named therein as
a Guarantor and the New Guarantor hereby agrees to all the terms and
provisions of the Indemnity, Subrogation and Contribution Agreement
applicable to it as Guarantor thereunder. Each reference to a Guarantor in
the Indemnity, Subrogation and Contribution Agreement shall be deemed to
include the New Guarantor. The Indemnity, Subrogation and Contribution
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its
terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when
the Administrative Agent shall have received counterparts of this
Supplement that, when taken together, bear the signature of the New
Guarantor and the
Annex I-E-1
Administrative Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and
effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable, but
the validity, legality and enforceability of the remaining provisions
contained herein and in the Indemnity, Subrogation and Contribution
Agreement shall not in any way be affected or impaired. The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 7 of the Indemnity, Subrogation
and Contribution Agreement. All communications and notices hereunder to the
New Guarantor shall be given to it at the address set forth under its
signature.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements
of counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[Name of New Guarantor]
By:
----------------------------------------------
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By:
----------------------------------------------
Name:
Title:
Annex I-E-2
SCHEDULE I
TO SUPPLEMENT NO. ____ TO THE INDEMMITY,
SUBROGATION AND CONTRIBUTION AGREEMENT
Guarantors
Name Address
Schedule I-E-1
EXHIBIT F
[FORM OF]
STOCK PLEDGE AGREEMENT dated as of __________ __, 2001,
is made by FPIC INSURANCE GROUP, INC., a Florida corporation
[or, if applicable, name of Subsidiary Pledgor, a
__________] (the "Pledgor"), in favor of SUNTRUST BANK, a
Georgia banking corporation, in its capacity as
Administrative Agent (the "Administrative Agent"), and
further, in its capacity as Collateral Agent (the
"Collateral Agent") for itself and any other banks and
lending institutions now or hereafter party to the Credit
Agreement (as defined below; SunTrust Bank and such other
banks and lending institutions and their successors and
assigns are collectively referred to herein as the
"Lenders").
Reference is made to the Revolving Credit and Term Loan Agreement dated as
of __________ __, 2001 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the FPIC Insurance Group, Inc., a
Florida corporation (in its capacity as "Borrower" under the Credit Agreement,
the "Borrower"), the Lenders and SunTrust Bank, as Administrative Agent and
Collateral Agent for the Lenders, and issuing bank (in such capacity, the
"Issuing Bank").
The Lenders have agreed to make Loans to the Borrower, and the Issuing Bank
has agreed to issue Letters of Credit for the account of the Borrower (provided,
subject to the terms and conditions of the Credit Agreement, such Letters of
Credit may be issued on behalf of the Borrower or, if requested by the Borrower,
on behalf of any Subsidiary), pursuant to, and upon the terms and subject to the
conditions specified in, the Credit Agreement. The obligations of the Lenders to
make Loans and of the Issuing Bank to issue Letters of Credit are conditioned
on, among other things, the execution and delivery by the Pledgor of a Stock
Pledge Agreement in the form hereof. As consideration therefor and in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit, the Pledgor is willing to execute this Agreement.
ARTICLE 1
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Additional Pledged Shares" shall mean the Capital Stock more
particularly described in Schedule 2 hereto, as amended and supplemented
from time to time.
"Agreement" shall mean this Stock Pledge Agreement as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, restated or otherwise modified.
"Capital Stock" shall have the meaning given to such term in the
Credit Agreement.
"Collateral" shall mean, collectively, (a) the Pledged Shares; (b) all
other Pledged Property, whether now or hereafter delivered to the
Collateral Agent in connection with this Agreement; and (c) all proceeds of
any of the foregoing.
"Distributions" shall mean all dividends paid in stock, liquidating
dividends, shares of stock resulting from stock splits, reclassifications,
warrants, options, non-cash dividends and other distributions (whether
similar or dissimilar to the foregoing) on or with respect to any Pledged
Shares or other shares of capital stock constituting Collateral, but shall
not mean Dividends.
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"Dividends" shall mean cash dividends and cash distributions with
respect to any Pledged Shares made out of capital surplus.
"Event of Default" shall mean any event described in Section 5.1.
"Initial Pledged Shares" shall mean the Capital Stock more
particularly described in Schedule I hereto, as amended and supplemented
from time to time.
"Pledged Property" shall mean all Pledged Shares and the certificates
evidencing the Pledged Shares, and all Dividends, Distributions,
securities, cash, instruments, interest payments and other property and
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares.
"Pledged Shares" shall mean the Initial Pledged Shares, the Additional
Pledged Shares and all other shares of capital stock which are pledged by
the Pledgor to the Collateral Agent as Pledged Property hereunder.
"ratable" or "ratably" shall mean, in the context of a distribution of
Collateral or a distribution of proceeds of any of the Collateral, an
allocation of such Collateral or proceeds among the Lenders pro rata in
accordance with their respective portion of the aggregate dollar amount of
the Secured Obligations to which the distribution is being applied.
