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EXHIBIT 99.c
LOAN AGREEMENT
THIS AGREEMENT is made this 21st day of February, 1997, by and among
AMERICAN HERITAGE LIFE INVESTMENT CORPORATION, a Florida corporation (the
"Borrower"), XXXXXXX BANK, N.A. ("Xxxxxxx"), SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION ("SouthTrust"), SUNTRUST BANK, NORTH FLORIDA, N.A.
("SunTrust") and XXXXXXX BANK, N.A. (in such capacity, and for so long as it
shall serve in such capacity hereunder, the "Agent"), as agent for Xxxxxxx,
SouthTrust and SunTrust. Xxxxxxx, SouthTrust and SunTrust are collectively
referred to herein as the "Lenders".
RECITALS
The Borrower wishes to obtain credit from the Lenders on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the parties agree
as follows:
ARTICLE I
BORROWING AND PAYMENT
1.01 Revolving Credit Advances. The Lenders hereby establish a
revolving line of credit (the "Line of Credit") in favor of the Borrower. The
Borrower shall be entitled to borrow, repay and reborrow funds from each Lender
on a revolving basis during a period (the "Revolving Period") commencing on the
date hereof and ending on January 30, 2000, in accordance with the terms hereof
so long as: (a) the total principal amount owed to all of the Lenders hereunder,
on a combined basis, does not exceed the Commitment Amount (as defined herein)
then in effect; and (b) the total principal amount owed to each Lender hereunder
at any one time does not exceed the Commitment Amount for such Lender set forth
herein. For purposes hereof, the "Commitment Amount" shall mean: (a)
$100,000,000 commencing on the date hereof and continuing for a period of 89
days thereafter; and (b) commencing on the 90th day following the date hereof
and continuing thereafter, $100,000,000 or such lesser amount as the Borrower
may specify by written notice to the Agent during the 89 day period following
the date hereof. Each Lender's Commitment Amount shall equal the following
percentage (as to each Lender, the "Lender's Percentage") of the Commitment
Amount in effect from time to time:
Percentage of
Lender Commitment Amount
------ -----------------
Xxxxxxx 40%
SouthTrust 30%
SunTrust 30%
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1.02 Advances.
(a) The Borrower may request advances under the Line of Credit
by giving the Agent written or telecopied notice, or oral notice with
written confirmation, specifying the date (the "Advance Date") and
amount of such advance (which Advance Date shall be a banking business
day). The Agent must receive the notice not later than 10:00 a.m.
(Eastern time) on the Advance Date. The Agent shall give written,
telecopied or oral notice of such request to each of the Lenders
promptly upon receipt of such notice. Each Lender shall be obligated to
fund its proportionate share of the requested advance based upon each
Lender's Percentage of the Commitment Amount. Each Lender shall
transfer an amount equal to its share of the requested advance to the
Agent in immediately available funds not later than 2:00 p.m. on the
Advance Date. The Agent shall thereafter credit such funds to an
account maintained by the Borrower with the Agent. Notwithstanding the
foregoing, no Lender shall be obligated to make any advance hereunder
if: (i) any condition to advances hereunder has not been satisfied at
the time of the advance; or (ii) such Lender's commitment to make
advances has expired or terminated. No Lender shall be obligated to
make advances on behalf of any other Lender if such other Lender fails
to make any required advance hereunder. Each Lender's obligation to
make advances hereunder shall terminate at the expiration of the
Revolving Period or on such earlier date as is set forth herein.
(b) The Agent may, but shall not be obligated to, advance
funds on behalf of any Lender (each, a "Defaulting Lender") which shall
fail to cause the Agent to receive immediately available funds in the
amount of the Defaulting Lender's share of the advance on or before
2:00 p.m. on any Advance Date. If the Agent makes the advance on behalf
of the Defaulting Lender, the Defaulting Lender shall, on demand, repay
the Agent such advance together with interest thereon at the overnight
federal funds rate plus two percent (2.0%) per annum until paid in
full. A Defaulting Lender shall be deemed to have assigned to the Agent
the right to receive any and all payments due to it with respect to the
advance funded by the Agent until the sum of such payments received by
the Agent is equal to the amount owed to the Agent by such Defaulting
Lender. The foregoing assignment shall be absolute and irrevocable.
Nothing in this subsection shall be deemed to relieve any Lender from
its obligation to fund its share of advances under the Line of Credit
or to prejudice any rights which the Borrower, the Agent or any Lender
may have against any Lender hereunder for the Lender's failure to make
funds available when required in accordance with this Agreement. The
provisions of this subparagraph shall inure solely to the benefit of
the Agent and the Lenders (other than any
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Defaulting Lender) and shall not inure to the benefit of, or be
enforceable by, the Borrower.
1.03 Payments.
(a) The indebtedness (the "Indebtedness") under the Line of
Credit shall be evidenced by revolving credit notes (as amended,
extended or renewed from time to time, the "Notes") of even date
herewith executed by the Borrower in favor of each Lender in the amount
of each Lender's Percentage of the Commitment Amount (determined as of
the date hereof). The Notes shall bear interest at the rate set forth
therein and shall be payable as set forth therein.
(b) The Borrower shall make all payments under the Notes to
the Agent for the account of the Lenders. All payments of principal and
interest under the Notes shall, except as otherwise specifically set
forth herein, be allocated among the Lenders on a pro rata basis in
accordance with each Lender's Percentage of the Commitment Amount. The
Agent shall in all events remit all such amounts to the Lenders by wire
transfer as promptly as practicable after receipt of the same. Unless
all of the Lenders direct otherwise, all payments received by the Agent
shall be applied first to fees payable to the Agent hereunder for its
own account, then to fees payable hereunder to the Agent for the
account of the Lenders, then to the costs and expenses as to which the
Required Lenders (as defined herein) have jointly directed payment,
then to accrued interest under the Notes, then to principal under the
Notes and then to all other costs and expenses.
1.04 Fees.
(a) The Borrower shall pay the Agent (for the account of the
Lenders pro rata in accordance with each Lender's Percentage of the
Commitment Amount) a facility fee equal to one-tenth of one percent
(0.10%) of the Commitment Amount as of the 90th day following the date
hereof. The Borrower shall pay such fee on the 90th day following the
date hereof.
(b) The Borrower shall pay the Agent (for the account of the
Lenders pro rata in accordance with each Lender's Percentage of the
Commitment Amount) a commitment fee on the daily average unused amount
of the Line of Credit calculated on the total unused Commitment Amount
during the Revolving Period (excluding, however, the first 90 days of
the Revolving Period) at the rate of one-eighth of one percent (0.125%)
per annum (calculated on the basis of a 360 day year). The Borrower
shall pay the fee 180 days after the date hereof and every 90 days
thereafter (and, as the case may be, at the expiration of the Revolving
Period) until the expiration of the Revolving Period.
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(c) The Borrower has paid the Agent, for the Agent's own
account, a fee of $25,000 prior to the date hereof. The Borrower shall
pay the Agent an additional fee of $25,000 per year commencing one year
from the date hereof and continuing thereafter on each annual
anniversary of such date until all Indebtedness (as defined herein) has
been paid in full.
1.05 Related Terms. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "Insurance Subsidiary" shall mean each Subsidiary that is
licensed as an insurance company under applicable state insurance laws.
(b) "Loan Documents" shall mean and include this Agreement (as
amended from time to time), the Notes and all documents related to the
foregoing documents.
(c) "Subsidiaries" shall mean and include any partnership,
corporation or other entity if the Borrower directly or indirectly owns
or controls a majority of the equity or voting interest in such
partnership, corporation or entity.
ARTICLE II
CONDITIONS
2.01 Conditions to Advances. The obligation of the Lenders to make
advances hereunder or under the Notes on or after the date hereof is subject,
without limitation, to satisfaction of the following conditions precedent:
(a) The Borrower's representations and warranties set forth in
this Agreement and in the Loan Documents shall be true and correct on
and as of the date hereof and on and as of the date of each such
advance.
(b) On the date hereof and on the date of each such advance,
the Borrower shall be in compliance with all the terms and provisions
set forth in this Agreement on its part to be observed or performed,
and no Default or Event of Default (as such terms are defined herein)
shall have occurred.
(c) The Lenders shall have received on or before the date
hereof in form reasonably satisfactory to them: (i) the duly executed
Loan Documents; (ii) such evidence of corporate authorization from the
Borrower as the Lenders may require; (iii) good standing certificates
indicating that the Borrower and each of its Subsidiaries are in good
standing in Florida and in any other state where each is required to
qualify to do business; (iv) certified articles of incorporation and
bylaws of the Borrower and each of its Subsidiaries; and (v) evidence
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satisfactory to the Lenders that the Borrower and each of its
Subsidiaries hold all licenses material to the conduct of their
businesses.
(d) The Agent shall have received on or before the date
hereof, from attorneys for the Borrower acceptable to the Agent, an
opinion addressed to the Agent and the Lenders in form and substance
satisfactory to the Agent.
2.02 Other Documents. The Lenders shall have received on or before the
date hereof or the date of any advance hereunder such other documents or items
as the Bank may reasonably request.
ARTICLE III
AFFIRMATIVE COVENANTS
The Borrower as to itself and as to any Subsidiaries covenants and
agrees that from the date hereof:
3.01 Financial Statements of the Borrower. The Borrower will deliver to
the Lenders the following:
(a) Within ninety (90) days after the end of each fiscal year,
the Borrower's financial statements as of the end of and for such year
in reasonable detail, setting forth in consolidated and comparative
form the corresponding figures for that date and period and for the
corresponding date and period in the preceding fiscal year, certified
by independent certified public accountants of recognized standing
selected by the Borrower and acceptable to the Agent, whose certificate
shall be reasonably satisfactory to the Agent in scope and substance.
(b) Within ninety (90) days after the end of each fiscal year,
the Borrower's financial statements as of the end of and for such year
in reasonable detail, setting forth in consolidating and comparative
form the corresponding figures for that date and period and for the
corresponding date and period in the preceding fiscal year, certified
by the Borrower's chief financial officer.
(c) Within ninety (90) days after the end of each fiscal year,
statutory financial statements as of the end of and for such year for
American Heritage Life Insurance Company ("AHL") and each of the
Borrower's direct and indirect Insurance Subsidiaries.
(d) Within forty-five (45) days after the end of each fiscal
quarter, the Borrower's financial statements as of the end of and for
such period in reasonable detail, setting forth in consolidated and
comparative form the corresponding figures for that date and period and
for the corresponding date and
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accounting period in the preceding fiscal year, certified by the
Borrower's chief financial officer.
(e) Within forty-five (45) days after the end of each fiscal
quarter, the statutory financial statements for each of the Insurance
Subsidiaries as of the end of and for such period in reasonable detail,
certified by the Borrower's chief financial officer.
(f) Not later than sixty (60) days after the end of each
fiscal quarter a compliance certificate, signed by the Borrower's chief
financial officer, in form acceptable to the Agent demonstrating
compliance by the Borrower and any applicable Insurance Subsidiaries
with the financial and other covenants in the loan documents as of the
end of the immediately preceding fiscal quarter.
(g) Promptly upon becoming available, a copy of all reports,
registration statements and other materials filed by the Borrower with
the Securities and Exchange Commission.
(h) Such other information, reports and matters as the Agent
may from time to time reasonably require.
3.02 Financial Information. All financial information submitted by the
Borrower hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect on the date of this Agreement on a basis
consistently applied (except, however, that information as to Insurance
Subsidiaries may be prepared in accordance with statutory accounting
principles). The books of account shall disclose the information necessary for
determining whether the Borrower has satisfied the financial covenants set forth
in this Agreement.
3.03 Taxes and Other Charges. The Borrower and the Subsidiaries, as
applicable, will pay and discharge or cause to be paid and discharged all taxes,
charges, liabilities or claims of any type at any time assessed against or
incurred by the Borrower or any Subsidiary, or which could become a lien against
the Borrower or any Subsidiary or any of their properties. Nothing in this
subsection shall require the payment of any such sum if the Borrower promptly
notifies the Agent and by appropriate proceedings contests the same in good
faith and so long as the Borrower, if so requested by the Agent, creates a
funded reserve equal to the amount so claimed or assessed.
3.04 Insurance. The Borrower and its Subsidiaries will maintain
adequate insurance with responsible insurers with coverage normally obtained by
businesses similar to that of the Borrower or the Subsidiaries, but covering at
least: (i) damage to physical property from fire and other hazards for the full
insurable value of such property; (ii) liability on account of injury to
persons;
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and (iii) insurance against theft, forgery or embezzlement or other illegal acts
of officers or employees in reasonable amounts. If requested by the Agent, the
Borrower will provide the Agent, within ninety (90) days after the end of each
of its fiscal years, a certificate of the Borrower specifying the types and
amounts of insurance in force and the insurers of each risk covered by such
insurance.
3.05 Maintenance of Corporate Existence. The Borrower and its
Subsidiaries will do or cause to be done all things necessary to preserve and
keep in full force and effect their existence, franchises, rights and privileges
as corporations under the laws of their states of incorporation and any other
jurisdiction where, in the opinion of the Borrower's counsel, the Borrower or
any of its Subsidiaries should be qualified to do business. Each will do or
cause to be done all things necessary to preserve and keep in full force and
effect its right to own property and to operate all aspects of its business in a
manner not less favorable to it than those now in existence. Notwithstanding the
foregoing, each Insurance Subsidiary shall be entitled to terminate its
authority to do business, or allow its authority to do business to lapse, in one
or more states so long as such terminations and lapses, on a combined basis as
to each Insurance Subsidiary, will not have a material adverse effect on the
business or prospects of the Insurance Subsidiary.
3.06 Use of Proceeds. The funds borrowed under the Notes shall be used
for the sole purpose of: (i) acquiring life and health insurance companies; (ii)
acquiring blocks of life and health insurance business; and (iii) paying costs
associated with such acquisitions.
3.07 Executive Officers. The Borrower will use its reasonable efforts
to cause its current chief executive officer and chief operating officer to
remain engaged in the active management of the Borrower and to perform duties
substantially similar to those presently performed by such officers. In the
event of the retirement, termination or death of any such person, such person
shall be replaced by a person having similar business experience and expertise.
