EXHIBIT 10.20
TERM LOAN AGREEMENT
dated as of December 4, 1996
between
ASSOCIATED BUSINESS & COMMERCE HOLDINGS, INC.,
as Borrower,
and
TIG REINSURANCE COMPANY,
as Lender
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS, ACCOUNTING TERMS AND RULES OF
CONSTRUCTION.................................................. 1
Section 1.01. Definitions.......................................... 1
Section 1.02. Accounting Terms..................................... 11
Section 1.03. Computation of Time Periods.......................... 11
Section 1.04. Rules of Construction................................ 12
ARTICLE II. AMOUNT AND TERMS OF THE TERM LOAN.............................. 12
Section 2.01. Term Loan............................................ 12
Section 2.02. Delivery of Term Loan Proceeds....................... 12
Section 2.03. Interest............................................. 12
Section 2.04. Fees................................................. 13
Section 2.05. Term Loan Notes...................................... 13
Section 2.06. Optional Prepayments................................. 13
Section 2.07. Mandatory Prepayments................................ 13
Section 2.08. Use of Proceeds...................................... 14
Section 2.09. Method of Payment.................................... 14
Section 2.10. Application of Payments.............................. 14
Section 2.11. Taxes................................................ 14
Section 2.12. Discharge of B Loan Note............................. 15
ARTICLE III. CONDITIONS PRECEDENT.......................................... 15
Section 3.01. Conditions Precedent to Making of the Term Loan...... 15
ARTICLE IV. REPRESENTATIONS AND WARRANTIES................................. 17
Section 4.01. Incorporation, Good Standing and Due Qualification... 17
Section 4.02. Corporate Power and Authority; No Conflicts.......... 17
Section 4.03. Legally Enforceable Agreements....................... 18
Section 4.04. Litigation........................................... 18
Section 4.05. Financial Statements................................. 18
Section 4.06. Ownership and Liens.................................. 19
Section 4.07. Taxes................................................ 20
Section 4.08. ERISA................................................ 20
Section 4.09. Operation of Business................................ 20
Section 4.10. No Default on Outstanding Judgments or Orders.........20
Section 4.11. No Defaults on Other Agreements...................... 21
Section 4.12. Subsidiaries......................................... 21
Section 4.13. No Restriction on Transfers.......................... 21
Section 4.14. Governmental Regulation.............................. 21
Section 4.15. Partnerships......................................... 21
Section 4.16. Environmental Protection............................. 21
Section 4.17. Solvency............................................. 22
Section 4.18. Governmental Approvals............................... 22
Section 4.19. Material Agreements and Liens........................ 22
Section 4.20. Capitalization....................................... 22
Section 4.21. No Brokers or Finders................................ 23
ARTICLE V. AFFIRMATIVE COVENANTS........................................... 23
Section 5.01. Maintenance of Existence............................. 23
Section 5.02. Conduct of Business.................................. 23
Section 5.03. Maintenance of Properties............................ 23
Section 5.04. Maintenance of Records............................... 23
Section 5.05. Maintenance of Insurance............................. 23
Section 5.06. Compliance with Laws................................. 24
Section 5.07. Right of Inspection.................................. 24
Section 5.08. Reporting Requirements............................... 24
Section 5.09. Compliance With Environmental Laws................... 29
Section 5.10. Independent Actuary.................................. 29
Section 5.11. Use of Proceeds...................................... 29
ARTICLE VI. NEGATIVE COVENANTS............................................. 29
Section 6.01. Debt................................................. 30
Section 6.02. Guaranties........................................... 30
Section 6.03. Liens................................................ 30
Section 6.04. Sale of Assets....................................... 32
Section 6.05. Transactions with Affiliates..........................32
Section 6.06. Mergers.............................................. 32
Section 6.07. Leases............................................... 32
Section 6.08. Dividends............................................ 33
Section 6.09. Investments.......................................... 33
Section 6.10. Changes, Amendments or Modifications................. 33
Section 6.11. Changes in Business.................................. 33
Section 6.12. Subsidiaries......................................... 33
Section 6.13. Issuance of Stock.................................... 34
ARTICLE VII. FINANCIAL COVENANTS........................................... 34
Section 7.01. Consolidated Net Worth............................... 34
Section 7.02. ABCIC's Statutory Surplus............................ 35
Section 7.03. Loss Reserves........................................ 35
Section 7.04. Risk Based Capital Ratio............................. 35
Section 7.05. Net Premiums Written Ratio........................... 35
ii
Section 7.06. Debt to Equity Ratio................................. 35
Section 7.07. TIG Interest Coverage Ratio.......................... 37
ARTIVLE VIII. EVENTS OF DEFAULT............................................ 37
Section 8.01. Events of Default.................................... 38
Section 8.02. Remedies............................................. 41
Section 8.03. Conversion........................................... 41
ARTICLE IX. MISCELLANEOUS.................................................. 42
Section 9.01. Amendments and Waivers............................... 42
Section 9.02. Usury................................................ 43
Section 9.03. Expenses and Indemnification......................... 43
Section 9.04. Assignment; Participation............................ 44
Section 9.05. Notices.............................................. 44
Section 9.06. Setoff............................................... 44
Section 9.07. Jurisdiction; Immunities............................. 44
Section 9.08. Governing Law........................................ 45
Section 9.09. Counterparts......................................... 45
Section 9.10. Exhibits and Schedules............................... 45
Section 9.11. Table of Contents; Headings.......................... 45
Section 9.12. Severability......................................... 45
Section 9.13. Integration.......................................... 46
Section 9.14. Waiver of Jury Trial................................. 46
iii
Exhibits
Exhibit A-1 Form of A Loan Note
Exhibit A-2 Form of B Loan Note
Exhibit B Form of Pledge Agreement
Exhibit C Form of Security Agreement
Exhibit D Form of Agreement as to Reinsurance
Schedules
4.04 Litigation
4.20 Capitalization
6.13 Options
iv
TERM LOAN AGREEMENT dated as of December 4, 1996 between ASSOCIATED
BUSINESS & COMMERCE HOLDINGS, INC. ("Borrower"), and TIG REINSURANCE COMPANY
("Lender").
The Borrower has requested that the Lender make loans to it in the
aggregate principal amount of $3,912,908 and the Lender is prepared to make such
loans upon the terms and conditions hereof. Accordingly, the parties hereto
agree as follows:
ARTICLE I. DEFINITIONS, ACCOUNTING TERMS AND RULES OF CONSTRUCTION
Section 1.01. DEFINITIONS. As used in this Agreement the following
terms have the following meanings (terms defined in the singular to have a
correlative meaning when used in the plural and VICE VERSA):
"ABCIC" means Associated Business & Commerce Insurance Corporation.
"ABCIC-Lender Reinsurance Agreement" means each Reinsurance Agreement
between ABCIC, as the ceding company, and Lender, as the reinsurer.
"ABCIC Preferred" means ABCIC's 6% Cumulative Convertible Preferred
Stock, Series A.
"Affiliate" means, as to any Person, any other Person which directly or
indirectly controls, or is controlled by, or is under common control with such
Person. The term "control" (including, with its correlative meanings "controlled
by" and "under common control with") means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of securities or partnership
or other ownership interests, by contract, or otherwise.
"Agreement" means this Term Loan Agreement.
"Agreement as to Reinsurance" means the Agreement as to Reinsurance in
substantially the form of Exhibit D hereto, to be delivered by Borrower under
the terms of this Agreement.
"A Loan" has the meaning specified in Section 2.01.
"A Loan Default Rate" has the meaning specified in Section 2.03.
"A Loan Note" has the meaning specified in Section 2.05.
"Annual Statement" means the annual financial statement of ABCIC as
required to be filed with the insurance commissioner (or similar authority) in
ABCIC's state
of domicile, together with all exhibits or schedules filed therewith, prepared
in conformity with SAP.
"Applicable Insurance Regulatory Authority" means, when used with
respect to ABCIC, the insurance department or similar administrative authority
or agency located in (1) each state in which ABCIC is domiciled and (2) to the
extent asserting regulatory jurisdiction over ABCIC, the insurance department,
authority or agency in each state in which ABCIC is licensed, and shall include
any Federal insurance regulatory department, authority or agency that may be
created and that asserts regulatory jurisdiction over ABCIC.
"Benchmark Statement" means, as of any date, with respect to ABCIC, the
quarterly financial statement of ABCIC as filed with the insurance commissioner
(or similar authority) in ABCIC's state of domicile, with each page, line item
and column of a Benchmark Statement to contain the same type of information,
computed in the same manner, as contained in the identically numbered page, line
item and column of such 1995 Annual Statement.
"B Loan" has the meaning specified in Section 2.01.
"B Loan Default Rate" has the meaning specified in Section 2.03.
"B Loan Note" has the meaning specified in Section 2.05.
"Board of Governors" means the Board of Governors of the Federal
Reserve System.
"Borrower" has the meaning specified in the preamble of this Agreement.
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banks in New York or Florida are authorized or required
to close under the laws of the state of New York or Florida, as applicable.
"Capital Lease" means any lease which has been or should be capitalized
on the books of the lessee in accordance with GAAP.
"Class B Common Stock" has the meaning specified in Section 3.01(15).
"Closing Date" means December 4, 1996.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, including any rules and regulations promulgated thereunder.
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"Collateral" means, collectively, any and all of the securities pledged
pursuant to the Pledge Agreement and any and all assets in which Lender is
granted a Lien pursuant to the Security Agreement.
"Common Stock" has the meaning specified in Section 4.20.
"Company Action Level RBC" has the meaning specified in the Risk-Based
Capital for Insurers Model Act as adopted by the Florida Department of
Insurance.
"Consolidated Net Worth" means as of the date of determination, all
items which in conformity with GAAP would be included under shareholders' equity
on a consolidated balance sheet of the Borrower and its Subsidiaries at such
date.
"Consolidated Subsidiary" means each Subsidiary of Borrower that should
be included in Borrower's consolidated financial statements, all as determined
in accordance with GAAP.
"Consolidated Total Stockholders' Equity" means, on any date, total
stockholders equity of Borrower and its Consolidated Subsidiaries, on a
consolidated basis, all as determined in accordance with GAAP.
"Debt" means: (1) obligations created, issued or incurred for borrowed
money (whether by loan, the issuance and sale of debt securities or the sale of
property to another Person subject to any understanding or agreement to
repurchase such property from such Person), or for the deferred purchase price
or acquisition price of property or services (including trade obligations); (2)
obligations as lessee under Capital Leases; (3) current liabilities in respect
of unfunded vested benefits under any Plan; (4) obligations under or related to
letters of credit issued for the account of any Person; (5) all obligations
arising under bankers' or trade acceptance facilities of any Person; (6) all
guarantees, endorsements (other than for collection or deposit in the ordinary
course of business), and other contingent obligations to purchase any of the
items included in this definition, to provide funds for payment, to supply funds
to invest in any Person, or otherwise to assure a creditor against loss; (7) all
obligations secured by any Lien on property owned by such Person, whether or not
the obligations have been assumed; (8) all obligations under any agreement
providing for a swap, ceiling rates, ceiling and floor rates, contingent
participation or other hedging mechanisms with respect to interest payable on
any of the items described above in this definition; and (9) all forward foreign
exchange contracts.
"Default" means any event which with the giving of notice or lapse of
time, or both, would become an Event of Default.
"Deposit Account" has the meaning specified in 2.02.
"Deposit Account Bank" means the bank maintaining the Deposit Account.
3
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"EBITDA" means, for any period, the sum, for the Borrower and its
Subsidiary (determined on a consolidated basis without duplication in accordance
with GAAP), of net operating income (calculated before taxes, Interest Expense,
depreciation and amortization) for such period.
"Environmental Discharge" means any discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
"Environmental Law" means any Law relating to the regulation or
protection of human health, safety or the environment or to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals or toxic or hazardous substances or wastes into the indoor or outdoor
environment, including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or toxic or
hazardous substances or wastes.
"Environmental Notice" means any complaint, order, citation, letter,
inquiry, notice or other written communication from any Person (1) affecting or
relating to the Borrower's compliance with any Environmental Law in connection
with any activity or operations at any time conducted by the Borrower, (2)
relating to the occurrence or presence (as defined below) of or exposure to or
possible or threatened or alleged occurrence or presence (as defined below) of
or exposure to Environmental Discharges or Hazardous Materials at any of the
Borrower's locations or facilities, including, without limitation: (a) the
existence of any contamination or possible or threatened contamination at any
such location or facility; and (b) remediation of any Environmental Discharge or
Hazardous Materials at any such location or facility or any part thereof; and
(3) any violation or alleged violation of any relevant Environmental Law.
"Equity Rights" means, with respect to any Person, any subscriptions,
options, warrants, commitments, preemptive rights or agreements of any kind
(including, without limitation, any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or securities convertible
into, any additional shares of capital stock of any class, or partnership or
other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including any rules and regulations promulgated
thereunder.
"ERISA Affiliate" means any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which the Borrower is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under
4
Section 302(f) of ERISA and Section 412(n) of the Code, described in Section
414(m) or (o) of the Code of which the Borrower is a member.
"Existing Loan Agreement" has the meaning specified in Section 2.08.
"Event of Default" has the meaning specified in Section 8.01.
"FDOI" has the meaning specified in Section 5.12.
"Fiscal Year" means each period from January 1 to December 31.
