NINTH AMENDMENT TO EIGHTH AMENDED AND RESTATED LOAN AGREEMENT
Exhibit
10.1
NINTH
AMENDMENT
TO
EIGHTH
AMENDED AND RESTATED LOAN AGREEMENT
THIS
NINTH AMENDMENT TO EIGHTH AMENDED AND RESTATED LOAN AGREEMENT (the "Amendment")
made and entered into as of the 22 day of November, 2006 (the “Dated Date”), but
with an Effective Date as defined hereinafter, by and among DIRECT
GENERAL FINANCIAL SERVICES, INC., a
Tennessee corporation whose address is 0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 (f/k/a Direct Financial Services, Inc.) ("DGFS"), DIRECT
GENERAL PREMIUM FINANCE COMPANY,
a
Tennessee corporation whose address is 0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 ("DGPFC"; DGFS and DGPFC may be referred to hereinafter either
individually or collectively as "Borrower"), DIRECT
GENERAL CORPORATION,
a
Tennessee corporation (formerly known as Direct Corporation) ("DGC"),
DIRECT
GENERAL INSURANCE AGENCY, INC.,
a
Tennessee corporation, DIRECT
GENERAL INSURANCE AGENCY, INC.,
an
Arkansas corporation, DIRECT
GENERAL INSURANCE AGENCY, INC.,
a
Mississippi corporation, DIRECT
GENERAL INSURANCE AGENCY OF LOUISIANA, INC.,
a
Louisiana corporation, DIRECT GENERAL
AGENCY OF KENTUCKY, INC.,
a
Kentucky corporation, DIRECT
ADJUSTING COMPANY, INC.,
a
Tennessee corporation, DIRECT
ADMINISTRATION, INC.,
a
Tennessee corporation, DIRECT
GENERAL INSURANCE AGENCY, INC.,
a Texas
corporation, DIRECT
GENERAL CONSUMER PRODUCTS, INC.,
a
Tennessee corporation, FIRST
TENNESSEE BANK NATIONAL ASSOCIATION,
a
national banking association organized and existing under the statutes of
the
United States of America, with offices at 000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxx 00000 (in its agency capacity being herein referred to as "Agent,"
and
in its individual capacity as "FTBNA"), for itself and as agent for the other
Banks hereinafter named, CAPITAL
ONE, N.A.
(successor by merger to Hibernia National Bank), a national banking association
organized and existing under the laws of the United States of America, with
offices at 000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000 ("Capital One"),
U.S.
BANK NATIONAL ASSOCIATION,
a
national banking association (f/k/a U.S. Bank, N. A., which was f/k/a Mercantile
Bank National Association) with offices located at 000 0xx
Xxxxxx
X., Xxxxxxxxx, Xxxxxxxxx 00000 ("U.S. Bank"), CAROLINA
FIRST BANK,
a state
bank formed under the laws of the State of South Carolina with offices located
at 000 X. Xxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Carolina First"),
JPMORGAN
CHASE BANK, N.A. (successor
by merger to Bank One, NA (Main Office Chicago) a
national banking association with offices located at 000 Xxxxxxx Xxxxxx,
Mail
Code LA2-2714, Xxxxx Xxxxx, Xxxxxxxxx 00000 ("JPMorgan"), REGIONS
BANK,
an
Alabama state banking association with offices located at 000 X. 00xx
Xxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 ("Regions"), NATIONAL
CITY BANK OF KENTUCKY,
a
national banking association with offices located at 000 X. Xxxxx Xxxxxx,
00xx
Xxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 ("National City Bank"), FIFTH
THIRD BANK, N.A. (Tennessee),
a
national banking association organized and existing under the laws of the
United
States of America, with offices located at 000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx
000,
Xxxxxxxx, Xxxxxxxxx 00000 ("Fifth Third"), and MIDFIRST
BANK,
a
national banking association with offices located at 000 X.X. Xxxxx
Xxxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000 ("MidFirst") (FTBNA, Capital One,
U.S. Bank, Carolina First, JPMorgan, and Regions collectively, the "Original
Banks") (the Original Banks, National City Bank, Fifth Third and MidFirst
collectively the "Banks," and each individually, a "Bank").