3.08 Notice of ERISA Requirements. As soon as possible and in any event
within thirty (30) days after the Borrower knows or has reason to know that any
material reportable event, accumulated funding deficiency, prohibited
transaction, disqualification or termination (as such terms are defined in the
Employee Retirement Income Security Act of 1974, as amended) with respect to any
Plan has occurred, the Borrower shall furnish the Agent with the statement of
the chief financial officer of the Borrower setting forth details as to such
event and the action which the Borrower proposes to take with respect thereto,
together with a copy of the notice of such event to the Pension Benefit Guaranty
Corporation.
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For purposes of this Agreement, "Plan" shall mean any employee benefit plan now
or hereafter maintained in whole or in part for employees of the Borrower or its
Subsidiaries which is subject to the provisions of Title IV of the Employee
Retirement Income Security Act of 1974, as amended from time to time, or subject
to the minimum funding standards under Section 412 of the Internal Revenue Code
of 1986, as amended from time to time.
3.09 Other Events. The Borrower shall promptly notify the Agent of any
material default under or material violation of any material agreement, law or
regulation to which the Borrower or any Subsidiary is a party or by which it is
bound.
3.10 Compliance with Laws. The Borrower and its Subsidiaries shall
comply in all material respects at all times with all statutes, regulations,
orders and judgments to which they, or any of them, are subject.
3.11 Access. The Agent (by any of its officers, employees or agents)
shall have the right, exercisable as frequently as the Agent reasonably
determines to be appropriate (but in no event more than once per calendar year
prior to the occurrence of an Event of Default), to inspect, audit and make
extracts from all of the records, files and books of account of the Borrower or
its Subsidiaries. All reasonable costs, fees and expenses incurred by the Agent,
or for which the Agent has become obligated, in connection with any such
inspection, audit and verification shall be payable by the Borrower to the
Agent. The Borrower shall instruct its banking and other financial institutions
to make available to the Agent such information and records as the Agent may
request.
3.12 Material Insurance Subsidiaries. The Borrower shall ensure that
AHL, together with other wholly-owned direct Insurance Subsidiaries of the
Borrower having a Best (as defined herein) rating that is not lower than A-, at
all times account for not less than 75% of the Borrower's consolidated total
assets and not less than 75% of the Borrower's consolidated stockholder's
equity.
ARTICLE IV
NEGATIVE COVENANTS
The Borrower covenants and agrees that neither it nor any Subsidiary
will take any of the following actions from the date hereof:
4.01 Liens. Neither the Borrower nor any Subsidiary will create, incur,
assume or suffer to exist any mortgage, pledge, lien, charge or other
encumbrance of any nature whatsoever on any of the assets of the Borrower or any
Subsidiary now or hereafter owned, or enter into or suffer to exist any
conditional sales
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contracts or other title retention agreements except for Permitted Liens. For
purposes hereof, Permitted Liens shall mean:
(a) liens in favor of the Lenders securing the Indebtedness on
a pro rata basis as to the Lenders;
(b) existing liens described on EXHIBIT "A" attached hereto
(together with any replacement lien arising out of any extension,
renewal or refinancing of any such lien provided that: (i) the
indebtedness secured by each such replacement lien shall not exceed the
indebtedness secured by the lien theretofore existing; and (ii) such
replacement lien attaches only to the same property theretofore
securing the indebtedness so extended, renewed or refinanced);
(c) liens on equipment to secure indebtedness permitted
hereunder to finance the acquisition thereof;
(d) the lien of ad valorem and other taxes and assessments not
yet due and payable;
(e) liens arising out of pledges, deposits, or other amounts
owed under worker's compensation laws, unemployment insurance, old age
pensions or other social security or retirement benefits, or similar
legislation, or to secure payment of premiums for insurance purchased
in the usual course of operations or in connection with self-insurance
or to secure the performance of bids, tenders or trade contracts
incurred in the ordinary course of operations and not in connection
with the borrowing of money;
(f) deposits for indemnity bonds and other bonds required in
the ordinary course of the Borrower's or any Subsidiary's business, and
not in connection with borrowed money;
(g) inchoate materialmen's, suppliers', operators',
mechanics', workmen's, repairmen's, employees', carriers',
warehousemen's or attorneys' liens or other like statutory liens
arising in the ordinary course of business and securing obligations (i)
which are not delinquent or (ii) the amounts or validity of which are
being contested in good faith as to which the Borrower has established
appropriate funded reserves to the extent required by generally
accepted accounting principles;
(h) deposits made by the Borrower or any Subsidiary in the
ordinary course of business;
(i) liens of financial institutions arising in the ordinary
process of collection of instruments; and
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(j) statutory landlord's liens so long as amounts secured
thereby are not past due by more than 30 days.
4.02 Obligations.
(a) Neither the Borrower nor any Subsidiary is or will become
directly or indirectly obligated in any way for any obligation for
borrowed money except for Permitted Obligations. For purposes hereof,
Permitted Obligations shall mean:
(i) working capital lines of credit incurred by the
Borrower from time to time;
(ii) indebtedness incurred solely to finance the
acquisition of equipment in the ordinary course of business so
long as no Default or Event of Default has occurred and is
continuing hereunder and so long as such indebtedness will not
result in a default in the financial covenants hereunder: (aa)
at the time such indebtedness is incurred after giving effect
to such indebtedness; and (bb) on a projected basis based upon
reasonable projections for the term of such indebtedness after
giving effect to such indebtedness;
(iii) customer deposits in the ordinary course of
business;
(iv) obligations described on EXHIBIT "B" attached
hereto;
(v) obligations subordinated to the Indebtedness
pursuant to subordination agreements reasonably acceptable to
the Lenders; and
(vi) obligations resulting from loans and advances
permitted under Section 4.04 hereof.
(b) Neither the Borrower nor any Subsidiary shall without the
Required Lenders' prior written consent: (i) guarantee or purchase any
obligations of any other person or entity; (ii) enter into any credit
support, financial maintenance, credit enhancement or similar
arrangement in favor of any person or entity; or (iii) enter into any
other transaction which is intended to assure performance of the
obligations of any other person or entity. Notwithstanding the
foregoing, the Borrower and each Insurance Subsidiary shall be entitled
in the ordinary course of business to guarantee the performance of
insurance obligations of the Insurance Subsidiaries.
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4.03 Merger; Consolidation; Sale of Substantial Assets. Neither the
Borrower nor any Subsidiary will: (a) merge into, consolidate with, or sell or
transfer all or a substantial part of its assets to, any other person or entity;
(b) sell or transfer any stock or equity interest in any Subsidiary to any other
person or entity (except for transfers to the Borrower or any other wholly owned
Subsidiary); (c) take any action which would reduce the ownership or voting
interest of the Borrower and its Subsidiaries in any Subsidiary; or (d) pledge
or encumber any stock of any Subsidiary. Notwithstanding the foregoing: (a) each
of the Borrower and its Subsidiaries shall be entitled to sell or transfer
assets to wholly owned Subsidiaries; and (b) each Subsidiary shall be entitled
to merge into the Borrower or any other wholly owned Subsidiary so long as the
Borrower owns, directly or indirectly, 100% of the capital stock of the
Subsidiary surviving such merger.
4.04 Loans, Investments and Acquisitions.
(a) Neither the Borrower nor any Subsidiary will purchase any
stock, securities or evidence of indebtedness, or make or permit to
exist any loans or advances to, or make any investment or acquire any
interest in, any other corporation, partnership or other entity or
person (except, however, that the Borrower and its Subsidiaries shall
be entitled to make Permitted Acquisitions in accordance with the terms
hereof). Neither the Borrower nor any Subsidiary shall, without the
Required Lenders' prior written consent, enter into partnership or
joint venture agreements with any other person or entity.
Notwithstanding the foregoing: (i) the Borrower and its Subsidiaries
shall be entitled to extend credit and make advances to wholly owned
Subsidiaries in the ordinary course of business; and (ii) the Borrower
and the Subsidiaries may invest in Eligible Securities. For purposes
hereof, "Eligible Securities" shall mean: (i) with respect to any
Insurance Subsidiaries, all investments permitted for investment
purposes under any applicable laws and regulations governing
investments by the Insurance Subsidiary; and (ii) with respect to the
Borrower and all other Subsidiaries, all investments permitted for
investment purposes under the Florida laws and regulations governing
investments by life insurance companies domiciled in Florida.
Notwithstanding the foregoing, all acquisitions described in
subparagraph (b) below shall be subject to compliance with the terms of
such subparagraph.
(b) The Borrower and its Subsidiaries shall be entitled to
acquire businesses (including, without limitation, blocks or books of
insurance business) through stock acquisitions, asset purchases or
mergers upon satisfaction of the following conditions:
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(i) Each such acquisition shall be made on arms
length terms. The Borrower or one of its Subsidiaries shall,
after consummation of the acquisition, own and control more
than 80% of the outstanding equity and voting rights in any
corporation, partnership or other entity acquired by the
Borrower or any such Subsidiary in connection with the
acquisition.
(ii) Except as otherwise required in subparagraph (c)
below, the Borrower shall have given each of the Lenders not
less than fourteen days prior notice of each acquisition. The
notice shall include: (aa) the name of the company or business
to be acquired (or, as applicable, the name of any company or
entity selling assets to the Borrower or any Subsidiary); (bb)
financial statements for such company or business as of and
for the end of its two most recent fiscal years and as of and
for the end of its most recent fiscal quarter; and (cc) any
projections provided to the Borrower or used by the Borrower
for the company or business to be acquired in connection with
the acquisition. The Borrower shall thereafter provide each
Lender such additional information concerning the acquisition
as any Lender may reasonably request.
(iii) The Borrower shall have prior to the
consummation of the acquisition provided the Lenders with a
certificate executed by the Borrower's chief financial officer
demonstrating that the acquisition will not result in a
default under the financial or other covenants hereunder: (aa)
at the time such acquisition is consummated after giving
effect to such acquisition; and (bb) on a projected basis
based upon reasonable projections after giving effect to such
acquisition.
(iv) Except as provided in subparagraph (c) below,
the Required Lenders shall not have, within fourteen days
after the Borrower has given the notice described in
subparagraph (ii) above, notified the Borrower that they
object to the acquisition.
(c) The Borrower shall be entitled to consummate any Minor
Acquisition (as defined herein) without compliance with the provisions
of the foregoing subparagraphs (ii) and (iv) of subparagraph (b) above
so long as not later than fourteen days after the date that the Minor
Acquisition is consummated:
(i) The Borrower has provided each of the Lenders
with a notice showing: (aa) the name of the company or
business to be acquired (or, as applicable, the name of any
company or entity selling assets to the Borrower or any
Subsidiary); (bb) financial statements for such
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company or business as of and for the end of its two most
recent fiscal years and as of and for the end of its most
recent fiscal quarter; and (cc) any projections provided to
the Borrower or used by the Borrower for the company or
business to be acquired in connection with the acquisition;
and
(ii) The Borrower is not then in default with respect
to its obligation to provide the foregoing information, or any
other information reasonably requested by any Lender, for
prior Minor Acquisitions.
(d) For purposes of this Agreement, the following terms shall
have the following meanings:
(i) "Minor Acquisition" shall mean any acquisition by
the Borrower or any Subsidiary of any business (including,
without limitation, blocks or books of insurance business)
through stock acquisitions, asset purchases or mergers that
would result in an increase in the Borrower's total assets or
total liabilities, determined on a consolidated basis in
accordance with generally accepted accounting principles, in
excess of $10,000,000.
(ii) "Permitted Acquisition" shall mean any
acquisition made in accordance with the foregoing
subparagraphs (b) and (c).
4.05 Nature of Business. Neither the Borrower nor any Subsidiary will
engage in any business if, as a result, the general nature of the business in
which it would then be engaged would be substantially changed from the general
nature of the business engaged in by it on the date of this Agreement.
4.06 Pension Plan Funding Deficiency. Neither the Borrower nor any
Subsidiary shall incur or suffer to exist any material accumulated funding
deficiency within the meaning of the Employee Retirement Income Security Act of
1974 or incur any material liability to the Pension Benefit Guaranty Corporation
(or any successor) established thereunder in connection with any Plan now or
hereafter maintained by any of them.
4.07 Subsidiary Stock. In no event will the Borrower or any
Subsidiaries sell, transfer, assign or encumber the stock of any Subsidiary
(except for transfers to the Borrower and to wholly owned Subsidiaries of the
Borrower).
4.08 Financial Covenants. The Borrower and its Subsidiaries shall
comply at all times with the following financial covenants.
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(a) The Borrower shall comply at all times with the following
cash flow requirements:
(i) The Borrower's Pre-Dividend Cash Flow Coverage
Ratio (as defined herein) as of the first day of each of the
Borrower's fiscal quarters (each, a "calculation date") shall
not be less than 1.25 to 1. The Pre-Dividend Cash Flow
Coverage Ratio shall mean the Borrower's Adjusted Pre-
Dividend Earnings (as defined herein) as of each calculation
date divided by its Adjusted Expenses (as defined herein) as
of each such date. For purposes hereof, the term "Rolling Four
Quarter Period" shall mean the four fiscal quarters
immediately preceding each calculation date.
(ii) The Borrower's Post-Dividend Cash Flow Coverage
Ratio (as defined herein) as of each calculation date shall
not be less than 1.1 to 1. The Post-Dividend Cash Flow
Coverage Ratio shall mean the Borrower's Adjusted
Post-Dividend Earnings (as defined herein) as of each
calculation date divided by its Adjusted Expenses (as defined
herein) as of each such date.
(iii) For purposes hereof, the following terms shall
have the following meanings:
(aa) "Adjusted Pre-Dividend Earnings" as of
each calculation date shall mean: (1) the maximum dividend
amount that could be paid to the Borrower by its Subsidiaries
during the Applicable Fiscal Year (as defined herein) without
prior regulatory approval; plus (2) management, administrative
and similar fees paid to the Borrower by its Subsidiaries and
other affiliates during the applicable Rolling Four Quarter
Period; less (3) preferred stock dividends paid by the
Borrower to its shareholders during the applicable Rolling
Four Quarter Period.
(bb) "Adjusted Post-Dividend Earnings" as of
each calculation date shall mean: (1) the maximum dividend
amount that could be paid to the Borrower by its Subsidiaries
during the Applicable Fiscal Year (as defined herein) without
prior regulatory approval; plus (2) management, administrative
and similar fees paid to the Borrower by its Subsidiaries and
other affiliates during the applicable Rolling Four Quarter
Period; less (3) all dividends paid by the Borrower to its
shareholders during the applicable Rolling Four Quarter
Period.
(cc) "Adjusted Expenses" as of each calculation
date shall mean: (1) all interest paid or payable by the
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Borrower during the applicable Rolling Four Quarter Period
(excluding interest related to the Borrower's arbitrage debt);
plus (2) the Borrower's current maturities of long-term debt
during the applicable Rolling Four Quarter Period; plus (3)
all amounts paid or payable by the Borrower under capital
leases during the applicable Rolling Four Quarter Period.
(dd) "Applicable Fiscal Year" shall mean the
fiscal year of the Borrower in which each applicable
calculation date occurs.
(b) The Borrower's Leverage Ratio shall not at any time exceed
0.4 to 1. The "Leverage Ratio" shall be the Borrower's consolidated
funded debt divided by its consolidated funded debt plus consolidated
stockholders equity. Consolidated funded debt and consolidated
stockholders equity shall be calculated in accordance with generally
accepted accounting principles (other than FASB 115 pertaining to
unrealized gains and losses) on a basis consistently applied.
4.09 AHL Financial Covenants. The Borrower shall ensure that AHL shall
comply at all times with the following financial covenants.
(a) AHL's consolidated capital and surplus (including asset
valuation reserves and interest maintenance reserves) (the "Statutory
Capital Base") shall at no time be less than the Minimum Amount in
effect from time to time. The Minimum Amount shall initially be
$141,557,610. The "Minimum Amount" shall be adjusted on January 1, 1998
and on each January 1 thereafter, and shall equal an amount that is
$10,000,000 less than the Statutory Capital Base as of the end of AHL's
immediately preceding fiscal year. The Statutory Capital Base shall be
calculated for AHL on a consolidated basis in accordance with
applicable statutory accounting principles.
(b) AHL's ratio of authorized control risk based capital to
its total adjusted capital shall, at no time, exceed 0.3 to 1. The
ratio shall be calculated in accordance with applicable statutory
accounting principles.
4.10 Projected Financial Covenants. The Borrower's Projected
Pre-Dividend Cash Flow Coverage Ratio, calculated as of February 1, 2000, shall
not be less than 1.25 to 1, and the Borrower's Projected Post-Dividend Cash Flow
Coverage Ratio, calculated as of February 1, 2000, shall not be less than 1.1 to
1. The Projected Pre-Dividend Cash Flow Coverage Ratio shall mean the Borrower's
Pre-Dividend Cash Flow Coverage Ratio, as defined in Section 4.08 hereof,
calculated on a projected basis in accordance with reasonable assumptions
established by the Borrower and approved by the Required Lenders for the
one-year period ending on December 31,
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2000. The Projected Post-Dividend Cash Flow Coverage Ratio shall mean the
Borrower's Post-Dividend Cash Flow Coverage Ratio, as defined in Section 4.08
hereof, calculated on a projected basis in accordance with reasonable
assumptions established by the Borrower and approved by the Required Lenders for
the one-year period ending on December 31, 2000. The Borrower shall calculate
the Projected Pre-Dividend Cash Flow Coverage Ratio and the Projected
Post-Dividend Cash Flow Coverage Ratio, and the Borrower shall provide a copy of
such calculations, together with the assumptions therefor (which shall be
consistent with the assumptions established in accordance with the immediately
preceding sentences), to the Lenders on or before February 1, 2000. The Borrower
shall on February 1, 2000, make a mandatory prepayment of all principal, accrued
and unpaid interest and other amounts then outstanding under the Notes if: (a)
the Borrower has not provided the Projected Pre-Dividend Cash Flow Coverage
Ratio or the Projected Post-Dividend Cash Flow Coverage Ratio in accordance with
the terms hereof on or before February 1, 2000; (b) the Required Lenders and the
Borrower have not agreed on the assumptions for such ratios on or before
February 1, 2000; (c) the Projected Pre-Dividend Cash Flow Coverage Ratio as of
February 1, 2000 is less than 1.25 to 1; or (d) the Projected Post-Dividend Cash
Flow Coverage Ratio as of February 1, 2000 is less than 1.1 to 1.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants, and so long as this Agreement is
in effect or any part of the Indebtedness remains unpaid, shall continue to
represent and warrant at all times, that:
5.01 The Borrower and Subsidiaries. The Borrower and the Subsidiaries
are corporations duly incorporated and validly existing under and by virtue of
their respective states of incorporation. Each is duly licensed and qualified in
all other states and jurisdictions wherein the nature of the business transacted
by it (in the opinion of its counsel) makes such licensing or qualification as a
foreign corporation necessary, if any. Each of the Borrower and its Subsidiaries
holds in full force and effect all permits, licenses and franchises necessary
for it to carry out its operations in conformity with all applicable laws and
regulations.
5.02 Authorization, Conflicts and Validity. The execution and delivery
of this Agreement and each of the other Loan Documents to which the Borrower is
or will be a party and the performance by the Borrower of all of its obligations
thereunder: (a) have been duly authorized by all requisite corporate action; (b)
will not violate or be in conflict with (i) any provision of applicable law
(including, without limitation, any applicable usury or similar law); (ii) any
order, rule or regulation of any court or other governmental authority; (iii)
any provision of its certificate of
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incorporation or bylaws, including any amendments thereto, or any resolution
with continuing effect adopted by its Board of Directors or shareholders; or
(iv) any provision of any shareholders' agreement or trust respecting securities
of its issue or related rights; (c) will not violate, be in conflict with,
result in a breach of or constitute a default (with or without the giving of
notice or the passage of time or both) under any material instrument, indenture,
agreement or other obligation to which it is a party or by which it or any of
its assets and properties is or may be bound or subject; and (d) except as
specifically contemplated by this Agreement or any other Loan Documents, will
not result in the creation or imposition of any lien, charge or encumbrance of
any nature upon any of its assets and properties. The Loan Documents to which
the Borrower is or will be a party when executed and delivered will be legal,
valid and binding obligations of the Borrower, enforceable in accordance with
their respective terms and provisions.
5.03 Consents. No consent, approval or authorization of, or
registration, declaration or filing with, any governmental authority or other
person (including, without limitation, the shareholders of the Borrower) is
required as a condition precedent, concurrent or subsequent to or in connection
with the due and valid execution, delivery and performance by the Borrower of
this Agreement or any other Loan Document to which it is or will be a party, or
the legality, validity, binding effect or enforceability of any of the
respective representations, warranties, covenants and other terms and provisions
thereof. Each franchise, license, certificate, authorization, approval or
consent from any governmental authority material to the present conduct of the
business and operations of the Borrower or its Subsidiaries, or required for the
acquisition, ownership, improvement, operation or maintenance by it of any
material portion of the assets and properties it now owns, operates or
maintains, has been obtained and validly granted, is in full force and effect
and constitutes valid and sufficient authorization therefor. Notwithstanding the
foregoing, each Insurance Subsidiary shall be entitled to terminate its
authority to do business, or allow its authority to do business to lapse, in one
or more states so long as such terminations and lapses, on a combined basis as
to each Insurance Subsidiary, will not have a material adverse effect on the
business or prospects of the Insurance Subsidiary.
5.04 Financial Statements. The Borrower has heretofore made available
to the Lenders financial statements as of and for the fiscal year ending
December 31, 1995 and the fiscal quarter ending on September 30, 1996. Those
financial statements fairly present the financial condition of the Borrower and
the Subsidiaries and the results of their operations as of the dates thereof.
Those financial statements have been prepared in accordance with generally
accepted accounting principles (or, as the case may be, statutory accounting
principles) consistently applied throughout
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the periods involved, except for changes, if any, stated in the related
accountants' reports.
5.05 Changes in Financial Condition. Since September 30, 1996, there
has been no material adverse change in the assets or the financial condition of
the Borrower or its Subsidiaries from that set forth or reflected in the
financial statements as of that date. The Borrower and its Subsidiaries are
current in the payment of all of their debts and performance of all of their
obligations.
5.06 Legal or Administrative Proceedings. There are no material
actions, suits, investigations or proceedings by any person or entity pending
or, to the Borrower's best knowledge, threatened against the Borrower or any
Subsidiary or to which they are a party involving the possibility of any
judgment or liability not fully covered by insurance or by adequate reserves set
up on the books of the Borrower or the Subsidiaries (other than actions, suits,
investigations or proceedings that would not have a material adverse effect on
the financial condition of the Borrower or its Subsidiaries if a decision were
rendered against the Borrower or any Subsidiary therein).
5.07 Assets. The Borrower and the Subsidiaries have good, marketable
title to all of their assets reflected in the financial statements dated
September 30, 1996, and such assets are free and clear of all liens, charges and
encumbrances except as shown on those financial statements.
5.08 Losses. Since the date of the financial statements already
delivered to the Lenders, no material loss, damage, destruction or taking of any
of the physical properties (excluding securities and investment losses) of the
Borrower or any of its Subsidiaries has occurred which has not been fully
restored or replaced, or which is not fully covered by insurance (subject to
applicable deductible amounts), and neither the property nor business has been
adversely affected in any substantial way as the result of any accident, strike,
lockout, combination of workmen, embargo, riot, war, act of God or public enemy.
Neither the Borrower, any Subsidiary nor any of their officers are aware of any
material adverse fact or likelihood concerning the conditions or future
prospects of the Borrower or any Subsidiary which has not been fully disclosed
in writing to the Lenders.
5.09 Corporate Restrictions. Neither the Borrower nor any Subsidiary is
a party to any contract or subject to any charter or other corporate restriction
which would materially and adversely affect its property or business, or its
ability to perform its obligations under the Loan Documents.
5.10 Taxes. The Borrower and the Subsidiaries have filed all federal
and state tax returns which are required to be filed, and have paid all taxes as
shown on the returns and on all assessments
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received by them to the extent that the taxes have become due. Proper and
accurate amounts have been withheld by the Borrower and its Subsidiaries from
their respective employees for all periods in full and complete compliance with
the tax, social security and unemployment withholding provisions of applicable
federal, state, local and foreign law and such withholdings have been timely
paid to the respective governmental agencies.
5.11 Default. There exists as of the date hereof no Default or Event of
Default.
5.12 Other Representations. All warranties and representations of the
Borrower and the Subsidiaries contained in any of the Loan Documents are true
and accurate.
5.13 Purpose of the Borrower. None of the proceeds of the loan by the
Lenders to the Borrower will be used for the purpose of purchasing or carrying
any margin security (within the meaning of Regulation U (12 CFR Part 221) of the
Board of Governors of the Federal Reserve System) or for the purpose of reducing
or retiring any indebtedness which was originally incurred to purchase or carry
a margin security or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of Regulation U, as now in
effect or as it may hereafter be amended. Neither the Borrower nor any agent
acting on its behalf has taken or will take any action which might cause this
Agreement or any Loan Document to violate Regulation U or any other regulation
of the Board of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934, in each case as in effect now or as the same
may hereafter be amended.
5.14 Payment of Loan Proceeds. The Agent is authorized to disburse all
proceeds of any loan to the Borrower hereunder directly to or upon the order of
the chief financial officer of the Borrower without looking into the use of
those proceeds. The Chief Financial Officer of the Borrower as of the date
hereof is C. Xxxxxxx Xxxxxxxx. The Agent may rely on the fact that he continues
to serve in that capacity until the Agent receive written notice to the
contrary.
5.15 Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
5.16 Stock Ownership and Subsidiaries. The Borrower owns no
Subsidiaries other than those Subsidiaries listed on EXHIBIT "C" attached
hereto. The Borrower owns 100% of the outstanding common stock of such
Subsidiaries. No person or entity holds or is entitled to obtain any other
equity interest in the Subsidiaries.
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ARTICLE VI
EVENTS OF DEFAULT
6.01 Events of Default. Each of the following events shall constitute
an "Event of Default" hereunder:
(a) if the Borrower defaults in the payment of any principal,
interest or other amount under any Note when the same shall become due,
either by the terms thereof or otherwise as provided herein; or
(b) if the Borrower or any Subsidiary defaults: (i) in any
payment of principal of or interest on any other obligation (excluding
trade payables incurred in the ordinary course of business) beyond any
period of grace provided with respect thereto or (ii) in the
performance or observance of any other agreement, term, or condition
contained in any agreement under which any such obligation is created
if the effect of such default is to cause, or permit the holder or
holders of such obligation (or trustee on behalf of such holder or
holders) to cause, such obligation to become due prior to its stated
maturity, except for obligations disputed in good faith if the Lender
is promptly notified thereof and, if requested by the Lender (or any of
them), funded reserves are established in amounts which, in the
Required Lenders' opinion, are sufficient to pay the total amount in
dispute; or
(c) if any statement, representation or warranty made by the
Borrower or any Subsidiary herein or in any writing now or hereafter
furnished in connection with or pursuant to the Loan Documents or in
connection with any audit shall be false in any material respect; or if
the Borrower or any Subsidiary omits or fails to disclose immediately
any substantial contingent or liquidated liabilities, or any material
adverse change in facts previously disclosed by any statement,
representation, certificate or warranty to the Agent or the Lenders; or
(d) if the Borrower or any Subsidiary defaults in the
performance or observance of any other agreement, covenant, term or
condition contained herein or in any other Loan Document and such
default shall not have been remedied within 30 days after written
notice thereof is sent by the Agent to the Borrower except, however,
that an Event of Default shall not be deemed to have occurred if the
Borrower commences to cure such default within such 30-day period and
the Borrower completes such cure within 60 days after such notice; or
(e) if the Borrower or any Subsidiary makes an assignment for
the benefit of creditors or is generally not paying its debts as they
become due; or
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(f) if any order, judgment or decree is entered under the
bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction adjudicating the Borrower or any Subsidiary, bankrupt or
insolvent; or
(g) if the Borrower or any Subsidiary petitions or applies to
any tribunal for, or consents to, the appointment of a trustee,
receiver, custodian, liquidator, or similar official, of the Borrower
or any Subsidiary, or of any substantial part of the assets of the
Borrower or any Subsidiary, or commences a voluntary case under the
Bankruptcy Code of the United States or any proceedings relating to the
Borrower or any Subsidiary, under the bankruptcy, insolvency, or
moratorium law of any other jurisdiction, whether now or hereafter in
effect; or
(h) if any such petition or application is filed, or any such
proceedings are commenced, against any Borrower or any Subsidiary if
the Borrower or any Subsidiary by any act indicates its approval
thereof, consent thereto, or acquiescence therein, or an order is
entered in an involuntary case under the Bankruptcy Code of the United
States, or an order, judgment or decree is entered appointing any such
trustee, receiver, custodian, liquidator, or similar official, or
approving the petition in any proceedings, and such order remains
unstayed and in effect for more than 60 days; or
(i) if any order is entered in any proceedings against the
Borrower or any Subsidiary decreeing the dissolution or split-up of the
Borrower or any Subsidiary; or
(j) if AHL is not rated by A. M. Best ("Best"); or
(k) if AHL is rated by Best below a rating of A-.