"Fully Diluted Book Value" as of any date means the book value per
share of the Common Stock on a fully diluted basis calculated using the
consolidated shareholders equity of the Borrower, including the Borrower's
ownership interest in its Subsidiaries, determined in accordance with GAAP and
with proper consideration of all potential dilutive securities, including
assuming all outstanding options to purchase Common Stock are exercised and all
convertible preferred stock of the Borrower is converted, but not including any
potential conversion of preferred stock of any of the Borrower's Subsidiaries,
as of the last day of the calendar quarter ended prior to the date as of which
such book value is being determined, adjusted to reflect any dividends or other
distributions or sale of securities for less than fair market value made after
the last day of such calendar quarter.
"Fund" means the Associated Business and Commerce Workers' Compensation
Self-Insurance Fund.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis consistent
with those used in the preparation of the financial statements referred to in
Section 4.05.
"Good Faith Contest" means the contest of an item if: (1) the item is
diligently contested in good faith by appropriate proceedings timely instituted;
(2) adequate reserves are available if payment is required to be made on the
contested item; (3) during the period of such contest, the enforcement of any
contested item is effectively stayed; and (4) the failure to pay or comply with
the contested item could not result in a Material Adverse Change.
"Governmental Approvals" means any authorization, consent, approval,
license, permit, certification, ruling of, or exemption of, registration or
filing with order from, judgment from decree of, publication by or report or
notice to, any Governmental Authority.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of government.
5
"Hazardous Materials" means collectively, (a) any petroleum or
petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCB'S"), (b) any chemicals or other
materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under any Environmental Law.
"Incurred Losses" has, with respect to each ABCIC-Lender Reinsurance
Agreement, the same definition of such term as provided in the applicable
ABCIC-Lender Reinsurance Agreement.
"Independent Actuary" means ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Inc. or such other
independent actuarial firm reasonably acceptable to Lender that will perform the
actuarial review of the gross, ceded and net Loss and LAE Incurred, and unearned
premium reserves for inclusion in the Annual Statement of ABCIC.
"Insurance Business" means the providing of workmens compensation
insurance and employers liability insurance.
"Interest Expense" means, for any period, for the Borrower and its
Subsidiary (determined on a consolidated basis without duplication in accordance
with GAAP), all interest in respect of Debt (including, without limitation, the
interest component of any payments in respect of all Capital Leases) accrued or
capitalized during such period (whether or not actually paid during such
period).
"Investment" shall mean, for any Person: (a) the acquisition (whether
for cash, property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person or any agreement to make any such acquisition
(including, without limitation, any "short sale" or any sale of any securities
at a time when such securities are not owned by the Person entering into such
sale); (b) the making of any deposit with, or advance, loan or other extension
of credit to, any other Person (including the purchase of property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such Property to such Person), but excluding any such advance, loan or
extension of credit having a term not exceeding 90 days representing the
purchase price of inventory or supplies sold by such Person in the ordinary
course of business); (c) the entering into of any guarantee of, or other
contingent obligation with respect to, Debt or other liability of any other
Person and (without duplication) any amount committed to be advanced, lent or
extended to such Person; or (d) the entering into of any interest rate
protection or similar Agreement.
6
"Law" means any federal, state or local statute, law, rule, regulation,
ordinance, order, code, or rule of common law, now or hereafter in effect, and
any judicial or administrative interpretation thereof by a Governmental
Authority or otherwise, including any judicial or administrative order, consent
decree, judgment or circular letter.
"Lender" has the meaning specified in the preamble to this Agreement.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority, or other security agreement or preferential
arrangement, charge, or encumbrance of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable Law of any jurisdiction to evidence any of the
foregoing).
"Loan Documents" means this Agreement, the Term Loan Notes, the Pledge
Agreement and the Security Agreement.
"Loss and LAE Incurred" means, for any period, with respect to ABCIC,
the sum of net losses incurred (the amount as shown on line 2, page 4 of a
Benchmark Statement of ABCIC by ABCIC), plus net loss expenses incurred (the
amount as shown on line 3, page 4 of the Benchmark Statement of ABCIC) of ABCIC.
"Loss Portfolio Transfer" means the acquisition by ABCIC of all or
substantially all of the assets and the assumption of all or substantially all
of the claim liabilities of the Fund under and pursuant to the terms of the Loss
Portfolio Transfer Agreement.
"Loss Portfolio Transfer Agreement" means the Loss Portfolio Transfer
Agreement dated October 11, 1995 between ABCIC and the Fund.
"Loss Reserves" means, at any date, with respect to ABCIC, the sum of
the following items: (1) net losses, including incurred but unreported losses
(the total amount as shown on line 1, page 3, column 1 of a Benchmark Statement
for ABCIC) plus (ii) net loss adjustment expenses (the total amount as shown on
line 2, page 3, column 1 of a Benchmark Statement of ABCIC), all as determined
in accordance with SAP.
"Management Agreement" means the Management Agreement dated March 23,
1995 between Borrower and ABCIC.
"Management Fee" means the fee payable by ABCIC to Borrower pursuant to
the Management Agreement.
7
"Material Adverse Change" means (1) a material adverse change in the
status of the business, assets, liabilities, results of operations, condition
(financial or otherwise), property or prospects of Borrower or its Subsidiary,
(2) any event or occurrence of whatever nature which could have a material
adverse effect on Borrower's ability to perform its obligations under the Loan
Documents or (3) a material adverse effect on the validity or enforceability of
the Lender's Lien on the Collateral.
"Maturity Date" has the meaning specified in Section 2.05.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA.
"NAIC" means the National Association of Insurance Commissioners or any
successor organization thereto.
"NAIC Tests" means the ratios and other financial measurements
developed by the NAIC under its Insurance Regulatory Information System, as
adopted by the Florida Insurance Department and as in effect from time to time.
"Net Premiums Written" means, for any period, with respect to ABCIC,
the aggregate net amount of premiums written by ABCIC during such period, as
same would be shown on line 32, page 9, column 4, Part 2B of a Benchmark
Statement for ABCIC covering such period, all as determined in accordance with
SAP; provided, that, in any case, Net Premiums Written shall be net of ceded
written premiums in respect of all reinsurances (quota share, specific and
aggregate) inuring to ABCIC.
"Obligations" means (1) each and every obligation, covenant and
agreement of Borrower now or hereafter existing contained in this Agreement, and
any of the other Loan Documents, whether for principal, interest, fees,
expenses, indemnities or otherwise, and any amendments or supplements thereto,
extensions or renewals thereof or replacements therefor, including but not
limited to all Indebtedness, obligations and liabilities of Borrower to Lender
now existing or hereafter incurred under or arising out of or in connection with
the Term Loan Notes, this Agreement, the other Loan Documents, and any documents
or instruments executed in connection therewith, (2) all sums advanced in
accordance with the Pledge Agreement or Security Agreement, as the case may be,
by or on behalf of Lender to protect any of the Collateral purported to be
covered thereby, (3) any amounts paid by Lender as to which Lender has the right
to reimbursement from Borrower, and (4) any amounts paid by Lender in
preservation of any of Lender's rights or interest in the Collateral, together
with interest on such amounts from the date such amounts are paid until
reimbursement in full at a rate per annum equal at all times to the A Loan
Default Rate; in each case whether direct or indirect, joint or several,
absolute or contingent, liquidated or unliquidated, now or hereafter existing,
renewed or restructured, whether or not from time to time decreased or
8
extinguished and later increased, created or incurred, and including all
indebtedness of the Borrower under any instrument now or hereafter evidencing or
securing any of the foregoing.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Permitted Investments" means (1) direct obligations of the United
States of America or any agency thereof backed by the full faith and credit of
the United States government, (2) all open market commercial paper of any
corporation incorporated under the laws of the United States of America or any
state thereof and not an Affiliate of the Borrower and which commercial paper is
rated "P-1" or better by Moody's or "A-1" or better by S&P maturing not more
than 90 days from the date of acquisition thereof, (3) U.S. Dollar denominated,
long term, publicly traded fixed-income securities rated not less than "BBB-" by
S&P and "Baa3" by Moody's and (4) investments in money market funds or other
corporate funds of entities having a rating of "A" or higher by S&P or "A2" or
higher by Moody's, or money market mutual funds sponsored by any securities
broker dealer, or investment adviser registered under the United States
Investment Advisors Act of 1940, as amended, of recognized national standing (or
an Affiliate thereof), having an investment policy that requires substantially
all the invested assets of such fund to be invested in investments described in
either or both of clauses (i) and (2) having a rating of "A" or higher by S&P or
"A2" or higher by Moody's; provided that at no time shall the obligation of any
single obligor (other than those specified in clause (1) above) constitute more
than 5% of the total assets of the Borrower and its Subsidiary.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture, limited
liability company, limited liability partnership, Governmental Authority or
other entity of whatever nature.
"Plan" means any plan, agreement, arrangement or commitment which is an
employee benefit plan, as defined in Section 3(3) of ERISA, maintained by
Borrower or any ERISA Affiliate or with respect to which Borrower or any ERISA
Affiliate at any relevant time has any liability or obligation to contribute.
"Pledge Agreement" means the Pledge Agreement, substantially in the
form of Exhibit B hereto, to be delivered by Borrower under the terms of this
Agreement.
"presence", when used in connection with any Environmental Discharge or
Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, repair, encapsulation,
disposal, transportation, spill, discharge and release.
"Principal Office" means the then principal office of Lender, which is
currently located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
9
"Prohibited Transaction" means any transaction prohibited under Section
406 of ERISA or Section 4975 of the Code.
"Quarterly Date" means each March 31, June 30, September 30 and
December 31 occurring on or after the Closing Date.
"Quarterly Period" means each period from the day after a Quarterly
Date to the next Quarterly Date.
"Reinsurance Premium" has, with respect to each ABCIC-Lender
Reinsurance Agreement, the same definition of such term as provided in the
applicable ABCIC-Lender Reinsurance Agreement.
"Reportable Event" means any of the events set forth in Section 4043(b)
of ERISA or in the regulations thereunder.
"Risk Based Capital" has the meaning specified in the Risk-Based
Capital for Insurers Model Act as adopted by the Florida Department of
Insurance.
"SAP" means with respect to ABCIC, the accounting procedures and
practices prescribed or permitted by the Applicable Insurance Regulatory
Authority of the state in which ABCIC is domiciled.
"S&P" means Standard & Poor's Ratings Group, a division of the
▇▇▇▇▇▇-▇▇▇▇ Corporation and its successors.
"Securities Purchase Agreement" means the Securities Purchase Agreement
dated as of December 4, 1996 by and among the Borrower, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the
Lender.
"Security Agreement" means the Security Agreement substantially in the
form of Exhibit C hereto, to be delivered by Borrower under the terms of this
Agreement.
"Series I Preferred Stock" means the Cumulative Convertible Preferred
Stock, Series I, $.01 par value, of Borrower.
"Solvent" means, when used with respect to any Person, that (1) the
fair value of the property of such Person, on a going concern basis, is greater
than the total amount of liabilities (including, without limitation, contingent
liabilities) of such Person, (2) the present fair saleable value of the assets
of such Person, on a going concern basis, is not less than the amount that will
be required to pay the probable liabilities of such Person on its debts as they
become absolute and matured, (3) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature, and (4) such Person is not engaged in
business or a transaction, and is not about to
10
engage in business or a transaction, for which such Person's property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged. Contingent
liabilities will be computed at the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Statutory Surplus" means, at any date, with respect to ABCIC, the
surplus as regards policyholders of ABCIC (the total amount as would be shown on
line 25, page 3, column 1 of a Benchmark Statement for ABCIC prepared as of such
date), all as determined in accordance with SAP.
"Subsidiary" means, as to any Person, a corporation of which shares of
stock having ordinary voting power (other than stock having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are at the time owned, or the
management of which is otherwise controlled, directly, or indirectly through one
or more intermediaries, or both, by such Person.
"Term Loan" has the meaning specified in Section 2.01.
"Term Loan Arrangement Fee" has the meaning specified in Section 2.04.
"Term Loan Notes" has the meaning specified in Section 2.05.
"URC" means Underwriter's Reinsurance Company.
Section 1.02. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP, except as otherwise specifically provided herein. To enable the ready and
consistent determination of compliance with the covenants set forth in Section 4
hereof, the Borrower will not change the last day of its fiscal year from
December 31 of each year, or the last days of the first three fiscal quarters in
each of its fiscal years from March 31, June 30 and September 30 of each year,
respectively.
References in the Annual Statements to amounts on particular exhibits,
schedules, lines, pages and columns of the Annual Statement are based on the
format promulgated by the NAIC for 1995 Annual Statements. If such format is
changed in future years so that different information is contained in such items
or they no longer exist, it is understood that the reference is to information
consistent with that reported in the referenced item in the 1995 Annual
Statement.
Section 1.03. COMPUTATION OF TIME PERIODS. Except as otherwise provided
herein, in this Agreement, in the computation of periods of time from a
specified date to a
11
later specified date, the word "from" means "from and including" and words "to"
and "until" each means "to but excluding".
Section 1.04. RULES OF CONSTRUCTION. When used in this Agreement: (1)
"or" is not exclusive; (2) a reference to a Law includes any amendment or
modification to such Law; (3) a reference to a Person includes its permitted
successors and permitted assigns; and (4) a reference to an agreement,
instrument or document shall include such agreement, instrument or document as
the same may be amended, modified or supplemented from time to time in
accordance with its terms and as permitted by the Loan Documents.