Recitals
of Fact
Pursuant
to that certain Eighth Amended and Restated Loan Agreement dated as of October
31, 2002 (the "Original Loan Agreement") among the Original Banks, DGFS and
the
other parties named therein, the Original Banks agreed to make loans and
advances to DGFS on a revolving credit basis in an aggregate amount not to
exceed One Hundred Fifteen Million Dollars ($115,000,000.00), evidenced by
individual revolving credit notes to each Bank for the respective Facility
Commitments set out in the Original Loan Agreement, each with a termination
date
of June 30, 2004 (collectively, the "October 2002 Notes").
Pursuant
to that certain First Amendment to Eighth Amended and Restated Loan Agreement
dated as of March 31, 2003 (the "First Amendment") among the Original Banks,
DGFS and the other parties named therein, the Facility Commitment for Regions
was increased to a maximum principal amount of Twenty-Five Million Dollars
($25,000,000.00), and the total Commitment of the Original Banks was increased
to a maximum aggregate principal amount of One Hundred Twenty-Five Million
Dollars ($125,000,000.00).
Pursuant
to that certain Second Amendment to Eighth Amended and Restated Loan Agreement
dated as of May 28, 2003 (the "Second Amendment") among the Original Banks,
National City Bank, DGFS and the other parties named therein, the Facility
Commitment for Carolina First was increased to a maximum principal amount
of
Fifteen Million Dollars ($15,000,000.00); the Facility Commitment for Bank
One
was increased to a maximum principal amount of Thirty-Five Million Dollars
($35,000,000.00); National City Bank was added as a Bank with a Facility
Commitment of a maximum principal amount of Fifteen Million Dollars
($15,000,000.00); and the total Commitment of the Banks was increased to
a
maximum aggregate principal amount of One Hundred Sixty Million Dollars
($160,000,000.00).
Pursuant
to that certain Third Amendment to Eighth Amended and Restated Loan Agreement
dated as of June 30, 2003 (the "Third Amendment"") among the Banks, DGFS
and the
other parties named therein, the Facility Commitment for Hibernia (now known
as
Capital One) was increased to a maximum principal amount of Twenty Million
Dollars ($20,000,000.00); the Facility Commitment for U.S. Bank was increased
to
a maximum principal amount of Thirty Million Dollars ($30,000,000.00); Fifth
Third was added as a Bank with a Facility Commitment of a maximum principal
amount of Ten Million Dollars ($10,000,000.00); and the total Commitment
of the
Banks was increased to a maximum aggregate principal amount of One Hundred
Eighty Million Dollars ($180,000,000.00).
Pursuant
to that certain Fourth Amendment to Eighth Amended and Restated Loan Agreement,
dated on or about July 17, 2003 (the "Fourth Amendment") among the Banks,
DGFS
and the other parties named therein, the Loan Agreement was modified to allow
DGC to pay dividends after the closing of its initial public offering of
stock.
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Pursuant
to that certain Fifth Amendment to Eighth Amended and Restated Loan Agreement,
dated as of November 26, 2003 (the "Fifth Amendment") among the Banks, DGFS
and
the other parties named therein, the Facility Commitment for FTBNA was increased
to a maximum principal amount of Forty Million Dollars ($40,000,000.00),
the
total Commitment of the Banks was increased to a maximum aggregate principal
amount of One Hundred Ninety Million Dollars ($190,000,000.00), and other
modifications were made to the Loan Agreement.
Pursuant
to that certain Sixth Amendment to Eighth Amended and Restated Loan Agreement,
dated as of June 30, 2004 (the "Sixth Amendment"), among the Banks, DGFS,
DGPFC
and other parties named therein, DGPFC was added as a Borrower under the
Banks'
respective Facility Commitments, DGPFC was added as a party to the Loan
Agreement, the Seventh Amended and Restated Security Agreement as defined
therein, and to other documents evidencing or securing the Loan (the Loan
Agreement and all security documents collectively referred to as the "Security
Documents"), the Banks extended the maturity date of the Loan to June 30,
2007,
and other modifications were made to the Loan Agreement, the Seventh Amended
and
Restated Security Agreement defined therein and certain other loan and security
documents.
