LINE OF CREDIT AGREEMENT
Exhibit 10.16
THIS LINE OF CREDIT AGREEMENT (“Agreement”), made and entered into as of the 6th day of April,
2009, by and among COLUMBUS BANK AND TRUST COMPANY, a Georgia banking corporation (the “Bank”), as
First Party, FORTEGRA FINANCIAL CORPORATION, a Georgia corporation (“Borrower”), and LOTS
INTERMEDIATE CO., a Delaware corporation (“Guarantor”), as Second Parties (Borrower and Guarantor
are herein sometimes collectively called “Second Parties” with each being a “Second Party”);
W I T N E S S E T H T H A T:
WHEREAS, Borrower has requested that Bank provide to Borrower a revolving line of credit in
the maximum principal amount of Fifteen Million and No/100ths Dollars ($15,000,000.00) to be used
by Borrower in the acquisition of agencies, and Bank is willing to extend such credit on the terms
hereinafter provided; and
WHEREAS, Borrower owns 100% of the issued and outstanding stock in Guarantor, and by virtue of
being a wholly-owned Subsidiary of Borrower, Guarantor will benefit from Bank establishing the
requested $15,000,000.00 credit line for Borrower; and
WHEREAS, to induce Bank to establish said credit line for Borrower, Guarantor has agreed to
guarantee the payment and performance of all debts, liabilities and obligations of Borrower with
respect to such credit line and Borrower has agreed to pledge all of its stock in Guarantor as
security for said credit line.
NOW THEREFORE, for the purpose of inducing Bank to establish the $15,000,000.00 credit line
for Borrower, and in consideration of the commitments herein made by Bank and for the other
considerations and mutual agreements of the parties hereinafter expressed, the parties hereby
covenant and agree as follows:
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SECTION 1. THE LINE OF CREDIT LOAN.
(a) The Credit Line. Bank agrees to establish a line of credit in favor of Borrower
(the “Credit Line”) so that, so long as there is not in existence any default or Event of Default
hereinafter contemplated and subject to the terms and conditions hereof, Borrower may borrow and
successively repay and re-borrow up to a maximum aggregate principal amount outstanding at any one
time equal to Fifteen Million and No/100ths Dollars ($15,000,000.00) (the “Commitment”). Subject
to the restrictions hereinafter specified, funds borrowed on the Credit Line, other than the
initial advance thereon, may be used by Borrower solely for the acquisition of agencies by Borrower
or a wholly- owned Subsidiary of Borrower or a wholly-owned Subsidiary of Guarantor and for such
other purposes as may be expressly approved by Bank in Bank’s reasonable discretion.
The initial advance made contemporaneously herewith under the Credit Line shall be used solely for
the purposes of paying the items listed on the closing statement dated the date hereof (the
“Closing Statement”) executed by Borrower in connection with the Credit Line.
(b) Restriction on Use of Borrowed Funds. Borrower expressly covenants and agrees
that in no event shall any funds borrowed on the Credit Line be used by Borrower or made available
by Borrower for use by others, for the purpose (whether immediate, incidental or ultimate) of
buying or carrying margin stock as contemplated by Regulation U of the Federal Reserve Board.
(c) The Line of Credit Note. The Credit Line shall be evidenced by a revolving line
of credit note from Borrower payable to Bank’s order in the face principal amount of up to
$15,000,000.00 (such revolving line of credit note and all amendments, modifications, extensions,
renewals and replacements thereof being herein called the “Line of Credit Note” or
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“Note”), which is executed and delivered contemporaneously herewith, and is made a part hereof by
this reference. The Line of Credit Note provides for accrual and monthly payment of interest on
the amounts of principal from time to time advanced and outstanding on the Credit Line at the
interest rate provided therein, and provides that the principal amount outstanding shall be due and
payable in full on the Maturity Date (as defined in the Line of Credit Note), along with all
accrued and unpaid interest thereon. Bank shall not be obligated to fund any advances under the
Credit Line on or after the Maturity Date (as defined in the Line of Credit Note).
(d) Advances. An initial advance of $87,850.00 is herewith made by Bank on the Credit
Line, which advance is being used to pay the items identified on the Closing Statement. Subject in
all events to the limitations set forth in this Agreement, Bank shall continue to advance funds to
Borrower on the Credit Line by entering such advances as debits to Borrower’s Loan Account. For
the purposes of this Agreement, “Borrower’s Loan Account” shall mean the account on the books of
Bank in which Bank will record loans or other advances made by Bank to or for the benefit of
Borrower pursuant to the terms of this Agreement, payments received on such loans and advances
and other appropriate debits and credits as provided by this Agreement or the Line of Credit Note.
Funds henceforth borrowed on the Credit Line will be advanced to Borrower from time to time upon
Borrower’s written request to Bank, which request must include a statement of the amount
requested, the purpose for which the advance is requested, the date on which the funds are to be
advanced and such other information as Bank may reasonably require. Each request must be provided
to Bank at least three (3) Business Days prior to the date on which the advance is to be funded
(which funding date must be a Business Day); provided, however, Borrower must deliver to Bank at
least thirty (30) days prior to any advance financial information (including without, limitation,
balance sheets and
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operating statements) on any agency which will be acquired in whole or in part with funds to be
drawn from the Credit Line and other information reasonably requested by Bank demonstrating to
Bank’s reasonable satisfaction that such acquisition will not result in Borrower being in violation
of any of the financial covenants set forth in Section 4(z) of this Agreement. Bank will not be
obligated to fund an advance if (i) an Event of Default has occurred and is continuing hereunder,
(ii) if facts or circumstances exist that but for the giving of notice and/or lapse of time would
constitute an Event of Default hereunder, (iii) if the funding of the advance would result in
Borrower and/or Guarantor not being in compliance with the covenants contained in this Agreement,
(iv) after the Maturity Date (as defined in the Line of Credit Note) or (v) if in Bank’s reasonable
determination the proposed agency acquisition could result in Borrower being out of compliance with
the financial covenants set forth in Section 4(z) of this Agreement. In no event shall the
aggregate principal amount outstanding at any one time under the Credit Line exceed the Commitment.
Bank may at Bank’s option limit the amount that may be advanced from the Credit Line for any
agency acquisition to no more than $10,000,000.00.
Second Parties agree that if funds from the Credit Line are used in an acquisition and the
newly acquired entity will not be (or the assets being acquired will not be acquired by) a
wholly-owned Subsidiary of Guarantor, then Bank must be granted a first priority security interest
in all of the ownership, equity, economic, beneficial and voting interest in such acquired entity
(or in such entity acquiring the assets of any company or agency) as security for the Secured
Obligations by means of a pledge agreement acceptable to Bank in its reasonable discretion;
provided that to the extent funds from the Credit Line used in such acquisition are repaid with
Acquisition Debt (as hereinafter defined), then Bank will upon written request from Borrower
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terminate the security interest granted to Bank in such acquired entity (or such entity acquiring
the assets of any company or agency).
