LOAN AGREEMENT
Exhibit
10.6
THIS LOAN AGREEMENT(hereinafter called “Agreement”)made and
entered into this 8th day of December, 2006 by and between UTG,
INC (UTG). , a Delaware corporation, (hereinafter
called
"Borrower") and FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a
national banking association having its principal office located in Memphis,
Tennessee ("Lender").
W I
T N E S S
E T H :
WHEREAS, the Borrower desires to borrow from
Lender Eighteen Million Dollars
($18,000,000.00) in the form of a term note and Five Million Dollars
($5,000,000.00) in the form of a revolving line of credit. NOW, THEREFORE,
in consideration of the premises and the mutual agreements, covenants and
conditions herein contained, the parties hereto hereby agree as follows:
AGREEMENTS
1. COMMITMENT AND FUNDING.
1.1 The Commitment. Subject to the terms and conditions
herein set out, Lender agrees and commits to make loans (the "Loans") to
Borrower in form of term note for $18,000,000.00 and revolving line of credit
for $5,000,000.00. Such borrowings shall be evidenced by, and shall be
payable in accordance with the terms and provisions of respective promissory
notes executed by Borrower, as maker, attached hereto and incorporated herein
by
reference (such promissory notes together with any renewals, modifications
and
extensions thereof is herein referred to as the "Notes").
1.2 Funding. The advance of Loan proceeds hereunder
shall be made, upon Borrower's request, by depositing the same into a demand
deposit account with Lender or wiring of funds per specific instructions
of
Borrower. The Loans to Borrower may be made, at Borrower's request, in one
or more advances, each of which shall be subject to the terms and conditions
of
this Agreement, including but not limited to Sections 2.1 and 2.2 hereof.
1.3 Prepayments. The Borrower may, at its option, from
time to time, prepay any of the Loans in whole or in part. Any Loan which
bears interest at a fixed rate will be subject to a prepayment premium as
set
forth in the Note for such loan.
1.4 Interest Rate. The Loan indebtedness evidenced by
the Notes shall bear interest from date at the variable or fixed rate determined
in accordance with the terms and provisions of the Notes.
2. CONDITIONS OF LENDING.
2.1 Loan Documents. The obligation of Lender to fund
the Loans is subject to the condition precedent that Lender shall have received
at or before the execution of this Agreement all of the following in form
and
substance satisfactory to Lender provided that if any of the following shall
not
have been furnished to Lender at or before the date of this Agreement, the
same
shall be furnished promptly thereafter unless Lender shall waive any such
requirement in writing.
a) The Notes;
b)
This Loan Agreement;
c)
Commercial Pledge Agreement covering stock in Universal Guaranty Life;
d)
Negative Pledge Agreement on common stock of ACAP;
e)
Current certificates of
good standing for the Borrower in the State of
Delaware.
f)
Certified corporate resolutions of Borrower authorizing the execution,
delivery and performance of this Loan Agreement and of the other instruments
and
documents to be executed and delivered in connection herewith.
g)
A copy of Borrower’s Form 10-Q for the quarter ended June 30, 2006 and Form 10-K
for the year ended December 31, 2005, it being understood that Lender is
relying
upon the audit report of Xxxxx Xxxxx Xxxxxxx LLC contained in the Form 10-K
in
entering into this Loan Agreement and June 30, 2006 Statutory statements
for Universal Guaranty Life Insurance Co.
i)
The Notes, this Loan Agreement, collateral pledge agreement, negative pledge
agreement and any other documents executed by Borrower in connection herewith
shall be referred to hereinafter as the "Loan Documents".
2.2 Other Conditions. The obligation of the Lender to
fund the Loans is subject to each of the following further terms and
conditions:
a) At the time of funding of any Loan advances
hereunder, each
of Borrower's warranties and representations contained herein shall be and
remain true and correct in all material respects. In addition, no Event of
Default (as defined in Section 6 hereof) shall have occurred and be continuing,
and, if requested by Lender, Borrower shall execute a certificate verifying
each
of such matters to be true in all respects, if such be the case.
b) At the time the loans are closed hereunder,
there shall have occurred, in the
opinion of Lender, no material adverse changes in the condition, financial
or
otherwise, of Borrower or UG from that reflected in the financial statements
furnished pursuant to Section 2.1 hereof.
3.
REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender to enter into
this
Agreement and to make the Loans, the Borrower represents and warrants to
the
Lender (which representations and warranties shall survive the delivery of
the
Loan Documents and the funding of the Loan) that:
3.1 Corporate Status. Borrower is a corporation duly
organized and existing under the laws of the State of Delaware, is duly
qualified to do business and is in good standing under the laws of the State
of
Delaware, and has the corporate power and authority to own its properties
and
assets and conduct its affairs and business.
3.2 Corporate Power and Authority. Borrower has full
power and authority to enter into this Agreement, to borrow funds contemplated
herein, to execute and deliver this Agreement, the Notes and other Loan
Documents executed and delivered by it, and to incur the obligations provided
for herein, all of which have been duly authorized by all proper and necessary
corporate action; and the officer executing each of the Loan Documents is
duly
authorized to do so by all necessary corporate action. Any consents or
approval of shareholders of Borrower required as a condition to the validity
of
any Loan Document have been obtained; and each of said Loan Documents is
the
valid, legal, and binding obligation of Borrower enforceable in accordance
with
its terms.
3.3 No Violation of Agreements or Law. Neither Borrower
nor UG is in default under any indenture, agreement or instrument to which
it is
a party or by which it may be bound, nor in violation of any state or federal
statute, rule, ruling, or regulation governing its operations and the conduct
of
its business, operations or financial condition of Borrower or UG. Neither
the execution and delivery of the Loan Documents nor the consummation of
the
transactions herein contemplated, or compliance with the provisions hereof
will
conflict with, or result in the breach of, or constitute a default under,
any
indenture, agreement or other instrument to which Borrower is a party or
by
which it may be bound, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property of Borrower, or violate or
be in
conflict with any provision of the charter or bylaws of Borrower.
3.4 Compliance With Law; Government Approvals.
(a) Borrower has complied and is complying
with all requirements, made all
applications, and submitted all reports required by the appropriate state
insurance regulatory authorities, and any regulations or rulings issued in
connection therewith, and the transaction contemplated hereby will not violate
any such statutes, rules, rulings, or regulations nor will the consummation
of
said actions and transactions cause Borrower to be in violation thereof.
Borrower has, as required, received all governmental approvals necessary
for the
consummation of the transaction described herein.
(b) Borrower has complied and is complying with
all other applicable
state or federal statutes, rules, rulings and regulations. The borrowing
of money as described herein and said actions and transactions will not violate
any of such statutes, rules, rulings, or regulations. Borrower has made
all filings and received all governmental or regulatory approvals necessary
for
the consummation of the transactions described herein.
3.5 Litigation. There are no actions, suits or
proceedings pending or, to the knowledge of the Borrower threatened against
before any court, arbitrator or governmental or administrative body or agency
which, if adversely determined, would result in any material and adverse
change
in the financial condition, business operation, or properties or assets of
the
Borrower.
3.6 Financial Condition. The balance sheets and the
related statements of income of Borrower and UG, which have been delivered
to
the Lender pursuant to Sections 2.1 hereof and the financial reports of Borrower
and UG which will be delivered to Lender pursuant to Section 4.5 hereof are,
or
will be as of their respective dates and for the respective periods stated
therein, complete and correctly and fairly present the financial condition
of
Borrower and UG, and the results of their operations, respectively, as of
the
dates and for the periods stated therein, and have been, or will be as of
their
respective dates and for the respective periods stated therein, prepared
in
accordance with generally accepted accounting principles consistently applied
throughout the period involved. There has been no material adverse change
in the business, properties or condition of Borrower or UG since the date
of the
financial statement furnished to Lender pursuant to Section 2.1 hereof.
3.7 Tax Liability. Borrower and UG have filed all tax
returns which are required to be filed by them, and have paid all taxes which
have become due pursuant to such returns or pursuant to any assessments received
by them.
3.8 Subsidiaries. Upon completion of the pending
acquisition of American Capitol Insurance Company, Borrower has the following
subsidiaries: Universal Guaranty Life Insurance Company, North Plaza of
Somerset, Inc., Roosevelt Equity Corporation, Hampshire Plaza Garage, LLC,
UTAG,
Inc., ACAP Corporation, American Capitol Insurance Company, Texas Imperial,
Inc., Texas Imperial Life Insurance Company.