Pursuant
to that certain Seventh Amendment to Eighth Amended and Restated Loan Agreement
dated as of December 3, 2004 (the "Seventh Amendment"), DGFS and DGPFC
obtained a Swing Line Loan up to an amount of Thirty Million Dollars
($30,000,000.00) from FTBNA as part of the credit facilities governed by
the
Loan Agreement.
Pursuant
to that certain Eighth Amendment to Eighth Amended and Restated Loan Agreement
dated as of June 30, 2006 (the “Eighth Amendment;” the Original Loan Agreement,
as amended hereby, and by the First Amendment, the Second Amendment, the
Third
Amendment, the Fourth Amendment, the Fifth Amendment, the Sixth Amendment,
and
the Seventh Amendment, referred to hereinafter as the "Loan Agreement"),
the
Banks agreed to extend the Loan Termination Date for their Facility Commitments,
provide for future increases in certain of the Facility Commitments, admitted
MidFirst Bank as a Bank hereunder, and made other modifications of the Loan
Agreement, all as set forth in the Eighth Amendment.
The
Banks
have been asked to enter into a further amendment of the Loan Agreement in
connection with the proposed Merger Transaction and the Bear Xxxxxxx Facilities
(as such terms are defined in Section II below). The Banks have agreed to
do so,
provided that this Amendment shall only become effective on the Effective
Date
(as defined below).
NOW,
THEREFORE, in consideration of the premises as set forth in the Recitals
of
Fact, the mutual covenants and agreements hereinafter set out, and other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is agreed by the parties as follows:
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Agreements
SECTION
I - GENERAL TERMS
1. All
capitalized terms used and not defined herein shall have the meaning ascribed
to
them in the Loan Agreement.
2. To
induce
the Banks to enter into this Amendment, the Borrower does hereby absolutely
and
unconditionally, certify, represent and warrant to the Banks, and covenant
and
agree with the Banks, that:
(a) All
representations and warranties made by the Borrower in the Loan Agreement,
as
amended hereby; in the Seventh Amended and Restated Security Agreement dated
as
of October 31, 2002, as thereafter amended from time to time, between the
Borrower and Agent (the "Security Agreement"); and in all other loan documents
(all of which are herein sometimes called the "Loan Documents"), are true,
correct and complete in all material respects as of the date of this
Amendment.
(b) As
of the
date hereof and with the execution of this Amendment, there are no existing
events, circumstances or conditions which constitute, or would, with the
giving
of notice, lapse of time, or both, constitute Events of Default.
(c) There
are
no existing offsets, defenses or counterclaims to the obligations of the
Borrowers as set forth in the New Notes, the Security Agreement, the Loan
Agreement, or in any other Loan Document executed by the Borrower, in connection
with the Loan.
(d) Neither
Borrower has any existing claim for damages against the Banks arising out
of or
related to the Loan; and, if and to the extent (if any) that the Borrowers
or
any of them have or may have any such existing claim (whether known or unknown),
the Borrower do each hereby forever release and discharge, in all respects,
the
Banks with respect to such claim.
(e) The
Loan
Documents, as amended by this Amendment, are valid, genuine, enforceable
in
accordance with their respective terms, and in full force and
effect.
SECTION
II -- LOAN AGREEMENT AMENDMENTS
1. The
following definitions shall be added to Section 1.1 of the Loan Agreement
in
alphabetical order:
(a) “Bear
Xxxxxxx Facilities” means, collectively, (i) the term loan facility in an
aggregate original principal amount equal to $75,000,000, (ii) the revolving
credit facility in an amount of $20,000,000, and (iii) any additional
“incremental facility” borrowings up to $20,000,000, which facilities, in the
case of clauses (i) and (ii) above, are contemplated to be entered into
substantially simultaneously with the Merger Transaction among DGC and a
group
of lenders led by Bear Xxxxxxx Corporate Lending Inc. as Agent, in each case
as
amended, restated or otherwise modified or refinanced from time to time (such
amendment, restatement, modification or refinancing to be made in compliance
with the terms of the Intercreditor Agreement as hereinafter
defined).