(e) Deposit of Advances. Unless otherwise mutually agreed to by Borrower and Bank,
advances from the Credit Line shall be funded by Bank via deposit to Borrower’s checking account
at Bank, and if funded by a deposit to Borrower’s checking account, each such advance shall be
deemed received by Borrower when actually deposited in said account. Any such request for advance
may be made on Borrower’s behalf by such officer or employee or agent of Borrower as shall be
designated in writing by Borrower. Initially, Borrower designates each of Xxxxxxx X. Xxxxxxxxx and
Xxxxxxx Xxxxx as an authorized agent of Borrower for requesting advances under the Credit Line (if
there is more than one designated authorized agent of Borrower, the request of only one authorized
agent shall be required for funding any advance). Should additional authorized agents of Borrower
be designated by Borrower or should Borrower desire to revoke the designation of a previously
designated authorized agent of Borrower, such action shall be effective upon confirmed receipt by
the lending officer at Bank managing the Credit Line of written notice from Borrower of such
designation or revocation, as the case may be. Bank may act on an original or a copy of a request
for advance in good faith believed by Bank to be from an authorized agent of Borrower or on a
request for advance sent via email which Bank in good faith believes was sent by or at the
direction of an authorized agent of Borrower. As to each advance made on the Credit Line, Bank is
hereby authorized to debit the amount thereof to the Line of Credit Note, without notice, as an
advance of principal which will bear interest and be secured as provided herein and in the Line of
Credit Note; Borrower hereby expressly waives notice of any such advance at any time made by Bank
on the Credit Line and notice of any such debit to the Note.
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In no event shall the aggregate principal amount outstanding at any one time on the Credit
Line exceed Fifteen Million and No/100ths U.S. Dollars ($15,000,000.00). Bank shall have no
obligation to advance any funds on the Credit Line at any time after an Event of Default shall have
occurred hereunder and is continuing.
If at any time Borrower is not entitled to any advances on the Credit Line by the terms of
this Agreement, Bank may, in its sole discretion, make requested advances; however, it is expressly
acknowledged and agreed that, in such event, Bank shall have the right, in its sole and absolute
discretion, to decline to make any requested advance and to require any payment required under the
terms of this Agreement without prior notice to Borrower, and the making of any such requested
advances shall not be construed as a waiver of such right by Bank.
In the event that the availability of the Credit Line hereunder expires by the terms of this
Agreement or by the terms of any agreement extending the expiration date of the Credit Line, Bank
may, in its sole discretion, make requested advances (and Borrower shall promptly repay any such
advance with interest thereon at the interest rate provided in the Line of Credit Note); however,
it is expressly acknowledged and agreed that in such event, Bank shall have the right, in its sole
and absolute discretion, to decline to make any requested advance and may require payment in full
of the Line of Credit Note at any time without prior notice to Borrower, and the making of any such
requested advances shall not be construed as a waiver of such right by Bank.
The maximum amount of the Commitment available to be drawn under the Credit Line shall be
reduced by sums borrowed and advanced on the Line of Credit Note for and during the time that same
are outstanding.
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If at any time the unpaid principal balance of the Credit Line shall exceed Fifteen Million
and No/100ths U.S. Dollars ($15,000,000.00), then Borrower immediately shall pay to Bank the amount
of such excess to be credited by Bank to the unpaid principal balance of the Credit Line.
(f) Debit to Note. As to the initial advance herewith made and each advance
henceforth made hereunder, Bank shall be and is hereby authorized to debit the amount thereof to
the Line of Credit Note, without notice, as an advance of principal that will bear interest and be
secured as herein and in the Line of Credit Note provided; Borrower hereby expressly waives notice
of any such advance at any time made by Bank hereunder and notice of any such debit to the Line of
Credit Note.
(g) Duration. Unless sooner terminated, the Credit Line shall be available to Borrower
for a period commencing on the date hereof and expiring on March 31, 2010, which shall be the
maturity date of the Line of Credit Note. Should the Credit Line be extended or renewed on or
after March 31, 2010, any such extension or renewal to be in the sole and absolute discretion of
Bank, then any such extension or renewal shall be on such terms as shall be agreed upon in writing
by Bank and Borrower at that time, but except to the extent the provisions hereof conflict with any
terms then agreed to in writing by Bank and Borrower, all provisions and terms hereof shall remain
in full force and effect with regard to any such extension or renewal.
(h) Credit Line Fee. For establishing the Credit Line, Bank shall be entitled to an
origination fee in the amount of $75,000.00, payable by Borrower contemporaneously
herewith. Said fee shall be conclusively deemed to be fully earned when paid and shall be
non-refundable.
2. SECURITY FOR THE NOTE.
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(a) Contemporaneously herewith, Borrower is executing and delivering to Bank that certain
Stock Pledge and Security Agreement dated as of even date herewith by and between Borrower and Bank
(such Stock Pledge and Security Agreement as originally executed and as same may be amended or
modified from time to time being herein called the “Pledge Agreement”) whereby Borrower pledges to
Bank, inter alia, all of Borrower’s stock in Guarantor as security for the payment of the Secured
Obligations (as hereinafter defined), and Borrower is executing and delivering to Bank a Pledge and
Security Agreement (Deposit Accounts) dated as of even date herewith (such Pledge and Security
Agreement (Deposit Accounts) and all amendments and modifications thereof being herein called the
“Deposit Account Pledge”) whereby Borrower grants to Bank a security interest in certain accounts
of Borrower as security for the payment of the Secured Obligations (as hereinafter defined). Also,
contemporaneously herewith, Guarantor is executing and delivering to Bank an Unconditional
Guaranty dated as of even date herewith (such Unconditional Guaranty as originally executed and as
same may be amended and modified from time to time being herein called the “Guaranty”) whereby
Guarantor guarantees to Bank, inter alia, the payment of the debts, liabilities and obligations of
Borrower evidenced by or arising under the Note.
(b) For the purposes of this Agreement, the term “Collateral” shall mean and include the
“Collateral” described in the Pledge Agreement, the “Pledged Assets” as described in the Deposit
Account Pledge and any and all other property of any nature whatsoever of any one or more of the
Second Parties or any Subsidiary of a Second Party which hereafter may be assigned, transferred or
pledged to Bank as security for all or any of the Secured Obligations (as hereinafter defined).
The debts, liabilities and obligations of Borrower, whether now existing or hereafter incurred or
arising, evidenced by the Note, the obligations of Borrower hereunder, and
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all debts, liabilities and obligations of Borrower to Bank of every nature, whether now existing or
hereafter incurred, relating to the Credit Line (and any renewal, extension and/or refinancing
thereof) are herein called the “Liabilities”.
3. LOAN DOCUMENTS/DEFINITIONS.
For the purposes of this Agreement, the term “Loan Documents” shall mean, collectively, this
Agreement, the Note, the Pledge Agreement, the Deposit Account Pledge, the Guaranty and all other
instruments and documents now or hereafter entered into by Second Parties or either Second Party in
connection with, as security for, or related to the Credit Line or any amendment, modification or
refinancing thereof.
For purposes hereof, the following terms used herein have the following meanings:
(1) “Business Day” shall mean any day other than a Saturday or a Sunday or a day on which
commercial banks in the State of Georgia are authorized or required by law to close.
(2) “Person” shall mean any individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any government or political
subdivision or agency, department or instrumentality thereof.
(3) “Secured Obligations” shall mean (i) all indebtedness and obligations of Borrower to
Bank evidenced by or arising under the Line of Credit Note, whether now existing or hereafter
arising, including any extensions and renewals of said Line of Credit Note, (ii) all costs of
collection incurred by Bank in enforcing this Agreement or the Note or any of the Loan Documents,
(iii) all obligations of Borrower under this Agreement and under the Pledge Agreement, and (iv) any
and all other indebtedness, liabilities and obligations which may now or hereafter be owing by
Borrower to Bank under the Loan Documents or otherwise related to the
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Credit Line, however and whenever created, arising or evidenced, whether alone or together with
another or others, whether direct, indirect or by way of assignment, whether joint or several,
absolute or contingent, due or to become due, and whether as principal, maker, endorser, surety,
guarantor, or otherwise, or which Bank may now or hereafter have, own or hold.
