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EXHIBIT 10
NOTE MODIFICATION AGREEMENT AND WAIVER
THIS NOTE MODIFICATION AGREEMENT AND WAIVER dated as of March 15, 1997
("Effective Date") by and among American Bankers Insurance Group, Inc. a Florida
corporation (the "Company"), and the lenders signatory hereto (the "Lenders").
WITNESSETH:
WHEREAS, on September 12, 1991, the Company issued its $23,000,000
aggregate principal amount of 10.20% Promissory Notes (the "Notes") to the
several Lenders pursuant to that certain Loan Agreement dated as of September
12, 1991 (the "Loan Agreement"), by and between the Company, on the one hand,
and the several Lenders, on the other hand; and
WHEREAS, the Company has informed the Lenders that prior to the effective
date of this Note Modification Agreement and Waiver, Company or its subsidiaries
entered into and maintained, on a continuous basis in any 12-month period,
Rentals (as defined in Section 9(J) of the Notes) in aggregate amounts up to
$7,500,000; and
WHEREAS, the provisions of the Notes may be amended and/or waived if the
Company obtains the agreement or consent in writing to such amendment and waiver
by the holders of at least 66 2/3% in aggregate principal amount of all
outstanding Notes; and
WHEREAS, the Lenders listed below as signatories to this Note Modification
Agreement and Waiver represent that collectively they hold, at a minimum, the
requisite percentage referenced above; and
WHEREAS, the Lenders pursuant to Section 10 of the Notes agree to waive
Company's compliance with the provision of Section 9(J) relative to the
authorized Rental amounts for all time periods prior to the effective date of
this Note Modification Agreement and Waiver and further, agree to modify and
increase the maximum authorized aggregate amount of Rentals as set forth below;
and
NOW, THEREFORE, in consideration of the premises and the agreements herein
contained and other consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Modification to the Notes: The Notes are each hereby amended and modified
as follows:
A. Paragraph (J) of Section 9 of each of the Notes is hereby amended to
read in its entirety as follows:
Rentals. The Company will not, and will not cause or permit any
subsidiary to, enter into, as lessee, or be a party to, any
lease having an original or unexpired term (including renewals
at the option of the lessor or lessee) of more than three (3)
years, if after giving effect to such lease, the aggregate
amount of rentals for any period of twelve (12) consecutive
months payable by the Company and its subsidiaries with respect
to all such leases shall exceed $7,500,000 (excluding any
rentals payable under leases between the Company and any
subsidiary or between any subsidiaries, any rentals included
within the definition of "Funded Indebtedness" and any rentals
resulting from any sale and leaseback of the Company's Miami
Headquarters). For purposes of this Paragraph (J), the term
"rentals," with respect to any lease and for any
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period, shall mean the aggregate amount payable under such lease
for such period by the lessee to the lessor.
2. The provisions of Paragraph 9(J) of the Notes shall be waived as
follows:
Pursuant to Section 10 of the Notes, the Lenders agree for all
time periods prior to the effective date of this Note
Modification Agreement and Waiver to waive the condition
contained in Paragraph 9(J) of the Notes concerning the maximum
authorized amount of Rentals which Company may maintain during
the term of the Notes and further waive all rights or remedies
which Lenders had, have or may have in the future regarding
Company's maintenance of Rentals in excess of said authorized
maximum Rental amounts during said time periods.
3. Representations and Warranties. As, among other things, an inducement
to each of the Lenders to enter into this Note Modification Agreement
and Waiver and to consent to the waiver contained herein, the Company
represents and warrants as of the date hereof, after giving effect to
the execution and delivery of this Note Modification Agreement and
Waiver that:
(A) Each of the representations and warranties of the Company made in
or pursuant to the Loan Agreement, or pursuant to any certificate or
other document delivered in connection therewith including all
amendments thereto is true and correct in all material respects on
and as of the date hereof (except to the extent that any such
representations and warranties expressly relate to an earlier date,
in which case such representations and warranties were true and
correct in all material respects on and as of such earlier date)
including all representations and warranties made in Note
Modification Agreement dated April 14, 1994.
(B) Except as otherwise indicated in this Note Modification Agreement
and Waiver, no event has occurred nor has any situation existed,
since September 12, 1991, which would have resulted, either
immediately, or with notice or the lapse of time or both, in an Event
of Default under the Loan Agreement or the Notes (in each case as
amended by this Note Modification Agreement and Waiver), and the
execution and delivery of this Note Modification Agreement and Waiver
will not result, either immediately, or with notice or lapse of time
or both, in an Event of Default under the Loan Agreement or the Notes
(in each case as amended by this Note Modification Agreement and
Waiver). No event has occurred which, either immediately, or after
the giving of notice or the lapse of time or both, would constitute
an event of default under any other evidence of Funded Indebtedness
of the Company.
4. Miscellaneous.
(A) Defined Terms. Capitalized terms used herein but not defined
shall have the respective meanings ascribed thereto in the Notes.