4
(b) “Bear
Xxxxxxx Term Sheet” means the draft Bear Xxxxxxx Term Sheet dated November 22,
2006.
(c) “Holdings”
means Elara Holdings, Inc., a Delaware corporation.
(d) “Intercreditor
Agreement” means the Intercreditor Agreement, dated as of the Effective Date,
between the Agent and the collateral agent in respect of the Bear Xxxxxxx
Facilities, as amended, restated, supplemented or otherwise modified from
time
to time.
(e) “Merger
Transaction” means the merger of Elara Merger Corporation, a wholly owned
subsidiary of Elara Holdings, Inc., into Direct General Corporation, which
is
expected to occur substantially simultaneously with the closing of the Bear
Xxxxxxx Facilities.
(f) “Pledge
and Security Agreement” shall mean the Seventh Amended and Restated Pledge and
Security Agreement dated as of October 31, 2002, as amended, from DGC as
pledgor
for the benefit of the Banks.
(f) “Trust
Preferred Facility” means the Trust Preferred Securities guaranteed by DGC in
the aggregate original principal amount of $30,000,000.
2. The
definition of "Effective Date," in Section 1.1 of the Loan Agreement, is
hereby
deleted in its entirety and the following is inserted in lieu
thereof:
"Effective
Date" shall mean the Effective Date of that certain Ninth Amendment to Eighth
Amended and Restated Loan Agreement dated as of November 22, 2006.
3. Section
7.8 of the Loan Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:
“7.8
Consolidation
or Merger; Acquisition of Assets.
Enter
into any transaction of merger or consolidation, acquire any other business
or
corporation, or acquire all or substantially all of the property or assets
of
any other Person, except the Merger Transaction, and except as permitted
by
Section 7.5 hereof or except as permitted by Section 8.20 hereof;
provided,
however,
that
any such transaction or acquisition permitted by Section 7.5 or Section 8.20
shall only be permitted if such transaction (i) does not cause or result in
an Event of Default and (ii) does not cause or result in an event which with
notice, lapse of time or both may become an Event of Default
hereunder.”
4. Section
8.20 of the Loan Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:
5
“8.20 Change
in Ownership.
There
shall occur any change in the ownership of the capital stock of Borrower,
Affiliated Insurers or DGC, except for (a) changes in ownership of stock
in DGC
which, in the aggregate, for all such changes, do not exceed forty-nine percent
(49%) of DGC's outstanding stock, (b) changes in ownership of stock in DGC
resulting from conversion of shares of preferred stock in DGC into common
stock
of DGC or the transfer or assignment of such preferred stock, in the manner
contemplated by the Securities Purchase Agreement, (c) changes in ownership
of stock in DGC resulting from a public offering of the stock of DGC,
(d) changes in ownership of stock in DGC (and indirect changes in ownership
of the capital stock of Borrower and the Affiliated Insurers) resulting from
the
Merger Transaction, or (e) changes in ownership of stock in any Agency
Subsidiary or Affiliated Insurer, provided that the ultimate direct or indirect
ownership remains with DGC.”
5. Section
7.1 of the Loan Agreement shall be amended by deleting therefrom subsections
(c)
and (d), and inserting in lieu thereof the following:
“(c) Indebtedness
of DGC pursuant to the Bear Xxxxxxx Facilities and any guaranty in respect
thereof;
(d) Indebtedness
of DGC and a trust formed by DGC pursuant to the Trust Preferred
Facility.”
6. Section
7.3 of the Loan Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:
“7.3 Guarantees.