(4) “Subsidiary” shall mean, with respect to any Person, any corporation or other entity
(including, without limitation, limited liability companies, partnerships, joint ventures and
associations) regardless of its jurisdiction of organization or formation, at least a majority of
the total combined voting power of all classes of voting stock or other ownership interests of
which shall, at the time as of which any determination is being made, be owned by such Person,
either directly or indirectly, through one or more other Subsidiaries.
Unless otherwise specified herein, all accounting terms used herein or in any other Loan
Documents shall be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles (“GAAP”) existing on the date of determination (or if
agreed by Bank and Borrower on the date hereof) consistently applied. As used herein or in any
other Loan Document, the term “consolidated”, with respect to any financial statements of any
Person shall mean consolidated in accordance with GAAP.
When the payment of any obligation or the performance of any covenant, duty or obligation
hereunder or under any other Loan Document is stated to be due or performance required on a day
which is not a Business Day, the date of such payment or performance shall extend to the
immediately succeeding Business Day and such extension of time shall be reflected in computing
interest or fees, as the case may be.
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4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SECOND PARTIES.
To induce Bank to extend credit to Borrower as herein contemplated, the respective Second
Parties hereby covenant and agree with Bank as follows and represent and warrant to Bank, as
applicable, as follows:
(a) Binding Obligation. (i) This Agreement, the Note and other Loan Documents being
executed and delivered contemporaneously herewith by Borrower constitute valid and binding
obligations of Borrower enforceable in accordance with their respective terms.
(ii) This Agreement, the Guaranty and other Loan Documents being executed and delivered
contemporaneously herewith by Guarantor constitute valid and binding obligations of Guarantor
enforceable in accordance with their respective terms.
(b) Financial Condition. The consolidated financial statements of Borrower and its
Subsidiaries which have been delivered to Bank present fairly in all material respects the
financial condition and income of such entities in accordance with GAAP as of the date or dates and
for the period or periods stated therein. No material adverse change in any Second Party’s
financial condition has occurred since the date of the most recent financial statement of each of
them delivered to the Bank.
(c) No Default. None of Second Parties is in default in any respect that would
reasonably be expected to be materially adverse to the properties or business, operations, or
condition, financial or otherwise, of any of Second Parties, taken as a whole, under any existing
security agreement, mortgage, agreement, or other instrument to which any of Second Parties is a
party or by which any of Second Parties is contractually bound.
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(d) Compliance with Law, etc. None of Second Parties, to the knowledge of Second
Parties, is in violation of any law, judgment, decree, order, ordinance, or governmental rule or
regulation to which any of Second Parties or any of the property or business operations of any of
Second Parties is subject, which violation would reasonably be expected to be materially adverse to
the properties, business, operations or financial condition of any of Second Parties, taken as a
whole. None of Second Parties has failed to obtain any license, permit, franchise, or other
governmental authorization necessary to the ownership of any of its properties or to the conduct of
its businesses, the failure to obtain which would reasonably be expected to be materially adverse
to the properties, business, operations or financial condition of any of the Second Parties, taken
as a whole.
(e) No Restrictions. None of Second Parties is subject to any restrictions imposed by
any agreement or other instrument to which any Second Party is a party or by which any Second Party
is bound or by any law which would materially adversely affect any Second Party’s ability to enter
into this Agreement and the other Loan Documents and to fulfill all obligations imposed upon Second
Parties (or any of them) hereunder and thereunder, and the provisions of this Agreement and the
other Loan Documents and the fulfillment of the obligations thereby imposed upon Second Parties (or
any of them) will not conflict with or constitute a default under any agreement, instrument or, to
the knowledge of any Second Party, law binding upon any Second Party.
(f) Title to Collateral. Borrower has good and marketable title to 100% of the issued
and outstanding stock in Guarantor, free and clear of all liens and encumbrances of every nature
whatsoever except for the lien and security interest in favor of Bank, and Borrower has
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full power and authority to enter into and deliver the Pledge Agreement and to convey the
Collateral described therein to Bank as security for the Secured Obligations.
(g) Litigation. There is no pending or, to the knowledge of any Second Party,
threatened claim, action, suit, investigation or other proceeding at law or in equity by or before
any federal, state, local or other court or governmental agency, nor is there any judgment, order,
writ, injunction or decree of any such court or agency affecting any Second Party or any properties
or assets of any Second Party, which may, in any one case or in the aggregate, materially adversely
affect the financial condition, operations, properties or business of Second Parties, taken as a
whole, and/or the ability of Second Parties, taken as a whole, to perform their obligations under
any of the Loan Documents.
(h) Tax Returns. Each Second Party has filed or caused to be filed all required
federal, state, local, foreign or other tax returns and reports and has paid all taxes, including
penalties and interest, imposed upon any Second Party or any property or assets of any Second
Party. Neither of the Second Parties is aware of any pending investigation of any Second Party, or
any of the income or assets of any Second Party by any federal, state, local or foreign taxing
authority.
(i) Status of Second Parties. (A) Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia and is duly qualified to
transact business in all other states and jurisdictions where such qualification is necessary
except, in each case, to the extent that the failure to do so would not reasonably be expected to
have a material adverse effect on the properties, business, operations or financial condition of
Borrower, and Borrower has full power and authority to execute and deliver this Agreement and the
other Loan Documents to which it is a party and to own its assets and to transact the business
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it is now engaged in, and to incur the obligations provided for herein and therein, all of which
have been duly authorized by proper corporate action. Borrower shall preserve and maintain its
corporate existence and good standing in the jurisdiction of its incorporation and qualify and
remain qualified as a foreign corporation in each jurisdiction where such qualification is
necessary, except, in each case, to the extent that the failure to do so would not reasonably be
expected to have a material adverse effect on the properties, business or financial condition of
Borrower. Borrower shall continue to engage in a business of the same general type as conducted by
it on the date hereof.
(B) Guarantor is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and is duly qualified to transact business in all other states
and jurisdictions where such qualification is necessary, except, in each case, to the extent that
the failure to do so would not reasonably be expected to have a material adverse effect on the
properties, business, operations or financial condition of Guarantor, and Guarantor has full power
and authority to execute and deliver this Agreement and the other Loan Documents to which it is a
party and to own its assets and to transact the business it is now engaged in, and to incur the
obligations provided for herein and therein, all of which have been duly authorized by proper
corporate action. Guarantor shall preserve and maintain its corporate existence and good standing
in the jurisdiction of its incorporation and qualify and remain qualified as a foreign corporation
in each jurisdiction where such qualification is necessary except, in each case, to the extent that
the failure to do so would not reasonably be expected to have a material adverse effect on the
properties, business, operations or financial condition of
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Guarantor. Guarantor shall continue to engage in a business of the same general type as conducted
by it on the date hereof.
(C) Each Subsidiary of a Second Party is a limited liability company, corporation, or limited
partnership duly organized, validly existing and in good standing under the laws of the state of
its organization, incorporation or formation, as applicable, and is duly qualified to transact
business in all other states and jurisdiction where such qualification is necessary, except, in
each case, to the extent that the failure to do so would not reasonably be expected to have a
material adverse effect on the properties, business, operations or financial condition of all such
entities taken as a whole, and each Subsidiary of a Second Party has full power and authority to
own its assets and to transact the business it is now engaged in. Each Subsidiary of a Second
Party holds and shall maintain all licenses and permits necessary to conduct its business as
currently conducted. Borrower shall cause each Subsidiary of a Second Party to preserve and
maintain its limited liability company, corporate or limited partnership existence and good
standing in the jurisdiction of its organization, incorporation or formation and qualify and remain
qualified as a foreign limited liability company, corporation or limited partnership in each
jurisdiction where such qualification is necessary, except, in each case, to the extent that the
failure to do so would not reasonably be expected to have a material adverse effect on the
properties, business, operations or financial condition of all such entities taken as a whole.