4.0 AFFIRMATIVE COVENANTS. Borrower covenants and
agrees that, until the Notes together with interest thereon are paid in full,
unless specifically waived by the Lender in writing, Borrower will, or will
cause Borrower and UG to:
4.1 Business and Existence. Perform all things
necessary to preserve and keep in full force and effect the existence, rights
and franchises of Borrower and to comply with all laws and regulations
applicable to Borrower and UG, including, but not limited to, laws and
regulations of state and federal authorities applicable to insurance holding
companies.
4.2 Maintain Property. Maintain, preserve, and protect
all properties used or useful in the conduct of Borrower's business and
keep the same in good repair, working order and condition.
4.3 Insurance. At all times keep the insurable
properties of Borrower adequately insured and maintain in force (i) insurance,
to such an extent and against such risks, including fire, as is customary
with
companies in the same or similar business, (ii) necessary workmen's compensation
insurance, fidelity bonds and errors and omissions insurance coverage in
amounts
reasonably satisfactory to Lender, and (iii) such other insurance as may
be
required by law; and if required by Lender, deliver to the Lender a copy
of the
bonds and policies providing such coverage and a certificate of Borrower's
chief
executive officer, as the case may be, setting forth the nature of the risks
covered by such insurance, the amount carried with respect to each risk,
and the
name of the insurer.
4.4 Taxes and Liens. Pay and discharge promptly all
taxes, assessments, and governmental charges or levies imposed upon Borrower
or
upon any of their respective income and profits, or their properties, real,
personal or mixed, or any part thereof, before the same shall become delinquent;
provided, however, that Borrower shall not be required to pay and discharge
or
to cause to be paid and discharged any such tax, assessment, charge, levy
or
claim so long as the amount or validity thereof shall be contested in good
faith
by appropriate proceedings.
4.5 Financial Reports. Furnish to Lender (a) as soon as
available and in any event within ninety (90) days after the end of each
calendar year, audited GAAP financial statements of Borrower and within one
hundred fifty (150) days after the end of each calendar year, audited SAP
statements of UG. In addition, Borrower and UG to provide Lender quarterly
un-audited financial statements no later than forty five (45) days after
end of
each calendar quarter; and (b) promptly upon receipt, copies of all management
letters and other assessments and recommendations, formal or informal, submitted
by the Certified Public Accountants to Borrower or UG.
4.6 Regulatory Examinations. If legally permitted to do so,
(a) promptly notify Lender upon receipt of any material correspondence,
report, memoranda or other written communication between any federal or state
regulatory body or authority, with respect to the properties, loans, operations
and/or condition of Borrower, UG or both; and (b) if required by Lender,
fully
and completely assist and cooperate with Lender in requesting approval by
such
regulatory body or authority of the furnishing to Lender of any such report,
and
furnish such report to Lender if such approval is given; provided, however,
that
Lender shall take such steps as may be necessary to assure that all such
reports
shall remain confidential and shall be used by Lender solely in connection
with
the administration of the Loan in accordance with the provisions of this
Agreement.
4.7 Additional Information. Furnish such other
information regarding the operations, business affairs and financial condition
of Borrower and UG as Lender may from time to time reasonably request, including
but not limited to true and exact copies of any monthly management reports
to
their respective directors, their respective tax returns, and all information
furnished to shareholders.
4.8 Right of Inspection. Except to the extent, if any,
prohibited by applicable law, permit any person designated by Lender, to
inspect
any of the properties, books and financial and other reports and records
of
Borrower and UG, and to discuss their affairs; finances and accounts with
Borrower's and UG’s principal officers, at all such reasonable times and as
often as Lender may reasonably request.
4.9 Notice of Default. At the time of Borrower's first
knowledge or notice, furnish the Lender with written notice of the occurrence
of
any event or the existence of any condition which constitutes or upon written
notice or lapse of time or both would constitute an Event of Default under
the
terms of this Loan Agreement.
4.10 Compliance with Insurance Regulations. At all times be in
compliance with, cause UG to be in compliance with, all insurance and insurance
holding company laws, rules and regulations applicable to Borrower or UG.
4.11 Statutory Capital/Assets: Borrower shall cause UG to maintain
the ratio of its aggregate capital and surplus divided by the its total assets
less “separate accounts” as defined on the SAP statements of UG at all times at
or greater than seven percent (7.0%).