Guarantee or otherwise in any way become or be responsible for, or permit
any
Affiliated Insurer to guarantee or otherwise in any way become or be responsible
for, the indebtedness or obligations of any other Person, by any means
whatsoever, whether by agreement to purchase the indebtedness of any other
Person or agreement for the furnishing of funds to any other Person, for
the
purpose of paying or discharging the indebtedness of any other Person, or
otherwise, without the prior written consent of the Required Banks, except
for:
(a) the
endorsement of negotiable instruments by the Borrower, DGC, the Agency
Subsidiaries or Affiliated Insurers in the ordinary course of business for
collection;
(b) the
obligation of DGC and the Agency Subsidiaries pursuant to the Fifteenth Amended
and Restated Guaranty Agreement dated as of June 30, 2006;
(c) the
guaranty by DGC of indebtedness of the Agency Subsidiaries permitted under
Section 7.1 hereof;
(d) the
guaranty by DGC of any obligation of any Agency Subsidiaries or Affiliated
Insurers;
6
(e) the
guaranty by DGC given in connection with the Trust Preferred Facility;
and
(f) any
guaranty given in connection with the Bear Xxxxxxx Facilities;
provided,
in
each case, such obligation does not cause DGC to be in default under any
other
provision of this Loan Agreement.”
7. Section
7.5 of the Loan Agreement shall be amended by deleting therefrom subsection
(e)
and inserting in lieu thereof the following:
“(e)
as may
occur in connection with the Bear Xxxxxxx Facilities; and
(f)
as may
occur in connection with the Trust Preferred Facility.”
8. Section
6.11 of the Loan Agreement (as set forth in the Sixth Amendment to Eighth
Amended and Restated Loan Agreement) shall be deleted in its
entirety.
9. Section
6.13 of the Loan Agreement (as set forth in the Sixth Amendment to Eighth
Amended and Restated Loan Agreement) shall be deleted in its
entirety.
10. Section
6.16 of the Loan Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:
“6.16 Debt
Service Coverage Ratio.
Maintain
as to DGC as of the end of each fiscal quarter a ratio (the "Debt Service
Coverage Ratio") of (a) EBITDA (hereinafter defined) of DGC on a
consolidated basis for such quarter and the three (3) preceding fiscal quarters
to (b) Debt Service (hereinafter defined) during the same period of four
(4) fiscal quarters, of not less than 1.50 to 1.0.
For
purposes
of determining compliance with the Debt Service Coverage Ratio, any equity
investment made to DGC on or prior to the day that is 15 days after the day
on
which financial statements are required to be delivered for a fiscal quarter
will, at the request of the Borrower, be included in the calculation of EBITDA
for the purposes of determining compliance with financial covenants at the
end
of such fiscal quarter and applicable subsequent periods (any such equity
contribution so included in the calculation of EBITDA, a “Specified
Equity Contribution”);
provided
that
(a) in each four fiscal quarter period there shall be a period of at least
two consecutive fiscal quarters in which no Specified Equity Contribution
is
made, and (b) the amount of any Specified Equity Contribution shall be no
greater than 100% of the amount required to cause the Borrower to be in
compliance with the Debt Service Coverage Ratio.
For
purposes
hereof, EBITDA shall mean net income plus
interest
plus
taxes
plus
depreciation plus
amortization and shall include (in each case to the extent deducted in
determining net income) (i) extraordinary losses and unusual or
non-recurring losses, items and charges, (ii) non-cash charges (including
non-cash charges related to stock compensation expense), (iii) fees and expenses
incurred in connection with the Merger Transaction, the Bear Xxxxxxx
Facilities and related transactions, (iv) any expenses, premiums or charges
incurred in connection with any issuance of debt, equity securities or any
refinancing transaction or any amendment or other modification of any debt
instrument, (v) any fees and expenses related to permitted acquisitions
and (vi) the amount of management, monitoring, consulting and advisory fees
and related expenses paid to Fremont Partners III, L.L.C. or any of its
affiliates or TPG Gen ParV, L.P. or any of its affiliates.