Each Subsidiary of a Second Party shall continue to engage in a business of the same general type
as conducted by it on the date hereof or activities reasonably related or ancillary thereto.
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(D) None of the Second Parties is an “investment company” or a company “controlled” by an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.
(j) Financial Reporting. (i) Borrower agrees to furnish to Bank or cause to be
furnished to Bank, at the cost and expense of Borrower, the following:
(A) as soon as practicable and in any event within 45 days after the end of each fiscal
quarter of each fiscal year of Borrower, beginning with the quarter ended March 31, 2009, a
statement of results of operations of Borrower and a consolidated statement of results of
operations of Borrower and its Subsidiaries for the period from the beginning of the current fiscal
year of Borrower to the end of such quarter, and a balance sheet and income statement of Borrower
and a consolidated balance sheet and income statement of Borrower and its Subsidiaries as at the
end of such quarter, setting forth in each case figures for the corresponding period in the
preceding fiscal year of Borrower, all in reasonable detail and prepared in accordance with
generally accepted accounting principles, together with a certification from the chief financial
officer of Borrower that the information contained in such financial statements fairly present in
all material respects the financial condition of Borrower and its Subsidiaries on the date thereof,
subject to changes resulting from year-end adjustments; and
(B) as soon as practicable and in any event within 120 days after the close of each fiscal
year of Borrower, beginning with the close of the current fiscal year of Borrower, audited
financial statements of Borrower for such year and audited consolidated financial statements of
Borrower and its Subsidiaries for such year, to include, without limitation, balance sheets and
statements of income and cash flow of Borrower and consolidated
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balance sheets and statements of income and cash flow of Borrower and its Subsidiaries for
such fiscal year of Borrower, prepared in accordance with generally accepted accounting principles
by an independent certified public accountant selected by Borrower and acceptable to the Bank, and
certified by the chief financial officer of Borrower and such independent certified public
accountant that the information contained in such financial statements fairly present in all
material respects the financial condition of Borrower and its Subsidiaries for the period covered
thereby; and
(C) concurrently with the delivery of the financial statements described in subsection (B)
above, a certificate from the chief financial officer of Borrower or other representative of
Borrower reasonably acceptable to Bank certifying to the Bank on behalf of Borrower (1) that no
Event of Default, or any event which with the giving of notice or lapse of time or both would
constitute an Event of Default, has occurred and is continuing, or if any such event has occurred
specifying any such event, and (2) the amount of Borrower’s audited net worth at such year-end; and
(D) promptly upon Borrower’s receipt thereof, copies of any written communications from
certified public accountants or any other report Borrower deems material with respect to the
financial condition or operations of Second Parties, taken as a whole; and
(E) promptly following the filing with the applicable internal revenue office complete copies
of Borrower’s state and federal income tax returns; and
(F) promptly upon the Bank’s request, such
other information about the financial condition and operations of Second Parties and/or any
Subsidiary or
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Subsidiaries of any Second Party as Bank may from time to time reasonably request. The form
and level of detail of all financial statements must be reasonably acceptable to Bank in its sole
discretion; and
(G) concurrently with the delivery of quarterly financial statements described in subsection
(A) above, a certificate signed by the chief financial officer of Borrower, in a form reasonably
acceptable to Bank and accompanied by calculations and relevant supporting materials, (a)
certifying to Bank Borrower’s compliance with the financial covenants set forth in Sections 4(z)(i)
and (ii) hereof at each quarter-end and (b) certifying no changes (or if any changes occurred,
disclosing such changes) in any A.M. Best financial strength rating of Borrower or any of its
related Subsidiaries.
(k) Right of Inspection. Second Parties shall permit any officer, employee, or agent
of Bank to inspect and examine the Collateral and the books of record and accounts of each Second
Party and the books of record and accounts of each Subsidiary of a Second Party, to take copies and
extracts from such books of record and accounts, and to discuss the affairs, finances, and accounts
of each Second Party and its Subsidiaries with each Second Party’s accountants and auditors, all at
such reasonable times and as often as Bank may reasonably desire and all reasonable and documented
costs incurred by Bank in connection with such inspections and/or examinations shall be paid by
Borrower promptly upon request of Bank.
(l) Notice of Certain Events. Each Second Party shall promptly notify Bank if such Second Party learns of the occurrence of (i) any event that
constitutes an Event of Default hereunder, together with a detailed statement of the steps being
taken by either Second Party, as the case may be, to cure the effect of such Event of Default; or
(ii) the receipt of any notice from,
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or the taking of any other action by, the holder of any promissory note, debenture, or other
evidence of indebtedness of any Second Party or any Subsidiary of a Second Party with respect to a
claimed default, together with a detailed statement specifying the notice given or other action
taken by such holder and the nature of the claimed default and what action such Second Party or
Subsidiary is taking or proposes to take with respect thereto; or (iii) any legal, judicial, or
regulatory proceedings affecting any Second Party, any Subsidiary of any Second Party or the
Collateral pledged to Bank, in which the amount involved is material and which could reasonably be
expected to have a material and adverse effect on the Collateral or materially and adversely affect
the business or financial condition of the Second Parties, taken as a whole; or (iv) excluding
income tax audits, any dispute between any Second Party or any Subsidiary of a Second Party and any
governmental or regulatory authority or any other person, entity, or agency which could reasonably
be expected to jeopardize Bank’s security interest in the Collateral or interfere with the normal
business operations of such Second Party; or (v) any material adverse change, either individually
or in the aggregate, in the assets, liabilities, financial condition, business, operations,
affairs, or circumstances of the Second Parties, taken as a whole, from those reflected in their
financial statements or from the facts warranted or represented in any of the Loan Documents,
including this Agreement.
(m) Payment of Taxes. Each Second Party shall punctually pay and discharge and shall
cause each of its Subsidiaries to punctually pay and discharge all taxes, assessments and
governmental charges or levies imposed upon such Second Party or Subsidiary or upon the income or
upon any of the property of such Second Party excepting, however, any taxes, assessments, charges,
levies or claims which are in good faith being timely contested by any
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Second Party or Subsidiary of a Second Party and are properly reserved against by such Second
Party or Subsidiary.
(n) Loan Documents. Second Parties will procure immediate delivery to Bank of all
Loan Documents as required by Bank, properly executed by each Second Party that is a party thereto.
(o) Intentionally Omitted.
(p) Intentionally Omitted.
(q) No Sale of Collateral. Second Parties agree that none of the Collateral
consisting of any ownership or equity interest (including, without limitation, any legal, economic,
beneficial or voting interest) in any entity may be sold or otherwise transferred by Borrower
without the prior written approval of Bank, which approval may be withheld in the reasonable
discretion of Bank. Other than the transfers of ownership interest expressly permitted in Section
4(w) hereof and transfers of interest by Guarantor or any of Guarantor’s Subsidiaries to a wholly
owned Subsidiary of Guarantor, none of the ownership or equity interest (including, without
limitation, any legal, economic, beneficial or voting interest) in any Subsidiary of Guarantor or
any other assets of Guarantor shall be sold or otherwise transferred without the prior written
consent of Bank, which consent may be withheld in Bank’s reasonable discretion (provided, however,
Bank will not unreasonably withhold its consent to any transfer of ownership or equity interest in
any Subsidiary by Guarantor to Borrower as long as (i) prior to any such transfer Borrower is able
to demonstrate to Bank’s reasonable satisfaction that such transfer would not have a materially
adverse effect on the net worth of Guarantor and (ii) if such Subsidiary was acquired (or any of
its assets were acquired), in whole or in part, with funds
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drawn from the Credit Line, Borrower must at the time of such transfer either re-pay to Bank
the amount advanced from the Credit Line related to such Subsidiary or pledge to Bank (pursuant to
a pledge agreement reasonably acceptable to Bank) all the ownership and equity interest in such
Subsidiary as additional Collateral for the Secured Obligations, subject to no other liens or
encumbrances). Notwithstanding anything in this Agreement to the contrary, Borrower shall at all
times own all the issued and outstanding stock in Guarantor and such stock shall be pledged to Bank
under the Pledge Agreement subject to no other liens or encumbrances.