6.02 Default. A "Default" shall be deemed to have occurred hereunder if
any event or condition occurs which would constitute an Event of Default
hereunder upon the satisfaction of any requirement for notice or passage of time
in connection with such event or condition.
6.03 Remedies. If any Default shall occur, any obligation of the
Lenders to make advances hereunder or under any Loan Document shall be
terminated without notice to the Borrower. In addition, if any Event of Default
shall occur, the Agent may by notice to the Borrower, effective upon dispatch,
declare the entire unpaid principal amount then outstanding under the Loan
Documents, all interest accrued and unpaid under the Loan Documents and all
other Indebtedness of the Borrower to the Lenders under this Agreement or any of
the other Loan Documents to be forthwith due and payable. Thereupon, the then
outstanding principal amount under the Loan
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Documents, all such accrued interest and all such other Indebtedness 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 the
Borrower, and the Agent, on behalf of the Lenders (or any of them) may
immediately enforce payment of all such amounts and exercise any or all of the
rights and remedies of the Agent and the Lenders under this Agreement and other
Loan Documents, including without limitation the right to resort to any or all
collateral securing any obligations under the Loan Documents and exercise any or
all of the rights of a secured party pursuant to the Uniform Commercial Code of
Florida and other applicable similar statutes in other jurisdictions.
6.04 Termination of Rights to Advances; Automatic Acceleration.
Notwithstanding anything herein to the contrary, (a) the Borrower's right, if
any, to obtain any additional advances under the Loan Documents shall
automatically terminate upon the initiation against the Borrower or any
Subsidiary of any proceeding under the Federal Bankruptcy Code, or upon the
occurrence of any Event of Default described in subparagraphs (e), (f), (g),
(h), or (i) of Section 6.01, and (b) all Indebtedness shall automatically be and
become immediately due and payable upon the occurrence of any Event of Default
described in subparagraphs (f), (g), or (h) of Section 6.01.
ARTICLE VII
RELATIONS AMONG LENDERS AND THE AGENT
7.01 Representations of the Lenders. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender has
actively engaged in the negotiation of all of the terms of this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement, the Notes and the other Loan
Documents. The Agent has no duty or responsibility, either initially or on a
continuing basis, to provide any Lender with any credit or other information
with respect to the Borrower, whether coming into its possession prior to the
closing or at any time thereafter, or to notify any Lender of any Default or
Event of Default except as provided herein. This Agreement and all instruments
or documents delivered in connection with this Agreement have been reviewed and
approved by legal counsel for each Lender, and the Lenders have not relied on
the Agent or its counsel as to any legal or factual matter in connection
therewith or in connection with the transactions contemplated thereunder.
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7.02 Appointment of Agent and Authorization.
(a) Each Lender hereby irrevocably appoints and authorizes the
Agent, and the Agent hereby accepts such appointment and authorization,
as an independent contractor, to take such action as agent on its
behalf and to exercise such powers under this Agreement, the Notes and
the other Loan Documents as are delegated to it as agent by the terms
hereof and thereof, together with such powers as are reasonably
incidental thereto. Except as expressly provided otherwise by the terms
of this Agreement, the Notes or the other Loan Documents, the Agent
shall not be required to exercise any discretion or to take any action,
but shall be required to act or to refrain from acting (and shall be
fully indemnified and held harmless by the Lenders in so acting or
refraining from acting) upon the instructions of the Lenders (the
"Required Lenders") holding, on a combined basis, more than two-thirds
of the Commitment Amount or such greater fraction of the Lenders as is
provided herein. Any such instructions shall be binding upon the
Lenders and all holders of the Notes.
(b) Except upon the joint written instructions of all of the
Lenders or as otherwise specifically set forth herein, the Agent shall
not on behalf of the Lenders: (i) modify, extend, renew or waive the
interest rate or payment terms under the Notes (whether such payment
terms are set forth in the applicable Note, this Agreement or
otherwise); (ii) modify the Commitment Amount or any Lender's
Percentage thereof; or (iii) release the Borrower from any obligations
under any Note. In addition, no Lender shall take any of the foregoing
actions for its own account except with the prior consent of all
Lenders.
(c) Except as otherwise provided in the foregoing subparagraph
(b), the Agent shall be entitled to take any of the following actions
on behalf of the Lenders upon the joint instructions of the Required
Lenders: (i) waive the Borrower's compliance with any of the terms set
forth herein or in any other Loan Documents; (ii) consent to any action
by the Borrower; and (iii) enforce any rights of the Lenders under the
Loan Documents. The Agent shall not take any of the foregoing actions
on behalf of the Lenders unless the Agent has first obtained the
written consent of the Required Lenders (except as otherwise provided
in the foregoing subparagraph (b)).
(d) No Lender shall declare a default or otherwise accelerate
any Indebtedness pursuant to any other provision of any Loan Document
unless such declaration or acceleration shall have been approved in
writing delivered to the Agent by the Required Lenders.
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7.03 Reliance on Documents and Experts; Duties; Standards of Care.
(a) The Agent shall be entitled to rely, without liability,
upon any note, notice, consent, certificate, affidavit, letter,
telegram, facsimile transmission, teletype message, statement, order or
other document believed by it to be genuine and correct and to have
been signed or sent by the proper person or persons and, in respect of
legal matters, upon the opinion of counsel selected by the Agent (which
counsel may also serve as counsel for the Borrower or any of its
affiliates). The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice
of the assignment or transfer thereof shall have been filed with the
Agent. Any request, authority or consent of any person, firm or
corporation who at the time of making such request or giving such
authority or consent is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee or assignee of such Note
or of any note or notes issued in exchange therefor.
(b) Neither the Agent nor any of its directors, officers,
agents or employees shall be liable to any Lender for any action taken
or omitted to be taken by it or by such directors, officers, agents or
employees under or in connection with this Agreement, the Notes or the
other Loan Documents, except for its or their own gross negligence or
willful misconduct. The Agent may consult with legal counsel
(including, without limitation, counsel for the Borrower or any of its
affiliates), independent public accountants (including, without
limitation, accountants for the Borrower or any of its affiliates) and
other experts selected by it and shall not be liable to any Lender for
any action taken or omitted to be taken in good faith by it in
accordance with the advice of such experts. The Agent: (i) makes no
warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations made
in or in connection with this Agreement, the Notes and the other Loan
Documents; (ii) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants or
conditions of this Agreement, the Notes or the other Loan Documents on
the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (iii) shall not be responsible to
any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the Notes and the
other Loan Documents, any other instrument or document furnished
pursuant thereto; and (iv) shall have no duty to forward any financial
statements or other information to the Lenders. Each Lender shall be
responsible for obtaining and reviewing all such certificates,
financial statements and other information as it deems
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appropriate (without any reliance on the Agent or any other Lender to
provide such information) to determine whether the Borrower is entitled
to advances hereunder or whether a Default or Event of Default has
occurred hereunder. The Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and the other Loan
Documents. The duties of the Agent shall be administrative in nature,
and the Agent shall not have by reason of this Agreement, any other
Loan Document or otherwise a fiduciary relationship to or with any
Lender, except with respect to the receipt of payments made under or in
respect of the Notes. Nothing in this Agreement or any other Loan
Document, express or implied, is intended to or shall be so construed
as to impose upon the Agent any obligations with respect to this
Agreement or any other Loan Document except as expressly set forth
herein or therein.
(c) The Agent shall be entitled to disburse advances under the
Line of Credit upon the Agent's receipt of a request for advance
required herein. The Agent shall be entitled to make the advance, and
shall have no liability to any Lender as a result of such advance,
whether or not: (i) a Default or Event of Default has occurred (unless
the Agent has knowledge, or is deemed pursuant to Section 7.06 hereof
to have knowledge, of such Default or Event of Default and has not
notified the Lenders thereof as required by Section 7.06 hereof); or
(ii) the Borrower is entitled to the advance (unless the Agent has
actual knowledge that the Borrower is not so entitled).
(d) The Agent shall in the performance of its duties hereunder
exercise such care, diligence and reasonable efforts as the Agent would
use in connection with loans funded under the Agent's own lines of
credit.
7.04 Right to Indemnity. Except for actions expressly required of the
Agent hereunder, the Agent shall be fully justified in failing or refusing to
take any action hereunder, including without limitation, actions at the request
of the Required Lenders or all of the Lenders under Section 7.02 hereof, unless
it shall first be indemnified to its satisfaction by the Required Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Any such indemnification by the
Required Lenders shall be binding upon all Lenders in accordance with each
Lender's Percentage of the Commitment Amount. Upon receipt of such
indemnification, the Agent shall be required to take the action so authorized
unless: (a) the Agent reasonably believes that such action is illegal or is in
violation of the Loan Documents; and (b) the Agent notifies the Lenders in
writing of the reasons for its refusal to act within three (3) business days
after its receipt of request to take action.
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7.05 Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Borrower within 30 days after the Agent has
demanded reimbursement from the Borrower unless such demand is prohibited or
restricted by applicable bankruptcy or insolvency laws) ratably according to
each Lender's Percentage of the Commitment Amount, as set forth herein, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed upon, incurred by or asserted against the
Agent relating to, arising out of or in connection with: (a) the Loan Documents
or any action taken or omitted by the Agent under or in connection with any Loan
Document; (b) the Agent's performance of duties hereunder or under any other
Loan Documents; or (c) the Agent's enforcement of rights under the Notes or any
other Loan Document. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, administration, or enforcement of,
or the preservation of any rights under, the Notes or documents securing the
same, to the extent that the Agent is not promptly reimbursed for such expenses
by the Borrower or otherwise.
7.06 Events of Default. If a Default or Event of Default occurs, any
Lender having actual knowledge of such event shall give the Agent written notice
specifying such Default, Event of Default or other event and expressly stating
that such notice is a "notice of default." The Agent shall not be deemed to have
knowledge of such events unless the Agent has received such notice, or unless
the Agent has actual notice of such Event of Default or other event in its
capacity as one of the Lenders. If the Agent receives such a notice of the
occurrence of a Default or Event of Default or has actual knowledge thereof, the
Agent shall give written notice thereof to the Lenders immediately, and in any
event not later than the next business day after the Agent acquires such notice
or knowledge. The Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed in writing by the Required
Lenders. However, unless and until the Agent shall have received such
directions, the Agent may, subject to Section 7.02 hereof, take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders,
provided that it shall not incur expenses in excess of $50,000 without the
concurrence of the Required Lenders.
7.07 Agreement as to Right of Setoff; Sharing of Losses. So long as any
Note is outstanding, each Lender agrees that if it exercises any right of setoff
of balances of the Borrower, such Lender will apply the same to the payment of
the Notes on a pro rata basis in accordance with each Lender's Percentage of the
Commitment Amounts to the fullest extent possible prior to the application of
the same to any other indebtedness of the Borrower
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to such Lender. If any Lender has payment made to it on any Note, whether by
setoff or otherwise, in a greater proportion than payments made on Notes held by
any other Lender, the Lender so receiving such greater proportionate payment
agrees to purchase a portion of the Notes held by the other Lenders so that
after such purchase each Lender will hold an unpaid balance of Notes bearing the
same proportion to the then outstanding aggregate principal amount of the Notes
as such Lender's Commitment Amount bears to the sum of the Lenders' total
Commitment Amounts. However, if any amount so received by any Lender in payment
of Notes held by it shall be, as a result of the reversal of such payment
(whether by court order or voluntary action on the part of such Lender),
returned to the Borrower or paid as directed by such court order by such Lender,
then the other Lenders which shall have theretofore received their respective
shares of any such payment pursuant to this Section shall, upon demand, promptly
repay, without interest, the amount of such share to such Lender, or, if the
Lender receiving such payment shall not have made the purchases provided for in
this Section prior to such reversal, the other Lenders shall have no further
rights under this Section in respect of such amount. Except as provided in this
Article, no Lender shall be responsible to any other Lender for losses or claims
which such Lender may incur in connection with the transactions contemplated by
this Agreement. Nothing set forth herein or otherwise shall impair the right of
any Lender to extend credit to the Borrower or any Subsidiary, in addition to
the credit contemplated in this Agreement, so long as such additional credit is
permitted in Section 4.02 hereof. Nothing set forth herein shall obligate any
Lender to share payments received in connection with such other credit
facilities with any other Lender.
7.08 Agent and Affiliates. With respect to its commitment and the Note
issued to it, the Agent shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same rights and powers under
this Agreement as any other Lender as though it were not the Agent. The term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include the
Agent in its individual capacity. The Agent and its affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower and its affiliates, and any
person who may do business with or own securities of the Borrower or any of its
affiliates.