8
For
purposes hereof, "Debt Service" shall mean the sum of (x) all scheduled
principal payments plus paid interest plus accrued interest as to the Loans,
(y)
preferred stock dividends and (z) the principal amount of scheduled amortization
payments on the Bear Xxxxxxx Facilities.
11. Section
7.9 of the Loan Agreement (as previously amended by the Fourth Amendment
to
Eighth Amended and Restated Loan Agreement) shall be amended by adding the
following language to the end thereof:
“Also,
notwithstanding the foregoing, Borrowers shall be permitted to pay dividends
or
other distributions to any direct or indirect parent company to permit the
payment of principal, interest, fees and other expenses in connection with
the
Bear Xxxxxxx Facilities.”
12. Section
7.2 of the Loan Agreement shall be deleted in its entirety and the following
inserted in lieu thereof:
“7.2 Mortgages,
Liens, Etc.
Create,
assume or suffer to exist any mortgage, pledge, lien, charge or other
encumbrance of any nature whatsoever on any of the assets of Borrower, DGC,
any
Agency Subsidiary or any Affiliated Insurer, now or hereafter owned, except
for:
(a) Liens
securing payment of the Notes, which shall consist of (i) a first priority
lien
on the accounts receivable and related collateral described in the Seventh
Amended and Restated Security Agreement dated as of October 31, 2002, as
amended
(the “Accounts Receivable Collateral”) and (ii) a second priority lien on the
stock pledged by DGC pursuant to the Seventh Amended and Restated Pledge
and
Security Agreement dated as of October 31, 2002, as amended (the “Pledged
Stock”);
(b) Liens
securing payment of the Bear Xxxxxxx Facilities, which shall include (i)
a
second priority lien on the Accounts Receivable Collateral, (ii) a first
lien on
the Pledged Stock, and (iii) a first priority lien on substantially all other
assets of Borrower, DGC, any Agency Subsidiary or any Affiliated Insurer;
and
(c) Permitted
Encumbrances.”
13. Section
8.2 shall be amended by deleting the period at the end of such section and
adding thereto the following:
8
“;
or DGC
shall default, beyond any cure period applicable thereto, in the payment
or
performance any of its obligations under the Bear Xxxxxxx
Facilities.”
III.
MISCELLANEOUS
1. All
terms
and provisions of the Loan Agreement, as heretofore amended, which are
inconsistent with the provisions of this Amendment are hereby modified and
amended to conform hereto; and, as so modified and amended, the Loan Agreement
is hereby ratified, approved and confirmed. Except as otherwise may be expressly
provided herein, this Amendment shall become effective as of the date set
forth
in the initial paragraph hereof.
2. All
references in all Loan Documents (including, but not limited to, the New
Notes,
the Security Agreement, and the Loan Agreement) to the "Loan Agreement" shall,
except as the context may otherwise require, be deemed to constitute references
to the Loan Agreement as amended hereby. All references in the Loan Documents
(including, but not limited to, the Security Agreement and the Loan Agreement)
to the "Notes" shall, except as the context may otherwise require, be deemed
to
constitute references to the Notes as such term is defined herein.
3. This
Amendment shall become effective on the date (the “Effective Date”) on which
each of the following conditions have been satisfied:
(a) The
Bear
Xxxxxxx Facilities shall
have been closed with documentation in material compliance with the terms
set
forth in the Bear Xxxxxxx Term Sheet.
(b) The
Merger Transaction shall have been consummated.
(c) An
Intercreditor Agreement acceptable to Agent and each of the Banks in their
sole
discretion between Agent and the collateral agent in respect of the Bear
Xxxxxxx
Facilities (the “Bear Xxxxxxx Agent”) shall have been entered into, which shall
provide for, among other things, (i) the relative priority of the Banks and
the
secured parties in respect of the Bear Xxxxxxx Facilities as to the collateral
securing the respective loans (namely, the Banks shall continue to have a
first
priority security interest in the collateral described in the Security
Agreement, and shall have a second priority security interest in the collateral
described in the Pledge and Security Agreement, while the secured parties
in
respect of the Bear Xxxxxxx Facilities shall have a second priority security
interest in the collateral described in the Security Agreement and a first
priority security interest in all other collateral of DGC and the Borrower,
including that described in the Pledge and Security Agreement), and (ii)
the
existence of a mutual permanent standstill arrangement whereby the Agent
and the
Bear Xxxxxxx Agent are prohibited from taking action as holders of their
respective second lien security interests in respect of the assets covered
by
such second lien security interests without the consent of the respective
holder
of the first lien security interest until the obligations secured by such
first
lien security interest have been satisfied in full.