(r) Secondary Security Interests Prohibited. (i) Each Second Party agrees that no
secondary security interest will be conveyed in any of the Collateral without the prior written
consent of Bank, which consent may be withheld in the sole discretion of Bank. (ii) Guarantor
agrees that Guarantor will not grant or convey any security interest in any of Guarantor’s equity,
economic, ownership, beneficial or voting interest in any Subsidiary of Guarantor or any other
assets of Guarantor to any party other than Bank, without the prior written consent of Bank, which
consent may be withheld in Bank’s reasonable discretion.
(s) Other Debt. Without the prior
written consent of Bank, which consent may be withheld in Bank’s sole discretion, neither Borrower
nor Guarantor will create, incur, assume or suffer to exist any Debt in addition to Debt listed on
Schedule 4(s) attached hereto except for (i) Debt under the Note or otherwise in favor of Bank, and
(ii) other Debt which in the aggregate outstanding at any one time for Borrower and Guarantor on a
consolidated basis does not exceed $10,000,000.00; provided that such limitation shall not apply in
respect of any indebtedness incurred to finance (or refinance indebtedness incurred to finance) any
acquisition permitted under Sections 4(t) or 4(hh) (any such Debt, “Acquisition Debt”).
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For purposes hereof, “Debt” shall mean (i) indebtedness or liability for borrowed money; (ii)
obligations evidenced by bonds, debentures, notes, or other similar instruments; (iii) obligations
for the deferred purchase price of property or services; (iv) obligations as lessee under capital
leases; (v) obligations under letters of credit; (vi) obligations under acceptance facilities;
(vii) all guaranties, endorsements (other than for collection or deposit in the ordinary course of
business), and other contingent obligations to purchase, to provide funds for payment, to supply
funds to invest in any Person or entity, or otherwise to assure a creditor against loss, in each
case, in respect of any items set forth in clauses (i) through (vi) above; and (viii) obligations
secured by any liens, whether or not the obligations have been assumed, in respect of any item set
forth in clauses (i) through (vii) above.
(t) Fundamental Change. Neither Borrower nor Guarantor shall wind up, liquidate or
dissolve itself, reorganize, merge or consolidate with or into, or convey, sell, assign, transfer,
lease or otherwise dispose of (whether in one transaction or a series of transactions) all or a
material portion of its assets (whether now owned or hereafter acquired) to any Person or acquire
(either directly or through a Subsidiary) all or substantially all of the assets or the business of
any Person without the prior written consent of Bank, which consent Bank may withheld in its
reasonable discretion, except that:
(1) as long as Bank is given advance written notice thereof, any Subsidiary of Borrower or
Guarantor may merge into or transfer its assets to Guarantor or a wholly owned Subsidiary of
Guarantor;
(2) Borrower or Guarantor may acquire (either directly or through a Subsidiary) the assets of
or ownership interests in another company (or agency) provided (i) that
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Bank is notified in writing thirty (30) days in advance of such acquisition, (ii) that Borrower
provides Bank with information reasonably acceptable to Bank to demonstrate that following such
acquisition Borrower will remain in compliance with the financial covenants set forth in Section
(4)(z) of this Agreement, (iii) that such acquisition will not otherwise cause the occurrence of an
Event of Default hereunder, and (iv) that if funds drawn from the Credit Line are used to fund such
acquisition and the newly acquired entity will not be (or the assets being acquired will not be
acquired by) a wholly-owned Subsidiary of Guarantor, then Bank must be granted a first priority
security interest in all of the ownership, equity, economic, beneficial and voting interest in
such acquired entity (or in such entity acquiring the assets of any company or agency) as security
for the Secured Obligations by means of a pledge agreement acceptable to Bank in its reasonable
discretion; provided that to the extent funds from the Credit Line used in such acquisition are
repaid with Acquisition Debt, then Bank will upon written request from Borrower terminate the
security interest granted to Bank in such acquired entity (or such entity acquiring the assets of
any company or agency).
(u) Loans to Affiliates, Members, Etc. Neither Borrower nor Guarantor shall make any
loans to any affiliated entity of Borrower or Guarantor or to any shareholders, directors,
officers, managers, employees or agents of Borrower or to any Person, without the prior express
written consent of Bank which consent may be withheld in Bank’s reasonable discretion; provided,
however, Borrower may make loans to its Subsidiaries as long as the aggregate amount of all of such
loans outstanding at any one time do not exceed $5,000,000.00.
(v) Indemnification. Second Parties, jointly and severally, will indemnify and hold
harmless Bank from any claims arising by reason of the execution hereof or the consummation of
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the transactions contemplated hereby or any other Loan Document; provided that such indemnity shall
not be available to the extent that such claims are determined by a court of competent jurisdiction
in a final, non-appealable judgment to have resulted directly from the gross negligence or willful
misconduct of Bank.
(w) Change in Ownership. No material change in the ownership of Borrower, Guarantor,
any Subsidiary of Borrower or any Subsidiary of Guarantor shall occur without the prior written
approval of Bank, which approval may be withheld in Bank’s reasonable discretion (provided,
however, Bank will not unreasonably withhold its consent to any transfer of ownership or equity
interest in any Subsidiary by Guarantor to Borrower as long as (i) prior to any such transfer
Borrower is able to demonstrate to Bank’s reasonable satisfaction that such transfer would not have
a materially adverse effect on the net worth of Guarantor and (ii) if such Subsidiary was acquired
(or any of its assets were acquired), in whole or in part, with funds drawn from the Credit Line,
Borrower must at the time of such transfer either re-pay to Bank the amount advanced from the
Credit Line related to such Subsidiary or pledge to Bank (pursuant to a pledge agreement reasonably
acceptable to Bank) all the ownership and equity interest in such Subsidiary as additional
Collateral for the Secured Obligations, subject to no other liens or encumbrances) . For purposes
hereof, a “material change in the ownership” shall occur with respect to any entity if more than
10% of the total ownership interest (regardless of whether legal, equity and/or beneficial
ownership) in any entity is transferred to any Person other than Guarantor or a wholly-owned
Subsidiary of Guarantor (either in one transaction or a series of transactions) or if Guarantor
ceases to have voting control of any of its Subsidiaries or Borrower ceases to have voting control
over any of its Subsidiaries.
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(x) No Other Guaranties. Other than guaranties in favor of Bank and Borrower’s
guaranties of the Debt of Borrower’s wholly owned Subsidiaries in an aggregate amount at any one
time of no more than $3,000,000.00, no Second Party shall guarantee or become responsible for the
Debt of any other Person without the prior written consent of Bank, which consent may be withheld
in Bank’s reasonable discretion.
(y) Accuracy of Representations and Warranties. All representations and warranties
set forth in this Agreement or in any of the other Loan Documents are true, correct, complete and
accurate in all material respects.
(z) Additional Financial Covenants. Borrower hereby covenants and agrees with Bank:
(i) Borrower and its Subsidiaries (which includes, without limitation, Guarantor) shall
maintain on a consolidated basis a minimum debt service coverage ratio (“Debt Service Coverage
Ratio”) of 2.25:1 as measured at each quarter-end.