"Secured Obligations" means, collectively, the obligations of the
Pledgor under this Agreement, and of the Borrower under the Credit
Agreement and the other Loan Documents, including, without limitation, the
Obligations.
"U.C.C." means the Uniform Commercial Code as in effect in the State
of Florida from time to ------ time.
SECTION 1.2. Credit Agreement Definitions, Cross-References. Capitalized
terms used herein and not otherwise defined (including the preamble and recitals
hereof) shall have the meanings assigned to them in the Credit Agreement, unless
the context otherwise requires or unless otherwise defined herein. References in
this Agreement to any Section, unless otherwise specified, are references to
such Section of this Agreement, and references in such Section to any subsection
or clause, unless otherwise specified, are references to such subsection or
clause of such Section.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise ------------------ requires, terms for which meanings are
provided in the U.C.C. are used in this Agreement, including its preamble and
recitals, with such meanings.
ARTICLE 2
PLEDGE
SECTION 2.1. Grant of Security Interest. The Pledgor hereby pledges,
assigns, delivers, sets over, conveys and transfers to the Collateral Agent, for
its benefit and the benefit of the Lenders, and hereby grants to the Collateral
Agent, for its benefit and the benefit of the Lenders, a continuing security
interest in and to, all of the Collateral.
SECTION 2.2. Security for Secured Obligations. This Agreement and the
Collateral secure -------------------------------- the payment in full and
performance of all Secured Obligations.
SECTION 2.3. Delivery of Pledged Property upon Event of Default; Stock
Powers; Registration of Pledge; Transfer. All certificates and instruments
representing or evidencing any Collateral, including all Pledged Shares, shall
be delivered to the Collateral Agent and shall be held be the Collateral Agent
on behalf of the Lenders
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in accordance with the Credit Agreement, shall be in suitable form for transfer
by delivery, and shall be accompanied by all necessary instruments of transfer
or assignment, duly executed in blank and, if the Collateral Agent shall so
request, with signatures guaranteed by a member of a registered national
securities exchange or the National Association of Securities Dealers, Inc. or
by a commercial bank or trust company having an office or correspondent in the
United States. The Collateral Agent shall have the right, upon the occurrence
and during the continuation of an Event of Default, and without notice to the
Pledgor, to transfer to, or to register in the name of, the Collateral Agent or
any of its nominees, any or all of the Pledged Shares, subject only to Section
2.5(b) and Section 4.6. The Collateral Agent will promptly give notice to
Pledgor of any such transfer or registration with respect to the Pledged Shares,
but in no event will the failure of the Collateral Agent to give notice limit
its rights to take possession of the shares or otherwise result in liability
hereunder. In addition, the Collateral Agent shall have the right at any time to
request that the Pledgor exchange certificates or instruments representing or
evidencing any Pledged Shares for certificates or instruments of smaller or
larger denominations.
SECTION 2.4. No Duty to Collateral Agent. The powers conferred on the
Collateral Agent hereunder are solely to protect its interest in the Collateral
and shall not impose any duty upon it to exercise any such powers. Beyond
reasonable care in the custody of any Collateral in its possession from time to
time and the accounting for moneys actually received by it hereunder, the
Collateral Agent shall have no duty as to any Collateral or as to the taking of
any necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral. The Collateral Agent shall not be liable or
responsible (a) for any diminution in the value of the Collateral or (b) for any
loss or damage to any of the Collateral by reason of the act or omission of any
carrier, forwarding agency, or other agent selected by the Collateral Agent in
good faith.
SECTION 2.5. Continuing Security Interest; Transfer of Secured Obligation.
This Agreement shall:
(a) create a continuing security interest in the Collateral;
(b) remain in full force and effect until the payment in full and
performance of all Secured Obligations and termination of the Commitments;
(c) be binding upon the Pledgor, its legal representatives,
successors, transferees and assigns, provided, however, that the Pledgor
may not assign any of its rights or obligations hereunder without the prior
written consent of the Collateral Agent; and
(d) inure to the benefit of the Collateral Agent and the Lenders and
their respective legal representatives, successors, transferees and
assigns.
Without limitation to the foregoing, any Lender may assign or otherwise transfer
any Note, Loan or other Secured Obligation, held by it to any other Person, in
accordance with the terms of the Credit Agreement, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted herein
or otherwise. Upon the occurrence of the event described in Section 2.5(b)
above, the security interest granted herein shall terminate and all rights to
the Collateral shall revert to the Pledgor. Upon any such termination, the
Collateral Agent will, at the Pledgor's expense, execute and deliver to the
Pledgor such documents as the Pledgor shall reasonably request to evidence such
termination, without recourse or warranty to the Collateral Agent.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is and at all times will be the legal and beneficial
owner of, and has and will have at all times good and marketable title to
(and has and will at all times have full right and
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authority to pledge and assign), all Collateral, free and clear of all
Liens or other charges or encumbrances, except the Lien granted pursuant
hereto in favor of the Collateral Agent.