(B) No Other Amendments. Except as expressly provided herein, no term
or provision of the Notes or the Loan Agreement shall be deemed to be
amended, supplemented or modified, and each term and provision of the
Notes and the Loan Agreement shall remain in full force and effect.
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(C) Governing Law. This Note Modification Agreement and Waiver shall
be governed by and construed in accordance with the laws of the state
of New York.
(D) Counterparts. This Note Modification Agreement and Waiver may be
executed in any number of counterparts, each of which shall
constitute on and the same instrument.
All other terms of the Notes and Loan Agreement remain as written.
IN WITNESS WHEREOF, the parties hereto have caused this Note Modification
Agreement and Waiver to be duly executed and delivered in their respective names
by their duly authorized officers, as of the date first above written.
AMERICAN BANKERS INSURANCE GROUP, INC.
("Company")
By:
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
NEW YORK LIFE INSURANCE COMPANY
("Lender")
By:
Name:
Title:
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
("Lender")
By:
New York Life Insurance Company
By:
Name:
Title:
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NOTE MODIFICATION AGREEMENT
NOTE MODIFICATION AGREEMENT dated as of April 14, 1994 by and among
American Bankers Insurance Group, Inc., a Florida corporation (the "Company"),
and each of the lenders set forth on Annex I hereto (the "Lenders").
WITNESSETH:
WHEREAS, on September 12, 1991, the Company issued its $23,000,000
aggregate principal amount of 10.20% Promissory Notes (the "Notes") to the
several Lenders pursuant to that certain Loan Agreement dated as of September
12, 1991 (the "Loan Agreement"), by and between the Company, on the one hand,
and the several Lenders, on the other hand;
WHEREAS, the Company has informed the Lenders that it intends to issue on a
continuous basis up to $200,000,000 aggregate principal amount of medium term
notes, due nine months to thirty years from the date of issuance (the "Medium
Term Notes"), pursuant to an Indenture of Trust (the "Indenture") between the
Company and The Bank of New York, as trustee (the "Trustee");
WHEREAS, the Company has informed the Lenders that, in connection with the
issuance of the Medium Term Notes, it will enter into an amendment (the
"Amendment") of that certain Amended and Restated Revolving Credit and
Reimbursement Agreement by and between the Company and Barclays Bank PLC, New
York Branch, as agent (in such capacity, the "Agent"), the Issuing Bank, as
defined therein, and the Banks, as described therein (the "Revolving Credit
Agreement"), pursuant to which the security interest granted by the Company in
favor of the Agent for the ratable benefit of the Issuing Bank and the Banks,
pursuant to the Pledge Agreement (as defined in the Revolving Credit Agreement),
in the Pledged Stock (as defined in the Pledge Agreement) shall be released and
the Pledge Agreement shall be terminated; and
WHEREAS, the Amendment and the Indenture will provide that if an event of
default under the Revolving Credit Agreement shall have occurred and be
continuing, immediately upon the request of the Agent, the Company will (i)
pledge, or to the extent applicable, cause its Subsidiaries to pledge, free and
clear of all encumbrances, all the outstanding capital stock of each Significant
Subsidiary (as defined in the Revolving Credit Agreement) on an equal and
ratable basis (a) to the Agent, for the ratable benefit of the Issuing Bank and
the Banks, and (b) to the Trustee, for the ratable benefit of the beneficial
holders of the Medium Term Notes, and (ii) execute and deliver, and to the
extent applicable, cause its subsidiaries and the Significant Subsidiaries to
execute and deliver, a stock pledge agreement and any other documents in
connection with such stock pledge agreement;
NOW, THEREFORE, in consideration of the premises and the agreements herein
contained and other consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
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1. Modifications to the Notes. The Notes are each hereby amended and
modified as follows:
(A) Paragraph (A) of section 9 of each of the Notes is hereby amended to
read in its entirety as follows:
"(A) Funded Indebtedness. The Company will not, and will not cause or
permit any subsidiary to, create, incur, assume, guarantee or in any manner
become liable in respect of any Funded Indebtedness other than
(i) the Notes and the Medium Term Notes;
(ii) Funded Indebtedness of any subsidiary to the Company or to
another subsidiary, or Funded Indebtedness owing to a subsidiary;
(iii) guarantees of Funded Indebtedness by any subsidiary existing
as of April 14, 1994 pursuant to the LESOP Guaranty Agreement;
(iv) renewals, extensions or modifications of existing Funded
Indebtedness; or
(v) additional Funded Indebtedness of the Company, if
immediately after giving effect thereto and to the retirement of any
indebtedness which is being retired concurrently with the incurrence of such
additional Funded Indebtedness of the Company:
(i) consolidated Senior Indebtedness, excluding the
Notes, does not exceed 40% of Total Capitalization;
(ii) consolidated Funded Indebtedness does not exceed
60% of Total Capitalization; and
(iii) the Company is not in default in any material
respect in any covenant contained in this section 9."