7.09 Successor Agent.
(a) The Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If
no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after
the Agent's giving notice of resignation, then the Agent may, on behalf
of
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the Lenders, appoint a successor Agent, which shall be a commercial
bank organized under the laws of the United States of America or of any
state thereof and having a combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of
the resigning Agent, and the resigning Agent shall be discharged from
its duties and obligations under this Agreement. The Agent's
resignation shall not become effective until a successor Agent has been
appointed.
(b) From and after the appointment of any successor Agent, the
term "Agent" as used herein, shall mean the successor so appointed
unless the context otherwise requires. After any Agent's resignation
hereunder as agent, the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be taken by it while it
was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.01 Expenses. The Borrower agrees, whether or not the transactions
hereby contemplated shall be consummated, to pay, and save the Agent and the
Lenders harmless against liability for the payment of, all out-of-pocket
expenses arising in connection with this transaction (including any renewals or
modifications relating hereto), including any state documentary stamp taxes or
other taxes (including interest and penalties, if any) which may be determined
to be payable in respect to the execution and delivery of any Loan Documents
executed in connection with this Agreement or any such renewal or modification,
and the fees and expenses of the Lenders' counsel and the Agent's counsel. The
Borrower acknowledges that it has participated with the Lenders in establishing
the structure of this transaction and that it has independently determined the
amount of documentary stamp and other taxes due in connection herewith. The
Borrower has not relied upon representations of the Agent or the Lenders or
their counsel in calculating the amount of such taxes, and the Borrower shall be
liable for any additional taxes (including interest and penalties) which may be
due in connection with this transaction or any renewals hereof. If an Event of
Default shall occur, the Borrower shall also pay all of the Agent's and the
Lenders' costs of collection including employee travel expenses, court costs and
fees of attorneys and legal assistants (whether incurred in connection with
trial or appellate proceedings).
8.02 Survival of Representations and Warranties. All representations
and warranties contained herein or made in writing by the Borrower in connection
herewith shall survive the execution and delivery of the Loan Documents.
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8.03 Successors and Assigns. All covenants and agreements in this
Agreement contained by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. The Borrower shall not be entitled to assign
its rights hereunder. The Lenders (or any of them) may, without the Borrower's
consent, assign all or part of its rights hereunder or grant participations
therein. The Lenders (or any of them) may disclose to any such assignee or
participant such information concerning the Borrower and the Subsidiaries as
such Lenders deem appropriate.
8.04 Notices. All communications, notices or demands provided for
hereunder or under any other Loan Document to which the Borrower is a party
shall be sent by courier or by hand as follows or to such other address with
respect to any party as such party shall notify the others in writing:
To the Lenders: Xxxxxxx Bank, N.A.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Banking Group
SouthTrust Bank of Alabama,
National Association
000 0xx Xxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Banking
SunTrust Bank, North Florida, N.A.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Banking
To the Borrower: American Heritage Life Investment
Corporation
0000 Xxxxxxxx Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
To the Agent: Xxxxxxx Bank, N.A.
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Corporate Banking Group
Except as otherwise specifically set forth herein, each such communication,
notice or demand shall be deemed given when actually delivered to the
appropriate address if sent by courier or by hand.
8.05 Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida.
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8.06 Headings. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to limit or otherwise
affect the construction of any provisions hereof.
8.07 Counterparts. This Agreement may be executed simul taneously in
several counterparts. Each counterpart shall be deemed an original.
8.08 Remedies Cumulative. All rights and remedies of the Lenders
hereunder are cumulative and in addition to any rights and remedies which the
Lenders may have under the laws of Florida. The Lenders' exercise of any one
right or remedy against one party hereto will not deprive the Lenders of any
right or remedy against that party or any other parties hereto. No right, power
or remedy conferred upon or reserved to the Lenders under this Agreement or any
other of the Loan Documents is exclusive of any other right, power or remedy in
any of the Loan Documents, but each and every such right, power and remedy shall
be cumulative and concurrent and shall be in addition to any other right, power
and remedy given hereunder or under any other Loan Documents, or now or
hereafter existing at law, in equity or by statute.
8.09 Delay or Omission. No delay or omission of the Agent or the
Lenders to exercise any right, power or remedy under any of the Loan Documents
or accruing upon any Event of Default shall exhaust or impair any such right,
power or remedy or shall be construed to waive any such Event of Default or to
constitute acquiescence therein. Every right, power and remedy given to the
Agent and the Lenders under any of the Loan Documents may be exercised from time
to time and as often as may be deemed expedient by the Agent or the Lenders (or
any of them).
8.10 No Waiver of One Default to Affect Another. No waiver of any
Default or Event of Default hereunder shall extend to or affect any subsequent
Default or Event of Default or any other Default or Event of Default then
existing, or impair any rights, powers or remedies consequent thereon.
8.11 Changes. No term of any Loan Document may be changed, waived,
discharged or terminated orally, or by any action or inaction, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
8.12 Severability. If any portion of any Loan Document is declared void
by any court as illegal or against public policy, the remainder of the Loan
Documents in question shall continue in full effect.
8.13 Lost or Damaged Note. Upon receipt by the Borrower of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
any Note (the "Lost Note") and of an
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indemnity agreement reasonably satisfactory to the Borrower, the Borrower will
make and deliver to the Lenders, or any of them, a new Note of like tenor, date
and principal amount in lieu of the Lost Note.
8.14 Survival of Obligations Upon Termination of Financing Arrangement.
Except as otherwise expressly provided for in the Loan Documents, no termination
or cancellation (regardless of cause or procedure) of the financing under this
Agreement shall in any way affect or impair the obligations, duties, and
liabilities of the Borrower or the rights of the Agent and the Lenders relating
to any transaction or event occurring prior to such termination. All
undertakings, agreements, indemnifications, covenants, warranties and
representations contained in the Loan Documents shall survive such termination
or cancellation. This Agreement supersedes and replaces any commitment letter
relating to the Indebtedness.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement on the day and year first above written.
AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION
By:/s/ T. O. Xxxxxxx
----------------------------------
Its: Chairman & CEO
-------------------------------
By:/s/ X. X. Xxxxxxxx
----------------------------------
Its: Executive Vice President & CFO
-------------------------------
XXXXXXX BANK, N.A.,
as agent
By:/s/ Xxxxx X. Xxxxxxx
----------------------------------
Its: Vice President
-------------------------------
XXXXXXX BANK, N.A.
By:/s/ Xxxxx X. Xxxxxxx
----------------------------------
Its: Vice President
-------------------------------
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SOUTHTRUST BANK OF ALABAMA,
NATIONAL ASSOCIATION
By:
----------------------------------
Its:
-------------------------------
SUNTRUST BANK, NORTH FLORIDA, N.A.
By:
----------------------------------
Its:
-------------------------------
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered to
the Lenders, or to the agent for the Lenders, before me this 21st day of
February, 1997, by Xxxxxxx Xxxxxxxx and Xxxxxx X. Xxxxxxx, the Executive Vice
President and Chairman, respectively, of American Heritage Life Investment
Corporation, on behalf of the corporation, in Camden County, Georgia.
/s/ V. Xxxxxx Xxxxxxxx
------------------------------------
Notary Public, State and County
Aforesaid
My Commission Expires: Jan. 16, 2000
(Notary Seal)
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PROMISSORY NOTE
$40,000,000.00 February 21, 1997
Camden County, Georgia
FOR VALUE RECEIVED, the undersigned, AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION (the "Borrower"), hereby promises to pay to the order of XXXXXXX
BANK, N.A. (the "Lender"), whose address is 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000, the principal sum of Forty Million and 00/100 Dollars
($40,000,000.00) together with interest on the outstanding principal balance
hereof at the rate provided herein. All such payments of principal and interest
shall be made in lawful money of the United States in immediately available
funds at the office of the Agent (as defined herein), now located at 00 Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000 or at such other office as the Agent
may designate in writing. This Note is one of the Notes described in the Loan
Agreement (as amended or restated from time to time, the "Loan Agreement") of
even date herewith by and among the Borrower, Xxxxxxx Bank, N.A., SunTrust Bank,
North Florida, N.A., SouthTrust Bank of Alabama, National Association and
Xxxxxxx Bank, N.A., as agent (in such capacity and for so long as it shall serve
in such capacity under the Loan Agreement, the "Agent"). Capitalized terms used
and not otherwise defined herein shall have the meanings assigned thereto in the
Loan Agreement. This Note shall be governed by the following provisions:
1. Advances. During the period commencing on the date hereof and
continuing through January 30, 2000 (the "Revolving Period"), the loan evidenced
by this Note shall be a revolving loan. The Borrower may borrow, repay and
reborrow principal amounts hereunder during the Revolving Period subject to the
terms contained herein and in the Loan Agreement. Notwithstanding the foregoing,
the outstanding principal balance hereof shall not exceed the Lender's
Percentage of the Commitment Amount at any one time. The Borrower shall not be
permitted to obtain further advances hereunder from and after January 31, 2000.
2. Payments.
(a) The Borrower shall pay all accrued interest hereunder on
the first day of each May, August, November and February during the
term hereof.
(b) The Borrower shall make a principal payment on the
ninetieth day after the date hereof in an amount equal to: (i) the
excess of the then outstanding principal balance of this Note; over
(ii) the Lender's Percentage of the Commitment Amount as of such date.
(c) The Borrower shall repay principal hereunder in quarterly
installments on the first day of each February, May,
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August and November commencing on February 1, 2000 and continuing
through November 1, 2001. Each principal installment shall equal 1/20th
of the outstanding principal balance of this Note as of January 31,
2000.
(d) The Borrower shall pay all remaining outstanding principal
hereunder, together will all then accrued and unpaid interest, on
February 1, 2002.
3. Interest.
(a) Except as otherwise provided herein, interest shall accrue
on the outstanding principal balance of this Note from the date of each
advance hereunder at a daily rate that is equal to the Prime Rate (as
defined herein) minus one-half of one percent (0.50%) per annum. The
Prime Rate shall be the interest rate announced from time to time by
Xxxxxxx Xxxxx, Inc. as its prime rate. The Prime Rate is a reference
rate and is not necessarily the lowest or best rate that the Lender may
from time to time charge its customers. The rate of interest shall
change each time the Prime Rate is changed (except to the extent that
interest is then accruing pursuant to the following subparagraph (b)).
For purposes of this Note, any change in the Prime Rate shall be
effective as of the Lender's opening of business on the effective date
of the change.
(b) Notwithstanding the foregoing subparagraph (a), the
Borrower may elect to pay interest on all or a portion of the
outstanding principal hereunder for periods of 30, 60, 90, or 180 days
(each an "Interest Period") at an Adjusted Libor Rate (as defined
herein) or at an Adjusted CD Rate (as defined herein). Notwithstanding
any contrary provision contained herein, the Interest Period for
accruals at the Adjusted CD Rate shall in all events be 90 days. The
Borrower may make such election by providing telephonic notice thereof
to the Agent at least two business days before the commencement of the
Interest Period. The notice shall be provided to such individual at
such telephone number as the Agent may from time to time specify, and
the Agent's internal records as to the delivery and contents of such
notice shall be conclusive evidence thereof. The notice shall
indicate: (i) the date upon which the Interest Period shall commence
(which shall not be a Saturday, Sunday or legal holiday); (ii) whether
such Interest Period shall be for 30, 60, 90 or 180 days; (iii)
whether the Borrower wishes for interest to accrue at the Adjusted
Libor Rate or the Adjusted CD Rate during the term of the Interest
Period; and (iv) the aggregate principal amount which shall bear
interest at the Adjusted Libor Rate or the Adjusted CD Rate (which
amount is referred to herein as the "Libor Amount" or the "CD Amount",
as the case may be). If the Borrower duly elects for interest to
accrue hereunder at
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the Adjusted Libor Rate or the Adjusted CD Rate, then interest
shall accrue at the Adjusted Libor Rate or the Adjusted CD Rate, as
the case may be, on the applicable Libor Amount or CD Amount during
the applicable Interest Period. Any election hereunder shall be
irrevocable during the term of the Interest Period, and no Interest
Period elected hereunder shall extend beyond the maturity of this
Note. The Borrower shall not be entitled to have more than five (5)
interest rates in effect at any one time during the term of this Note.
Any election by the Borrower hereunder shall be applicable to all of
the Notes, and the applicable Libor Amount or CD Amount specified by
the Borrower shall be allocated among the Notes based upon each
Lender's Percentage of the Commitment Amount. The Adjusted Libor Rate
and the Adjusted CD Rate shall be determined as follows:
(i) The Adjusted Libor Rate shall be a rate
that is equal to the Libor Rate (as defined herein) plus the
Applicable Libor Margin (as defined herein). The Libor Rate
applicable to any Interest Period shall be the offered rate
for deposits in United States dollars in the London Interbank
market for a period equal to the applicable Interest Period
which appears on the Reuters Screen LIBO Page as of 11:00 a.m.
(London time) on the day that is two London Banking Days (as
defined herein) preceding the first Banking Business Day (as
defined herein) of the Interest Period. If at least two such
offered rates appear on the Reuters Screen LIBO Page, the rate
will be the arithmetic mean of such offered rates. The Agent
may, in its discretion, use any other publicly available index
or reference rate showing rates offered for United States
dollar deposits in the London Interbank market as of the
applicable date. In addition, the Agent may, in its
discretion, use rate quotations for monthly periods in lieu of
quotations for substantially equivalent daily periods. For
purposes hereof, the following terms shall have the following
meanings:
(A) "Banking Business Day" shall mean each
day other than a Saturday, a Sunday or any holiday on
which commercial banks in Jacksonville, Florida are
closed for business.
(B) "London Banking Day" shall mean each day
other than a Saturday, a Sunday or any holiday on
which commercial banks in London, England are closed
for business.
(C) The Applicable Libor Margin shall be
determined based on the rating assigned to American
Heritage Life Insurance Company ("AHL") by A.M. Best
("Best"). The "Applicable Libor Margin"
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during the Revolving Period shall be: (1) 0.425% per
annum if AHL's Best rating is A++ or higher as of the
commencement of the applicable Interest Period; and
(2) 0.550% per annum if AHL's Best rating is lower
than A++ as of the commencement of the applicable
Interest Period. The "Applicable Libor Margin" after
the expiration of the Revolving Period shall be: (1)
0.50% per annum if AHL's Best rating is A++ or higher
as of the commencement of the applicable Interest
Period; and (2) 0.625% per annum if AHL's Best rating
is lower than A++ as of the commencement of the
applicable Interest Period.