ARTICLE II. AMOUNT AND TERMS OF THE TERM LOAN
Section 2.01. TERM LOAN. Subject to the terms and conditions of this
Agreement, Lender agrees to make (a) a loan in the amount of Three Million
Dollars ($3,000,000) (the "A Loan") and (b) a loan in the amount of Nine Hundred
Twelve Thousand Nine Hundred Eight Dollars ($912,908) (the "B Loan" and,
together with the A Loan, the "Term Loan") to Borrower on the Closing Date. In
the event that Lender sells shares of Class B Common Stock to Borrower pursuant
to Section 1.04(e) of the Securities Purchase Agreement, the outstanding
principal amount of the B Loan will be automatically increased by an amount
equal to the aggregate purchase price for such shares. Any principal amount of
the Term Loan which is prepaid or repaid cannot be reborrowed.
Section 2.02. DELIVERY OF TERM LOAN PROCEEDS. On the Closing Date and
upon fulfillment of the applicable conditions set forth in this Agreement,
Lender will make the Term Loan available to Borrower by wiring the amount
thereof in immediately available funds to an account designated by the Borrower
("Deposit Account").
Section 2.03. INTEREST. Borrower shall pay interest to Lender on the
outstanding and unpaid principal amount of (a) the A Loan at a rate per annum
equal to ten percent (10%) and (b) the B Loan at a rate per annum equal to six
percent (6%). Any principal amount and any interest not paid when due (at
maturity, by acceleration or otherwise) and any fees and expenses not paid when
due, shall bear interest thereafter, payable on demand, at a rate per annum
equal to fourteen percent (14%), with respect to the A Loan (the "A Loan Default
Rate") and 10%, with respect to the B Loan (the "B Loan Default Rate").
Interest on the Term Loan shall not exceed the maximum amount permitted
under applicable Law and shall be calculated on the basis of a year of three
hundred sixty-five or three hundred sixty-six (365-366) days, as applicable, for
the actual number of days elapsed.
Accrued interest shall be due and payable on each Quarterly Date.
Interest accruing at the A Loan Default Rate or B Loan Default Rate shall be due
and payable on demand.
12
Section 2.04. FEES. Borrower agrees to pay to Lender on the Closing
Date an arrangement fee of Forty-Five Thousand Dollars ($45,000) plus such
additional fees and expenses as set forth in a letter from Borrower to Lender
dated November 15, 1996 ("Term Loan Arrangement Fee").
Section 2.05. TERM LOAN NOTES. The A Loan shall be evidenced by, and
repaid with interest in accordance with, a single promissory note of Borrower,
in substantially the form of Exhibit A-1 hereto, duly completed, in the
principal amount equal to the A Loan, dated the Closing Date, and payable to
Lender (the "A Loan Note"). The B Loan shall be evidenced by, and repaid with
interest in accordance with, a single promissory note of Borrower, in
substantially the form of Exhibit A-2 hereto, duly completed, in the principal
amount equal to the B Loan, dated the Closing Date, and payable to Lender (the
"B Loan Note" and, together with the A Loan Note, the "Term Loan Notes"). Each
Term Loan Note shall be repaid in full, together with unpaid accrued interest,
on December 4, 2003 (the "Maturity Date").
Section 2.06. OPTIONAL PREPAYMENTS. (a) Borrower may, upon at least
five (5) Business Days' notice to Lender at any time on or after December 4,
2001, prepay the A Loan Note or the B Loan Note, in whole or in part with
accrued interest to the date of such prepayment on the amount prepaid; provided,
that each partial prepayment shall be in a principal amount of not less than One
Hundred Thousand Dollars ($100,000). Such prepayments shall be applied as set
forth in Section 2.10.
(b) From and after the earlier of (i) the date of issuance of a final
nonappealable order of the FDOI denying approval of the transactions
contemplated by Section 1.04(a) of the Securities Purchase Agreement and (ii)
March 4, 1997, in the event that the Second Closing (as defined in the
Securities Purchase Agreement) has not occurred on or prior to such date,
Borrower may, upon at least five (5) Business Days' notice to Lender, prepay the
Term Loan Notes, in whole with accrued interest to the date of such prepayment
on the amount prepaid, so long as simultaneously therewith, the Borrower has
purchased the shares of Class B Common Stock owed by Lender in accordance with
Section 1.05 of the Securities Purchase Agreement. Such prepayments shall be
applied as set forth in Section 2.10.
Section 2.07. MANDATORY PREPAYMENTS. To the extent permitted by
applicable Law, within five (5) Business Days after the receipt by Borrower, or
its Subsidiary of any cash proceeds from any issuance or sale (other than any
issuances or sales (x) by Borrower to or from its Subsidiary or (y) of ABCIC
Preferred) of any stock, shares, voting trust certificates, bonds, debentures,
options, warrants, notes, or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly know as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing, Borrower shall prepay the Term Loan in an amount equal to one hundred
percent (100%) of such cash proceeds, less the amount of any
13
and all income taxes required to be paid by Borrower in connection with or as a
result of such transaction. Such prepayments shall be applied as set forth in
Section 2.10.
Section 2.08. USE OF PROCEEDS. The proceeds of the Term Loan shall be
used by Borrower to repay outstanding amounts under an Amended and Restated Term
Loan Agreement dated as of December 5, 1995 between the Borrower and
Underwriters Reinsurance Company (the "Existing Loan Agreement"). Borrower will
not, directly or indirectly, use any part of such proceeds for the purpose of
purchasing or carrying any margin stock within the meaning of Regulation G, T, U
or X of the Board of Governors or to extend credit to any Person for the purpose
of purchasing or carrying any such margin stock.
Section 2.09. METHOD OF PAYMENT. Borrower shall make each payment under
this Agreement and under the Term Loan Notes by wire transfer not later than
3:00 P.M. (New York time) on the date when due in Dollars to Lender at the
Principal Office in immediately available funds.
Section 2.10. APPLICATION OF PAYMENTS. All payments received under this
Agreement will be applied as follows: first, to fees, expenses or indemnity
payments owed to the Lender, second, to accrued and unpaid interest on the A
Loan and B Loan, pro rata, third, to the remaining outstanding principal amount
of the B Loan and fourth, to the remaining outstanding principal amount of the A
Loan.
Except to the extent provided in this Agreement, whenever any payment
to be made under this Agreement or under either Term Loan Note shall be stated
to be due on any day other than a Business Day, such payment shall be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of the payment of interest.
Section 2.11. TAXES. All payments made by Borrower under this Agreement
and the other Loan Documents shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding any net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on Lender by the United
States or any state, local or foreign taxing authority (all such non- excluded
taxes, levies, imposts, duties, charges, fees, deductions and withholdings being
hereinafter called "Taxes"). If any Taxes are required to be withheld from any
amounts payable to Lender hereunder or under the other Loan Documents, the
amounts so payable to Lender shall be increased to the extent necessary to yield
to Lender (after payment of Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are payable by Borrower, as promptly as
possible thereafter Borrower shall send to Lender a certified copy of an
original official receipt received by Borrower showing payment thereof. If
Borrower fails to
14
pay any Taxes when due to the appropriate taxing authority or fails to remit to
Lender the required receipts or other required documentary evidence, Borrower
shall indemnify Lender for any incremental taxes, interest or penalties that may
become payable by Lender as a result of any such failure.
Section 2.12. DISCHARGE OF B LOAN NOTE. In the event that the Second
Closing (as defined in the Securities Purchase Agreement) occurs and Lender has
delivered the B Loan Note to Borrower as partial consideration for the purchase
of shares of Series I Preferred Stock pursuant to Section 1.04(a) of the
Securities Purchase Agreement, the B Loan Note will be deemed cancelled and
discharged in full.
ARTICLE III. CONDITIONS PRECEDENT
Section 3.01. CONDITIONS PRECEDENT TO MAKING OF THE TERM LOAN. The
obligation of Lender to make the Term Loan on the Closing Date is subject to the
condition precedent that Lender shall have received on or before the Closing
Date each of the following documents, in form and substance satisfactory to
Lender and its counsel, and each of the following requirements shall have been
fulfilled:
(1) EVIDENCE OF DUE ORGANIZATION AND ALL CORPORATE ACTIONS BY BORROWER.
A certificate of the Secretary or Assistant Secretary of Borrower (dated
the Closing Date) attesting to the certificate of incorporation and by-laws
of Borrower and all amendments thereto and to all corporate actions taken
by Borrower, including resolutions of its board of directors, authorizing
the execution, delivery and performance of the Loan Documents, and each
other document to be delivered pursuant to the Loan Documents;
(2) INCUMBENCY AND SIGNATURE CERTIFICATES OF BORROWER. A certificate of
the Secretary or Assistant Secretary of Borrower (dated the Closing Date)
certifying the names and true signatures of the officers of Borrower
authorized to sign the Loan Documents to which it is a party, and the other
documents to be delivered pursuant to the Loan Documents;
(3) GOOD STANDING CERTIFICATES. A Certificate (dated reasonably near
the Closing Date) from the Secretary of State (or other appropriate
official) of the jurisdiction of incorporation of each of Borrower and its
Subsidiary certifying as to the due incorporation and good standing of each
of Borrower and its Subsidiary and certificates (dated reasonably near the
Closing Date) from the Secretary of State (or other appropriate official)
of each other jurisdiction where each of Borrower and its Subsidiary is
required to be qualified to conduct business, certifying that each of
Borrower and its Subsidiary is duly qualified to do such business and is in
good standing in such state;
15
(4) TERM LOAN NOTES. Each Term Loan Note duly executed and delivered by
Borrower;
(5) PLEDGE AGREEMENT. The Pledge Agreement duly executed by Borrower,
together with the certificates representing the shares pledged pursuant to
the Pledge Agreement and undated stock powers executed in blank for each
such certificate;
(6) SECURITY AGREEMENT. The Security Agreement duly executed by
Borrower together with (a) duly executed financing statements (UCC-1) to be
filed under the Uniform Commercial Code of all jurisdictions necessary or,
in the opinion of Lender, desirable to perfect the security interest
created by the Security Agreement; (b) duly executed copies of the
financing statements (UCC-3) (including the termination statement of URC)
to be filed under the Uniform Commercial Code of all jurisdictions
necessary, or in the opinion of Lender, desirable to terminate any Liens in
favor of any party other than Lender; and (c) Uniform Commercial Code
searches identifying all of the financing statements on file with respect
to such party in all jurisdictions referred to under (a), including the
financing statements filed by Lender against such party, indicating that no
party other than URC (with respect to Liens covered by the termination
statement referred to above) and other than Lender claims an interest in
any of the Collateral;
(7) OPINION OF COUNSEL FOR BORROWER. A favorable opinion of ▇▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for Borrower and ABCIC (dated the Closing
Date);
(8) PAYMENT OF FEES. Payment in full of all fees required to be paid in
accordance with the Loan Documents, including but not limited to the Term
Loan Arrangement Fee;
(9) OFFICER'S CERTIFICATE. The following statements shall be true and
Lender shall have received a certificate signed by a duly authorized
officer of Borrower (dated the Closing Date) stating that:
(a) The representations and warranties contained in this Agreement
and in each of the other Loan Documents are correct on and as of the
date hereof as though made on and as of such date; and
(b) No Default or Event of Default has occurred and is continuing
or would result from the making of the A Loan or B Loan;
(10) REPAYMENT OF EXISTING LOAN. Evidence satisfactory to the Lender
that upon wiring of the proceeds of the Term Loan to the Deposit Account,
the Existing Loan Agreement will be terminated and all amounts payable
thereunder shall be paid in full;
16
(11) LIEN SEARCHES. The results of lien searches against Borrower and
ABCIC in the State of Florida with respect to filings regarding Liens,
including tax Liens, shall have been received by Lender, and such results
shall be satisfactory to Lender;
(12) MANAGEMENT AGREEMENT. The delivery to Lender of a certified copy
of the Management Agreement;
(13) AGREEMENT AS TO REINSURANCE. The execution and delivery of the
Agreement as to Reinsurance;
(14) ABCIC-LENDER REINSURANCE AGREEMENTS. The execution and delivery of
the ABCIC-Lender Reinsurance Agreements effective on January 1, 1997;
(15) PURCHASE OF CLASS B COMMON STOCK. Borrower shall (x) execute and
deliver the Securities Purchase Agreement, and (y) tender to Lender for
purchase, subject only to payment of the purchase price set forth in the
Securities Purchase Agreement, 87,092 shares of the Borrower's Class B
Common Stock, $.01 par value ("Class B Common Stock"); and
(16) ADDITIONAL DOCUMENTATION. Such other approvals, opinions or
documents as Lender may reasonably request.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants that:
Section 4.01. INCORPORATION, GOOD STANDING AND DUE QUALIFICATION.
Borrower and its Subsidiary are duly incorporated, validly existing and in good
standing under the laws of the respective jurisdictions of their incorporation,
have the corporate power and authority to own their assets and to transact the
business in which they are now engaged or proposed to be engaged, and are duly
qualified as foreign corporations and in good standing under the laws of each
other jurisdiction in which such qualification is required, except to the extent
that its failure to be so qualified could not result in a Material Adverse
Change.