(B) Paragraph(D) of section 9 of each of the Notes is amended to
replace the reference to "Section 7.02(o) of the Revolving Credit Agreement"
with a reference to "Section 7.01(m) of the Revolving Credit Agreement".
(C) Paragraph (F) of section 9 of each of the Notes is amended to
replace the reference to "Section 7.02(o) of the Revolving Credit Agreement"
with a reference to "Section 7.01(m) of the Revolving Credit Agreement".
(D) Paragraph (G) of section 9 of each of the Notes is hereby amended
to replace the reference to the figure "$150 million" with a reference to the
figure "$325 million".
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(E) Paragraph (N) of section 9 of each of the Notes is hereby amended
to replace the reference to the ratio "2.0 to 1" with a reference to the ratio
"4.0 to 1".
(F) Section 11 of each of the Notes is hereby amended as follows:
(i) A new definition of the term "Medium Term Notes" is hereby
added in the appropriate alphabetical order, to read
"Medium Term Notes" shall mean the promissory notes of the
Company issued on a continuous basis in an aggregate principal amount of up to
$200,000,000 outstanding at any one time, due nine months to thirty years from
the date of issuance, pursuant to an Indenture of Trust dated as of April 15,
1994, between the Company and The Bank of New York, as trustee.
(ii) The definition of "Revolving Credit Agreement" set
forth in section 11 of each of the Notes is hereby amended to replace the phrase
"as amended to the Closing Date" with the phrase "as amended or restated through
April 4, 1994".
(iii) A new definition of the term "Revolving Credit
Agreement Amendment" is hereby added in the appropriate alphabetical order, to
read:
"Revolving Credit Agreement Amendment" shall mean the amendment
dated as of April 4, 1994 to the Revolving Credit Agreement."
(G) Paragraph (G) of section 12 of the Notes is hereby amended to read
in its entirety as follows:
"(G) any default shall occur or condition shall exist in respect of
any indebtedness of $1 million or more (other than the Notes) of the Company or
any subsidiary outstanding or under any agreement or instrument relating to any
such indebtedness, the effect of which is to cause (or permit any holder thereof
to cause) the acceleration of the maturity of such indebtedness, and in such
event the entire principal of, and all accrued interest on, and a premium
calculated in accordance with paragraph (A) of section 4 with respect to, this
Note shall become immediately due and payable, without demand or notice of any
kind;".
2. Representations and Warranties. As, among other things, an
inducement to each of the Lenders to enter into this Agreement and to consent to
the issuance of the Medium Term Notes pursuant to the Indenture and the
execution of the Amendment in connection therewith, the Company represents and
warrants as of the date hereof, after giving effect to the execution and
delivery of this Agreement, the Amendment and the Indenture, and the
consummation of the transactions contemplated thereby, that:
(A) Each of the representations and warranties of the Company
made in or pursuant to the Loan Agreement, or pursuant to any certificate or
other document delivered in connection therewith, is true and correct in all
material respects on and as of the date hereof as if
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made on and as of the date hereof (except to the extent that any such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties were true and correct in all material
respects on and as of such earlier date); provided that for the purposes this
clause (A), the reference to the fiscal year ended December 31, 1990 contained
in section 2(A) of the Loan Agreement shall be deemed to be a reference to the
fiscal year ended December 31, 1993, and references to all reports filed with
the Securities and Exchange Commission shall be deemed to be the most recently
filed of such report or reports.
(B) No event has occurred nor has any situation existed, since
September 12, 1991, which would have resulted, either immediately, or with
notice or the lapse of time or both, in an Event of Default under the Loan
Agreement or the Notes (in each case as amended by this Agreement), and the
execution and delivery of the Amendment and the Indenture, and the consummation
of the transactions contemplated thereby, will not result, either immediately,
or with notice or lapse of time or both, in an Event of Default under the Loan
Agreement or the Notes (in each case as amended by this Agreement). No event has
occurred nor has any situation existed or is existing which, either immediately,
or after the giving of notice or the lapse of time or both, would constitute an
event of default under any other evidence of Funded Indebtedness of the Company.
3. Miscellaneous.
(A) Defined Terms. Capitalized terms used herein but not defined
shall have the respective meanings ascribed thereto in the Notes.
(B) No Other Amendments. Except as expressly provided herein, no
term or provision of the Notes or the Loan Agreement shall be deemed to be
amended, supplemented or modified, and each term and provision of the Notes and
the Loan Agreement shall remain in full force and effect.
(C) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(D) CounterParts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in their respective names by their duly authorized
officers, as of the date first above written.
AMERICAN BANKERS INSURANCE GROUP, INC.
By:
--------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
NEW YORK LIFE INSURANCE COMPANY
By:
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Name:
Title:
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By:
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Name:
Title:
PROVIDENTMUTUAL LIFE AND ANNUITY
COMPANY
By:
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Name:
Title:
CONTINENTAL AMERICAN LIFE INSURANCE
COMPANY
By:
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Name:
Title:
