EXHIBIT 10 (ccc)
AMENDMENT NO. 3
TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS AMENDMENT NO. 3 TO REVOLVING CREDIT AND TERM LOAN AGREEMENT (this
"Amendment") is made and entered into as of April 10, 2003, 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, as amended by that certain Amendment No. 1 to Revolving Credit and Term
Loan Agreement, dated as of March 25, 2002, and as further amended by that
certain Amendment No. 2 to Revolving Credit and Term Loan Agreement, dated as of
November 21, 2002 (as amended, 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
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, the recitals and the amendments to certain definitions
set forth in Section 2.1A hereof, have the meanings set forth below:
"AMENDED CREDIT AGREEMENT" shall mean the Existing Credit
Agreement, as amended hereby.
"AMENDMENT NO. 3 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
Effective as of the Amendment No. 3 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.
A. Section 1.1 - DEFINITIONS of "ARTICLE I - DEFINITIONS;
CONSTRUCTION" of the Existing Credit Agreement is hereby amended to delete
the definitions of the terms "Aggregate Revolving Commitments", "Debt
Issuance", "Loan Documents" and "Subsidiary" in their entirety and to
insert the following new definitions for such terms in their respective
places:
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum of the
Revolving Commitments of all Lenders at any time outstanding. On the
Closing Date, the Aggregate Revolving Commitments equal $37,500,000;
PROVIDED, HOWEVER, upon any prepayment, mandatory or optional, by
the Borrower at any time on or after the Amendment No. 3 Effective
Date of the outstanding Revolving Loans in accordance with SECTION
2.10, the Aggregate Revolving Commitments shall be correspondingly
permanently reduced; PROVIDED FURTHER, HOWEVER, if the aggregate
outstanding principal amount of the Revolving Loans is equal to or
less than $20,000,000 at any time, no such permanent reduction
thereafter shall reduce the Aggregate Revolving Commitments to an
amount less than the lesser of (a) the sum of (i) the outstanding
aggregate principal amount of the Revolving Loans after application
of such prepayment plus (ii) $5,000,000 or (b) $20,000,000.
"DEBT ISSUANCE" shall mean the issuance of any Indebtedness
for borrowed money by any Loan Party (excluding (i) any Equity
Issuance or (ii) except for the Debt Securities which, in each case,
shall be a "DEBT ISSUANCE" for purposes hereof, any Indebtedness
permitted to be incurred under Section 7.1).
"LOAN DOCUMENTS" shall mean, collectively, this Agreement,
the Notes (if any), the LC Documents, all Notices of Borrowing, the
Subsidiary Guarantee Agreement, the Indemnity and Contribution
Agreement, all Stock Pledge Agreements, all Liquid Collateral Pledge
Agreements, all Liquid Collateral Control Agreements and any and all
other instruments, agreements, documents and writings executed in
connection with any of the foregoing.
"SUBSIDIARY" shall mean, with respect to any Person (the
"parent"), any corporation, partnership, joint venture, limited
liability company, association or other entity the accounts of which
would be consolidated with those of the parent in the parent's
consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any
other corporation, partnership, joint venture, limited liability
company, association or other entity (a) of which securities or
other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power, or in the case of a
partnership, more than 50% of the general partnership interests are,
as of such date, owned, Controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent; PROVIDED, that unless otherwise set
forth herein, neither FPIC Trust I nor FPIC Trust II shall be a
"Subsidiary" for purposes of this Agreement. Unless otherwise
indicated, all references to "Subsidiary" hereunder shall mean a
Subsidiary of the Borrower.
B. Section 1.1 - DEFINITIONS of "ARTICLE I - DEFINITIONS;
CONSTRUCTION" of the Existing Credit Agreement is hereby further amended to
add the definitions of the terms "Debt Securities", "Declaration I",
"Declaration II", "Declarations", "FPIC Trust I", "FPIC Trust II",
"Indentures", "Junior Indenture I", Junior Indenture II", "Junior
Indentures", "Junior Subordinated Debt Securities", "Junior Subordinated
Debt Securities I", "Junior Subordinated Debt Securities II", "Senior
Indenture", "Senior
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Debt Securities", "Swap Unwind Fees", "U.S. Bank" and "Wilmington" in their
proper alphabetical order as follows:
"DEBT SECURITIES" shall mean, collectively and individually,
the Junior Subordinated Debt Securities and/or the Senior Debt
Securities, as the context shall require.