Section 4.02. CORPORATE POWER AND AUTHORITY; NO CONFLICTS. Borrower has
the power to execute, deliver and perform its obligations under each Loan
Document, to borrow hereunder, to grant Liens pursuant to the Loan Documents and
to deliver the Term Loan Notes. The execution, delivery and performance by
Borrower of the Loan Documents have been duly authorized by all necessary
corporate action and do not and will not: (1) require any consent or approval of
its stockholders; (2) contravene its certificate of incorporation or by-laws;
(3) violate any provision of, or require any filing, registration, consent or
approval under, any Law (including, without limitation, Regulations G, T, U and
X of the Board of Governors), order, writ, judgment, injunction, decree,
determination or
17
award presently in effect having applicability to Borrower or its Subsidiary;
(4) result in a breach of or constitute a default under or require any consent
under any indenture or loan or credit agreement or any other agreement, lease or
instrument to which Borrower or its Subsidiary is a party or by which it or its
Subsidiary's properties may be bound or affected; (5) result in, or require, the
creation or imposition of any Lien (other than as created under the Pledge
Agreement and Security Agreement), upon or with respect to any material
properties now owned or hereafter acquired by Borrower or its Subsidiary; or (6)
cause Borrower or its Subsidiary to be in default under any such Law, order,
writ, judgment, injunction, decree, determination or award or any such
indenture, agreement, lease or instrument.
Section 4.03. LEGALLY ENFORCEABLE AGREEMENTS. Each Loan Document to
which Borrower is a party has been duly executed and delivered by Borrower and
is a legal, valid and binding obligation of Borrower, enforceable against
Borrower in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditor's rights generally.
Section 4.04. LITIGATION. There are no actions, suits or proceedings
(private or governmental) pending or, to the knowledge of Borrower, threatened,
against or affecting Borrower or its Subsidiary before any Governmental
Authority or arbitrator, which could, in any one case or in the aggregate,
result in a Material Adverse Change. Except for the litigation disclosed on
Schedule 4.04, there are no actions, suits or proceedings (private or
governmental) pending or, to the knowledge of Borrower, threatened, against or
affecting the Fund before any Governmental Authority or arbitrator, which could,
in any one case or in the aggregate, result in a material adverse change in the
status of the business, assets, liabilities, results of operation (financial or
otherwise), property or prospects of the Fund.
Section 4.05. FINANCIAL STATEMENTS. The balance sheets of ABCIC as of
December 31, 1995, the related statement of operations, statement of changes in
stockholders' equity, and statement of cash flows of ABCIC for the Fiscal Year
then ended, and the accompanying footnotes, together, with the opinion thereon,
dated March 20, 1996, of Schmidt, Raines, Trieste, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇.▇.,
independent certified public accountants, copies of which have been furnished to
Lender, fairly present the financial condition of ABCIC as at such date and the
results of the operations of ABCIC for the periods covered by such statements,
all in accordance with GAAP consistently applied.
The balance sheet of ABCIC as of September 30, 1996, the related
statements of operations, and statement of cash flow, for the nine (9) month
period then ended, and the accompanying footnotes, copies of which have been
furnished to the Lender, fairly present the financial condition of ABCIC as of
such dates and the results of the operations of ABCIC for the periods covered by
such statements, all in accordance with GAAP consistently applied (subject to
normal year end adjustments).
18
The statements of operations and the statements of cash flows of the
Fund for the years ended December 31, 1995, 1994 and 1993 and the accompanying
footnotes, together with the opinion thereon, dated March 20, 1996, of Schmidt,
Raines, Trieste, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇.▇. independent certified public
accountants, copies of which have been furnished to Lender, fairly present the
results of the operations of the Fund for the periods covered by such
statements, all in accordance with GAAP consistently applied.
The balance sheet of Borrower as of September 30, 1996, copies of which
have been furnished to Lender, fairly presents the financial condition of
Borrower as of such date, all in accordance with GAAP consistently applied.
Except for the litigation disclosed on Schedule 4.04, there are no
liabilities of ABCIC, the Fund or Borrower, fixed or contingent, which are
material but are not reflected in the most recent financial statements referred
to above or in the notes thereto, other than liabilities arising in the ordinary
course of business since December 31, 1995. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Borrower, ABCIC and the Fund to the Lender in connection with the negotiation,
preparation or delivery of this Agreement and the other Loan Documents or
included herein or delivered pursuant hereto or thereto, when taken as a whole
do not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in light of
the circumstances under which they were made, not misleading. All written
information furnished after the date hereof by the Borrower and the Subsidiary
to the Lender in connection with this Agreement and the other Loan Documents
will be true, complete and accurate in every material respect, or (in the case
of projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the Borrower that
could have a Material Adverse Effect that has not been disclosed herein or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Lender for use in connection with the transactions
contemplated hereby.
Since December 31, 1995, there has been no material adverse change in
the status of the business, assets, liabilities, results of operations
(financial or otherwise), property or prospects of Borrower or its Subsidiary or
the Fund.
Section 4.06. OWNERSHIP AND LIENS. Borrower and its Subsidiary have
title to, or valid leasehold interests in, all of their properties and assets,
real and personal, including the properties and assets, and leasehold interests
reflected in the financial statements referred to in Section 4.05 (other than
any properties or assets disposed of in the ordinary course of business), and
none of the properties and assets owned by Borrower or its Subsidiary and none
of its leasehold interests are subject to any Lien, except as may be permitted
under this Agreement. The Fund does not own or otherwise have any interest in
any properties or assets, real or personal.
19
Section 4.07. TAXES. The Borrower and its Subsidiary are members of an
affiliated group of corporations filing separate returns for Federal income tax
purposes. The Borrower and its Subsidiary have filed all Federal income tax
returns and all other material tax returns and information statements that are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Borrower or its
Subsidiary. The charges, accruals and reserves on the books of the Borrower and
its Subsidiary in respect of taxes and other governmental charges are, in the
opinion of the Borrower, adequate. The Borrower has not given or been requested
to give a waiver of the statute of limitations relating to the payment of
Federal, state, local and foreign taxes or other impositions. The Fund has filed
all tax returns and reports (federal, state, local and foreign) required to be
filed and has paid all taxes, assessments and governmental charges and levies
reported thereon to be due, including interest and penalties.
Section 4.08. ERISA. Each Plan is administered in compliance in all
material respects with its terms and all applicable provisions of ERISA and the
Code. No Plan is subject to Title IV of ERISA; neither Borrower nor any other
Person, including any fiduciary, has engaged in any Prohibited Transaction which
could subject Borrower or its Subsidiary, or any entity which they have an
obligation to indemnify, to any material tax or penalty imposed under Section
4975 of the Code or Section 502(i) of ERISA; no Plan has been terminated and, to
the best knowledge of the Borrower, no notice of intent to terminate a Plan has
been filed which, as a result thereof could result in liability to Borrower or
its Subsidiary; no Plan is a Multiemployer Plan and neither Borrower nor any
ERISA Affiliate has completely or partially withdrawn under Section 4201 or 4204
of ERISA from a Multiemployer Plan which, as a result thereof could result in
liability to Borrower or its Subsidiary, or incurred liability with respect to
Section 515 of ERISA; Borrower has met the applicable minimum funding
requirements under ERISA with respect to all of its Plans and there has been no
material failure on the part of the Borrower's ERISA Affiliates to meet such
requirements; a favorable determination letter from the IRS has been received
with respect to each Plan intended to be qualified under Section 401(a) or
401(k) of the Code and nothing has occurred which could adversely affect such
determination; there are no Liens outstanding or given in connection with a
Plan; and neither Borrower nor any ERISA Affiliate has liability for retiree
medical, life insurance or other death benefits (contingent or otherwise).
Section 4.09. OPERATION OF BUSINESS. Borrower and its Subsidiary
possess all licenses, permits, franchises, and trade names, or rights thereto,
to conduct its business substantially as now conducted and as presently proposed
to be conducted, and neither Borrower nor its Subsidiary is in violation of any
valid rights of others with respect to any of the foregoing, except to the
extent such failure or violation could not result in a Material Adverse Change.
No licenses or permits are necessary or required in order for the Fund to wind
down its business.
Section 4.10. NO DEFAULT ON OUTSTANDING JUDGMENTS OR ORDERS. Borrower
and its Subsidiary each has satisfied all judgments and neither Borrower nor its
Subsidiary is in
20
default with respect to any judgment, writ, injunction, decree, rule or
regulation of any court, arbitrator or federal, state, municipal or other
Governmental Authority, commission, board, bureau, agency or instrumentality,
domestic or foreign.
The Fund has satisfied all judgments and the Fund is not in default
with respect to any judgment, writ, injunction, decree, rule or regulation of
any court, arbitrator or federal, state, municipal or other Governmental
Authority, commission, board, bureau, agency or instrumentality, domestic or
foreign.
Section 4.11. NO DEFAULTS ON OTHER AGREEMENTS. Neither Borrower nor its
Subsidiary is a party to any indenture, loan or credit agreement or any lease or
other agreement, including, without limitation, any undertaking with any state
insurance department or other Governmental Authority, or instrument or subject
to any certificate of incorporation or corporate restriction the compliance with
which could result in a Material Adverse Change. Neither Borrower nor its
Subsidiary is in default in any respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any
agreement or instrument where such failure to perform, observe or fulfill could
result in a Material Adverse Change.
Section 4.12. SUBSIDIARIES. The only Subsidiary of Borrower is ABCIC.
ABCIC does not have any Subsidiaries. All of the outstanding capital stock of
ABCIC has been validly issued, is fully paid and nonassessable, and, except for
the ABCIC Preferred, is owned by Borrower free and clear of Liens.
Section 4.13. NO RESTRICTION ON TRANSFERS. There are no restrictions on
Borrower or its Subsidiary which prohibit or otherwise restrict the transfer of
cash or other assets owned by its Subsidiary to Borrower, other than
prohibitions or restrictions existing under or by reason of this Agreement or
the other Loan Documents or the Law.
Section 4.14. GOVERNMENTAL REGULATION. (a) Neither the Borrower nor its
Subsidiary is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
(b) Neither the Borrower nor its Subsidiary is a "holding company", or
an "affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
Section 4.15. PARTNERSHIPS. Neither Borrower nor its Subsidiary is a
partner of any partnership or a member of any entity taxed as a partnership.
Section 4.16. ENVIRONMENTAL PROTECTION. Borrower and its Subsidiary
have all permits, licenses and other authorizations which are required under all
Environmental Laws, except to the extent failure to have any such permit,
license or authorization could not result in a Material Adverse Change. As of
the date hereof, neither Borrower nor its Subsidiary is
21
required to obtain any permits, licenses, or other authorizations under any
Environmental Law. Each of such permits, licenses and other authorizations is in
full force and effect and borrower and its Subsidiary are in compliance with all
Environmental Laws and the terms and conditions of the required permits,
licenses and authorizations, and is also in compliance with all other
limitations, restrictions, obligations, schedules and timetables contained in
those Laws or contained in any plan, order, decree, judgment, injunction, notice
or demand letter issued, entered, promulgated or approved thereunder, except to
the extent failure to comply could not result in a Material Adverse Change. In
addition, no notice, notification, demand, request for information, citation,
summons or order has been issued, no complaint has been filed, no penalty has
been assessed and no investigation or review is pending or threatened by an
governmental or other entity with respect to any alleged failure by the Borrower
or its Subsidiary to have any environmental, health or safety permit, license or
other authorization required under any Environmental Law in connection with the
conduct of the business of the Borrower or its Subsidiary.
Section 4.17. SOLVENCY. Borrower and its Subsidiary each are Solvent.
Section 4.18. GOVERNMENTAL APPROVALS. No Governmental Approval is
required to authorize or is required in connection with (i) the execution,
delivery and performance of this Agreement or any other Loan Document, or any of
the transactions contemplated hereby or thereby, or (ii) the legality, validity,
binding effect or enforceability of this Agreement or any other Loan Document,
except for compliance with Section 628.461 of the Florida Statutes.
Section 4.19. MATERIAL AGREEMENTS AND LIENS.
(a) Neither Borrower nor its Subsidiary is a party to any credit
agreement, loan agreement, indenture, purchase agreement, guarantee, letter of
credit or other arrangement providing for or otherwise relating to any Debt or
any extension of credit (or commitment for any extension of credit) to, or
guarantee by, the Borrower or its Subsidiary the aggregate principal or face
amount of which equals or exceeds (or may equal or exceed) $100,000.
(b) There is no outstanding Lien securing Debt of any Person the
aggregate principal or face amount of which equals or exceeds (or may equal or
exceed) $100,000 and covering any property of the Borrower or its Subsidiary.
Section 4.20. CAPITALIZATION. The authorized capital stock of the
Borrower consists, on the date hereof, of an aggregate of 26,000,000 shares
consisting of (i) 15,000,000 shares of common stock, par value $.01 per share
("Common Stock"), of which 102,501 shares are duly and validly issued and
outstanding (and no shares of which are held in treasury), each of which shares
is fully paid and nonassessable, (ii) 1,000,000 shares of Class B Common Stock,
none of which has ever been issued and (iii) 10,000,000 shares of preferred
stock, par value $.01 per share, 2,912,908 shares of which have been
22
designated Cumulative Convertible Preferred Stock, Series I, none of which has
ever been issued. As of the date hereof such issued and outstanding shares of
common stock are owned beneficially and of record as set forth on Schedule 4.20.
