Exhibit 10(kk)
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AMENDMENT NO. 1
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
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THIS AMENDMENT NO. 1 TO REVOLVING CREDIT AND TERM LOAN
AGREEMENT (this "Amendment") is made and entered into as of March 25, 2002, by
and among FPIC INSURANCE GROUP, INC., a Florida corporation (the "Borrower"),
the several banks and other financial institutions from time to time party
hereto (the "Lenders"), and SUNTRUST BANK, in its capacity as Administrative
Agent for the Lenders (the "Administrative Agent") and in its capacity as
Collateral Agent for the Lenders (the "Collateral Agent"), and is joined by
certain subsidiaries of the Borrower, as Subsidiary Guarantors (the "Subsidiary
Guarantors") pursuant to the Joinder of Subsidiary Guarantors attached hereto.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to that certain Revolving Credit and Term Loan Agreement,
dated as of August 31, 2001 (the "Existing Credit Agreement"), pursuant to which
the Lenders have agreed to make Loans to the Borrower, and the Issuing Bank has
agreed to issue Letters of Credit for the account of the Borrower (provided,
subject to the terms and conditions of the Existing Credit Agreement, such
Letters of Credit may be issued on behalf of the Borrower or, if requested by
the Borrower, on behalf of any Subsidiary), all upon the terms and subject to
the conditions specified in the Existing Credit Agreement; and
WHEREAS, the Borrower, the Lenders, the Administrative Agent
and, by joinder hereto, the Subsidiary Guarantors, have agreed to modify and
amend the Existing Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein contained, the Borrower, the Lenders, the
Administrative Agent and, by joinder hereto, the Subsidiary Guarantors, agree as
follows:
ARTICLE I
DEFINITIONS
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Section 1.1 Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, the following terms as used in this Amendment,
including the preamble and recitals, have the meanings set forth below:
"Amended Credit Agreement" shall mean the Existing
Credit Agreement, as amended hereby.
"Amendment No. 1 Effective Date" shall have the
meaning assigned to such term in Article IV.
Section 1.2 Other Definitions. Unless otherwise defined herein,
capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Existing Credit Agreement.
ARTICLE II
AMENDMENTS TO EXISTING AGREEMENT
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Except as otherwise set forth in Section 2.3, effective as of the
Amendment No. 1 Effective Date, the Existing Credit Agreement is hereby amended
in accordance with this Article II as follows:
Section 2.1 Amendment to Section 1.1 - Definitions. Section 1.1 -
Definitions of "ARTICLE I - DEFINITIONS; CONSTRUCTION" of the Existing Credit
Agreement is hereby amended to delete the definition of the term "Consolidated
EBITDA" in its entirety and to insert the following new definition for such term
in its place:
"Consolidated EBITDA" shall mean, for the Borrower
and its Subsidiaries for any period, an amount equal to the sum of (a)
Consolidated Net Income for such period plus (b) to the extent deducted in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) depreciation and amortization, (iv) with
respect to the fiscal quarter indicated (A) second quarter of 2000 - $300,000
(severance charges), (B) third quarter of 2000 - $1,514,536 (severance charges),
(C) fourth quarter of 2000 - $20,814,244 (reserve strengthening charges), (D)
fourth quarter of 2000 - $2,497,511 (premium adjustments with respect to
Physicians Reciprocal Insurers contracts), (E) fourth quarter of 2000 - $500,000
(restructuring one of the Borrower's third party administrators), and (F) fourth
quarter of 2001 - $8,770,404 (reserve strengthening charges) and (v) all other
non-cash charges (which shall not include, for purposes of this definition, any
future reserve strengthening charges made by the Borrower for any fiscal quarter
ending after fourth quarter 2001), determined on a consolidated basis in
accordance with GAAP in each case for such period and minus (c) to the extent
added in determining Consolidated Net Income, income tax benefit.
Section 2.2 Amendment to Section 6.3 - Fixed Charge Coverage Ratio.
Section 6.3 - Fixed Charge Coverage Ratio of "ARTICLE VI FINANCIAL COVENANTS" of
the Existing Credit Agreement is hereby amended to delete such Section in its
entirety and to insert the following new Section 6.3 in its place:
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Section 6.3 Fixed Charge Coverage Ratio.
The Borrower and its Subsidiaries will have, as of the end of each
fiscal quarter of the Borrower, commencing with the fiscal quarter ending
September 30, 2001, a Fixed Charge Coverage Ratio of not less than:
Fiscal Quarter Required Ratio
The fiscal quarters ending on September 30, 2001
and December 31, 2001 2.50:1.0
Each fiscal quarter ending after December 31,
2001 and on or prior to December 31, 2002 2.00:1.0
Each fiscal quarter ending after December 31,
2002 2.25:1.0
in each case, calculated on a rolling four-quarter basis and determined in
accordance with GAAP.
Section 2.3 Amendment to Schedule I - Pricing Grid. Schedule I -
Pricing Grid to the Existing Credit Agreement is hereby amended to delete such
Schedule in its entirety and to insert the following new Schedule I in its
place:
Schedule I
PRICING GRID
Consolidated Total Debt Applicable Margin Applicable Percentage
to (per annum) (per annum)
Consolidated Total Capital
Base Rate Eurodollar Commitment Fee
Level I: < 20% 1.00% 2.00% 0.30%
Level II: => 20% and < 25% 1.25% 2.25% 0.35%
Level III: => 25% 1.50% 2.50% 0.40%
Notwithstanding any other provisions of this Amendment, the new Pricing
Grid set forth above shall be effective and applicable on and after December 31,
2001 and, accordingly, the Borrower acknowledges and agrees that from and after
December 31, 2001, the Applicable Margin and the Applicable Percentage each
shall be at Level III until delivery to the Administrative Agent of the
Borrower's financial statements required by Section 5.1(b) of the Existing
Credit Agreement and the compliance certificate required by Section 5.1(e) of
the Existing Credit Agreement for the fiscal quarter ending March 31, 2002, at
which time such Applicable Margin and Applicable Percentage shall be reset as
provided in the Amended Credit Agreement.
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ARTICLE III
CONSENT AND WAIVER OF COVENANT VIOLATION
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Section 3.1 Consent and Waiver. Under the terms and conditions of
Section 6.3 - Fixed Charge Coverage Ratio of "ARTICLE VI - FINANCIAL COVENANTS"
of the Existing Credit Agreement, the Borrower and its Subsidiaries were
required to have, as of the end of each fiscal quarter of the Borrower,
commencing with the fiscal quarter ending September 30, 2001, a Fixed Charge
Coverage Ratio of not less than 2.50:1.0, calculated on a rolling four-quarter
basis and determined in accordance with GAAP. The Borrower acknowledges and
agrees that the Borrower and its Subsidiaries were not in compliance with this
covenant as at fiscal quarter end December 31, 2001 and, as a result thereof,
the Borrower has requested that the Lenders waive such covenant non-compliance
for such period. In consideration of the covenants and agreements set forth in
this Amendment, the Administrative Agent and the Lenders, pursuant to Section
10.2(b) of the Existing Credit Agreement, hereby agree, effective as of the
Amendment No. 1 Effective Date, to waive the Borrower's non-compliance with the
Fixed Charge Coverage Ratio covenant set forth in Section 6.3 of the Existing
Credit Agreement for the fiscal quarter end December 31, 2001; provided, that
the Borrower shall be in full compliance with such Fixed Charge Coverage Ratio
covenant (as modified as set forth in Section 2.2) for each fiscal period after
December 31, 2001.
Section 3.2 No Future Waiver. The waiver set forth in Section 3.1 is a
one-time waiver, applicable only to the Borrower's non-compliance with the Fixed
Charge Coverage Ratio covenant set forth in Section 6.3 of the Existing Credit
Agreement for the fiscal quarter end December 31, 2001, and shall not be
construed to be (a) a waiver as to future compliance with Section 6.3 of the
Amended Credit Agreement, (b) a waiver of any Default or Event of Default that
may now or hereafter exist, or (c) an amendment of or modification to the
Existing Credit Agreement. The Administrative Agent and the Lenders hereby
reserve all of their rights, powers and remedies under the Amended Credit
Agreement, after giving effect to this Amendment, and applicable law.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
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This Amendment shall be and become effective as of the date hereof (the
"Amendment No. 1 Effective Date") when all of the conditions set forth in this
Article IV shall have been satisfied, as reasonably determined by the
Administrative Agent, and thereafter, this Amendment shall be known, and may be
referred to, as "Amendment No. 1":
Section 4.1 Approval by Required Lenders. The Required Lenders shall
have approved the modifications and amendments set forth in this Amendment, such
approval to be evidenced by such Required Lenders' execution of counterparts of
this Amendment as set forth in Section 4.2.
Section 4.2 Execution of Counterparts. The Administrative Agent shall
have received (including by telecopy) counterparts of this Amendment that shall
have been duly executed on behalf of the Borrower, the Subsidiary Guarantors,
the Administrative Agent and the Required Lenders.
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Section 4.3 Legal Details, Etc. All documents executed or submitted
pursuant hereto shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel prior to or by the time of closing. Prior
to or by the time of closing, the Administrative Agent and its counsel shall
have received all information, legal opinions and other documents, and such
counterpart originals or such certified or other copies of such originals as the
Administrative Agent or its counsel may reasonably request, and all legal
matters incident to the transactions contemplated by this Amendment shall be
reasonably satisfactory to the Administrative Agent and its counsel.
Section 4.4 Payment of Waiver/Modification Fee. The Borrower shall
have paid to the Administrative Agent a waiver/modification fee in connection
with this Amendment in an amount equal to 0.15% multiplied by the aggregate
Commitments, such fee being for the account of each Consenting Lender (as
defined below) and payable pro rata based on the ratio of such Consenting
Lender's Commitment to the aggregate of all such Consenting Lenders'
Commitments; provided, that such fee shall be payable only to those Lenders
(each, a "Consenting Lender," and collectively, the "Consenting Lenders") that
shall have returned (including via telecopy addressed to C. Xxxxxxx Xxxxxxxx at
000-000-0000 with delivery of original to follow as required by Section 5.5)
executed signature pages to this Amendment on or before the close of business on
March 25, 2002, as directed by the Administrative Agent.
Section 4.5 Payment of Other Fees and Expenses. The Borrower shall
have paid all out-of-pocket costs and expenses of the Administrative Agent,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the preparation, execution and delivery
of this Amendment.
ARTICLE V
MISCELLANEOUS
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Section 5.1 Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that, after
giving effect to this Amendment, (a) no Default or Event of Default exists under
the Existing Credit Agreement or any of the other Loan Documents, (b) all
representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct in all material respects on and as of the date
hereof (except for those which expressly relate to an earlier date), (c) since
the date of the most recent financial statements of the Borrower described in
Section 5.1(a) or (b) of the Existing Credit Agreement, there has been no change
which has had or could reasonably be expected to have a Material Adverse Effect,
and (d) the Loan Documents are legal, valid and binding obligations of the
respective Loan Parties and are enforceable by the Administrative Agent and the
Lenders, as applicable, against such Loan Parties in accordance with their
respective terms.
Section 5.2 Cross References. References in this Amendment to any
Section are, unless otherwise specified, to such Section of this Amendment.
Section 5.3 Instrument Pursuant to Existing Credit Agreement. This
Amendment is a document executed pursuant to the Existing Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the Existing Credit
Agreement.
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Section 5.4 Loan Documents. The Borrower and the Subsidiary Guarantors
hereby confirm and agree that the Loan Documents are, and shall continue to be,
in full force and effect and hereby ratify and approve in all respects their
obligations thereunder, except that, upon the effectiveness of, and on and after
the date of this Amendment, all references in each Loan Document to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Existing Credit Agreement shall mean the Amended Credit Agreement.
Section 5.5 Counterparts, Effectiveness, Etc. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement. The parties may execute facsimile copies of this Amendment
and the facsimile signature of any such party shall be deemed an original and
fully binding on said party; provided, any party executing this Amendment by
facsimile signature agrees to promptly provide six (6) original executed copies
of this Amendment to Administrative Agent.
Section 5.6 Governing Law; Etc. This Amendment shall be governed by
and construed in accordance with the applicable terms and provisions of Section
10.5 - Governing Law; Jurisdiction; Consent to Service of Process of "ARTICLE X
- MISCELLANEOUS" of the Existing Credit Agreement, which terms and provisions
are incorporated herein by reference.
Section 5.7 No Other Modifications. Except as hereby amended, no other
term, condition or provision of the Existing Credit Agreement shall be deemed
modified or amended, and this Amendment shall not be considered a novation.
Section 5.8 Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed [under seal in the case of the Borrower] by their
respective duly authorized officers as of the day and year first above written.
FPIC INSURANCE GROUP, INC.
By:______________________________________
Name: Xxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
[SEAL]
SUNTRUST BANK
as Administrative Agent, as Collateral
Agent, as Issuing Bank, and as a Lender
By:_____________________________________
Name: C. Xxxxxxx Xxxxxxxx
Title: Director
Revolving Commitment: $19,431,818
Term Loan Commitment: $ 8,312,500
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COMPASS BANK
By:______________________________________
Name: C. French Xxxxxxxxx, Jr.
Title: Senior Vice President
Revolving Commitment: $6,818,182
Term Loan Commitment: $2,916,666
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XXXXX BROTHERS XXXXXXXX & CO.
By:______________________________________
Name: X. Xxxxxx Xxxxxxxx
Title: Partner
Revolving Commitment: $4,431,818
Term Loan Commitment: $1,895,834
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REGIONS BANK
By:_____________________________________
Name: Xxxxxxx Xxxxx
Title: Vice President
Revolving Commitment: $3,409,091
Term Loan Commitment: $1,458,333
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CAROLINA FIRST BANK
By:______________________________________
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
Revolving Commitment: $3,409,091
Term Loan Commitment: $1,458,333
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JOINDER OF SUBSIDIARY GUARANTORS
The undersigned, each being a Subsidiary Guarantor, do hereby
acknowledge and consent to, and agree to be bound by, the foregoing
modifications and amendments to the Existing Credit Agreement as set forth in
this Amendment and to each of the other terms and conditions thereof, and agree
that the Subsidiary Guaranty shall continue in full force and effect and binding
upon and enforceable against such Subsidiary Guarantors in accordance with its
terms from and after the date hereof.
Dated as of the 25th day of March, 2002.
FPIC INSURANCE AGENCY, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
EMPLOYERS MUTUAL, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
PROFESSIONAL STRATEGY OPTIONS, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
ADMINISTRATORS FOR THE PROFESSIONS, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
GROUP DATA CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
FPIC INTERMEDIARIES, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
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