4.12 Dividend Capacity: UG will, within a twelve (12) month
rolling
period, maintain the financial ability under applicable law to pay to the
Borrower, with respect to Borrower’s ownership interest in UG, a dividend of at
least $2,500,000.00.
4.13 Maximum Funded Debt to Cash Flow: Borrower will maintain
the ratio of funded debt divided by cash flow of no greater than 4.5:1 (For
purposes of this ratio, Funded debt shall be defined as direct obligations
for
borrowed money of Borrower, less any subordinated debt and cash flow shall
be
defined as Borrower’s consolidated EBITDA for the trailing 4-quarters.)
4.14 Compliance Certificate Furnish Lender a certificate of compliance
duly certified by the chief financial officer of Borrower within thirty (30)
days after the end of each calendar quarter stating that Borrower and UG
are in
compliance with all terms, covenants and conditions of this Loan Agreement
and
all related Loan Documents.
5.0 NEGATIVE
COVENANTS. Borrower agrees that, until the indebtedness evidenced by
the Notes, together with interest, is paid in full, without the prior consent
of
lender, which shall not be unreasonably withheld:
5.1
Indebtedness. Neither Borrower nor its subsidiaries
shall create,
incur, assume or suffer to exist, contingently or otherwise, any indebtedness,
except for the following indebtedness:
i) the indebtedness of
Borrower under the Loans;
ii)
operating expenses, trade payables and leases incurred by Borrower or its
subsidiaries in the ordinary course of business;
iii) indebtedness owed by the
Borrower to any other subsidiary;
iv)
indebtedness reflected
on Borrower's financial statements dated as of
June 30, 2006;
v) borrowings under UG’s working capital
line of credit
5.2 Merger,
Dissolution, Acquisition of Assets, Affiliates and Subsidiaries.
Borrower will not enter into, or permit UG to enter into, any transaction
of
merger or consolidation, or any reorganization, reclassification of stock,
change in capital structure; or acquire, or permit UG to acquire, all of
the
stock, property or assets of any other corporation, partnership or other
entity,
except for the following:
i) the pending acquisition
of American Capitol Insurance Company
Borrower agrees to notify Lender before the
consummation of any type of transaction referenced in this section of Loan
Agreement. Lender will submit its written response to Borrower no later
than five (5) business days of the date of original notification. If
Lender does not submit its written denial or consent for any notification
within
the specified time, Borrower may interpret said non-response as
consent.
5.3 Dividends,
Redemptions and Other Payments. Borrower will not, without consent of
Lender, which shall not be unreasonably withheld, declare or pay any dividends
if an Event of Default has occurred and is continuing under this Agreement
or
the payment of a dividend would create an Event of Default.
5.4 Capital
Expenditures. Neither Borrower nor UG will make or become committed to
make, directly or indirectly, during any calendar year, capital expenditures
which for Borrower and UG exceed amounts deemed acceptable to applicable
regulatory authorities.
5.5 Sale of
Assets. Neither Borrower nor UG will sell, lease, transfer or dispose
of all or any substantial part of its assets, including the assets of any
of its
subsidiaries other than in the normal course of business.
6.0 DEFAULT AND
REMEDIES.
6.1 Events of
Default. Any one or more of the following events shall constitute a
default (which, if not cured within the applicable cure period, if any, shall
constitute an "Event of Default") under the terms of this Agreement:
(a) Default in the payment
when due of the principal of or interest on the Notes.
(b) Default in the
performance of any provisions or breach of any covenant of this Agreement
or any
other Loan Document.
(c) If any representation
or warranty or any other statement of fact contained herein, in any other
Loan
Document, or in any writing, certificate, or report or statement at any time
furnished to Lender pursuant to or in connection with this Agreement shall
prove to be false or misleading in any material respect.
(d)
If Borrower should default under any loan, extension of credit, security
agreement,
purchase or sales agreement, or any other
agreement, in favor of any other creditor or persons that may materially
affect
any of Borrower’s property or Borrower’s ability to repay the indebtedness or
perform their respective obligations under this Agreement or any of the Related
Documents.
(e) This Agreement or any
of the Related Documents ceases to be in full force and effect (including
failure of any collateral document to create a valid and perfected security
interest or lien) at any time and for any reason.
(f) If Borrower or
UG file a petition in bankruptcy or seeks reorganization or arrangements
under
the Bankruptcy Code (as it now exists or as amended); is unable or admits
in
writing its inability to pay its debts as they become due or is not generally
paying its debts as they come due; makes an assignment for the benefit of
creditors; has a receiver, custodian or trustee appointed voluntarily or
involuntarily, for its property; or is adjudicated bankrupt; or if an
involuntary petition is filed in bankruptcy, for reorganization or arrangements,
or for the appointment of a receiver, custodian or trustee of Borrower or
UG on
their respective properties and if Borrower or UG either acquiesce therein
or
fails to have such petition dismissed within sixty (60) days of the filing
thereof.
(g) If there shall at any
time occur without the prior written approval of Lender a change in control
of
Borrower.
6.2 Remedies.
If an Event of Default shall occur,
at any time thereafter so long as such Event
of Default continues uncured, Lender may, at its option without demand or
notice
(except as otherwise provided herein), the same being expressly waived, declare
the Loan, with interest thereon, to be immediately due and payable, and may
proceed to exercise all rights and remedies available under the Loan Documents,
at law or in equity, concurrently or sequentially, in such order as Lender
may
elect, all such rights and remedies being cumulative. If any default, other
than
a default on indebtedness, is curable and if Borrower has not been given
a
notice of a similar default within the preceding 12 months, it may be cured
within 30 days or if the cure requires more than 30 days, Borrower shall
initiate steps to cure said default.
7.0
MISCELLANEOUS.
7.1
Amendments. The provisions of this Loan Agreement
and the other
Loan Documents may be amended or modified only by an instrument in writing
signed by the parties thereto.
7.2 Notices.
All notices and other communications
provided for hereunder shall be in writing
and shall be mailed, certified mail, return receipt requested or delivered,
if
to the Borrower, at
0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, XX, 00000,
and if to the Lender, to it at 000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxx, 00000, Attention: Correspondent Services; or as to any such person
at
such other address as shall be designated by such person in a written notice
to
the other parties hereto complying as to delivery with the terms of this
Section
7.2. All such notices and other communications shall be effective (i) if
mailed, when received or three business days after mailing, whichever is
earlier; or (ii) if delivered, upon delivery.
7.3 No Waiver,
Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Lender, any right, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. Waiver of
any right, power, or privilege hereunder or under any instrument or document
now
or hereafter evidencing or securing the Loan is a waiver only as to the
specified item. The rights and remedies herein provided are cumulative and
not exclusive of any rights or remedies provided by law.
7.4 Binding
Effect. This Loan Agreement shall be binding upon, and inure to the
benefit of the parties hereto and their respective heirs, successors, and
assigns, except that Borrower shall not have the right to assign its rights
hereunder or any interest therein without the prior written consent of
Lender.
7.5 Governing
Law. This Loan Agreement shall be governed and construed in accordance
with the laws of the State of Tennessee; except that the provisions hereof
which
relate to the payment of interest shall be governed by (i) the laws of the
United States or, (ii) the laws of the State of Tennessee, whichever permits
the
Lender to charge the higher rate, as more particularly set out in the
Notes.
7.6 Venue of
Actions. As an integral part of the consideration for the making of
the Loan hereunder, it is expressly understood and agreed that no suit or
action
shall be commenced by the Borrower, or by any successor, personal representative
or assignee of it, with respect to the Loan contemplated hereby, or with
respect
to any of the Loan Documents, other than in a state court of competent
jurisdiction in and for the County of the State in which the principal place
of
business of the Lender is situated, or in the United States District Court
for
the District in which the principal place of business of the Lender is situated,
and not elsewhere. Nothing in this paragraph contained shall prohibit
Lender from instituting suit in any court of competent jurisdiction for the
enforcement of its rights hereunder or under any other Loan Document, but
the
parties stipulate and agree that the courts specified in the preceding sentence
of this section shall be an appropriate forum for any such suit.
7.7 Terminology;
Section Headings. All personal pronouns used in this Loan Agreement
whether used in the masculine, feminine, or neuter gender, shall include
all
other genders; and the singular of any such pronoun or of any term defined
herein shall include the plural, and vice versa. Section headings are for
convenience only and neither limit nor amplify the provisions of this Loan
Agreement.