As of the date hereof, except as set forth on Schedule 4.20, there are no
outstanding Equity Rights with respect to the Borrower and there are no
outstanding obligations of the Borrower or its Subsidiary to repurchase, redeem,
or otherwise acquire any shares of capital stock of the Borrower nor are there
any outstanding obligations of the Borrower or its Subsidiary to make payments
to any Person, such as "phantom stock" payments, where the amount thereof is
calculated with reference to the fair market value or equity value of the
Borrower or its Subsidiary.
Section 4.21. NO BROKERS OR FINDERS. The Borrower and its Subsidiary
have not engaged any broker or finder in connection with the transactions
contemplated hereby, other than Pegasus Advisors, Inc., which acted solely as a
reinsurance intermediary.
ARTICLE V. AFFIRMATIVE COVENANTS
So long as the A Loan or B Loan shall remain unpaid, or any other
amount is owing by Borrower to Lender hereunder or under any other Loan
Document, Borrower shall:
Section 5.01. MAINTENANCE OF EXISTENCE. Preserve and maintain, and
cause its Subsidiary to preserve and maintain, its corporate existence and good
standing in the jurisdiction of its incorporation, qualify and remain qualified
as a foreign corporation in each jurisdiction in which such qualification is
required, maintain its licenses in its jurisdiction of incorporation and in each
other jurisdiction where any such license is required for the conduct of its
business, except to the extent that its failure to so qualify or maintain such
licenses could not result in a Material Adverse Change.
Section 5.02. CONDUCT OF BUSINESS. Cause its Subsidiary to continue to
engage in an efficient and economical manner in the Insurance Business.
Section 5.03. MAINTENANCE OF PROPERTIES. Maintain, keep and preserve,
and cause its Subsidiary to maintain, keep and preserve, all of its properties,
(tangible and intangible) necessary or used in the proper conduct of its
business in good working order and condition, ordinary wear and tear excepted.
Section 5.04. MAINTENANCE OF RECORDS. Keep, and cause its Subsidiary to
keep, adequate records and books of account, in which complete entries will be
made in accordance with GAAP and, as applicable, SAP, reflecting all of its and
their respective financial transactions.
Section 5.05. MAINTENANCE OF INSURANCE. Maintain, and cause its
Subsidiary to maintain, insurance with financially sound and reputable insurance
companies or associations in such amounts and covering such risks as are usually
carried by companies engaged in the
23
same or a similar business and similarly situated and such other insurance as is
reasonably required by the Lender.
Section 5.06. COMPLIANCE WITH LAWS. Comply, and cause its Subsidiary to
comply, in all respects with all applicable Laws (including without limitation
all Laws pertaining to the regulation of entities engaged in the Insurance
Business), such compliance to include, without limitation, paying before the
same become delinquent all taxes, assessments and governmental charges imposed
upon it or upon its property, except (1) in the case of the failure to pay
taxes, such taxes which are the subject of a Good Faith Contest, and (2) to the
extent that its failure to so comply could not result in a Material Adverse
Change.
Section 5.07. RIGHT OF INSPECTION. During normal business hours and
upon reasonable notice, permit Lender or any agent or representative thereof, to
examine or make copies and abstracts from the records and books of account of,
and visit the properties of, Borrower or its Subsidiary, and to discuss the
affairs, finances and accounts of Borrower or its Subsidiary with any of their
respective officers and directors and independent accountants.
Section 5.08. REPORTING REQUIREMENTS. Furnish to Lender:
(1) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year of Borrower, (a)
the consolidated balance sheet of the Borrower and its Consolidated
Subsidiary as at the end of such Fiscal Year and the related consolidated
statements of income, of stockholders' equity and of cash flows for such
Fiscal Year, (b) the balance sheet of the Borrower (on a stand alone basis)
as at the end of such Fiscal Year and the related statements of income, of
stockholder's equity and of cash flows for such Fiscal Year, and (c) the
consolidating balance sheet of the Borrower and its Consolidated Subsidiary
as at the end of such Fiscal Year and the related consolidating statements
of income, of stockholders' equity and of cash flows for such Fiscal Year;
in each case prepared in accordance with GAAP consistently applied and
setting forth comparative figures for the preceding Fiscal Year, and, in
the case of such consolidated financial statements, examined by Schmidt,
Raines, Trieste, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇.▇. or another firm of independent
certified public accountants satisfactory to Lender whose opinion shall not
be qualified as to the scope of audit or as to the status of Borrower or of
its Consolidated Subsidiary as a going concern, together with a certificate
of such accounting firm stating that in the course of its regular audit of
business of Borrower and its Subsidiary, which audit was conducted in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge of any Default or Event of Default which has
occurred and is continuing or, if in the opinion of such accounting firm
such a Default or Event of Default has occurred and is continuing, a
statement as to the nature thereof.
As soon as available and in any event (a) within ninety (90) days after
the close of each Fiscal Year of ABCIC, the Annual Statement of ABCIC for
such Fiscal
24
Year as filed with the insurance commissioner (or similar authority) in
ABCIC's state of domicile, together with within ninety (90) days after the
close of each Fiscal Year of ABCIC, the opinion thereof of the Chief
Financial officer of Borrower stating that such Annual Statement presents
the financial condition and results of operations of ABCIC in accordance
with SAP, (b) within thirty (30) days of a receipt of an actuarial report
but in no event later than one hundred fifty (150) days after the close of
each Fiscal Year of ABCIC, the opinion of Schmidt, Raines, Trieste,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇.▇. or another firm of certified public accountants
satisfactory to Lender, who shall have examined such Annual Statement and
whose opinion shall not be qualified as to the scope of audit or as to the
status of ABCIC as a going concern.
(2) UARTERLY FINANCIAL STATEMENTS. (i) As soon as available and in any
event within fifty-five (55) days after the close of each of the first
three Fiscal Quarters in each Fiscal Year of Borrower, (a) the consolidated
balance sheet of the Borrower and its Consolidated Subsidiary as at the end
of such Fiscal Quarter and the related consolidated statements of income,
of stockholders' equity and of cash flows for such Fiscal Quarter and for
the elapsed portion of the Fiscal Year ended with the last day of such
Fiscal Quarter, (b) the balance sheet of Borrower (on a stand alone basis)
as at the end of such Fiscal Quarter and the related statements of income,
of stockholder's equity and of cash flows for such Fiscal Quarter and for
the elapsed portion of the Fiscal Year ended with the last day of such
Fiscal Quarter and (c) the consolidating balance sheet of the Borrower and
its Consolidated Subsidiary as at the end of such Fiscal Quarter and the
related consolidating statements of income, of stockholder's equity and of
cash flows for such Fiscal Quarter and for the elapsed portion of the
Fiscal Year ended with the last day of the Fiscal Quarter; in each case
prepared in accordance with GAAP consistently applied and setting forth
comparative figures for the related periods in the prior Fiscal Year, and
all of which shall be certified by the Chief Financial Officer of Borrower,
subject to changes resulting from normal year-end audit adjustments.
As soon as available and in any event within (a) fifty-five (55) days
after the close of each of the first three Fiscal Quarters in each Fiscal
Year of ABCIC, quarterly financial statements of ABCIC (prepared in
accordance with SAP) for such Fiscal Quarter and as filed with the
insurance commissioner (or similar authority) in ABCIC's state of domicile,
together with the opinion thereon of the Chief Financial Officer of
Borrower stating that such financial statements present the financial
condition and results of operations of ABCIC in accordance with SAP and (b)
a certificate of the Chief Financial Officer of ABCIC affirming the
adequacy of Loss Reserves of ABCIC as at the end of such Fiscal Quarter (as
shown on its financial statements prepared in accordance with SAP).
(3) Borrower will furnish to Lender, at the time it furnishes each set
of financial statements pursuant to paragraph (1) and (2) of this Section
5.08, a certificate of the Chief Financial Officer of Borrower, setting
forth in reasonable
25
detail the computations necessary to determine whether Borrower and its
Subsidiary are in compliance with Article VII as of the end of the
respective quarterly fiscal period or fiscal year.
(4) REPORTS AND MANAGEMENT LETTERS. Promptly upon receipt thereof,
copies of any reports, including but not limited to internal control
reports, or management letters submitted to Borrower or ABCIC by
independent certified public accountants in connection with the examination
of the financial statements of the Borrower and its Consolidated Subsidiary
made by such accountants.
(5) CERTIFICATE OF NO DEFAULT. Within sixty (60) days after the end of
each Fiscal Quarter of Borrower, a certificate of the Chief Financial
Officer of Borrower (a) certifying that no Default or Event of Default has
occurred and is continuing or, if a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof and the
action which is proposed to be taken with respect thereto, and (b) with
computations demonstrating compliance with the covenants contained in
Article VII.
(6) SEC AND OTHER REPORTS. Promptly upon their becoming publicly
available, a copy of each report (including Forms 8-K, 10-K and 10-Q) or
other document, proxy statement and registration statement or prospectus
relating to securities of the Borrower or ABCIC filed with or delivered to
any securities exchange, the Securities and Exchange Commission or any
successor agency.
(7) NOTICE OF LITIGATION. Promptly after the commencement thereof,
notice of all actions, suits, and proceedings before any Governmental
Authority, affecting Borrower or its Consolidated Subsidiary which, if
determined adversely to Borrower or its Consolidated Subsidiary, could
result in a material Adverse Change.
(8) NOTICES OF DEFAULTS AND EVENTS OF DEFAULT. As soon as possible and
in any event within five (5) Business Days after the occurrence of each
Default or Event of Default a written notice setting forth the details of
such Default or Event of Default and the action which is proposed to be
taken by Borrower with respect thereto.
(9) ERISA REPORTS. As soon as possible and in any event within ten (10)
days after Borrower knows or has reason to know that any Reportable Event
has occurred with respect to any Plan or that a Prohibited Transaction has
occurred resulting in material liability to Borrower or its Subsidiary or
to any entity which they have an obligation to indemnify or that the PBGC
or Borrower or its Subsidiary has instituted or will institute proceedings
under Title IV of ERISA to terminate any Plan or to appoint a trustee to
administer any Plan or that Borrower or its Subsidiary or any ERISA
Affiliate has completely or partially withdrawn from a Multiemployer Plan
or that a Plan which is a Multiemployer Plan is in reorganization (within
the meaning of Section 4241 of ERISA), is insolvent (within the meaning of
Section 4245
26
of ERISA) or is terminating, or that a plan intended to qualify under
Section 401(a) or 401(k) of the Code fails to so qualify or that the waiver
of the minimum funding standard under Section 412 of the Code has been
applied for with respect to a Plan or that there has been a material
failure to make a required payment or contribution to any Plan or that a
Plan has been amended which has resulted or would result in the imposition
of a Lien or requires the granting of a Lien, Borrower will deliver to
Lender a certificate of the Chief Financial Officer of Borrower setting
forth details as to such Reportable Event or Prohibited Transaction or Plan
termination or appointment or withdrawal or reorganization or insolvency or
qualification failure or waiver or payment or contribution failure or
amendment and the action Borrower proposes to take with respect thereto.
(10) REPORTS TO OTHER CREDITORS. Promptly after the furnishing thereof,
copies of any statement or report furnished by Borrower or its Subsidiary
to any other party pursuant to the terms of any indenture, loan, or credit
or similar agreement and not otherwise required to be furnished to Lender
under this Agreement.
(11) STRATEGIC AND BUSINESS PLAN. As soon as possible and in any event
no later than December 1 in each year, commencing December 1, 1997, a copy
of a three (3) year strategic and business plan, detailed on a quarterly
basis for the first year of the plan and on an annual basis for the
remaining years of the plan, and such plan shall include balance sheets,
income statements, cash flow statements, operating budgets, staffing and
investment strategy (quality, maturity, duration, taxable/tax exempt by
asset sector, compilation, strategy, classes of business, and so forth). On
or about each August 1, a copy of any and all revisions to the then current
strategic and business plan. As soon as available and in any event within
thirty (30) days of delivery of each strategic and business plan and
revision thereof, copies of the resolutions of the board of directors of
Borrower approving such plans or revisions. Any material changes made to
the plan during the year will be provided by Borrower as soon as possible.
Lender acknowledges that Borrower has delivered to Lender a strategic and
business plan for the three (3) year period commencing January 1, 1997.
(12) INSURANCE. Upon the occurrence of any casualty, damage or loss,
whether or not giving rise to a claim under any insurance policy insuring
Borrower or its Subsidiary (other than an insurance policy issued by ABCIC
to Persons other than Borrower or its Subsidiary in the ordinary course of
ABCIC's business), in an amount greater than Two Hundred Fifty Thousand
Dollars ($250,000), notice thereof, together with copies of any document
relating thereto (including copies of any such claim) in possession or
control of Borrower or any agent of Borrower; and immediately after the
occurrence thereof, written notice of any cancellation of any insurance
policy required to be maintained by Borrower or its Subsidiary pursuant to
Section 5.05.
27
(13) MATERIAL ADVERSE CHANGE. As soon as possible and in any event
within five (5) Business Days after the occurrence of any event or
circumstance which could result in or has resulted in a Material Adverse
Change, written notice thereof.
(14) ENVIRONMENTAL NOTICES. As soon as practicable and in any event
within ten (10) Business Days after receipt, copies of all Environmental
Notices received by Borrower.