(ii) The Adjusted CD Rate shall be a rate that
shall be 0.75% per annum over the CD Rate (as defined herein).
The CD Rate applicable to any Interest Period shall be: (A)
the CD Market Rate (as defined herein), divided by (B) 1.0
minus the CD Reserve Percentage (as defined herein), to which
quotient shall be added (C) the CD Assessment Rate (as defined
herein). The terms "CD Market Rate", "CD Reserve Percentage"
and "CD Assessment Rate" shall have the following meanings:
(A) "CD Market Rate" is the rate of interest
determined by the Agent to be the per annum rate bid
at 11:00 a.m., Jacksonville, Florida time (or as soon
thereafter as practicable) on the first banking
business day of the applicable Interest Period by the
dealers for certificates of deposit of the Agent
having a principal amount comparable to the CD Amount
and a maturity comparable to the applicable Interest
Period.
(B) "CD Reserve Percentage" is the
percentage (expressed as a decimal) prescribed by the
Board of Governors of the Federal Reserve System (or
any successor) for determining the reserve
requirement including, without limitation, any basic,
supplemental or emergency reserves, for a member bank
of the Federal Reserve System with deposits exceeding
five billion dollars with respect to new non-personal
time deposits in dollars having a maturity comparable
to the applicable Interest Period and in an amount of
$100,000 or more. The Adjusted CD Rate shall be
adjusted automatically on and as of the effective
date of any change in the CD Reserve Percentage.
(C) "CD Assessment Rate" for any Interest
Period means a rate per annum equal to (1) the gross
annual assessment rate payable to the Federal Deposit
Insurance Corporation (or any
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successor) by the Agent for insuring the Agent's
domestic dollar deposits less (2) the most recently
determined credit against such assessments, expressed
as an annual rate, available under applicable law to
the Agent in each case as determined by the Agent as
of the first day of any applicable Interest Period.
(c) Interest shall be calculated on the basis of a 360 day
year (based upon the actual number of days elapsed).
(d) The total liability of the Borrower and any endorsers or
guarantors hereof for payment of interest shall not exceed any
limitations imposed on the payment of interest by applicable usury
laws. If any interest is received or charged by any holder hereof in
excess of that amount, the Borrower shall be entitled to an immediate
refund of the excess.
(e) Upon the occurrence of an Event of Default hereunder,
interest shall accrue at the Default Rate hereinafter set forth
notwithstanding the provisions of this section.
4. Prepayment.
(a) The Borrower shall be entitled to prepay this Note in
whole or in part at any time without penalty. Prepayments of principal
after expiration of the Revolving Period shall be applied in the
inverse order of principal payments required hereunder. Notwithstanding
any contrary provision set forth herein: (i) the Borrower shall not be
entitled to prepay any Libor Amounts or CD Amounts prior to the
expiration of the applicable Interest Period unless the Agent or the
Lender makes demand therefor upon the occurrence of an Event of
Default; and (ii) any such Libor Amounts or CD Amounts shall not be
repaid or reborrowed on a revolving basis during any applicable
Interest Period.
(b) Notwithstanding any contrary provision set forth herein,
the Borrower shall make such mandatory prepayments hereunder as may be
required in the Loan Agreement.
5. Application of Payments. All payments hereunder shall be applied
first to the Lender's costs and expenses, then to fees authorized hereunder or
under the Loan Agreement, then to interest and then to principal.
6. Default. An Event of Default shall be deemed to have occurred
hereunder upon the occurrence of an Event of Default under the Loan Agreement.
If any Event of Default or Default (as defined in the Loan Agreement) shall
occur, any obligation of the Lender to
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make advances hereunder shall be terminated without notice to the Borrower. In
addition, if any Event of Default shall occur, the outstanding principal of this
Note, all accrued and unpaid interest hereunder and all other amounts payable
under this Note shall be and become forthwith due and payable in the manner set
forth in the Loan Agreement without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower.
Upon the occurrence of any Event of Default, the outstanding principal of this
Note, and any accrued and unpaid interest, shall bear interest at a rate of
either five percent (5.0%) per annum above the Prime Rate after default until
paid or, if such rate is usurious under the laws of Florida, then at the highest
legal rate permissible thereunder (the "Default Rate").
7. Expenses. All parties liable for the payment of this Note agree to
pay the Lender all costs incurred by it in connection with the collection of
this Note. Such costs include, without limitation, fees for the services of
counsel and legal assistants employed to collect this Note, whether or not suit
be brought, and whether incurred in connection with collection, trial, appeal or
otherwise. All such parties further agree to indemnify and hold the Lender
harmless against liability for the payment of state documentary stamp taxes,
intangible personal property taxes or other taxes (including interest and
penalties, if any) excluding income or service taxes of the Lender, which may be
determined to be payable with respect to this transaction.
8. Late Charge. A late charge of five percent (5.0%) of any payment
required hereunder shall be imposed on each and every payment not received by
the Agent within ten (10) days after it is due. Notwithstanding the foregoing,
the late charge shall not in any event exceed $250.00 with respect to any
delinquent installment. The late charge is not a penalty, but liquidated damages
to defray administrative and related expenses due to such late payment. The late
charge shall be immediately due and payable and shall be paid by the Borrower to
the Agent without notice or demand. This provision for a late charge is not and
shall not be deemed a grace period, and Lender has no obligation to accept a
late payment. Further, the acceptance of a late payment shall not constitute a
waiver of any default then existing or thereafter arising under this Note.
9. Change of Law. Notwithstanding any other provision herein, if any
applicable law, rule or regulation or the interpretation or administration
thereof makes it unlawful for the Lender to (a) honor any commitment it may have
hereunder to accrue interest at the Adjusted Libor Rate, then such commitment
shall terminate, or (b) maintain any accrual of interest at the Adjusted Libor
Rate, then interest shall immediately upon notice from the Lender accrue at the
rate set forth in paragraph 3(a) hereof unless the Borrower elects for interest
to accrue at the Adjusted CD Rate.
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10. Setoffs. The Borrower and any endorsers, sureties, guarantors, and
all others who are, or who may become liable for the payment hereof, severally
expressly grant to the Lender a continuing first lien security interest in any
and all money, general or specific deposits, or property of any such parties now
or hereafter in the possession of the Lender. The Borrower and such other
parties authorize and empower the Lender, in its sole discretion, at any time
after the occurrence of a default hereunder to appropriate and, in such order as
the Lender may elect, apply any such money, deposits or property to the payment
hereof or to the payment of any and all indebtedness, liabilities and
obligations of such parties to the Lender or any of the Lender's affiliates,
whether now existing or hereafter created or arising or now owned or howsoever
after acquired by the Lender or any of the Lender's affiliates (whether such
indebtedness, liabilities and obligations are or will be joint or several,
direct or indirect, absolute or contingent, liquidated or unliquidated, matured
or unmatured, including, but not limited to, any letter of credit issued by the
Lender for the account of any such parties).
11. Miscellaneous. The remedies of the Lender as provided herein shall
be cumulative and concurrent, and may be pursued singly, successively or
together, at the sole discretion of the Lender and may be exercised as often as
occasion therefor shall arise. No act of omission or commission of the Lender,
including specifically any failure to exercise any right, remedy or recourse,
shall be effective, unless set forth in a written document executed by the
Lender, and then only to the extent specifically recited therein. A waiver or
release with reference to one event shall not be construed as continuing, as a
bar to, or as a waiver or release of any subsequent right, remedy or recourse as
to any subsequent event. This Note shall be construed and enforced in accordance
with Florida law and shall be binding on the successors and assigns of the
parties hereto. The term "Lender" as used herein shall mean any holder of this
Note. The Agent may, at its option, round any or all fractional amounts under
paragraph 3 upwards to the next higher 1/100 of 1%.
The Borrower hereby: (a) waives demand, notice of demand,
presentment for payment, notice of nonpayment or dishonor, protest, notice of
protest and all other notice, filing of suit and diligence in collecting this
Note, or in the Lender's enforcing any of its rights under any guaranties
securing the repayment hereof; (b) agrees to any substitution, addition or
release of any collateral or any party or person primarily or secondarily liable
hereon; and (c) agrees that the Lender shall not be required first to institute
any suit, or to exhaust his, their or its remedies against the Borrower or any
other person or party to become liable
7
40
hereunder, or against any collateral in order to enforce payment of this
Note.
AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION
By:/s/ T. O. Xxxxxxx
----------------------------------
Its: Chairman & CEO
------------------------------
By:/s/ X. X. Xxxxxxxx
----------------------------------
Its: Executive V.P. & CFO
------------------------------
(CORPORATE SEAL)
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this 21st day of February, 1997, by Xxxxxxx X. Xxxxxxxx and Xxxxxx X.
Xxxxxxx, the Executive Vice President and Chairman, respectively, of American
Heritage Life Investment Corporation, on behalf of the corporation, in Camden
County, Georgia.
/s/ V. Xxxxxx Xxxxxxxx
------------------------------------
Notary Public, State and County
Aforesaid
My Commission Expires: Jan. 16, 2000
(Notary Seal)
8
41
PROMISSORY NOTE
$30,000,000.00 February 21, 1997
Camden County, Georgia
FOR VALUE RECEIVED, the undersigned, AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION (the "Borrower"), hereby promises to pay to the order of SUNTRUST
BANK, NORTH FLORIDA, N.A. (the "Lender"), whose address is 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, the principal sum of Thirty Million and
00/100 Dollars ($30,000,000.00) together with interest on the outstanding
principal balance hereof at the rate provided herein. All such payments of
principal and interest shall be made in lawful money of the United States in
immediately available funds at the office of the Agent (as defined herein), now
located at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000 or at such other
office as the Agent may designate in writing. This Note is one of the Notes
described in the Loan Agreement (as amended or restated from time to time, the
"Loan Agreement") of even date herewith by and among the Borrower, Xxxxxxx Bank,
N.A., SunTrust Bank, North Florida, N.A., SouthTrust Bank of Alabama, National
Association and Xxxxxxx Bank, N.A., as agent (in such capacity and for so long
as it shall serve in such capacity under the Loan Agreement, the "Agent").
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned thereto in the Loan Agreement. This Note shall be governed by the
following provisions:
1. Advances. During the period commencing on the date hereof and
continuing through January 30, 2000 (the "Revolving Period"), the loan evidenced
by this Note shall be a revolving loan. The Borrower may borrow, repay and
reborrow principal amounts hereunder during the Revolving Period subject to the
terms contained herein and in the Loan Agreement. Notwithstanding the foregoing,
the outstanding principal balance hereof shall not exceed the Lender's
Percentage of the Commitment Amount at any one time. The Borrower shall not be
permitted to obtain further advances hereunder from and after January 31, 2000.
2. Payments.
(a) The Borrower shall pay all accrued interest hereunder on
the first day of each May, August, November and February during the
term hereof.
(b) The Borrower shall make a principal payment on the
ninetieth day after the date hereof in an amount equal to: (i) the
excess of the then outstanding principal balance of this Note; over
(ii) the Lender's Percentage of the Commitment Amount as of such date.
(c) The Borrower shall repay principal hereunder in quarterly
installments on the first day of each February, May,
42
August and November commencing on February 1, 2000 and continuing
through November 1, 2001. Each principal installment shall equal 1/20th
of the outstanding principal balance of this Note as of January 31,
2000.
(d) The Borrower shall pay all remaining outstanding principal
hereunder, together will all then accrued and unpaid interest, on
February 1, 2002.
3. Interest.
(a) Except as otherwise provided herein, interest shall accrue
on the outstanding principal balance of this Note from the date of each
advance hereunder at a daily rate that is equal to the Prime Rate (as
defined herein) minus one-half of one percent (0.50%) per annum. The
Prime Rate shall be the interest rate announced from time to time by
Xxxxxxx Xxxxx, Inc. as its prime rate. The Prime Rate is a reference
rate and is not necessarily the lowest or best rate that the Lender may
from time to time charge its customers. The rate of interest shall
change each time the Prime Rate is changed (except to the extent that
interest is then accruing pursuant to the following subparagraph (b)).
For purposes of this Note, any change in the Prime Rate shall be
effective as of the Lender's opening of business on the effective date
of the change.
(b) Notwithstanding the foregoing subparagraph (a), the
Borrower may elect to pay interest on all or a portion of the
outstanding principal hereunder for periods of 30, 60, 90, or 180 days
(each an "Interest Period") at an Adjusted Libor Rate (as defined
herein) or at an Adjusted CD Rate (as defined herein). Notwithstanding
any contrary provision contained herein, the Interest Period for
accruals at the Adjusted CD Rate shall in all events be 90 days. The
Borrower may make such election by providing telephonic notice thereof
to the Agent at least two business days before the commencement of the
Interest Period. The notice shall be provided to such individual at
such telephone number as the Agent may from time to time specify, and
the Agent's internal records as to the delivery and contents of such
notice shall be conclusive evidence thereof. The notice shall
indicate: (i) the date upon which the Interest Period shall commence
(which shall not be a Saturday, Sunday or legal holiday); (ii) whether
such Interest Period shall be for 30, 60, 90 or 180 days; (iii)
whether the Borrower wishes for interest to accrue at the Adjusted
Libor Rate or the Adjusted CD Rate during the term of the Interest
Period; and (iv) the aggregate principal amount which shall bear
interest at the Adjusted Libor Rate or the Adjusted CD Rate (which
amount is referred to herein as the "Libor Amount" or the "CD Amount",
as the case may be). If the Borrower duly elects for interest to
accrue hereunder at
2
43
the Adjusted Libor Rate or the Adjusted CD Rate, then interest shall
accrue at the Adjusted Libor Rate or the Adjusted CD Rate, as the case
may be, on the applicable Libor Amount or CD Amount during the
applicable Interest Period. Any election hereunder shall be irrevocable
during the term of the Interest Period, and no Interest Period elected
hereunder shall extend beyond the maturity of this Note. The Borrower
shall not be entitled to have more than five (5) interest rates in
effect at any one time during the term of this Note. Any election by
the Borrower hereunder shall be applicable to all of the Notes, and the
applicable Libor Amount or CD Amount specified by the Borrower shall be
allocated among the Notes based upon each Lender's Percentage of the
Commitment Amount. The Adjusted Libor Rate and the Adjusted CD Rate
shall be determined as follows:
(i) The Adjusted Libor Rate shall be a rate
that is equal to the Libor Rate (as defined herein) plus the
Applicable Libor Margin (as defined herein). The Libor Rate
applicable to any Interest Period shall be the offered rate
for deposits in United States dollars in the London Interbank
market for a period equal to the applicable Interest Period
which appears on the Reuters Screen LIBO Page as of 11:00 a.m.