For purposes hereof, Debt Service Coverage Ratio shall be calculated as follows: EBITDA (i.e.,
earnings before interest expense, income tax expense, depreciation expense, and amortization
expense less dividend distributions) for the trailing 12-month period divided by annual debt
service (i.e., the prior 12-months’ current maturities of long-term debt to include capital lease
obligations plus the trailing 12-month period’s interest expense, including, but not limited to,
interest expense related to the lines of credit, trust preferred securities, redeemable preferred
stock, subordinated debentures to Summit Partners, L.P. and any other debt facility.
(ii) Borrower and its Subsidiaries (which includes, without limitation, Guarantor) shall
maintain on a consolidated basis a maximum debt-to-EBITDA ratio of 4.75:1 as measured at each
quarter end.
For the purposes of this calculation, debt will include, without limitation, the following:
principal balance on any lines of credit, trust preferred securities, redeemable
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preferred stock, subordinated debentures to Summit Partners, L.P., capital lease obligations, any
off-balance sheet items, and all other debt facilities.
For purposes of this calculation, EBITDA will be defined as provided in subpart (i) above on a
trailing twelve month basis.
(iii) Borrower and its Subsidiaries that are rated by A.M. Best will have no deterioration in
their A.M. Best Financial Strength Ratings below the B+ secure rating.
(iv) Borrower shall maintain a minimum audited net worth of $50,000,000.00 measured annually
at each fiscal year-end of Borrower.
(aa) OFAC. No Second Party (i) is a person whose property or interest in property
is blocked or subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or transactions
prohibited by Section 2 of such order, or is otherwise associated with any such person in any
manner violative of Section 2, or (iii) is a person on the list of Specially Designated Nationals
and Blocked Persons or subject to the limitations or prohibitions under any other U.S. Department
of Treasury’s Office of Foreign Assets Control regulation or executive order.
(bb) Patriot Act, Etc. Each Second Party is in compliance, in all material respects,
with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
and any other enabling legislation or executive order relating thereto, and (ii) the Uniting And
Strengthening America By Providing Appropriate Tools Required To Intercept And Obstruct Terrorism
(USA Patriot Act of 2001). No part of the proceeds of the Loan will be used, directly or
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official
-26-
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
(cc) Change of Name; Structure Dissolution. Neither Borrower nor Guarantor nor any
Subsidiary of Borrower and/or Guarantor shall in any way alter its organizational or capital
structure (other than changes in ownership permitted under Section 4(w) of this Agreement or
fundamental changes permitted under Section 4(t) of this Agreement), or with respect to any Second
Party, amend in any material respect its organizational documents without obtaining Bank’s prior
written consent, which consent may be withheld in Bank’s reasonable discretion. Neither Borrower
nor Guarantor shall change its name unless written notice of such name change is given to Bank
within ten (10) days of the effective date of such name change.
(dd) Intentionally Omitted.
(ee) Depository. Each Second Party shall utilize Bank and its affiliates as its
primary depository institutions.
(ff) Intentionally Omitted.
(gg) Senior Debt. The Liabilities shall be considered senior debt of Borrower and
will be on par with other debt of Borrower to Bank and senior to current subordinate debt and
preferred securities.
(hh) Subsidiaries. Second Parties have no Subsidiaries other than those listed on
Schedule 4(hh) attached hereto and the ownership of each such Subsidiary is as set forth on
Schedule 4(hh) hereof. No Second Party will acquire any Subsidiary (either directly or through
another Subsidiary) unless (i) Borrower demonstrates to Bank’s reasonable satisfaction that
following the acquisition of such Subsidiary Borrower will be in compliance with the financial
covenants of Section 4(z) of this Agreement, and such acquisition of such Subsidiary will not
otherwise give rise to an Event of Default under this Agreement, and (ii) if such Subsidiary is
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being acquired in connection with the acquisition of a business or company (or agency) utilizing
any funds drawn from the Credit Line, such newly acquired Subsidiary will be directly or indirectly
wholly owned by Guarantor or if not wholly owned by Guarantor, 100% of the ownership, legal,
equity, voting, economic and beneficial interest in such Subsidiary shall be pledged to Bank as
security for the Secured Obligations pursuant to a pledge and security agreement acceptable to Bank
subject to no other liens or encumbrances; provided that to the extent funds from the Credit Line
used in such acquisition are repaid with Acquisition Debt, then Bank will upon written request from
Borrower terminate the security interest granted to Bank in such acquired Subsidiary (or such
entity acquiring the assets of any company or agency).
(ii) Other Matters. To each Second Party’s knowledge, no information, exhibit,
schedule or report furnished or to be furnished by any Second Party to Bank in connection with this
Agreement contains or will contain any material misstatement of fact, or fails or will fail to
state any material fact, the omission of which would render the statements therein materially false
or misleading.
5. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events or conditions shall constitute an Event
of Default for the purposes of this Agreement:
(a) Borrower fails to pay the principal of, or interest on, the Note or any of the other
Liabilities as and when due and payable; or
(b) Failure of any Second Party to comply with any covenant or agreement contained herein or
the occurrence of any other breach or default hereunder on the part of any Second Party (provided,
however, except with respect to defaults addressed in 5(a) above or elsewhere in this Section 5,
Second Parties shall have (i) ten (10) days after written notice of such failure shall have been
given by Bank to Second Parties to cure any such failure that can be cured by the payment of
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money and (ii) shall have thirty (30) days after written notice of such failure shall have been
given by Bank to Second Parties to cure any such failure that cannot be cured by the payment of
money); or
(c) Any representation, warranty or statement made by or on behalf of Second Parties or any
Second Party herein or in any of the Loan Documents or in any certificate, report, schedule,
representation, statement or other writing at any time delivered pursuant hereto or thereto in
connection herewith or therewith is untrue in any material respect as of the date made; or
(d) Any Second Party makes a general assignment for the benefit of creditors, files a petition
in bankruptcy, petitions or applies to any tribunal for the appointment of a custodian, receiver or
trustee for any Second Party or any substantial part of the assets of any Second Party, or
commences any proceeding under any bankruptcy, reorganization, rearrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect;
or if there is filed any such petition or application, or any such proceeding is commenced against
any Second Party, in which an order for relief is entered or which remains undismissed for a period
of 60 days or more; or if any Second Party by any act or omission indicates any Second Party’s
consent to, approval of or acquiescence in any such petition, application or proceeding or order
for relief or in the appointment of a custodian, receiver or any trustee for any Second Party or
any substantial part of the properties of any Second Party and suffers any such custodianship,
receivership or trusteeship to continue undismissed for a period of 60 days or more; or
(e) Any Second Party conceals, removes, or permits to be concealed or removed, any part of the
property of any Second Party, with intent to hinder, delay or defraud creditors or any of them, or
makes or suffers a transfer of any property of any Second Party to or for the benefit of a creditor
at a time when other creditors similarly situated have not been paid, or suffers or
-29-
permits, while insolvent, any creditor to obtain a lien upon any of any Second Party’s property
through legal proceedings or distraint which is not vacated within 30 days from the date thereof;
or
(f) Except as permitted by Sections 4(q), 4(r) and 4(hh) of this Agreement, should any Second
Party sell, encumber, convey or otherwise transfer any interest in the Collateral contemplated in
this Agreement or any of the Loan Documents or any portion thereof without the prior written
consent of Bank; or
(g) Except as provided in Section 4(t) above, any Second Party is dissolved or liquidated or
loses its separate identity through any merger, consolidation or reorganization without Bank’s
prior written approval; or
(h) The occurrence or continuation of any default or Event of Default by or attributable to
Borrower under or in connection with any security deed, mortgage, deed of trust, lease, security
agreement, note, bond indenture, loan agreement or similar instrument or agreement in amounts in
excess of $500,000.00 to which Borrower is now or may hereafter be a party or by which Borrower or
any of its property is now or may hereafter be bound or affected; or
(i) Any judgment or judgments in excess of $500,000, in the aggregate, be entered against any
Second Party and remains unpaid, unstayed or undismissed for a period of more than thirty (30) days
after the right to appeal has expired, excluding judgments, fully covered by any Second Party’s
insurance; or
(j) Occurrence of any Event of Default under, and as defined in, that certain Amended and
Restated Loan and Line of Credit Agreement among the parties hereto dated as of June 20, 2007
(which Loan Agreement relates to another $15,000,000.00 line of credit established by Bank
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for Borrower) or any amendment or extension thereof or under any of the Loan Documents (as defined
in such Loan Agreement); or
(k) If any event occurs under any instrument, bond, debenture, note or other evidenced of
indebtedness made by any Second Party to any third party which would authorize the acceleration of
any debt to any such third party the acceleration of which would reasonably be expected to
materially affect such Second Party’s ability to perform its obligations under or comply with the
terms of any of the Loan Documents or such Second Party’s ability to pay when due amounts owed by
such Second Party to Bank; or
(m) Occurrence of an Event of Default under, and as defined in, the Note, the Pledge Agreement
or any of the other Loan Documents; or
(n) Guarantor fails to observe any term, covenant or agreement under the Guaranty.