(15) LOSS RESERVE REPORT. Within one hundred twenty (120) days after
the close of each Fiscal Year of ABCIC, a report, including a written
review of and favorable opinion on methodology and assumptions, prepared by
an Independent Actuary reviewing the adequacy of Loss Reserves of ABCIC,
which firm shall be provided access to or copies of all reserve analyses
and valuations relating to the insurance business of ABCIC in the
possession of or available to the Borrower or ABCIC.
Upon the occurrence thereof, a notice from the Chief Financial Officer
of the Borrower of any event which could cause an increase or decrease of
the Loss Reserves of ABCIC of more than ten percent (10%) from the amount
thereof reflected in the most recent annual or quarterly statutory
financial statements of ABCIC delivered pursuant to this Section.
(16) REGULATORY AND OTHER STATEMENTS AND REPORTS. Promptly (a) after
their becoming available, copies of any statutory financial statements that
the Borrower or ABCIC periodically files with the Applicable Insurance
Regulatory Authority of the state in which it is domiciled or any state in
which it is deemed to be commercially domiciled or any governmental agency
or agencies substituted therefor (including all exhibits and schedules
thereto), (b) after receipt thereof, copies of all regular and periodic
reports of reviews or examinations (including, without limitation,
triennial examinations and risk adjusted capital reports) of ABCIC,
delivered to ABCIC in draft or final form by any Applicable Insurance
Regulatory Authority, insurance commission or similar regulatory authority,
(c) after receipt thereof, written notice of any assertion by any
Applicable Insurance Regulatory Authority, or any governmental agency or
agencies substituted therefor, as to a violation of any requirement of Law
by ABCIC, (d) after receipt thereof, a copy of the final report to ABCIC
from the NAIC for each Fiscal Year, as to ABCIC's compliance or
noncompliance with each of the NAIC Tests, (e) after receipt thereof, a
copy of A.M. Best's rating analysis for each Fiscal Year, (f) not later
than seven (7) days after the making of any such filing, copies of all
insurance holding company system act filings with governmental authorities
by ABCIC, including, without limitation, filings which seek approval of
governmental authorities with respect to transactions between ABCIC and any
of its Affiliates, (g) within five (5) Business Days after receipt thereof,
copies of any notice of actual suspension, termination, revocation or
limitation of any license of ABCIC by any Applicable Insurance Regulatory
Authority, including any request by an
28
Applicable Insurance Regulatory Authority which commits ABCIC to take or
refrain from taking any action or which otherwise affects the authority of
ABCIC to conduct its business (h) after Borrower has reason to believe that
ABCIC is or may be deemed to be "commercially domiciled" (or the
substantial equivalent) in a state other than its state of domicile, under
the insurance Law of such state, notice to that effect identifying the
applicable state, and in any event within five (5) Business Days after
Borrower or ABCIC obtains knowledge thereof, notice of any actual changes
in the insurance laws enacted in any state in which ABCIC is domiciled
which could cause a Material Adverse Change.
(17) RISK BASED CAPITAL. As soon as available and in any event within
the time period required by the National Association of Insurance
Commissioners, a calculation of ABCIC's Risk Based Capital as of the end of
each Fiscal Year.
(18) GENERAL INFORMATION. Such other information respecting the
condition or operations, financial or otherwise, of Borrower or its
Subsidiary as Lender may from time to time reasonably request.
Section 5.09. COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and cause its
Subsidiary to comply, in all respects with all applicable Environmental Laws
where the failure to comply could result in a Material Adverse Effect and
immediately pay or cause to be paid, and cause its Subsidiary to immediately pay
or cause to be paid, all costs and expenses incurred in connection with such
compliance.
Section 5.10. INDEPENDENT ACTUARY. Cause its Subsidiary to cause the
Independent Actuary to make a determination of the Loss Reserves of ABCIC as of
each December 31st.
Section 5.11. USE OF PROCEEDS. The Borrower will use the proceeds of
the Term Loan solely to repay amounts outstanding under the Existing Loan
Agreement; PROVIDED that the Lender shall not have any responsibility as to the
use of any of such proceeds.
Section 5.12. DIVIDENDS TO BORROWER. At the request of the Lender,
ABCIC shall pay a dividend to the Borrower in an amount necessary to ensure
timely payment of interest and principal under each of the A Loan and B Loan,
subject to any limitations imposed by applicable law and the rules and
regulations of the Florida Department of Insurance ("FDOI") relating to
dividends by insurance companies.
ARTICLE VI. NEGATIVE COVENANTS
So long as the A Loan Note or B Loan Note shall remain unpaid, or any
other amount is owing by Borrower to Lender hereunder or under any other Loan
Document, Borrower shall not and shall not permit its Subsidiary to:
29
Section 6.01. DEBT. Create, incur, assume or suffer to exist, or permit
Subsidiary to create, incur, assume, or suffer to exist, any Debt, except:
(1) Debt of Borrower under this Agreement, the A Loan Note, B Loan Note
or any other Loan Document;
(2) Accounts payable to any Person, and not overdue by more than
forty-five (45) days (unless the subject of a Good Faith Contest), for goods and
services supplied to Borrower or its Subsidiary by such Person in the ordinary
course of business;
(3) Debt secured by purchase money Liens permitted by Section 6.03(8);
(4) Guaranties permitted under Section 6.02; and
(5) Debt, in form and substance, and containing such provisions,
including subordination provisions, satisfactory to the Lender, the net proceeds
of which Debt are used solely to repay the Term Loan or redeem the preferred
stock held by the Lender.
Section 6.02. GUARANTIES. Assume, guarantee, endorse, or furnish funds
for the payment or maintenance of, or otherwise be or become contingently liable
under or with respect to, the Debt, other obligations, net worth, working
capital or earnings of any Person, or guarantee the payment of dividends or
other distributions upon the stock or equity interests of any Person, or agree
to purchase, sell or lease (as lessee or lessor) property, products, materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of such debtor's obligations or agree to assure a creditor against loss,
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, or permit its Subsidiary to do so, except (1) guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business, and (2) for the obligations of ABCIC under
insurance policies issued and reinsurance agreements entered into in the
ordinary course of business consistent with the terms of this Agreement.
Section 6.03. LIENS. Create, incur, assume or suffer to exist, or
permit its Subsidiary to create, assume, or suffer to exist, any Lien, upon or
with respect to any of its real or personal properties (including, without
limitation, leasehold interests, leasehold improvements and any other interest
in real property or fixtures), now owned or hereafter acquired, except:
(1) Liens granted to Lender under and pursuant to the Loan Documents;
(2) Liens for taxes or assessments or other government charges or
levies if not yet due and payable or if due and payable if they are the subject
of a Good Faith Contest;
30
(3) Liens imposed by Law, such as mechanic's, materialmen's,
landlord's, warehousemen's and carrier's Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are not
past due for more than forty-five (45) days, or which are the subject of a Good
Faith Contest;
(4) Liens under workmen's compensation, unemployment insurance, social
security or similar legislation (other than ERISA);
(5) Liens, deposits or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), leases
(permitted under the terms of this Agreement), public or statutory obligations,
surety, stay, appeal, indemnity, performance or other similar bonds, or other
similar obligations arising in the ordinary course of business;
(6) judgment and other similar Liens arising in connection with court
proceedings; provided, that the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are the subject of a Good
Faith Contest;
(7) easements, rights-of-way, restrictions, zoning and other similar
encumbrances which, in the aggregate, do not materially interfere with the
occupation, use and enjoyment by Borrower or its Subsidiary of the property or
assets encumbered thereby in the normal course of its business or materially
impair the value of the property subject thereto;
(8) purchase money Liens on any real property, fixtures or equipment
hereafter acquired or the assumption of any Lien on real property, fixtures or
equipment existing at the time of such acquisition, or a Lien incurred in
connection with any conditional sale or other title retention agreement or a
Capital Lease; provided, that:
(a) any property subject to any of the foregoing is acquired by
Borrower or its Subsidiary in the ordinary course of its business and the
Lien on any such property is created contemporaneously with such
acquisition;
(b) the Debt secured by any Lien so created, assumed or existing shall
not exceed eighty-five percent (85%) of the lesser of cost or fair market
value as of the time of acquisition of the property covered thereby;
(c) each such Lien shall attach only to the property so acquired and
fixed improvements thereon;
(d) the aggregate amount of all such Debt secured by all such Liens at
any time shall be equal to or less than Two Hundred Fifty Thousand Dollars
($250,000); and
31
(9) in the case of ABCIC, deposits of cash or securities with or on
behalf of state insurance departments.
Section 6.04. SALE OF ASSETS. Sell, lease, assign, transfer or
otherwise dispose of, or permit its Subsidiary to sell, lease, assign, transfer,
or otherwise dispose of, any of its now owned or hereafter acquired assets,
except for: (1) cash and investment securities disposed of for purposes of
reinvestment or to pay claims, taxes and expenses in the ordinary course of
business or, in the case of ABCIC, to pay a dividend; or (2) the sale or other
disposition of tangible personal property which has become economically obsolete
or which has been replaced.
Section 6.05. TRANSACTIONS WITH AFFILIATES. Except as expressly
permitted by this Agreement, the Borrower will not, nor will it permit its
Subsidiary to, directly or indirectly: (a) make any investment in an Affiliate;
(b) transfer, sell, lease, assign or otherwise dispose of any property to an
Affiliate; (c) merge into or consolidate with or purchase or acquire property
from an Affiliate; (d) make any contribution towards, or reimbursement for, any
Federal income taxes payable by its Subsidiary in respect of income of the
Borrower; or (e) enter into any other transaction directly or indirectly with or
for the benefit of an Affiliate (including, without limitation, guarantees and
assumptions of obligations of an Affiliate), except (1) in the ordinary course
of and pursuant to the reasonable requirements of Borrower's or its Subsidiary's
business and upon fair and reasonable terms no less favorable to Borrower or its
Subsidiary, as the case may be, than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate of Borrower or its
Subsidiary, as the case may be and (2) under and pursuant to the terms of the
Management Agreement.
Section 6.06. MERGERS. (x) Enter into a merger or consolidate with,
wind up, liquidate or dissolve its affairs, or sell, assign, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to,
any Person, or (y) acquire (whether by purchase, lease or otherwise) any of the
assets or the business of any Person (or enter into any agreement to do any of
the foregoing) (other than in the ordinary course of business), or permit its
Subsidiary to do any of the foregoing.
Section 6.07. LEASES. Create, incur, assume, or suffer to exist, or
permit its Subsidiary to create, incur, assume, or suffer to exist, any
obligation as lessee for the rental or hire of any real or personal property
except: (1) Capital Leases permitted under Section 6.03(8), and (2) in addition
to leases permitted under exception (1), leases that do not in the aggregate
require Borrower and its Subsidiary to make payments (including taxes,
insurance, maintenance, and similar expenses which Borrower or its Subsidiary is
required to pay under the terms of the lease) in any Fiscal Year in excess of
one percent (1%) of direct earned normal premium.
32
Section 6.08. DIVIDENDS. Declare or pay any dividends; or purchase,
redeem, retire, or otherwise acquire for value any of the capital stock or
securities convertible into capital stock of Borrower or its Subsidiary now or
hereafter outstanding; or make any distribution of assets to its stockholders as
such whether in cash, assets, or in obligations of Borrower, or allocate or
otherwise set apart any sum for the payment of any dividend or distribution on,
or for the purchase, redemption, or retirement of any shares of its capital
stock.
Permit its Subsidiary to declare or pay any dividends other than
dividends on the ABCIC Preferred; or purchase, redeem, retire, or otherwise
acquire for value any of the capital stock or securities convertible into
capital stock of Borrower or such Subsidiary now or hereafter outstanding (other
than ABCIC Preferred reacquired on foreclosure which were pledged to secure
premium payments); or make any distribution of assets, or in obligations of
Subsidiary, or allocate or otherwise set apart any sum for the payment of any
dividend or distribution on, or for the purchase, redemption, or retirement of
any shares of its capital stock, except Subsidiary can declare and pay dividends
on its common stock.
Create or otherwise cause or suffer to exist, or permit its Subsidiary
to create or otherwise cause or suffer to exist, any encumbrance or restriction
which prohibits or otherwise restricts the ability of its Subsidiary to (1) pay
dividends or make other distributions or pay any Debt owed to Borrower, (2) make
loans or advances to Borrower, (3) transfer any of its properties or assets to
Borrower or (4) guarantee the obligations of Borrower under this Agreement and
the other Loan Documents and/or secure such guarantee with its assets, other
than prohibitions or restrictions existing under or by reason of (1) this
Agreement, the other Loan Documents, (2) the Law, (3) the terms of the ABCIC
Preferred.
Section 6.09. INVESTMENTS. Permit its Subsidiary to make any
Investment, except for Permitted Investments managed by a nationally recognized
investment advisor with assets under management in excess of $1 billion or other
investment advisor reasonably acceptable to Lender.
Section 6.10. CHANGES, AMENDMENTS OR MODIFICATIONS. Change, amend,
modify or supplement any of the following: (1) its certificate of incorporation
or (2) its by-laws.
Section 6.11. CHANGES IN BUSINESS. Engage in any business other than
(1) the ownership of the capital stock of ABCIC, (2) provisions of management
services to ABCIC pursuant to the Management Agreement, and (3) entering into
and performing its obligations under this Agreement and the other Loan
Documents, or permit ABCIC to engage in any business other than the Insurance
Business.
Section 6.12. SUBSIDIARIES. Sell or otherwise dispose of (including the
granting of any security interest in) any shares of capital stock of its
Subsidiary other than pursuant to
33
the Pledge Agreement. The Borrower will at no time have any Subsidiaries other
than ABCIC and ABCIC will at no time have any Subsidiaries.