(London time) on the day that is two London Banking Days (as
defined herein) preceding the first Banking Business Day (as
defined herein) of the Interest Period. If at least two such
offered rates appear on the Reuters Screen LIBO Page, the rate
will be the arithmetic mean of such offered rates. The Agent
may, in its discretion, use any other publicly available index
or reference rate showing rates offered for United States
dollar deposits in the London Interbank market as of the
applicable date. In addition, the Agent may, in its
discretion, use rate quotations for monthly periods in lieu of
quotations for substantially equivalent daily periods. For
purposes hereof, the following terms shall have the following
meanings:
(A) "Banking Business Day" shall mean each
day other than a Saturday, a Sunday or any holiday on
which commercial banks in Jacksonville, Florida are
closed for business.
(B) "London Banking Day" shall mean each day
other than a Saturday, a Sunday or any holiday on
which commercial banks in London, England are closed
for business.
(C) The Applicable Libor Margin shall be
determined based on the rating assigned to American
Heritage Life Insurance Company ("AHL") by A.M. Best
("Best"). The "Applicable Libor Margin"
3
44
during the Revolving Period shall be: (1) 0.425% per
annum if AHL's Best rating is A++ or higher as of the
commencement of the applicable Interest Period; and
(2) 0.550% per annum if AHL's Best rating is lower
than A++ as of the commencement of the applicable
Interest Period. The "Applicable Libor Margin" after
the expiration of the Revolving Period shall be: (1)
0.50% per annum if AHL's Best rating is A++ or higher
as of the commencement of the applicable Interest
Period; and (2) 0.625% per annum if AHL's Best rating
is lower than A++ as of the commencement of the
applicable Interest Period.
(ii) The Adjusted CD Rate shall be a rate that
shall be 0.75% per annum over the CD Rate (as defined herein).
The CD Rate applicable to any Interest Period shall be: (A)
the CD Market Rate (as defined herein), divided by (B) 1.0
minus the CD Reserve Percentage (as defined herein), to which
quotient shall be added (C) the CD Assessment Rate (as defined
herein). The terms "CD Market Rate", "CD Reserve Percentage"
and "CD Assessment Rate" shall have the following meanings:
(A) "CD Market Rate" is the rate of interest
determined by the Agent to be the per annum rate bid
at 11:00 a.m., Jacksonville, Florida time (or as soon
thereafter as practicable) on the first banking
business day of the applicable Interest Period by the
dealers for certificates of deposit of the Agent
having a principal amount comparable to the CD Amount
and a maturity comparable to the applicable Interest
Period.
(B) "CD Reserve Percentage" is the
percentage (expressed as a decimal) prescribed by the
Board of Governors of the Federal Reserve System (or
any successor) for determining the reserve
requirement including, without limitation, any basic,
supplemental or emergency reserves, for a member bank
of the Federal Reserve System with deposits exceeding
five billion dollars with respect to new non-personal
time deposits in dollars having a maturity comparable
to the applicable Interest Period and in an amount of
$100,000 or more. The Adjusted CD Rate shall be
adjusted automatically on and as of the effective
date of any change in the CD Reserve Percentage.
(C) "CD Assessment Rate" for any Interest
Period means a rate per annum equal to (1) the gross
annual assessment rate payable to the Federal Deposit
Insurance Corporation (or any
4
45
successor) by the Agent for insuring the Agent's
domestic dollar deposits less (2) the most recently
determined credit against such assessments, expressed
as an annual rate, available under applicable law to
the Agent in each case as determined by the Agent as
of the first day of any applicable Interest Period.
(c) Interest shall be calculated on the basis of a 360 day
year (based upon the actual number of days elapsed).
(d) The total liability of the Borrower and any endorsers or
guarantors hereof for payment of interest shall not exceed any
limitations imposed on the payment of interest by applicable usury
laws. If any interest is received or charged by any holder hereof in
excess of that amount, the Borrower shall be entitled to an immediate
refund of the excess.
(e) Upon the occurrence of an Event of Default hereunder,
interest shall accrue at the Default Rate hereinafter set forth
notwithstanding the provisions of this section.
4. Prepayment.
(a) The Borrower shall be entitled to prepay this Note in
whole or in part at any time without penalty. Prepayments of principal
after expiration of the Revolving Period shall be applied in the
inverse order of principal payments required hereunder. Notwithstanding
any contrary provision set forth herein: (i) the Borrower shall not be
entitled to prepay any Libor Amounts or CD Amounts prior to the
expiration of the applicable Interest Period unless the Agent or the
Lender makes demand therefor upon the occurrence of an Event of
Default; and (ii) any such Libor Amounts or CD Amounts shall not be
repaid or reborrowed on a revolving basis during any applicable
Interest Period.
(b) Notwithstanding any contrary provision set forth herein,
the Borrower shall make such mandatory prepayments hereunder as may be
required in the Loan Agreement.
5. Application of Payments. All payments hereunder shall be applied
first to the Lender's costs and expenses, then to fees authorized hereunder or
under the Loan Agreement, then to interest and then to principal.
6. Default. An Event of Default shall be deemed to have occurred
hereunder upon the occurrence of an Event of Default under the Loan Agreement.
If any Event of Default or Default (as defined in the Loan Agreement) shall
occur, any obligation of the Lender to
5
46
make advances hereunder shall be terminated without notice to the Borrower. In
addition, if any Event of Default shall occur, the outstanding principal of this
Note, all accrued and unpaid interest hereunder and all other amounts payable
under this Note shall be and become forthwith due and payable in the manner set
forth in the Loan Agreement without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower.
Upon the occurrence of any Event of Default, the outstanding principal of this
Note, and any accrued and unpaid interest, shall bear interest at a rate of
either five percent (5.0%) per annum above the Prime Rate after default until
paid or, if such rate is usurious under the laws of Florida, then at the highest
legal rate permissible thereunder (the "Default Rate").
7. Expenses. All parties liable for the payment of this Note agree to
pay the Lender all costs incurred by it in connection with the collection of
this Note. Such costs include, without limitation, fees for the services of
counsel and legal assistants employed to collect this Note, whether or not suit
be brought, and whether incurred in connection with collection, trial, appeal or
otherwise. All such parties further agree to indemnify and hold the Lender
harmless against liability for the payment of state documentary stamp taxes,
intangible personal property taxes or other taxes (including interest and
penalties, if any) excluding income or service taxes of the Lender, which may be
determined to be payable with respect to this transaction.
8. Late Charge. A late charge of five percent (5.0%) of any payment
required hereunder shall be imposed on each and every payment not received by
the Agent within ten (10) days after it is due. Notwithstanding the foregoing,
the late charge shall not in any event exceed $250.00 with respect to any
delinquent installment. The late charge is not a penalty, but liquidated damages
to defray administrative and related expenses due to such late payment. The late
charge shall be immediately due and payable and shall be paid by the Borrower to
the Agent without notice or demand. This provision for a late charge is not and
shall not be deemed a grace period, and Lender has no obligation to accept a
late payment. Further, the acceptance of a late payment shall not constitute a
waiver of any default then existing or thereafter arising under this Note.
9. Change of Law. Notwithstanding any other provision herein, if any
applicable law, rule or regulation or the interpretation or administration
thereof makes it unlawful for the Lender to (a) honor any commitment it may have
hereunder to accrue interest at the Adjusted Libor Rate, then such commitment
shall terminate, or (b) maintain any accrual of interest at the Adjusted Libor
Rate, then interest shall immediately upon notice from the Lender accrue at the
rate set forth in paragraph 3(a) hereof unless the Borrower elects for interest
to accrue at the Adjusted CD Rate.
6
47
10. Setoffs. The Borrower and any endorsers, sureties, guarantors, and
all others who are, or who may become liable for the payment hereof, severally
expressly grant to the Lender a continuing first lien security interest in any
and all money, general or specific deposits, or property of any such parties now
or hereafter in the possession of the Lender. The Borrower and such other
parties authorize and empower the Lender, in its sole discretion, at any time
after the occurrence of a default hereunder to appropriate and, in such order as
the Lender may elect, apply any such money, deposits or property to the payment
hereof or to the payment of any and all indebtedness, liabilities and
obligations of such parties to the Lender or any of the Lender's affiliates,
whether now existing or hereafter created or arising or now owned or howsoever
after acquired by the Lender or any of the Lender's affiliates (whether such
indebtedness, liabilities and obligations are or will be joint or several,
direct or indirect, absolute or contingent, liquidated or unliquidated, matured
or unmatured, including, but not limited to, any letter of credit issued by the
Lender for the account of any such parties).
11. Miscellaneous. The remedies of the Lender as provided herein shall
be cumulative and concurrent, and may be pursued singly, successively or
together, at the sole discretion of the Lender and may be exercised as often as
occasion therefor shall arise. No act of omission or commission of the Lender,
including specifically any failure to exercise any right, remedy or recourse,
shall be effective, unless set forth in a written document executed by the
Lender, and then only to the extent specifically recited therein. A waiver or
release with reference to one event shall not be construed as continuing, as a
bar to, or as a waiver or release of any subsequent right, remedy or recourse as
to any subsequent event. This Note shall be construed and enforced in accordance
with Florida law and shall be binding on the successors and assigns of the
parties hereto. The term "Lender" as used herein shall mean any holder of this
Note. The Agent may, at its option, round any or all fractional amounts under
paragraph 3 upwards to the next higher 1/100 of 1%.
The Borrower hereby: (a) waives demand, notice of demand,
presentment for payment, notice of nonpayment or dishonor, protest, notice of
protest and all other notice, filing of suit and diligence in collecting this
Note, or in the Lender's enforcing any of its rights under any guaranties
securing the repayment hereof; (b) agrees to any substitution, addition or
release of any collateral or any party or person primarily or secondarily liable
hereon; and (c) agrees that the Lender shall not be required first to institute
any suit, or to exhaust his, their or its remedies against the Borrower or any
other person or party to become liable
7
48
hereunder, or against any collateral in order to enforce payment of this Note.
AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION
By:/s/ T. O. Xxxxxxx
----------------------------------
Its: Chairman & CEO
------------------------------
By:/s/ X. X. Xxxxxxxx
----------------------------------
Its: Executive V.P. & CFO
------------------------------
(CORPORATE SEAL)
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this 21st day of February, 1997, by Xxxxxxx X. Xxxxxxxx and Xxxxxx X.
Xxxxxxx, the Executive Vice President and Chairman, respectively, of American
Heritage Life Investment Corporation, on behalf of the corporation, in Camden
County, Georgia.
/s/ V. Xxxxxx Xxxxxxxx
------------------------------------
Notary Public, State and County
Aforesaid
My Commission Expires: Jan. 16, 2000
(Notary Seal)
8
49
PROMISSORY NOTE
$30,000,000.00 February 21, 1997
Camden County, Georgia
FOR VALUE RECEIVED, the undersigned, AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION (the "Borrower"), hereby promises to pay to the order of SOUTHTRUST
BANK OF ALABAMA, NATIONAL ASSOCIATION (the "Lender"), whose address is 000 0xx
Xxxxxx Xxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, the principal sum of
Thirty Million and 00/100 Dollars ($30,000,000.00) together with interest on the
outstanding principal balance hereof at the rate provided herein. All such
payments of principal and interest shall be made in lawful money of the United
States in immediately available funds at the office of the Agent (as defined
herein), now located at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000 or
at such other office as the Agent may designate in writing. This Note is one of
the Notes described in the Loan Agreement (as amended or restated from time to
time, the "Loan Agreement") of even date herewith by and among the Borrower,
Xxxxxxx Bank, N.A., SunTrust Bank, North Florida, N.A., SouthTrust Bank of
Alabama, National Association and Xxxxxxx Bank, N.A., as agent (in such capacity
and for so long as it shall serve in such capacity under the Loan Agreement, the
"Agent"). Capitalized terms used and not otherwise defined herein shall have the
meanings assigned thereto in the Loan Agreement. This Note shall be governed by
the following provisions:
1. Advances. During the period commencing on the date hereof and
continuing through January 30, 2000 (the "Revolving Period"), the loan evidenced
by this Note shall be a revolving loan. The Borrower may borrow, repay and
reborrow principal amounts hereunder during the Revolving Period subject to the
terms contained herein and in the Loan Agreement. Notwithstanding the foregoing,
the outstanding principal balance hereof shall not exceed the Lender's
Percentage of the Commitment Amount at any one time. The Borrower shall not be
permitted to obtain further advances hereunder from and after January 31, 2000.
2. Payments.
(a) The Borrower shall pay all accrued interest hereunder on
the first day of each May, August, November and February during the
term hereof.
(b) The Borrower shall make a principal payment on the
ninetieth day after the date hereof in an amount equal to: (i) the
excess of the then outstanding principal balance of this Note; over
(ii) the Lender's Percentage of the Commitment Amount as of such date.
(c) The Borrower shall repay principal hereunder in quarterly
installments on the first day of each February, May,
50
August and November commencing on February 1, 2000 and continuing
through November 1, 2001. Each principal installment shall equal 1/20th
of the outstanding principal balance of this Note as of January 31,
2000.
(d) The Borrower shall pay all remaining outstanding principal
hereunder, together will all then accrued and unpaid interest, on
February 1, 2002.