6. REMEDIES.
(a) General. Upon the occurrence and during the continuance of an Event of Default,
Bank shall have and at its option may exercise, at any time and from time to time and without
notice to any of the Second Parties, each, any and all of its rights and remedies herein and in the
Note, the Pledge Agreement and other Loan Documents provided or which are otherwise available to
Bank under applicable law, including but not limited to its right to declare accelerated and
thereby render immediately due and payable all indebtedness herein contemplated, to enforce
collection of said indebtedness from any or all of Second Parties by suit or other lawful means,
and to exercise any and all rights of foreclosure provided in the Pledge Agreement and the other
Loan Documents or which are otherwise available to Bank with respect to the Collateral. All such
rights and remedies are and shall be cumulative and may be exercised singly, concurrently or in
such combinations as Bank from time to time may elect. The failure to exercise any such remedy
shall not constitute a waiver thereof, nor shall any partial or ineffectual use of any such
-31-
remedy prevent the subsequent or concurrent resort to the same or any other remedy or remedies. It
is intended that this clause shall be broadly construed so that all remedies herein provided for or
otherwise available to Bank shall continue and be each and all available to Bank until all sums due
it by reason of the transactions and obligations contemplated by this Agreement have been fully
paid and fully discharged without loss or damage to Bank.
(b) Set-off. Upon the occurrence and during the continuance of any Event of Default,
as long as permitted by applicable law, Bank is authorized at any time and from time to time,
without notice to any of Second Parties (any such notice being expressly waived by each of Second
Parties), to set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by Bank to or for the credit or the account of any Second
Party to the payment of the Liabilities in such order of application as Bank shall deem
appropriate, in its sole discretion. Bank agrees promptly to notify the applicable Second Party
after any such set-off and application; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of Bank under this
subsection (b) are in addition to other rights and remedies (including but not limited to other
rights of set-off) that Bank may have. And in the event of Bank’s sale of any participation in any
loan or loans herein contemplated, each participating lender shall have and may exercise, to the
extent of its participation, the same rights of set-off and related rights as those provided for
Bank in this subsection (b).
7. MISCELLANEOUS.
(a) Incorporation by Reference; Conflicts. Each of the Loan Documents, whether
delivered to and accepted by Bank contemporaneously herewith or from time to time hereafter, shall
be and hereby are incorporated herein and made a part hereof by this reference. In the event of
any inconsistencies among any of the terms or provisions that appear in this Agreement and the
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other Loan Documents, the terms and provisions of this Agreement shall control. All covenants and
agreements of Borrower and Guarantor contained in this Agreement shall be given independent effect
so that if a particular action or condition is not permitted by any of such covenants, the fact
that it would be permitted by an exception to, or be otherwise within the limitation of, another
covenant, shall not avoid the occurrence of a Default or an Event of Default if such action is
taken or condition exists.
(b) Notices. Any and all notices, elections or demands permitted or required to be
made under this Agreement shall be in writing, signed by the party giving such notice, election or
demand and shall be delivered personally, by electronic mail, or sent by certified United States
Mail, postage prepaid, or sent by a nationally recognized overnight courier provided a receipt for
delivery is obtained from the recipient, to the other party at the address set forth below, or at
such other address within the continental United States of America as may have theretofore been
designated in writing to the other party. Any such notice or other document shall be deemed
delivered (i) if personally delivered, when actually received by the party to whom directed at the
address specified pursuant to this Section, or (ii) if sent by electronic mail, upon sender’s
receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgment), or (iii) if sent by U.S.
Mail, three (3) days after such notice or document is deposited in the United States Mail,
addressed as provided above, or (iv) if sent by overnight courier, addressed as provided below on
the date of receipt or refusal to accept delivery, as evidenced on the return receipt or other
shipping invoice. For the purposes of this Agreement:
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If to Borrower:
Fortegra Financial Corporation
Attn: Xxxx Xxxxx
000 Xxxx Xxx Xxxxxx
P. O. Box 44130
Xxxxxxxxxxxx, Xxxxxxx 00000
xxxxxx@xxxxxxxx.xxx
If to Guarantor:
Attn: Xxxx Xxxxx
000 Xxxx Xxx Xxxxxx
P. O. Box 44130
Xxxxxxxxxxxx, Xxxxxxx 00000
xxxxxx@xxxxxxxx.xxx
If to Guarantor:
LOTS Intermediate Co.
Attn: Xxxx Xxxxx
000 Xxxx Xxx Xxxxxx
P. O. Box 44130
Xxxxxxxxxxxx, Xxxxxxx 00000
xxxxxx@xxxxxxxx.xxx
Attn: Xxxx Xxxxx
000 Xxxx Xxx Xxxxxx
P. O. Box 44130
Xxxxxxxxxxxx, Xxxxxxx 00000
xxxxxx@xxxxxxxx.xxx
If to Bank:
Columbus Bank and Trust Company
Attn: Xxxxx Xxxxxxx, Corporate Banking
0000 Xxxxx Xxxxxx, Xxxxxx Center
(Post Office Box 120)
0000 Xxxxxxxx
Xxxxxxxx, Xxxxxxx 00000 (31902)
xxxxxxxxxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
Attn: Xxxxx Xxxxxxx, Corporate Banking
0000 Xxxxx Xxxxxx, Xxxxxx Center
(Post Office Box 120)
0000 Xxxxxxxx
Xxxxxxxx, Xxxxxxx 00000 (31902)
xxxxxxxxxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
(c) Invalidity. In the event that any one or more of the provisions contained in the
Note, this Agreement or any of the other Loan Documents for any reason shall be held invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall
not affect any other provision of the Note, this Agreement or any of the other Loan Documents.
(d) Survival. This Agreement and the rights and obligations of the parties hereunder
shall survive until the Liabilities have been paid in full and Bank has no further obligation to
advance funds under the Credit Line.
(e) Successors and Assigns. All covenants and agreements made by or on behalf of any
one or more Second Party in this Agreement and in the other Loan Documents shall be fully binding
upon such Second Party and its successors and assigns, and shall inure to the benefit of Bank and
its successors and assigns. The words “Bank”, “Borrower” and “Guarantor” shall include their
respective successors and assigns, except neither Borrower nor Guarantor may assign or transfer any
of their respective rights under any Loan Documents to which it is a party
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without the prior written consent of Bank, which consent may be withheld in Bank’s sole discretion.
(f) Renewal Notes. All provisions of this Agreement relating to the Note or the
indebtedness represented thereby shall apply with equal force and effect to each and all (if any)
promissory notes henceforth executed which in whole or in part represent a renewal, extension (for
any period), increase, or rearrangement of any part of the indebtedness originally represented by
the Note or of any part of such indebtedness, except as otherwise specifically agreed to in writing
between Bank and Borrower at that time. Nothing contained herein shall obligate in any way Bank to
extend or renew the Note, any such extension or renewal to be in the sole and unlimited discretion
of Bank.
(g) Non-Waiver. No action or course of dealing on the part of Bank, its officers,
employees, consultants, or agents, nor any failure or delay by Bank with respect to its exercise of
any right, power, or privilege of Bank under this Agreement or other Loan Documents shall operate
as a waiver thereof. No waiver by Bank of any default on the part of any Second Party hereunder or
under any of the other Loan Documents shall be considered a waiver of any other or subsequent
default, and no exercise or enforcement of any rights or powers hereunder or under any of the other
Loan Documents by Bank shall be held to exhaust such rights or powers and every such right and
power may be exercised from time to time by Bank.
(h) Rights Cumulative. All rights and remedies of Bank under this Agreement and other
Loan Documents shall be cumulative and not exclusive of any and all other rights and remedies
available to Bank at law, in equity or otherwise. The exercise or partial exercise of any such
right or remedy shall not preclude other or further exercise of the same or any other right or
remedy.
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(i) Governing Law. This Agreement constitutes a contract made by the parties in the
State of Georgia, and shall be construed in accordance with and governed by the laws of that State.
(j) Titles of Sections, etc. All titles or headings to sections, subsections, or
other divisions of this Agreement are only for the convenience of the parties and shall not be
construed to have any effect or meaning with respect to the other content of such sections or other
divisions.
(k) Time of Essence. Time is of the essence with regard to each and every provision
of this Agreement and the other Loan Documents.
(l) Counterparts. This Agreement may be executed in multiple counterparts, and it
shall not be necessary that the signatures of all parties be contained on any one counterpart.
Each counterpart shall be deemed an original, and all such counterparts collectively shall
constitute one and the same instrument.
(m) Amendment. No amendment or modification of this Agreement shall be effective
unless in writing and signed by the parties hereto.
(n) Third Party Reliance. Bank has not entered into this Agreement for the purpose of
giving any assurance to any party other than Second Parties that Bank will extend the Credit Line
herein contemplated, and no other person, firm, or corporation shall be authorized to rely on this
Agreement in dealing with any Second Party in any matter concerning the subject matter hereof.
(o) Costs, Expenses and Taxes. Borrower shall pay on demand all reasonable
out-of-pocket costs and expenses of Bank (including reasonable fees and out-of-pocket expenses of
Bank’s counsel) in connection with the preparation, execution, delivery, and administration of this
Agreement and other Loan Documents delivered or to be delivered pursuant to or in connection with
this Agreement, and all reasonable out-of-pocket costs and expenses (including reasonable
attorneys’ fees and legal expenses) incurred by Bank in connection with any enforcement of this
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Agreement or any other Loan Documents, or to enforce, protect, defend, liquidate, and/or
administer any Collateral herein contemplated. In addition, Borrower agrees to pay and to
hold Bank harmless from any liability for any intangibles taxes, stamp or other taxes or fees
which may be required for the filing and recording of any necessary UCC financing statements
or which may be imposed by the State of Georgia, State of Delaware or any agency or
instrumentality thereof in conjunction with the Credit Line. Borrower shall promptly
reimburse Bank on demand for all amounts expended, advanced, or incurred by Bank to satisfy
any obligation of any Second Party under this Agreement or any other Loan Documents, or to
perfect the liens in favor of Bank, or to protect the properties or business of any Second
Party, or to collect the indebtedness of any Second Party to Bank, or to enforce any rights of
Bank under this Agreement or any other Loan Documents, which amounts will include all court
costs, reasonable attorneys’ fees, fees of auditors and accountants, and investigation
expenses reasonably incurred by Bank in connection with any such matters, together with
interest thereon at the Default Rate of interest as set forth in the Note, but in no event in
excess of the maximum lawful rate of interest permitted by applicable law on each such amount.
All obligations for which this subsection (o) provides shall survive any termination of this
Agreement.
(p) WAIVER OF TRIAL BY JURY. EACH SECOND PARTY AND BANK HEREBY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE RELATING DIRECTLY ON INDIRECTLY TO THE LOAN, THIS AGREEMENT,
OR THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF BANK, OR ANY OFFICERS, EMPLOYEES OR
DIRECTORS OF THE BANK IN CONNECTION THEREWITH.
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(q) Entire Agreement. This Agreement, together with the other Loan Documents and the
documents and instruments contemplated by this Agreement and the other Loan Documents
constitute the entire agreement among the parties hereto with regard to the subject matter hereof.
No promises, covenants, representations or agreements other than as expressly set forth in the Loan
Documents have been made to or with any Second Party, and Second Parties expressly represent and
warrant that no Second Party is relying on any promises, covenants, representations or agreements
other than as expressly set forth in the Loan Documents in entering into the transactions
contemplated by the Loan Documents. Without in any way limiting the generality of the foregoing,
the parties hereto hereby agree that such, if any, commitment letter previously executed among the
parties hereto with regard to the loan transaction contemplated by this Agreement shall be merged
with this Agreement and shall not survive the execution hereof.
(r) Participation. It is understood that Bank from time to time may sell
participations in the Loan contemplated by this Agreement and enter into participation agreements
with one or more participating lenders selected by Bank, upon terms and conditions satisfactory to
Bank. No notice to any of Second Parties and no consent by any of Second Parties shall be required
with regard to any such participation.
(s) Electronic Transmission of Data. Bank and Second Parties agree that certain data
related to the Credit Line (including confidential information, documents, applications and
reports) may be transmitted electronically, including transmission over the Internet. This data
may be transmitted to, received from or circulated among agents and representatives of Second
Parties and/or Bank and their affiliates and other Persons involved with the subject matter of this
Agreement. Each Second Party acknowledges and agrees that (a) there are risks associated with the
use of electronic transmission and that Bank does not control the method of transmittal or service
providers, (b) Bank has no obligation or responsibility whatsoever and assumes no duty or
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obligation for the security, receipt or third party interception of any such transmission, and (c)
each Second Party will release, hold harmless and indemnify Bank from any claim, damage or
loss, including that arising in whole or part from Bank’s strict liability or sole, comparative or
contributory negligence, which is related to the electronic transmission of data, except to the
extent that such claim, damage or loss arises from the gross negligence or willful misconduct of
Bank.
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IN WITNESS WHEREOF, Second Parties and Bank have each executed and delivered these presents,
Borrower acting by and through its duly authorized corporate officer, Guarantor acting by and
through its duly authorized corporate officer, and Bank acting by and through its duly authorized
corporate officer, under their respective seals, as of the day and year first above written.
| BORROWER: FORTEGRA FINANCIAL CORPORATION, a Georgia corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer and President | |||
| (CORPORATE SEAL) |
||||
| GUARANTOR: LOTS INTERMEDIATE CO., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Chief Executive Officer and President | |||
| (CORPORATE SEAL) | ||||
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| BANK: COLUMBUS BANK AND TRUST COMPANY, a Georgia banking corporation |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxx Xxxxxxx, Senior Vice President | ||||
| (BANK SEAL) |
||||
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