Section 6.13. ISSUANCE OF STOCK. Issue or permit its Subsidiary to
issue, additional shares of capital stock, except (1) the minimum number of
directors' qualifying shares required by Law, (2) Borrower may issue shares of
its common stock if the proceeds thereof are used to prepay the Term Loan in
accordance with the provisions of Section 2.07, (3) ABCIC may issue shares of
the ABCIC Preferred or other series of preferred stock (i) having terms
(including, without limitation, dividend rate and conversion rate) substantially
similar to the ABCIC Preferred or (ii) having a dividend rate no greater than,
and a conversion rate no lesser than, the ABCIC Preferred, to its policy holders
and sales agents, (4) upon exercise of any of the stock options set forth in
Schedule 6.13 hereto, (5) upon conversion of any shares of Series I Preferred
Stock or (6) at the closing of any underwritten public offering permitted under
Section 4.08 of the Securities Purchase Agreement.
Section 6.14. MANAGEMENT AGREEMENT. Terminate the Management Agreement
without the Lender's approval. Payments under the Management Agreement shall be
used by the Borrower solely for ordinary and customary operating expenses of the
Borrower and its Subsidiary, payment (including prepayment) of the Term Loan and
payment or redemption of the preferred stock of the Borrower held by the Lender.
The Borrower shall promptly furnish to the Lender copies of all modifications,
supplements and waivers relating to the Management Agreement.
Section 6.15. LIMITATION ON DIRECTORS FEES AND MANAGEMENT SALARIES.
ABCIC shall not pay any compensation to any of its directors or executive
officers. The Borrower shall pay directors' and executive officers' compensation
in amounts not in excess of the amounts set forth in the Prospectus relating to
the issuance of 1,000,000 shares of ABCIC Preferred, under captions
"Compensation of Directors" and "Executive Compensation".
ARTICLE VII. FINANCIAL COVENANTS
So long as the A Loan Note or B Loan Note shall remain unpaid, or any
other amount is owing by Borrower to Lender hereunder or under the other Loan
Documents:
Section 7.01. CONSOLIDATED NET WORTH. Borrower and its Consolidated
Subsidiary shall have at all times Consolidated Net Worth of not less than Two
Million Dollars ($2,000,000) or, in the event the Second Closing has not
occurred on or prior to March 4, 1997, then following such date, One Million
Five Hundred Thousand Dollars ($1,500,000).
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Section 7.02. ABCIC'S STATUTORY SURPLUS. Borrower will not permit the
Statutory Surplus of ABCIC at any time to be less than the greater of (1) Four
Million Dollars ($4,000,000), or (2) the minimum Statutory Surplus required by
the Florida Insurance Department PLUS Five Hundred Thousand Dollars ($500,000);
PROVIDED, that in the event the Second Closing has not occurred on or prior to
March 4, 1997, then following such date, Borrower will not permit the Statutory
Surplus of ABCIC at any time to be less than the greater of (1) Four Million
Dollars ($4,000,000), or (2) the minimum Statutory Surplus required by the
Florida Insurance Department.
Section 7.03. LOSS RESERVES. On each Quarterly Date, commencing with
December 31, 1996, Borrower will not permit the Loss Reserves of ABCIC to be
outside the actuarial range determined annually by an Independent Actuary. To
illustrate, if the Loss Reserve is determined by the Independent Actuary for
December 31, 1996 then such Reserve will be used to determine compliance with
this provision as of December 31, 1995. if such Loss Reserve is not redetermined
by the Independent Actuary until December 31, 1997 then the Loss Reserve for
December 31, 1996 will be used to determine compliance with this covenant for
the Quarterly Dates of March 31, 1997, June 30, 1997 and September 30, 1997.
Section 7.04. RISK BASED CAPITAL RATIO. The Borrower will not permit
the Risk-Based Capital Ratio of ABCIC at any time to be less than one hundred
twenty percent (120%) of the Company Action Level Risk Based Capital Ratio as
determined by the Florida Department of Insurance.
Section 7.05. NET PREMIUMS WRITTEN RATIO. During each Quarterly Period,
commencing with the Quarterly Period from January 1, 1997 to March 31, 1997,
Borrower will not permit the result of ABCIC's annualized Net Premiums Written
during such period to exceed three hundred twenty percent (320%) of the
Statutory Surplus of ABCIC as of the last day of such Quarterly Period.
Section 7.06. DEBT TO EQUITY RATIO. Borrower will maintain the ratio of
(x) outstanding Debt to Lender hereunder to (y) Consolidated Net Worth PLUS
outstanding Debt to Lender hereunder at no greater than the respective amounts
for the periods set forth below:
35
PERIOD AMOUNT
------ ------
From the closing date 3:7.00
to December 31, 1998
From January 1, 1999 to 3:8.04
December 31, 1999
From January 1, 2000 to 3:8.33
December 31, 2000
From January 1, 2001 and 3:9.23;
all years thereafter
PROVIDED, that in the event the Second Closing has not occurred on or prior to
March 4, 1997, then following such date, Borrower will maintain such ratio at no
greater than the respective amounts for the periods set forth below:
36
PERIOD AMOUNT
------ ------
From the closing date 4:5.20
to December 31, 1998
From January 1, 1999 to 4:5.70
December 31, 1999
From January 1, 2000 to 4:6.50
December 31, 2000
From January 1, 2001 and 4:8.00;
all years thereafter
Section 7.07. TIG INTEREST COVERAGE RATIO. Borrower will not permit the
ratio of (x) EBITDA to (y) interest payable under this Agreement to be less than
the respective ratio (calculated as of the end of any fiscal quarter) for the
years set forth below:
YEAR RATIO
---- -----
1999 3.00:1
2000 5.00:1
2001 and all years 7.25:1;
thereafter
PROVIDED, that in the event the Second Closing has not occurred on or prior to
March 4, 1997, then following such date, Borrower will not permit such ratio to
be less than the respective ratio (calculated as of the end of any fiscal
quarter) for the years set forth below:
YEAR RATIO
---- -----
1999 2.50:1
2000 4.50:1
2001 and all years 6.75:1
thereafter
ARTICLE VIII. EVENTS OF DEFAULT
37
Section 8.01. EVENTS OF DEFAULT. Any of the following events shall be
an "Event of Default":
(1) Borrower shall: (a) fail to pay the principal of or interest on
either of the A Loan Note or B Loan Note as and when due and payable; or (b)
fail to pay within ten (10) days after the request for payment is made any fees
or expenses required to be paid under the terms of any of the Loan Documents;
(2) any representation or warranty made by Borrower in this Agreement
or in any other Loan Document or which is contained in any certificate,
document, opinion, financial or other statement furnished at any time under or
in connection with any Loan Document shall prove to have been incorrect or
misleading in any material respect on or as of the date made;
(3) Borrower shall fail to perform or observe any other term, covenant
or agreement contained in Article VI on its part to be performed or observed; or
Borrower shall fail to perform or observe any term, covenant or agreement
contained in Article VII and such failure shall remain unremedied for ninety
(90) days after the giving of notice thereof by Lender; or the Borrower shall
fail to perform or observe any other term, covenant or agreement contained in
this Agreement or any Loan Document (other than obligations specifically
referred to elsewhere in this Section 8.01) to which it is a party on its part
to be performed or observed and such failure shall remain unremedied for thirty
(30) days after the giving of notice thereof by Lender;
(4) Borrower or its Subsidiary shall: (a) fail to pay all or any
portion of a Debt (other than the payment obligations described in (1) above or
any trade obligations which are the subject of a Good Faith Contest) of the
Borrower or Subsidiary when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); (b) fail to perform or observe
any term, covenant or condition on its part to be performed or observed under
any agreement or instrument relating to any of the Debt described in the
immediately preceding clause (a), when required to be performed or observed, if
the effect of such failure to perform or observe is to accelerate, or to permit
the acceleration of, after the giving of notice or the lapse of time, or both,
of the maturity of such Debt, whether or not such failure to perform or observe
shall be waived by the holder of such Debt; or any such Debt shall be declared
to be due and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof; or (c)
fail to redeem any of its Series I Preferred Stock at any time that such
redemption is required pursuant to the terms thereof;
(5) Borrower or its Subsidiary: (a) shall generally not, or be unable
to, or shall admit in writing its inability to, pay its debts as such debts
become due; or (b) shall make an assignment for the benefit of creditors,
petition or apply to any tribunal for the appointment of a custodian, receiver
or trustee for it or a substantial part of its assets; or (c) shall commence any
proceeding under, or file any petition seeking to take advantage of any
38
bankruptcy, reorganization, arrangement, readjustment of debt, rehabilitation,
dissolution or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect; or (d) shall have had any such petition or application
filed or any such proceeding shall have been commenced, against it, in which an
adjudication or appointment is made or order for relief is entered, or which
petition, application or proceeding remains undismissed or unstayed for a period
of sixty (60) days or more; or shall be the subject of any proceeding under
which its assets may be subject to seizure, forfeiture or divestiture; or (e) by
any act or omission shall indicate its consent to, approval of or acquiescence
in any such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver, rehabilitator, liquidator or trustee for
all or any substantial part of its property; or (f) shall suffer any such
custodianship, receivership, rehabilitation, liquidation or trusteeship to
continue undischarged for a period of sixty (60) days or more; or take any
corporate action for the purpose of effecting any of clauses (a), (b), (c) or
(e);
(6) one or more judgments, decrees or orders for the payment of money
in excess of Fifty Thousand Dollars ($50,000) in the aggregate shall be rendered
against Borrower or its Subsidiary, and such judgments, decrees or orders shall
continue unsatisfied and in effect for a period of thirty (30) days without
being vacated, discharged, satisfied or stayed or bonded pending appeal;
(7) any of the following events shall occur or exist with respect to
Borrower or its Subsidiary or any ERISA Affiliate: (a) any Prohibited
Transaction which could subject Borrower or its Subsidiary, or any entity which
they have an obligation to indemnify, to any tax or penalty imposed under
Section 4975 of the Code or Section 502(i) of ERISA; (b) any Reportable Event
shall occur with respect to any Plan; (c) the filing under Section 4041 of ERISA
of a notice of intent to terminate any Plan or the termination of any Plan; (d)
any event or circumstance exists which might constitute grounds entitling the
PBGC to institute proceedings under Section 4042 of ERISA for the termination
of, or for the appointment of a trustee to administer, any Plan, or the
institution by the PBGC of any such proceedings; (e) complete or partial
withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer Plan or the
reorganization (within the meaning of Section 4241 of ERISA), insolvency (within
the meaning of Section 4245 of ERISA), or termination of any Multiemployer Plan;
(f) (within the meaning of Section 4241 of ERISA) an accumulated funding
deficiency (as defined in Section 302 of ERISA or section 412 of the Code)
exists with respect to a Plan, whether or not waived; (g) the imposition of
liability to enforce Section 515 of ERISA; (h) the failure of a Plan intended to
qualify under Section 401(a) or 401(k) of the Code to so qualify; (i) a Lien
arises or is given in connection with a Plan; and in each case above, such event
or condition, together with all other events or conditions, if any, could in the
opinion of the Lender subject Borrower or any ERISA Affiliate to any tax,
penalty, or other liability to a Plan, Multiemployer Plan, the PBGC, or
otherwise (or any combination thereof) which in the aggregate exceeds or could
reasonably be expected to exceed Fifty Thousand Dollars ($50,000);
39
(8) the Pledge Agreement shall at any time and for any reason cease:
(a) to create a valid and perfected first priority Lien in and to the property
purported to be subject to the Pledge Agreement; or (b) to be in full force and
effect or shall be declared null and void, or the validity or enforceability
thereof shall be contested by Borrower, or Borrower shall deny it has any
further liability or obligation under the Pledge Agreement, or Borrower shall
fail to perform any of its obligations under the Pledge Agreement; or any Lien
under the Pledge Agreement shall at any time and for any reason cease to be a
first priority Lien on the property subject to such Lien;
(9) the Security Agreement shall at any time and for any reason cease:
(a) to create a valid and perfected first priority Lien in and to the property
purported to be subject to such Security Agreement; or (b) to be in full force
and effect or shall be declared null and void, or the validity or enforceability
thereof shall be contested by Borrower, or Borrower shall deny it has any
further liability or obligation under the Security Agreement, or Borrower shall
fail to perform any of its obligations under the Security Agreement; or any Lien
under the Security Agreement shall at any time and for any reason cease to be a
perfected Lien on the property subject to such Lien;
(10) any two of ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ shall cease to be actively engaged in the management of the affairs
of the Borrower or its Subsidiary, respectively, in their respective capacities
as President, ABCIC; President, Borrower; Director of and consultant to Borrower
and ABCIC; and Chairman of the Board of and legal counsel to Borrower and ABCIC,
unless within ninety (90) days of such event Borrower hires or promotes a Person
with the skills and abilities to perform the functions previously performed by
such Person, and such Person is approved by the Lender in its sole discretion;
(11) if at any time Borrower or its Subsidiary incurs or becomes
subject to action or threatened action of any Governmental Authority, including,
without limitation, a fine, penalty, cease and desist order or revocation,
suspension or limitation of a License, the effect of which could result in a
Material Adverse Change;
(12) there shall occur a Material Adverse Change;
(13) if for any reason any of the Management Agreement, the Agreement
as to Reinsurance, the Securities Purchase Agreement or, after its execution and
delivery, any ABCIC-Lender Reinsurance Agreement expires in accordance with its
terms or otherwise ceases to be in full force and effect, is declared null and
void pursuant to a final, nonappealable judgment of a court of competent
jurisdiction, or the validity or enforceability thereof shall be contested by
Borrower or its Subsidiary, or Borrower or its Subsidiary shall deny it has any
further liability or obligation under or shall fail to perform or observe its
obligations under any such Agreement; or
40
(14) the Borrower shall fail to perform or observe its obligations
under its Series I Preferred Stock.