"DECLARATION I" shall mean the Amended and Restated
Declaration of Trust of FPIC Trust I, dated on or about the date of
issuance of the Junior Subordinated Debt Securities I, and all
amendments, modifications, supplements, restatements or replacements
thereof.
"DECLARATION II" shall mean the Amended and Restated
Declaration of Trust of FPIC Trust II, dated on or about the date
of issuance of the Junior Subordinated Debt Securities II, and
all amendments, modifications, supplements, restatements or
replacements thereof.
"DECLARATIONS" shall mean Declaration I and/or Declaration
II, as the context shall require.
"FPIC TRUST I" shall mean FPIC Capital Trust I, a Delaware
business trust established pursuant to Declaration I.
"FPIC TRUST II" shall mean FPIC Capital Statutory Trust II,
a Connecticut statutory trust established pursuant to Declaration
II.
"INDENTURES" shall mean, collectively and individually, the
Junior Indentures and/or the Senior Indenture, as the context shall
require.
"JUNIOR INDENTURE I" shall mean the Indenture dated on or
about the date of issuance of the Junior Subordinated Debt
Securities I, by and between the Borrower, as Issuer, and
Wilmington, as Trustee, relating to the Junior Subordinated Debt
Securities I, and all amendments, modifications, supplements,
restatements or replacements thereof.
"JUNIOR INDENTURE II" shall mean the Indenture dated on or
about the date of issuance of the Junior Subordinated Debt
Securities II, by and between the Borrower, as Issuer, and U.S.
Bank, as Trustee, relating to the Junior Subordinated Debt
Securities II, and all amendments, modifications, supplements,
restatements or replacements thereof.
"JUNIOR INDENTURES" shall mean, collectively and
individually, Junior Indenture I and/or Junior Indenture II, as the
context shall require.
"JUNIOR SUBORDINATED DEBT SECURITIES" shall mean,
collectively and individually, the Junior Subordinated Debt
Securities I and/or the Junior Subordinated Debt Securities II, as
the context shall require.
"JUNIOR SUBORDINATED DEBT SECURITIES I" shall mean the
Floating Rate Junior Subordinated Debt Securities due 2033 issued by
the Borrower under Junior Indenture I, and all renewals, extensions
or modifications thereof; PROVIDED, that the aggregate principal
amount outstanding at any time thereunder shall never exceed
$10,310,000.
"JUNIOR SUBORDINATED DEBT SECURITIES II" shall mean the
Floating Rate Junior Subordinated Deferrable Interest Debentures
due 2033 issued by the Borrower under Junior Indenture II, and
all renewals, extensions or modifications thereof; PROVIDED, that
the aggregate principal amount outstanding at any time thereunder
shall never exceed $20,620,000.
"SENIOR INDENTURE" shall mean the Indenture dated on or
about the date of issuance of the Senior Debt Securities, by and
between the Borrower, as Issuer, and Wilmington, as Trustee,
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relating to the Senior Debt Securities, and all amendments,
modifications, supplements, restatements or replacements thereof.
"SENIOR DEBT SECURITIES" shall mean the Floating Rate
Senior Debt Securities due 2033 issued by the Borrower under the
Senior Indenture, and all renewals, extensions or modifications
thereof; PROVIDED, that the aggregate principal amount outstanding
at any time thereunder shall never exceed $15,000,000.
"SWAP UNWIND FEES" shall mean any fees and/or any
other amounts payable by the Borrower to SunTrust Bank in the
amount of up to $2,000,000 resulting from the breakage by the
Borrower of (a) that certain Confirmation of Interest Rate Swap
Transaction, dated as of August 29, 2001 (relating to the Term
Loan), and/or (b) that certain Confirmation of Interest Rate Swap
Transaction, dated as of August 29, 2001 (relating to the Revolving
Loans), each by and between SunTrust Bank and the Borrower, together
with the ISDA Master Agreement and Schedule thereto, each dated as
of June 15, 1998, referred to in each Confirmation and each entered
into by and between SunTrust Bank and the Borrower.