7.8 Enforceability of
Agreement. Should any one or more of the provisions of this Loan
Agreement be determined to be illegal or unenforceable, all other provisions
nevertheless, shall remain effective and binding on the parties hereto. In
the event that the provisions of the Note or this Loan Agreement governing
the
determination of the rate of interest on the Loan should be construed by
a court
of competent jurisdiction not to constitute a valid, enforceable designation
of
a rate of interest or method of determining the same, the Loan indebtedness
shall bear interest at the maximum effective variable contract rate which
may be
charged by Lender under applicable law from time to time in effect.
7.9 Interest
Limitations. It is the intention of the parties hereto to comply
strictly with all applicable usury laws; and, accordingly, in no event and
upon
no contingency shall Lender ever be entitled to receive, collect, or apply
as
interest any interest, fees, charges or other payments equivalent to interest,
in excess of the maximum rate for which Borrower may lawfully contract under
applicable law, from time to time in effect. Any provision hereof, or of
any other agreement executed by Borrower that would otherwise operate to
bind,
obligate or compel Borrower to pay interest in excess of such maximum lawful
rate shall be construed to require the payment of the maximum rate only.
The provisions of this paragraph shall be given precedence over any other
provisions contained herein or in any other agreement applicable to the Loan,
that is in conflict with the provisions of this paragraph.
7.10 Non-Control. In no
event shall Lender's rights hereunder be deemed to indicate that Lender is
in
control of the business, management or properties of Borrower or UG or has
power
over the daily management functions and operating decisions made by Borrower
or
UG.
7.11 Fees and Expenses.
Borrower agrees to pay Lender a fee
of Ten Thousand Dollars ($10,000.00) for
actual out-of-pocket expenses, including due diligence expenses and legal
fees
incurred by Lender in connection with the development, preparation, execution,
recording of loan and loan documents. Any expenses related to future
amendment, administration or enforcement of, or the preservation of any rights
under this Loan Agreement and the other Loan Documents, or the collection
of the
Loan therefore will also be at the expense of the Borrower.
7.12 Indemnification.
Borrower hereby agrees to indemnify
Lender against, and hold Lender harmless
from, any and all claims, suits and damages asserted against Lender by any
person or entity [including, but not limited to, shareholders and former
shareholders of UTG, Inc.] arising out of or asserted with respect to the
transactions contemplated by this Loan Agreement and shall pay all attorneys'
fees and costs in connection with the defense of any such claim.
7.13 Waiver of Right to Trial by
Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING
UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR
DELIVERED IN CONNECTION HEREWITH OR (B) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED
HERETO
OR THERETO, IN EACH WHETHER NOW EXISTING OR HEREAFTER ARISING: AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY
TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION
WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE
WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
7.14
Confidentiality. (a) Lender agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed
(i) to
its and its affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (ii) to the extent requested by any regulatory authority,
(iii)
to the extent required by applicable laws or regulations or by any subpoena
or
similar legal process, (iv) in connection with the exercise of any remedies
hereunder or any suit, action or proceeding relating to this Agreement or
the
enforcement of rights hereunder, (v) subject to an agreement containing
provisions substantially the same as those of this Section, to [1] any assignee
of or participant in, or any prospective assignee of or participant in, any
of
Lender’s rights or obligations under this Agreement or [2] any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (vi) with the consent of the
Borrower or (vii) to the extent such Information [1] becomes publicly available
other than as a result of a breach of this Section or [2] becomes available
to
Lender on a nonconfidential basis from a source other than the Borrower.
For the
purposes of this Section, "Information" means all information received
from the Borrower relating to the Borrower or its business, other than any
such
information that is available to Lender on a nonconfidential basis prior
to
disclosure by the Borrower; provided that, in the case of information
received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Lender shall be considered
to have complied with its obligation to maintain the confidentiality of
Information hereunder if Lender has exercised the same degree of care to
maintain the confidentiality of such Information as Lender would accord to
its
own confidential information.
IN WITNESS WHEREOF, Borrower and Lender have
caused this Agreement to be duly executed by their respective officers thereunto
duly authorized as of the day and year first above written.
UTG, INC. (“Borrower”)
By:_/s/ Xxxxxxxx X.
Miller___________
Title:_Sr. Vice
President __________
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
(“Lender”)
By:_/s/ X. Xxxxxx Robinson__________
Title:_Sr. Vice
President____________