(b) The delivery of the Collateral to the Collateral Agent is
effective to create a valid, perfected, first priority security interest in
such Collateral and all proceeds thereof, securing the Secured Obligations,
except that the filing of a financing statement, the taking of possession
or some other action may be required under Section 9-306 of the former
U.C.C. and Section 9-315 of the revised U.C.C. to perfect a security
interest in certain proceeds of the Collateral that do not constitute
Pledged Shares or other securities or instruments.
(c) The Initial Pledged Shares have been duly authorized and validly
issued, and are fully paid, and nonassessable.
(d) As of the date hereof, the Initial Pledged Shares constitute, and
at all times hereafter the Pledged Shares will constitute, 100% of all of
the issued and outstanding shares of Capital Stock of the Subsidiary
Pledgee(s) whose Capital Stock is pledged hereunder owned or controlled by
the Pledgor.
(e) No authorization, approval, or other action by, and no notice to
or filing with, any Governmental Authority not already taken or made by the
Pledgor is or will be required either:
(i) for the pledge by the Pledgor of any Collateral pursuant to
this Agreement or for the execution, delivery, or performance of this
Agreement by the Pledgor (except with respect to the Pledged Shares,
any amendments required to be made to existing filed reports to
disclose such pledge which will be filed when due), or
(ii) for the exercise by the Collateral Agent of the voting or
other rights provided for in and in accordance with the terms of this
Agreement or the remedies in respect of the Collateral pursuant to
this Agreement (except, with respect to any Pledged Shares, as may be
required in connection with a disposition of such Pledged Shares by
laws affecting the regulation of any Insurance Subsidiary or otherwise
affecting the offering and sale of securities generally).
SECTION 3.2. Warranties upon Pledge of Additional Collateral. The Pledgor
shall be deemed to restate each representation and warranty set forth in Section
3.1 as at the date of each pledge hereunder by the Pledgor to the Collateral
Agent of any Collateral with respect to such additional Collateral.
ARTICLE 4
COVENANTS
SECTION 4.1. Protect Collateral; Further Assurances. The Pledgor will not
sell, assign, transfer, pledge or encumber in any other manner the Collateral
(except in favor of the Collateral Agent hereunder). The Pledgor will warrant
and defend the right, title and security interest herein granted to the
Collateral Agent in and to the Collateral (and all right, title and interest
represented by the Collateral) against the claims and demands of all Persons
whomsoever. The Pledgor agrees that at any time, and from time to time, at the
expense of the Pledgor, the Pledgor will promptly execute and deliver all
further instruments, and take all further action, that may be necessary, or that
the Collateral Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
SECTION 4.2. Issuance of Stock. The Pledgor will not, subsequent to the
date of this Agreement, without the prior written consent of the Required
Lenders, cause or permit the Subsidiary Pledgee(s) whose Capital Stock is
pledged hereunder to issue or grant any warrants, stock options of any nature or
other instruments convertible into shares of any class of stock or issue any
additional shares of stock or sell or transfer any treasury stock, except that
such Subsidiary Pledgee(s) may issue shares of stock to the Pledgor that are or
become
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contemporaneously with such issuance, Pledged Shares that are pledged hereunder
and become a part of the Collateral.
SECTION 4.3. Taxes. The Pledgor will pay all taxes, assessments and charges
levied, assessed or imposed upon the Collateral before the same become
delinquent or become Liens upon any of the Collateral except where the same may
be contested in good faith by appropriate measures and as to which adequate
reserves have been provided and there is no immediate risk of loss of the
Collateral from non-payment
SECTION 4.4. Stock Powers. The Pledgor agrees that all Pledged Shares (and
all other shares of Stock constituting Collateral) delivered by the Pledgor to
the Collateral Agent pursuant to this Agreement will be accompanied by the
instruments of transfer or assignment described in Section 2.3. Thereafter, the
Pledgor will, upon the request of the Collateral Agent, promptly deliver to the
Collateral Agent such stock powers, instruments and similar documents,
satisfactory in form and substance to the Collateral Agent, with respect to the
Collateral as the Collateral Agent may reasonably request and will, from time to
time upon the request of the Collateral Agent, promptly transfer any Pledged
Shares or other shares of stock, including all Distributions, constituting
Collateral into the name of the Collateral Agent or any nominee designated by
the Collateral Agent.
SECTION 4.5. Continuous Pledge. The Pledgor will at all times keep pledged
to the Collateral Agent pursuant hereto all Pledged Shares, all Dividends
received after a Default or an Event of Default and Distributions with respect
thereto, and all other Collateral.
SECTION 4.6. Voting Rights; Dividends. In addition, the Pledgor agrees,
subject to compliance by the Pledgor or the Collateral Agent, as applicable,
with all applicable Requirements of Law with respect to ownership or control of
any Insurance Subsidiary, that:
(a) after any Event of Default shall have occurred and be continuing
or if any Default or Event of Default shall occur as a result thereof,
promptly upon receipt thereof by the Pledgor and without any request
therefor by the Collateral Agent, the Pledgor shall deliver (properly
endorsed where required hereby or requested by the Collateral Agent) to the
Collateral Agent all Dividends, other than Permitted Tax Distributions, all
of which shall be held by the Collateral Agent as additional Collateral for
use in accordance with Section 5.5;
(b) after any Event of Default shall have occurred and be continuing,
upon notice to the Pledgor by the Collateral Agent, all rights of the
Pledgor to exercise or refrain from exercising voting or other consensual
rights in respect of the Collateral shall cease and all such rights shall
thereupon become vested in the Collateral Agent who shall thereupon have
the sole right to exercise or refrain from exercising such voting and other
consensual rights; and
(c) after any Event of Default shall have occurred and be continuing,
promptly upon request of the Collateral Agent, the Pledgor shall deliver to
the Collateral Agent such proxies and other documents as may be necessary
to allow the Collateral Agent to exercise the voting and other consensual
rights with respect to any Collateral.
Except as set forth in the immediately preceding sentence, the Pledgor shall be
entitled to exercise, in its reasonable judgment, but in a manner not
inconsistent with the terms of the Credit Agreement or any other Loan Document
(including this Agreement), the voting powers and all other incidental rights of
ownership with respect to any Pledged Shares or other shares of stock
constituting Collateral (subject to the Pledgor's obligation to deliver to the
Collateral Agent such Pledged Shares and other shares in pledge hereunder) and
to the receipt of all Dividends. All Dividends, Distributions, cash payments and
proceeds, which the Pledgor is then obligated to deliver to the Collateral
Agent, shall, until delivery to the Collateral Agent, be held by the Pledgor
separate and apart from its other property in trust for the Collateral Agent.
The Collateral Agent agrees that unless an Event of Default shall have occurred
and be continuing, the Collateral Agent shall, upon the written request of the
Pledgor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by the Pledgor which are necessary to allow the Pledgor to
exercise voting power with respect to any share of stock (including Pledged
Shares) constituting Collateral; provided, however, that no vote shall be cast,
or consent, waiver or ratification
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given, or action taken by the Pledgor that would impair in any material respect
any Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Agreement).
SECTION 4.7. Additional Information. The Pledgor will furnish to the
Collateral Agent and the Lenders written notice of the occurrence of any event
which would make any representation contained in Article 3 untrue at such time.
SECTION 4.8. Delivery of Collateral to Collateral Agent. The Pledgor
acknowledges and agrees that if an Event of Default has occurred and is
continuing, the Collateral Agent shall, subject to compliance by the Pledgor or
the Collateral Agent, as applicable, with all applicable Requirements of Law
with respect to ownership or control of any Insurance Subsidiary, be entitled to
have sole possession and control of the Collateral and to exercise all of the
rights and remedies with respect to such Collateral provided by Section 5.2.
ARTICLE 5
EVENTS OF DEFAULT; REMEDIES
SECTION 5.1. Events of Default. Each of the following shall constitute an
"Event of Default" hereunder:
(a) if there shall occur any Event of Default under the Credit
Agreement;
(b) if any of the Collateral shall be attached or levied upon or
seized in any legal proceeding, or held by virtue of any Lien or distress;
or
(c) if any representation or warranty of the Pledgor set forth herein
shall be untrue in any material respect or if the Pledgor shall default in
the due performance and observance of any covenant contained herein and
such default shall continue unremedied for a period of ten (10) days.
SECTION 5.2. Actions upon Event of Default. In addition to its rights and
remedies provided hereunder, whenever an Event of Default shall have occurred
and be continuing, the Collateral Agent, subject to compliance by the Pledgor or
the Collateral Agent, as applicable, with all applicable Requirements of Law
with respect to ownership or control of any Insurance Subsidiary, shall have all
rights and remedies of a secured party upon default under the U.C.C. or other
applicable law. Any notification required by law of any intended disposition by
the Collateral Agent of any of the Collateral shall be deemed reasonably and
properly given if given at least ten (10) days before such disposition. Without
limitation of the above, the Collateral Agent may, and upon direction of the
Required Lenders shall, whenever an Event of Default shall have occurred and be
continuing, take all or any of the following actions after giving at least ten
(10) days prior notice to the Pledgor:
(a) transfer all or any part of the Collateral into the name of the
Collateral Agent or its nominee, without disclosing that such Collateral is
subject to the Lien hereunder;
(b) take control of any proceeds of the Collateral; and
(c) execute (in the name, place and stead of the Pledgor)
endorsements, assignments, stock powers and other instruments of conveyance
or transfer with respect to all or any of the Collateral.
SECTION 5.3. Attorney-in-Fact. The Pledgor hereby irrevocably appoints the
Collateral Agent his true and lawful attorney, with full power of substitution,
in the name of the Pledgor, the Collateral Agent, the Lenders or otherwise, for
the sole use and benefit of the Collateral Agent and the Lenders, but at the
Pledgor's expense, upon the occurrence and during the continuation of an Event
of Default to take any action and to execute any instrument which the Collateral
Agent may deem reasonably necessary or advisable to enable the Collateral Agent
to realize the benefit of the security interest provided for in this Agreement.
SECTION 5.4. Private Sales.
(a) The Pledgor recognizes that the Collateral Agent may be unable,
after the occurrence and during the continuance of any Event of Default, to
effect a public sale of any or all
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the Pledged Shares by reason of certain prohibitions contained in the
Securities Act of 1933, as amended (the "Securities Act") and applicable
state securities law or otherwise, and may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers that will be
obligated to agree, among other things, to acquire such securities for
their own account for investment and not with a view to the distribution or
resale thereof. The Pledgor acknowledges and agrees that any such private
sale may result in prices and other terms less favorable than if such sale
were a public sale and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially
reasonable manner. The Collateral Agent shall be under no obligation to
delay sale of any of the Pledged Shares for the period of time necessary to
permit any Subsidiary to register such securities for public sale under the
Securities Act, or under applicable state securities law, even if such
Subsidiary would agree to do so.
(b) The Pledgor further agrees to use his reasonable best efforts,
after the occurrence and during the continuance of an Event of Default, to
do or cause to be done all such acts as may be necessary to make such sale
or sales of all or any portion of the Pledged Shares pursuant to this
Section 5.4 valid and binding and in compliance with any and all applicable
Requirements of Law.
SECTION 5.5. Application of Proceeds. All cash proceeds received by the
Collateral Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
the Collateral Agent, be held by the Collateral Agent as additional collateral
security for, or then or at any time thereafter be applied (after payment of any
amounts payable to the Administrative Agent, the Collateral Agent and the
Lenders pursuant to Section 10.3 of the Credit Agreement and Section 5.6 of this
Agreement) in whole or in part by the Collateral Agent against, all or any part
of the Secured Obligations in the following order:
(a) first, ratably, to the unpaid interest accrued and then due or
owing on the Secured Obligations and to the aggregate amount of fees
described in Section 2.12 of the Credit Agreement which have accrued and
are unpaid;
(b) second, ratably, among the Lenders, on account of all
principal of any Secured Obligations then due or owing; and
(c) third, to any other Secured Obligations then due or owing.
After termination of the Commitments, any surplus of such cash or cash proceeds
held by the Collateral Agent and remaining after payment in full of all the
Secured Obligations, shall be paid over to the Pledgor or to whomsoever may be
lawfully entitled to receive such surplus.
SECTION 5.6. Indemnity and Expenses. The Pledgor hereby indemnifies and
holds harmless the Collateral Agent and the Lenders from and against any and all
claims, losses, and liabilities growing out of or resulting from this Agreement
(including enforcement of this Agreement), to the same extent as set forth in
Section 10.3 of the Credit Agreement. Upon demand, the Pledgor will pay, or
cause to be paid, to the Collateral Agent the amount of any and all reasonable
expenses actually incurred, including the reasonable fees and disbursements of
its counsel and of any experts and agents actually incurred, which the
Collateral Agent incurs in connection with:
(a) the administration of this Agreement;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral,
including without limitation, all fees owing to the Collateral Agent;
(c) the exercise or enforcement of any of the rights of the Collateral
Agent hereunder and any action taken by the Collateral Agent under Section
6.4; and
(d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
SECTION 5.7. Sale of Pledged Shares. If the Collateral Agent shall
determine to exercise its right to sell any of the Pledged Shares pursuant to
Section 5.2 and/or Section 5.4 or under applicable law, the
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Pledgor agrees that, upon request of the Collateral Agent, as soon as
practicable, the Pledgor will, at its own expense:
(a) produce and deliver, and cause each issuer of the Pledged Shares
and the directors and officers thereof to produce and deliver, all
financial and other information pertaining to such issuer, and do or cause
to be done all such other acts and things, as may be necessary or, in the
opinion of the Collateral Agent, advisable to sell or otherwise dispose of
such Pledged Shares in a private sale in conformity with the requirements
of all applicable federal and state securities laws, rules and regulations;
(b) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Pledged Shares or any part thereof valid
and binding and in compliance with applicable law.
The Pledgor further acknowledges the impossibility of ascertaining the amount of
damages which would be suffered by the Collateral Agent and the Lenders by
reason of the failure of the Pledgor to perform any of the covenants contained
in this Section and, consequently, agrees that the remedy of specific
performance may be granted to require the Pledgor to comply with the covenants
contained in this Section, at any time after the Collateral Agent shall demand
compliance with this Section.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1. Loan Document. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly indicated
herein) be construed, administered and applied in accordance with the terms and
provisions thereof.
SECTION 6.2. Amendments. No amendment or waiver of any
provision of this Agreement nor consent to any departures by the Pledgor
herefrom shall in any event be effective unless the same shall be in writing,
signed by the Collateral Agent (with the consent of the Required Lenders), and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which it is given.
SECTION 6.3. Obligations Not Affected. The obligations of the Pledgor under
this Agreement shall remain in full force and effect
without regard to, and shall not be impaired or affected by:
(a) any amendment or modification or addition or supplement to the
Credit Agreement, any Note, any other Loan Document, any instrument
delivered in connection therewith or any assignment or transfer thereof;
(b) any exercise, non-exercise or waiver by the Collateral Agent or
any Lender of any right, remedy, power or privilege under or in respect of,
or any release of any guaranty or collateral provided pursuant to, this
Agreement, the Credit Agreement or any other Loan Document;
(c) any waiver, consent, extension, indulgence or other action or
inaction in respect of this Agreement, the Credit Agreement or any other
Loan Document or any assignment or transfer of any thereof; or
(d) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like, of the Pledgor or any
other Person, whether or not the Pledgor shall have notice or knowledge of
any of the foregoing.
SECTION 6.4. Protection of Collateral. Upon the occurrence and continuation
of an Event of Default, the Collateral Agent may from time to time perform, at
its option, any act which the Pledgor agrees hereunder to perform and which the
Pledgor shall fail to perform, and the Collateral Agent may from time to time
take any other action which the Collateral Agent reasonably deems necessary for
the maintenance, preservation or protection of any of the Collateral or of its
security interest therein.
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SECTION 6.5. Addresses for Notices. All notices and other communications
provided for hereunder to any party hereto shall be given in the manner provided
in Section 10.1 of the Credit Agreement.
SECTION 6.6. Governing Law; Jurisdiction.
(a) This Agreement shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law
principles thereof) of the State of Florida.
(b) The Pledgor hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the United
States District Court of the Middle District of Florida, and of any state
court of the State of Florida located in ▇▇▇▇▇ County and any appellate
court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby or
thereby, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and
determined in such Florida state court or, to the extent permitted by
applicable law, such Federal court. The Pledgor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Agreement shall affect any right
that the Collateral Agent, the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against the Pledgor or his properties in the courts of any jurisdiction.
(c) The Pledgor irrevocably and unconditionally waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding described in paragraph (b) of this Section and brought
in any court referred to in the first sentence of paragraph (b) of this
Section 6.6. The Pledgor irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(d) The Pledgor irrevocably consents to the service of process in the
manner provided for notices in Section 10.1 of the Credit Agreement.
Nothing in this Agreement or in any other Loan Document will affect the
right of any party hereto to serve process in any other manner permitted by
law.
SECTION 6.7. Waiver of Jury Trial. THE PLEDGOR HERETO IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). THE PLEDGOR (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY LENDER OR THE
COLLATERAL AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH LENDER OR
COLLATERAL AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 6.9. Limitation of Liability. Neither the Administrative Agent, the
Collateral Agent, the Lenders nor any Affiliate of any thereof, shall have any
liability with respect to, and THE PLEDGOR HEREBY WAIVES, RELEASES AND AGREES
NOT TO ▇▇▇ UPON, ANY CLAIM FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES SUFFERED BY THE PLEDGOR IN CONNECTION WITH, ARISING OUT
OF, OR IN ANY WAY RELATED TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREIN OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH.
SECTION 6.10. Counterparts, Effectiveness, etc. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be
executed by the Pledgor and the Collateral Agent and be deemed to be an original
and all of which shall constitute together but one and the same agreement. This
Agreement shall become effective when counterparts hereof executed on behalf of
the Pledgor and each Lender (or
F-9
notice thereof satisfactory to the Collateral Agent) shall have been received by
the Collateral Agent and notice thereof shall have been given by the Collateral
Agent to the Pledgor and each Lender.
SECTION 6.11. Additional Pledged Shares. Pursuant to Section 5.11 of the
Credit Agreement, the Pledgor is required to enter into this Agreement and to
pledge all of the Capital Stock, now owned or hereafter acquired, by the Pledgor
of any Subsidiary Pledgee, including any Subsidiary Pledgee that was not in
existence on the date of the Credit Agreement upon the acquisition or formation
of any such Subsidiary Pledgee. If the Pledgor at any time after the date
becomes the owner of any additional Capital Stock of any Subsidiary Pledgee, by
acquisition or otherwise, such additional Capital Stock shall constitute
"Additional Pledged Shares" for purposes of this Agreement, subject to all of
the terms and conditions hereof, and the Pledgor shall promptly execute and
deliver to the Collateral Agent a supplemental schedule in the form of Schedule
II to this Agreement describing such Additional Pledged Shares in the same
manner as the Initial Pledged Shares are described in Schedule I.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
FPIC INSURANCE GROUP, INC.
[or, if applicable, name of Subsidiary Pledgor]
By:
---------------------------------------
Name:
----------------------------------
Title:
----------------------------------
F-10
SCHEDULE I
INITIAL PLEDGED SHARES
Pledgor Issuer Class of Stock Certificate Number of
Numbers Shares Issued
and Pledged
Schedule I-F
SCHEDULE II
ADDITIONAL PLEDGED SHARES
Pledgor Issuer Class of Certificate Number of Shares
Stock Numbers Issued and
Pledged
Schedule II-F
EXHIBIT 2.1
FORM OF LENDER ADDITION AGREEMENT
Reference is made to the Revolving Credit and Term Loan Agreement dated as
of August 31, 2001 (as amended and in effect on the date hereof, the "Credit
Agreement"), among FPIC Insurance Group, Inc., a Florida corporation, the
Lenders from time to time party thereto and SunTrust Bank, as Administrative
Agent for the Lenders. Terms defined in the Credit Agreement are used herein
with the same meanings.
From and after the Effective Date (as defined below) (i)
________________________ (the "New Lender") shall be a party to and be bound by
the provisions of the Credit Agreement and, to the extent of its Revolving
Commitment which is set forth below, have the rights and obligations of a Lender
thereunder; (ii) the New Lender hereby agrees that its Revolving Commitment
shall be as set forth below; and (iii) the Aggregate Revolving Commitments after
giving effect to the Revolving Commitment of the New Lender are set forth below.
This Lender Addition Agreement is being delivered to the Administrative
Agent together with (i) if the New Lender is a Foreign Lender, any documentation
required to be delivered by the New Lender pursuant to Section 2.18(e) of the
Credit Agreement, duly completed and executed by the New Lender, and (ii) an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the New Lender. The New Lender hereby acknowledges receipt of
a copy of the Credit Agreement.
The effectiveness of this Lender Addition Agreement is conditioned upon the
receipt by the Administrative Agent of a Revolving Credit Note payable to the
New Lender in the face amount of the New Lender's Revolving Commitment, together
with an opinion of counsel covering the same matters and subject to the
assumptions and qualifications in the legal opinions delivered under Section
3.1(b) of the Credit Agreement. Upon the receipt of the foregoing and execution
and delivery of this agreement by all parties hereto, this Lender Addition
Agreement shall be deemed effective as of the effective date set forth below
(the "Effective Date").
This Lender Addition Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
Effective Date: _____________________________________
------------------------------------- ----------------------------------- -----------------------------------
Aggregate Revolving
Commitments prior to giving Revolving Commitment of Aggregate Revolving
effect of Revolving New Lender Commitments
Commitment of New Lender
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
$-------------- $----------------- $------------------
------------------------------------- ----------------------------------- -----------------------------------
The terms set forth above are hereby agreed to:
NEW LENDER:
-------------------------------------
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
Exhibit 2-1
New Lender's Address for Notices:
-------------------------------------
-------------------------------------
-------------------------------------
FPIC INSURANCE GROUP, INC. SUNTRUST BANK,
as Administrative Agent
By: By:
------------------------------- ------------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------ -------------------------
Exhibit 2-1
EXHIBIT 2.3
NOTICE OF REVOLVING BORROWING
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Dear Sirs:
Reference is made to the Revolving Credit and Term Loan Agreement dated as
of ________ __, 2001 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein, and
SunTrust Bank, as Administrative Agent. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes a Notice of
Revolving Borrowing, and the Borrower hereby requests a Revolving Borrowing
under the Credit Agreement, and in that connection the Borrower specifies the
following information with respect to the Revolving Borrowing requested hereby:
(A) Aggregate principal amount of Revolving Borrowing (1) :
------------------------------------
(B) Date of Revolving Borrowing (which is a Business Day):
-----------------------------------------
(C) Interest Rate basis (2) : ----------------------
(D) Interest Period (3) : -----------------------------------
(E) Location and number of Borrower's account to which proceeds of
Revolving Borrowing are to be disbursed:
The Borrower hereby represents and warrants that the conditions specified
in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement are
satisfied.
Very truly yours,
FPIC INSURANCE GROUP, INC.
By:
---------------------------------------
Name:
Title:
----------------------------------------------
1 In the case of any Eurodollar Borrowing, not less than $2,000,000 and an
integral multiple of $1,000,000, and in the case of any Base Rate
Borrowing, not less than $1,000,000 and an integral multiple of $100,000.
2 Eurodollar Borrowing or Base Rate Borrowing
3 Which much comply with the definition of "Interest Period" and end not
later than the Commitment Termination Date.