9
(d) The
Banks
shall have received a transaction fee of .25% of the total principal amount
of
the Loans outstanding as of the Effective Date.
4. Each Bank
hereby irrevocably designates and appoints the Agent as the agent of
such Bank under the Intercreditor Agreement, and each such Bank
irrevocably authorizes the Agent, in such capacity, to execute the
Intercreditor Agreement and, upon receipt of the written consent of each
of the
Banks, to take such action on its behalf under the provisions of the
Intercreditor Agreement, and to exercise such powers and perform such duties
as
are expressly delegated to the Agent by the terms of the Intercreditor
Agreement, together with such other powers as are reasonably incidental
thereto.
5. MidFirst
Bank joins herein solely for the purpose of terminating its Facility Commitment
as of the Dated Date and withdrawing, on such date, as a Bank under the Loan
Agreement and related documents.
6. Regions
Bank joins herein solely for the purpose of terminating its Facility Commitment
as of the Dated Date and withdrawing, on such date, as a Bank under the Loan
Agreement and related documents.
7. Exhibit
“B” to the Loan Agreement, as set forth in the Eighth Amendment, is hereby
deleted in its entirety, and the schedule attached hereto marked Revised
Exhibit
“B” shall be inserted in lieu thereof.
[SEPARATE
SIGNATURE PAGES FOLLOW]
10
SIGNATURE
PAGE
TO
NINTH
AMENDMENT TO EIGHTH AMENDED AND RESTATED LOAN AGREEMENT
IN
WITNESS WHEREOF, the Borrowers, the Guarantors, the Banks and the Agent have
caused this Amendment to be executed by their duly authorized officers, all
as
of the day and year first above written.
BORROWERS:
DIRECT
GENERAL FINANCIAL SERVICES,
INC.,
a
Tennessee corporation
By:
/s/ Xxxxx X. Xxxxx
Xxxxx
X.
Xxxxx, President
DIRECT
GENERAL PREMIUM FINANCE
COMPANY,
a
Tennessee corporation
By:
/s/ Xxxxx X. Xxxxx
Xxxxx
X.
Xxxxx, President
GUARANTORS:
DIRECT
GENERAL CORPORATION,
a
Tennessee corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx,
Senior
Vice-President
DIRECT
GENERAL INSURANCE AGENCY,
INC.,
a
Tennessee corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X.
Xxxxxx,
Senior
Vice-President
[SIGNATURE
PAGE CONTINUED]
Exhibit
"B" - 2
DIRECT
GENERAL INSURANCE AGENCY,
INC.,
an
Arkansas corporation
By:
_/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx,
Senior
Vice-President
DIRECT
GENERAL INSURANCE AGENCY,
INC.,
a
Mississippi corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X.
Xxxxxx,
Senior
Vice-President
DIRECT
GENERAL INSURANCE AGENCY
OF
LOUISIANA, INC.,
a
Louisiana corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx,
Senior
Vice-President
DIRECT
GENERAL AGENCY OF
KENTUCKY,
INC.,
a
Kentucky corporation
By:
/s/ Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx, Secretary
DIRECT
ADJUSTING COMPANY, INC.,
a
Tennessee corporation
By:/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx, Secretary
DIRECT
ADMINISTRATION, INC.,
a
Tennessee corporation
By:/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X.