Section 8.02. REMEDIES. If any Event of Default shall occur and be
continuing, Lender may by notice to Borrower, (1) declare each outstanding Term
Loan Note, all interest thereon, and all other amounts payable under this
Agreement, and any other Loan Documents to be forthwith due and payable,
whereupon such Term Loan Note, all such interest, and all such amounts due under
this Agreement, and under any other Loan Document shall become and be forthwith
due and payable, without presentment, demand, protest, or further notice of any
kind, all of which are hereby expressly waived by Borrower; (2) exercise any
remedies provided in any of the Loan Documents (including without limitation its
option to convert all or a portion of the outstanding Term Loan into common
stock in accordance with Section 8.03); and/or (3) exercise any remedies
provided by Law; PROVIDED, HOWEVER, that upon the occurrence of an Event of
Default referred to in Section 8.01(5), each Term Loan Note and any other
amounts payable under this Agreement or any of the other Loan Documents, and all
interest on any of the foregoing, shall be forthwith due and payable without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by Borrower.
Section 8.03. CONVERSION. (a) At any time following the occurrence and
during the continuance of an Event of Default, Lender shall have the right to
convert all or any portion of the then outstanding principal of the Term Loan,
together with interest thereon, for shares of Common Stock or, unless the
Exchange has occurred pursuant to Section 1.04 of the Securities Purchase
Agreement, Class B Common Stock. The number of shares of Common Stock or Class B
Common Stock issuable upon conversion of any such unpaid principal and interest
shall be determined by dividing the aggregate amount of unpaid principal and
interest being converted by (i) in the case of an Event of Default pursuant to
Section 8.01(1) (whether occurring at maturity, upon acceleration or otherwise),
$1.00, and (ii) in the case of any other Event of Default, the Fully Diluted
Book Value as of the date of occurrence of such Event of Default.
(b) In case Borrower shall be a party to any transaction (including,
without limitation, a merger, consolidation, sale of all or substantially all of
Borrower's assets or recapitalization of the Common Stock or Class B Common
Stock) in which the previously outstanding Common Stock or Class B Common Stock
shall be changed into or, pursuant to the operation of law or the terms of the
transaction to which Borrower is a party, exchanged for different securities of
Borrower or common stock or other securities of another corporation or interests
in a noncorporate entity or other property (including cash) or any combination
of any of the foregoing, then, as a condition of the consummation of such
transaction, lawful and adequate provision shall be made so that Lender shall
thereafter be entitled to conversion rights comparable to those contained in
paragraph (a) of this Section 8.03, as nearly as may be reasonably practicable,
in relation to the stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of Common Stock or
Class B Common Stock is changed or exchanged.
41
(c) Lender may exercise its conversion right pursuant to paragraph (a)
of this Section 8.03 by delivering to Borrower at its principal office a written
notice stating that Lender elects to convert all or a specified portion of the
outstanding principal of the A Loan and/or the B Loan, together with interest
thereon, in accordance with the provisions of this Section 8.03 and specifying
the name or names in which Lender wishes the certificate or certificates for
shares of Common Stock or Class B Common Stock to be issued. In case such notice
shall specify a name or names other than that of Lender, such notice shall be ac
companied by payment of all transfer taxes payable upon the issuance of shares
of Common Stock or Class B Common Stock in such name or names. Other than such
taxes, Borrower will pay any and all issue and other taxes (other than taxes
based on income) that may be payable in respect of any issue or delivery of
shares of Common Stock or Class B Common Stock pursuant hereto. As promptly as
practicable, and in any event within three (3) Business Days after the receipt
of such notice and, if applicable, payment of all transfer taxes (or the
demonstration to the satisfaction of Borrower that such taxes have been paid),
Borrower shall deliver or cause to be delivered a certificate or certificates
representing the number of validly issued, fully paid and nonassessable full
shares of Common Stock or Class B Common Stock to which Lender shall be
entitled. Such exchange shall be deemed to have been made at the close of
business on the date of giving of such notice, and the person entitled to
receive the shares of Common Stock or Class B Common Stock shall be treated for
all purposes as having become the record holder of such shares of Common Stock
or Class B Common Stock at such time. The portion of the outstanding principal
converted pursuant to this Section 8.03 shall be deemed to be paid and shall
cease to be outstanding upon such conversion.
(d) Borrower shall at all times reserve and keep available out of its
authorized and unissued Common Stock and Class B Common Stock, solely for the
purpose of effecting the exchange contemplated by this Section 8.03, such number
of shares of Common Stock and Class B Common Stock as shall from time to time be
sufficient to effect the conversion of all of the principal and interest then
outstanding under the Term Loan. Borrower shall from time to time, subject to
and in accordance with the Florida Business Corporation Act, increase the
authorized amount of Common Stock and Class B Common Stock if at any time the
number of authorized shares of Common Stock and Class B Common Stock remaining
unissued shall not be sufficient to permit the conversion at such time of all
principal and interest then outstanding under the Term Loan.
ARTICLE IX. MISCELLANEOUS
Section 9.01. AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document or consent to any
departure by Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Lender and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No failure on the part of the Lender to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof or preclude
any other or further exercise thereof or the exercise of any other right. The
42
remedies herein provided are cumulative and not exclusive of any remedies
provided by Law.
The Borrower irrevocably waives, to the fullest extent permitted by
applicable law, any claim that any action or proceeding commenced by the Lender
relating in any way to this Agreement should be dismissed or stayed by reason,
or pending the resolution, of any action or proceeding commenced by the Borrower
relating in any way to this Agreement whether or not commenced earlier. To the
fullest extent permitted by applicable law, the Borrower shall take all measures
necessary for any such action or proceeding commenced by the Lender to proceed
to judgment prior to the entry of judgment in any such action or proceeding
commenced by the Borrower.
Section 9.02. USURY. Anything herein to the contrary notwithstanding,
the obligations of Borrower under this Agreement and the Term Loan Notes shall
be subject to the limitation that payments of interest shall not be required to
the extent that receipt thereof would be contrary to provisions of Law
applicable to Lender limiting rates of interest which may be charged or
collected by Lender.
Section 9.03. EXPENSES AND INDEMNIFICATION. The Borrower agrees to pay
or reimburse the Lender for: (a) all reasonable out-of-pocket costs and expenses
of the Lender (including, without limitation, the reasonable fees and expenses
of counsel to the Lender, not to exceed $40,000), in connection with (i) the
negotiation, preparation, execution and delivery of this Agreement and the other
Loan Documents and the making of the Term Loan hereunder and (ii) the
negotiation or preparation of any modification, supplement or waiver of any of
the terms of this Agreement or any of the other Loan Documents (whether or not
consummated); (b) all reasonable out-of-pocket costs and expenses of the Lender
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with (i) any Default and any enforcement or collection
proceedings resulting therefrom, including, without limitation, all manner of
participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
9.03; and (c) all transfer, stamp, documentary or other similar taxes,
assessments or charges levied by any governmental or revenue authority in
respect of this Agreement or any of the other Loan Documents.
The Borrower hereby agrees to indemnify the Lender and its directors,
officers, employees, attorneys and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of them arising out of or by reason of any investigation or litigation or
other proceedings (including any threatened investigation or litigation or other
proceedings) relating to the Term Loan hereunder or any actual or proposed use
by the Borrower or its Subsidiary of the proceeds of the Term Loan hereunder,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation or litigation or other
proceedings (but
43
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified). Without limiting the generality of the foregoing, the Borrower
will indemnify the Lender from, and hold the Lender harmless against, any
losses, liabilities, claims, damages or expenses described in the preceding
sentence (but excluding, as provided in the preceding sentence, any loss,
liability, claim, damage or expense incurred by reason of the gross negligence
or willful misconduct of the Person to be indemnified) arising under any
Environmental Law as a result of the past, present or future operations of the
Borrower or its Subsidiary (or any predecessor in interest to the Borrower or
its Subsidiary), or the past, present or future condition of any site or
facility owned, operated or leased at any time by the Borrower or its Subsidiary
(or any such predecessor in interest).
The obligations of Borrower under this Section 9.03 shall survive the
repayment of the Term Loan and all amounts due under or in connection with any
of the Loan Documents.
Section 9.04. ASSIGNMENT; PARTICIPATION. This Agreement shall be
binding upon, and shall inure to the benefit of, Borrower, Lender and their
respective successors. Borrower may not assign or transfer its rights or
obligations hereunder. Lender may assign its rights, duties and obligations
under this Agreement and any of the other Loan Documents. Lender may sell
participations in its rights, duties and obligations under this Agreement or any
of the other Loan Documents.
Section 9.05. NOTICES. Unless the party to be notified otherwise
notifies the other party in writing as provided in this Section 9.05, and except
as otherwise provided in this Agreement, notices shall be given to Lender by
telephone, confirmed in writing and delivered by hand or confirmed telecopier,
and to Borrower by written notice delivered by hand, overnight courier service
or confirmed telecopier addressed to such party at its address on the signature
page of this Agreement. Notices shall be effective upon receipt.
Section 9.06. SETOFF. Borrower agrees that, in addition to (and without
limitation of) any right of setoff or counterclaim a Lender may otherwise have,
Lender shall be entitled, to the extent provided in the Agreement as to
Reinsurance, at its option, to offset (x) balances (general or special, time or
demand, provisional or final) held by it for the account of Borrower at any of
Lender's offices and (y) amounts held by it under any reinsurance agreement
between the Lender and ABCIC, in Dollars or in any other currency, against any
amount payable by Borrower to Lender under this Agreement or the Term Loan
Notes, or any other Loan Document which is not paid when due (regardless of
whether such balances are then due to Borrower), in which case it shall promptly
notify Borrower thereof; provided, that Lender's failure to give such notice
shall not affect the validity thereof.
Section 9.07. JURISDICTION; IMMUNITIES. Borrower hereby irrevocably
submits to the jurisdiction of any State of New York or United States Federal
court sitting in the Borough of Manhattan, New York over any action or
proceeding arising out of or relating to
44
this Agreement, either Term Loan Note or any other Loan Document, and Borrower
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such State of New York or Federal
court. Borrower irrevocably consents to the service of any and all process in
any such action or proceeding by the mailing of copies of such process to
Borrower at its address specified on the signature page hereof. Borrower 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. Borrower further waives any objection to venue in such
State and any objection to an action or proceeding in such State on the basis of
forum non convenience. Borrower agrees that any action or proceeding brought
against the Lender shall be brought only in State of New York or United States
Federal court sitting in the Borough of Manhattan, New York.
Nothing in this Section 9.07 shall affect the right of the Lender to
serve legal process in any other manner permitted by Law or affect the right of
Lender to bring any action or proceeding against Borrower or its property in the
courts of any other jurisdictions.
To the extent that Borrower has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether from service
or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, Borrower hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement, the Term Loan Notes, and any other Loan Document.
Section 9.08. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 9.09. COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which, when so executed and
delivered, shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof, each signed by less than all, but together signed by all of
the parties hereto.
Section 9.10. EXHIBITS AND SCHEDULES. The Exhibits and Schedules hereto
are a part of this Agreement as if fully set forth herein. All references herein
to Sections, subsections, clauses, Exhibits and Schedules shall be deemed
references to such parts of this Agreement, unless the context shall otherwise
require.
Section 9.11. TABLE OF CONTENTS; HEADINGS. The headings in the Table of
Contents and in this Agreement are for reference only, and shall not affect the
interpretation or construction of this Agreement.
Section 9.12. SEVERABILITY. If any word, phrase, sentence, paragraph,
provision or section of this Agreement shall be held, declared, pronounced or
rendered invalid, void, unenforceable or inoperative for any reason by any court
of competent
45
jurisdiction, governmental authority, statute or otherwise, such holding,
declaration, pronouncement or rendering shall not adversely affect any other
word, phrase, sentence, paragraph, provision or section of this Agreement, which
shall otherwise remain in full force and effect and be enforced in accordance
with its terms.
Section 9.13. INTEGRATION. The Loan Documents, the Management
Agreement, the Agreement as to Reinsurance, each ABCIC-Lender Reinsurance
Agreement and the Securities Purchase Agreement set forth the entire agreement
among the parties hereto relating to the transactions contemplated thereby and
supersede any prior oral or written statements or agreements with respect to
such transactions.
Section 9.14. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE LENDER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
46
THE BORROWER WAIVES ANY RIGHT IT MAY HAVE TO JURY TRIAL.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ASSOCIATED BUSINESS & COMMERCE
HOLDINGS, INC.,
as Borrower
By: /s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman
Address for Notices:
Associated Business & Commerce
Holdings, Inc.
▇/▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇, ▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
With a Copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
5300 First Union Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
TIG REINSURANCE COMPANY,
as Lender
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
47
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
TIG Holdings, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
48