Exhibit 2.3
EXHIBIT 2.9
FORM OF CONTINUATION/CONVERSION
[Date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Dear Sirs:
Reference is made to the Revolving Credit and Term Loan Agreement dated as of
_________ ___, 2001 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein, and
SunTrust Bank, as Administrative Agent. Terms defined in the Credit Agreement
are used herein with the same meanings. This notice constitutes a
continuation/conversion and the Borrower hereby requests the conversion or
continuation of a [Revolving Borrowing][the Term Loans] under the Credit
Agreement, and in that connection the Borrower specifies the following
information with respect to the [Revolving Borrowing][the Term Loans] to be
converted or continued as requested hereby:
(A) [Revolving Borrowing][Term Loans] to which this request applies:
--------------------------------
(B) Principal amount of [Revolving Borrowing][Term Loans] to be
converted/continued: -----------------------------------------
(C) Effective date of election (which is a Business Day):
----------------------------------
(D) Interest rate basis: --------------------------------
(E) Interest Period: ------------------------------------
Very truly yours,
FPIC INSURANCE GROUP, INC.
By:
---------------------------------------
Name:
Title:
Exhibit 2.9
EXHIBIT 3.1(b)(vi)
FORM OF SECRETARY'S CERTIFICATE OF [NAME OF BORROWER]
Reference is made to the Revolving Credit and Term Loan Agreement dated as
of _________ ___, 2001 (the "Credit Agreement"), among FPIC Insurance Group,
Inc. (the "Borrower"), the lenders named therein, and SunTrust Bank, as
Administrative Agent. Terms defined in the Credit Agreement are used herein with
the same meanings. This certificate is being delivered pursuant to Section
3.1(b)(vi) of the Credit Agreement.
I, [ ], Secretary of the Borrower, DO HEREBY CERTIFY that:
(a) there have been no amendments or supplements to, or restatements
of, the [articles] [certificates] of incorporation of the Borrower
delivered pursuant to Section 3.1 of the Credit Agreement;
(b) no proceeding have been instituted or are pending or contemplated
with respect to the dissolution, liquidation or sale of all or
substantially all the assets of the Borrower or threatening its existence
or the forfeiture or any of its corporate rights;
(c) annexed hereto as Exhibit A is a true and correct copy of the
Bylaws of the Borrower as in effect on [Date] (1) and at all times
thereafter through the date hereof;
(d) annexed hereto as Exhibit B is a true and correct copy of certain
resolutions duly adopted by the Board of Directors of the Borrower at a
meeting of said Board of Directors duly called and held on __________ ___,
2001, which resolutions are the only resolutions adopted by the Board of
Directors of the Borrower or any committee thereof relating to the Credit
Agreement and the other Loan Documents to which the Borrower is a party and
the transactions contemplated therein and have not been revoked, amended,
supplemented or modified and are in full force and effect on the date
hereof; and
(e) each of the persons named below is and has been at all times since
_________ ___, 2001 a duly elected and qualified officer of the Borrower
holding the respective office set forth opposite his or her name and the
signature set forth opposite of each such person is his or her genuine
signature:
Name Title Specimen Signature
[Include all officers who are
signing the Credit Agreement
or any other Loan Documents.]
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
_________, 2001.
----------------------------------
Secretary
----------------------------
1 This date should be prior to the date of the resolutions referred to in
clause (d).
Exhibit 3.1(b)(vi)-1
I, [ ], [ ] of the Borrower, do hereby certify that [ ] has been duly
elected, is duly qualified and is the [Assistant] Secretary of the Borrower,
that the signature set forth above is [his/her] genuine signature and that
[he/she] has held such office at all times since ___________ ___, 2001.
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
_________, 2001.
--------------------------------(2)
Title:
-------------------------------
2 This certification should be included as part of the Secretary's
certificate and signed by one of the officers whose incumbency is certified
pursuant to clause (e) above.
Exhibit 3.1(b)(vi)-2
EXHIBIT 3.1(b)(ix)
FORM OF OFFICER'S CERTIFICATE
Reference is made to the Revolving Credit and Term Loan Agreement dated as
of __________ ___, 2001 (the "Credit Agreement"), among FPIC Insurance Group,
Inc. (the "Borrower"), the Lenders from time to time party thereto, and SunTrust
Bank, as Administrative Agent. Terms defined in the Credit Agreement are used
herein with the same meanings. This certificate is being delivered pursuant to
Section 3.1(b)(ix) of the Credit Agreement.
I, [ ], [ ] of the Borrower, DO HEREBY CERTIFY that:
(a) the representations and warranties of the Borrower set forth in
the Credit Agreement are true and correct on and as of the date hereof; and
(b) no Default or Event of Default has occurred and is continuing at
the date hereof; and
(c) since [the date], which is the date of the most recent financial
statements described in Section 5.1(a) of the Credit Agreement, there has
been no change which has had or could reasonably be expected to have a
Material Adverse Effect.
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
_________, 2001.
--------------------------------------------
Name:
Title:
Exhibit 3.1(b)(ix)