Xxxxxx, Secretary
[SIGNATURE
PAGE CONTINUED]
Exhibit
"B" - 2
DIRECT
GENERAL INSURANCE AGENCY,
INC.,
a
Texas
corporation
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx,
Senior
Vice-President
DIRECT
GENERAL CONSUMER
PRODUCTS,
INC.,
a
Tennessee corporation
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx,
Senior Vice-President
BANKS:
FIRST
TENNESSEE BANK NATIONAL
ASSOCIATION
By: /s/ Xxx Xxxxxxx
Title: Senior Vice President
CAPITAL ONE, N.A.
By: /s/ Xxxxx Rack
Title: Senior Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxxx
Title: Vice President
CAROLINA FIRST BANK
By: /s/ Xxxxxxx Xxxxxxxxxxx
Title: Executive Vice President
JPMORGAN
CHASE BANK, N.A.
By:
/s/ Xxxxxx Xxxx
Title:
Senior Vice President
[SIGNATURE
PAGE CONTINUED]
Exhibit
"B" - 2
REGIONS
BANK
By:
/s/ Xxxxxx Xxxxxx
Title:
Senior Vice President
NATIONAL
CITY BANK OF KENTUCKY
By:
/s/ Xxxxx Xxxxxxxx
Title:
Senior Vice President
FIFTH
THIRD BANK, N.A. (Tennessee)
By:
/s/ Xxxxxx Xxxxxxxxx
Title:
Officer
MIDFIRST
BANK
By:
/s/ Xxxxx Xxxxxx
Title:
Vice President
AGENT:
FIRST
TENNESSEE BANK NATIONAL
ASSOCIATION
By:
/s/ Xxx Xxxxxxx
Title:
Executive Vice President
Exhibit
"B" - 2
REVISED
EXHIBIT "B"
FACILITY
COMMITMENTS OF THE BANKS
AS
OF
THE DATED DATE
Revolving
Facility Commitments
|
First
Tennessee Bank National Association
|
$
|
40,000,000.00*
|
||
|
Capital One
|
20,000,000.00
|
|||
|
U.
S. Bank National Association
|
30,000,000.00
|
|||
|
Regions
Bank
|
-0-
|
|||
|
Carolina
First Bank
|
15,000,000.00
|
|||
|
National
City Bank
|
15,000,000.00
|
|||
|
Fifth
Third Bank
|
10,000,000.00
|
|||
|
JPMorgan
Chase Bank, N.A.
|
35,000,000.00
|
|||
|
MidWest
Bank
|
-0-
|
|||
|
TOTAL:
|
$
|
165,000,000.00
|
||
* Includes
$30,000,000.00 Swing Line Commitment of First Tennessee Bank National
Association.
AS
OF
JANUARY 1, 2007
Revolving
Facility Commitments
|
First
Tennessee Bank National Association
|
$
|
40,000,000.00*
|
||
|
Capital One
|
25,000,000.00
|
|||
|
U.
S. Bank National Association
|
30,000,000.00
|
|||
|
Carolina
First Bank
|
20,000,000.00
|
|||
|
National
City Bank
|
20,000,000.00
|
|||
|
Fifth
Third Bank
|
15,000,000.00
|
|||
|
JPMorgan
Chase Bank, N.A.
|
35,000,000.00
|
|||
|
TOTAL:
|
$
|
185,000,000.00
|
||
| · |
Includes
$30,000,000.00 Swing Line
Commitment
of First Tennessee Bank National
Association.
|
Exhibit
"B" - 2
AS
OF
THE EFFECTIVE DATE
Revolving
Facility Commitments
|
First
Tennessee Bank National Association
|
$
|
40,000,000.00*
|
||
|
Capital One
|
25,000,000.00
|
|||
|
U.
S. Bank National Association
|
30,000,000.00
|
|||
|
Carolina
First Bank
|
20,000,000.00
|
|||
|
National
City Bank
|
20,000,000.00
|
|||
|
Fifth
Third Bank
|
15,000,000.00
|
|||
|
JPMorgan
Chase Bank, N.A.
|
35,000,000.00
|
|||
|
TOTAL:
|
$
|
185,000,000.00
|
||
| · |
Includes
$30,000,000.00 Swing Line
Commitment
of First Tennessee Bank National
Association.
|