3. Interest.
(a) Except as otherwise provided herein, interest shall accrue
on the outstanding principal balance of this Note from the date of each
advance hereunder at a daily rate that is equal to the Prime Rate (as
defined herein) minus one-half of one percent (0.50%) per annum. The
Prime Rate shall be the interest rate announced from time to time by
Xxxxxxx Xxxxx, Inc. as its prime rate. The Prime Rate is a reference
rate and is not necessarily the lowest or best rate that the Lender may
from time to time charge its customers. The rate of interest shall
change each time the Prime Rate is changed (except to the extent that
interest is then accruing pursuant to the following subparagraph (b)).
For purposes of this Note, any change in the Prime Rate shall be
effective as of the Lender's opening of business on the effective date
of the change.
(b) Notwithstanding the foregoing subparagraph (a), the
Borrower may elect to pay interest on all or a portion of the
outstanding principal hereunder for periods of 30, 60, 90, or 180 days
(each an "Interest Period") at an Adjusted Libor Rate (as defined
herein) or at an Adjusted CD Rate (as defined herein). Notwithstanding
any contrary provision contained herein, the Interest Period for
accruals at the Adjusted CD Rate shall in all events be 90 days. The
Borrower may make such election by providing telephonic notice thereof
to the Agent at least two business days before the commencement of the
Interest Period. The notice shall be provided to such individual at
such telephone number as the Agent may from time to time specify, and
the Agent's internal records as to the delivery and contents of such
notice shall be conclusive evidence thereof. The notice shall
indicate: (i) the date upon which the Interest Period shall commence
(which shall not be a Saturday, Sunday or legal holiday); (ii) whether
such Interest Period shall be for 30, 60, 90 or 180 days; (iii) whether
the Borrower wishes for interest to accrue at the Adjusted Libor Rate
or the Adjusted CD Rate during the term of the Interest Period; and
(iv) the aggregate principal amount which shall bear interest at the
Adjusted Libor Rate or the Adjusted CD Rate (which amount is referred
to herein as the "Libor Amount" or the "CD Amount", as the case may
be). If the Borrower duly elects for interest to accrue hereunder at
2
51
the Adjusted Libor Rate or the Adjusted CD Rate, then interest shall
accrue at the Adjusted Libor Rate or the Adjusted CD Rate, as the case
may be, on the applicable Libor Amount or CD Amount during the
applicable Interest Period. Any election hereunder shall be irrevocable
during the term of the Interest Period, and no Interest Period elected
hereunder shall extend beyond the maturity of this Note. The Borrower
shall not be entitled to have more than five (5) interest rates in
effect at any one time during the term of this Note. Any election by
the Borrower hereunder shall be applicable to all of the Notes, and the
applicable Libor Amount or CD Amount specified by the Borrower shall be
allocated among the Notes based upon each Lender's Percentage of the
Commitment Amount. The Adjusted Libor Rate and the Adjusted CD Rate
shall be determined as follows:
(i) The Adjusted Libor Rate shall be a rate
that is equal to the Libor Rate (as defined herein) plus the
Applicable Libor Margin (as defined herein). The Libor Rate
applicable to any Interest Period shall be the offered rate
for deposits in United States dollars in the London Interbank
market for a period equal to the applicable Interest Period
which appears on the Reuters Screen LIBO Page as of 11:00 a.m.
(London time) on the day that is two London Banking Days (as
defined herein) preceding the first Banking Business Day (as
defined herein) of the Interest Period. If at least two such
offered rates appear on the Reuters Screen LIBO Page, the rate
will be the arithmetic mean of such offered rates. The Agent
may, in its discretion, use any other publicly available index
or reference rate showing rates offered for United States
dollar deposits in the London Interbank market as of the
applicable date. In addition, the Agent may, in its
discretion, use rate quotations for monthly periods in lieu of
quotations for substantially equivalent daily periods. For
purposes hereof, the following terms shall have the following
meanings:
(A) "Banking Business Day" shall mean each
day other than a Saturday, a Sunday or any holiday on
which commercial banks in Jacksonville, Florida are
closed for business.
(B) "London Banking Day" shall mean each day
other than a Saturday, a Sunday or any holiday on
which commercial banks in London, England are closed
for business.
(C) The Applicable Libor Margin shall be
determined based on the rating assigned to American
Heritage Life Insurance Company ("AHL") by A.M. Best
("Best"). The "Applicable Libor Margin"
3
52
during the Revolving Period shall be: (1) 0.425% per
annum if AHL's Best rating is A++ or higher as of the
commencement of the applicable Interest Period; and
(2) 0.550% per annum if AHL's Best rating is lower
than A++ as of the commencement of the applicable
Interest Period. The "Applicable Libor Margin" after
the expiration of the Revolving Period shall be: (1)
0.50% per annum if AHL's Best rating is A++ or higher
as of the commencement of the applicable Interest
Period; and (2) 0.625% per annum if AHL's Best rating
is lower than A++ as of the commencement of the
applicable Interest Period.
(ii) The Adjusted CD Rate shall be a rate that
shall be 0.75% per annum over the CD Rate (as defined herein).
The CD Rate applicable to any Interest Period shall be: (A)
the CD Market Rate (as defined herein), divided by (B) 1.0
minus the CD Reserve Percentage (as defined herein), to which
quotient shall be added (C) the CD Assessment Rate (as defined
herein). The terms "CD Market Rate", "CD Reserve Percentage"
and "CD Assessment Rate" shall have the following meanings:
(A) "CD Market Rate" is the rate of interest
determined by the Agent to be the per annum rate bid
at 11:00 a.m., Jacksonville, Florida time (or as soon
thereafter as practicable) on the first banking
business day of the applicable Interest Period by the
dealers for certificates of deposit of the Agent
having a principal amount comparable to the CD Amount
and a maturity comparable to the applicable Interest
Period.
(B) "CD Reserve Percentage" is the
percentage (expressed as a decimal) prescribed by the
Board of Governors of the Federal Reserve System (or
any successor) for determining the reserve
requirement including, without limitation, any basic,
supplemental or emergency reserves, for a member bank
of the Federal Reserve System with deposits exceeding
five billion dollars with respect to new non-personal
time deposits in dollars having a maturity comparable
to the applicable Interest Period and in an amount of
$100,000 or more. The Adjusted CD Rate shall be
adjusted automatically on and as of the effective
date of any change in the CD Reserve Percentage.
(C) "CD Assessment Rate" for any Interest
Period means a rate per annum equal to (1) the gross
annual assessment rate payable to the Federal Deposit
Insurance Corporation (or any
4
53
successor) by the Agent for insuring the Agent's
domestic dollar deposits less (2) the most recently
determined credit against such assessments, expressed
as an annual rate, available under applicable law to
the Agent in each case as determined by the Agent as
of the first day of any applicable Interest Period.
(c) Interest shall be calculated on the basis of a 360 day
year (based upon the actual number of days elapsed).
(d) The total liability of the Borrower and any endorsers or
guarantors hereof for payment of interest shall not exceed any
limitations imposed on the payment of interest by applicable usury
laws. If any interest is received or charged by any holder hereof in
excess of that amount, the Borrower shall be entitled to an immediate
refund of the excess.
(e) Upon the occurrence of an Event of Default hereunder,
interest shall accrue at the Default Rate hereinafter set forth
notwithstanding the provisions of this section.
4. Prepayment.
(a) The Borrower shall be entitled to prepay this Note in
whole or in part at any time without penalty. Prepayments of principal
after expiration of the Revolving Period shall be applied in the
inverse order of principal payments required hereunder. Notwithstanding
any contrary provision set forth herein: (i) the Borrower shall not be
entitled to prepay any Libor Amounts or CD Amounts prior to the
expiration of the applicable Interest Period unless the Agent or the
Lender makes demand therefor upon the occurrence of an Event of
Default; and (ii) any such Libor Amounts or CD Amounts shall not be
repaid or reborrowed on a revolving basis during any applicable
Interest Period.
(b) Notwithstanding any contrary provision set forth herein,
the Borrower shall make such mandatory prepayments hereunder as may be
required in the Loan Agreement.
5. Application of Payments. All payments hereunder shall be applied
first to the Lender's costs and expenses, then to fees authorized hereunder or
under the Loan Agreement, then to interest and then to principal.
6. Default. An Event of Default shall be deemed to have occurred
hereunder upon the occurrence of an Event of Default under the Loan Agreement.
If any Event of Default or Default (as defined in the Loan Agreement) shall
occur, any obligation of the Lender to
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make advances hereunder shall be terminated without notice to the Borrower. In
addition, if any Event of Default shall occur, the outstanding principal of this
Note, all accrued and unpaid interest hereunder and all other amounts payable
under this Note shall be and become forthwith due and payable in the manner set
forth in the Loan Agreement without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower.
Upon the occurrence of any Event of Default, the outstanding principal of this
Note, and any accrued and unpaid interest, shall bear interest at a rate of
either five percent (5.0%) per annum above the Prime Rate after default until
paid or, if such rate is usurious under the laws of Florida, then at the highest
legal rate permissible thereunder (the "Default Rate").
7. Expenses. All parties liable for the payment of this Note agree to
pay the Lender all costs incurred by it in connection with the collection of
this Note. Such costs include, without limitation, fees for the services of
counsel and legal assistants employed to collect this Note, whether or not suit
be brought, and whether incurred in connection with collection, trial, appeal or
otherwise. All such parties further agree to indemnify and hold the Lender
harmless against liability for the payment of state documentary stamp taxes,
intangible personal property taxes or other taxes (including interest and
penalties, if any) excluding income or service taxes of the Lender, which may be
determined to be payable with respect to this transaction.
8. Late Charge. A late charge of five percent (5.0%) of any payment
required hereunder shall be imposed on each and every payment not received by
the Agent within ten (10) days after it is due. Notwithstanding the foregoing,
the late charge shall not in any event exceed $250.00 with respect to any
delinquent installment. The late charge is not a penalty, but liquidated damages
to defray administrative and related expenses due to such late payment. The late
charge shall be immediately due and payable and shall be paid by the Borrower to
the Agent without notice or demand. This provision for a late charge is not and
shall not be deemed a grace period, and Lender has no obligation to accept a
late payment. Further, the acceptance of a late payment shall not constitute a
waiver of any default then existing or thereafter arising under this Note.
9. Change of Law. Notwithstanding any other provision herein, if any
applicable law, rule or regulation or the interpretation or administration
thereof makes it unlawful for the Lender to (a) honor any commitment it may have
hereunder to accrue interest at the Adjusted Libor Rate, then such commitment
shall terminate, or (b) maintain any accrual of interest at the Adjusted Libor
Rate, then interest shall immediately upon notice from the Lender accrue at the
rate set forth in paragraph 3(a) hereof unless the Borrower elects for interest
to accrue at the Adjusted CD Rate.
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10. Setoffs. The Borrower and any endorsers, sureties, guarantors, and
all others who are, or who may become liable for the payment hereof, severally
expressly grant to the Lender a continuing first lien security interest in any
and all money, general or specific deposits, or property of any such parties now
or hereafter in the possession of the Lender. The Borrower and such other
parties authorize and empower the Lender, in its sole discretion, at any time
after the occurrence of a default hereunder to appropriate and, in such order as
the Lender may elect, apply any such money, deposits or property to the payment
hereof or to the payment of any and all indebtedness, liabilities and
obligations of such parties to the Lender or any of the Lender's affiliates,
whether now existing or hereafter created or arising or now owned or howsoever
after acquired by the Lender or any of the Lender's affiliates (whether such
indebtedness, liabilities and obligations are or will be joint or several,
direct or indirect, absolute or contingent, liquidated or unliquidated, matured
or unmatured, including, but not limited to, any letter of credit issued by the
Lender for the account of any such parties).
11. Miscellaneous. The remedies of the Lender as provided herein shall
be cumulative and concurrent, and may be pursued singly, successively or
together, at the sole discretion of the Lender and may be exercised as often as
occasion therefor shall arise. No act of omission or commission of the Lender,
including specifically any failure to exercise any right, remedy or recourse,
shall be effective, unless set forth in a written document executed by the
Lender, and then only to the extent specifically recited therein. A waiver or
release with reference to one event shall not be construed as continuing, as a
bar to, or as a waiver or release of any subsequent right, remedy or recourse as
to any subsequent event. This Note shall be construed and enforced in accordance
with Florida law and shall be binding on the successors and assigns of the
parties hereto. The term "Lender" as used herein shall mean any holder of this
Note. The Agent may, at its option, round any or all fractional amounts under
paragraph 3 upwards to the next higher 1/100 of 1%.
The Borrower hereby: (a) waives demand, notice of demand,
presentment for payment, notice of nonpayment or dishonor, protest, notice of
protest and all other notice, filing of suit and diligence in collecting this
Note, or in the Lender's enforcing any of its rights under any guaranties
securing the repayment hereof; (b) agrees to any substitution, addition or
release of any collateral or any party or person primarily or secondarily liable
hereon; and (c) agrees that the Lender shall not be required first to institute
any suit, or to exhaust his, their or its remedies against the Borrower or any
other person or party to become liable hereon; and (c) agrees that the Lender
shall not be required first to institute any suit, or to exhaust his, their or
its remedies against the Borrower or any other person or party to become liable
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hereunder, or against any collateral in order to enforce payment of this Note.
AMERICAN HERITAGE LIFE INVESTMENT
CORPORATION
By:/s/ T. O. Xxxxxxx
------------------------------------
Its: Chairman & CEO
--------------------------------
By:/s/ X. X. Xxxxxxxx
------------------------------------
Its: Executive Vice President & CFO
--------------------------------
(CORPORATE SEAL)
STATE OF GEORGIA
COUNTY OF CAMDEN
The foregoing instrument was executed, acknowledged and delivered
before me this 21st day of February, 1997, by Xxxxxxx X. Xxxxxxxx and Xxxxxx X.
Xxxxxxx, the Executive Vice President and Chairman, respectively, of American
Heritage Life Investment Corporation, on behalf of the corporation, in Camden
County, Georgia.
/s/ V. Xxxxxx Xxxxxxxx
------------------------------------
Notary Public, State and County
Aforesaid
My Commission Expires: Jan. 16, 2000
(Notary Seal)
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