"U.S. BANK" shall mean U.S. Bank National Association,
a national banking association, and its successors and assigns.
"WILMINGTON" shall mean Wilmington Trust Company, a
Delaware banking corporation, and its successors or assigns.
SECTION 2.2 AMENDMENT TO SECTION 2.2 - Revolving Loans. Section 2.2
REVOLVING LOANS of "ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS" of the
Existing Credit Agreement is hereby amended to add the following sentence at the
end of such Section:
The Revolving Credit Exposure and all other Obligations shall be secured by
the Collateral.
SECTION 2.3 AMENDMENT TO SECTION 2.10(A) - MANDATORY PREPAYMENTS;
MANDATORY LIQUID COLLATERAL. Section 2.10 PREPAYMENTS of "ARTICLE II AMOUNT AND
TERMS OF THE COMMITMENTS" of the Existing Credit Agreement is hereby amended to
delete Section 2.10(a) - MANDATORY PREPAYMENTS; MANDATORY LIQUID COLLATERAL in
its entirety and to insert the following new Section 2.10(a) in its place:
(a) MANDATORY PREPAYMENTS; MANDATORY LIQUID COLLATERAL.
The Borrower shall be required to make mandatory principal prepayments from
(i) 100% of the Net Cash Proceeds (including all Net Cash Proceeds received
on any purchase money Indebtedness held by the recipient of such Net Cash
Proceeds) from any Asset Disposition, and (ii) 100% of Net Cash Proceeds
received from any Equity Issuance or Debt Issuance. In each such case, the
Borrower will deliver to the Administrative Agent, concurrently with such
prepayment, a certificate signed by a Responsible Officer, in form and
substance satisfactory to the Administrative Agent, setting the forth the
calculation of such Net Cash Proceeds. Additionally, unless the Borrower,
on or prior to March 31, 2004, prepays the outstanding Revolving Loans to
an aggregate outstanding amount equal to or less than the sum of (i) the
amount of Liquid Collateral at the time of such prepayment plus (ii)
$30,000,000, the Borrower shall be required (A) to make mandatory principal
prepayments on the Revolving Loans and/or (B) to provide Liquid Collateral,
in form and substance acceptable to the Administrative Agent, for the
Revolving Loans in the amount of $1,312,500 on or before each of March 31,
2004 and June 30, 2004. All mandatory prepayments shall be applied as
follows: FIRST, to the Revolving Loans (with a corresponding permanent
reduction in the Revolving Commitments, except as otherwise provided in the
definition of "AGGREGATE REVOLVING CREDIT COMMITMENTS" in SECTION 1.1), and
SECOND, after all Revolving Loans have been repaid, to a cash collateral
account in respect of the LC Exposure. Further, if at any time after the
Closing Date, the sum of the aggregate outstanding Revolving Credit
Exposures of all Lenders shall exceed the aggregate Revolving Commitments
of all Lenders, the Borrower shall immediately prepay the Revolving Loans
in an amount sufficient to eliminate such excess. Within the parameters of
the application set forth above, prepayments shall be applied first to Base
Rate Loans and then to Eurodollar Loans in direct order of Interest Period
maturities. All prepayments under this SECTION 2.10(a) shall be subject to
SECTION 2.17 and be accompanied
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by interest on the principal amount prepaid through the date of prepayment
in accordance with SECTION 2.11(c).
SECTION 2.4 AMENDMENT TO SECTION 2.10(b) - OPTIONAL PREPAYMENTS. Section
2.10 PREPAYMENTS of "ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS" of the
Existing Credit Agreement is hereby amended by adding the following sentence at
the end of such Section 2.10(b):
The Borrower may elect (by so specifying in its notice of optional
prepayment) to make any optional (but not any mandatory) prepayment by
applying as an optional prepayment any or all of the Liquid Collateral held
by the Collateral Agent at the time.
SECTION 2.5 AMENDMENT TO SECTION 5.15 - ADDITIONAL MANDATORY PREPAYMENT;
COLLATERAL. Section 5.15 - ADDITIONAL MANDATORY PREPAYMENT; COLLATERAL of
"ARTICLE V AFFIRMATIVE COVENANTS" is hereby amended to delete the last sentence
of such Section.
SECTION 2.6 AMENDMENT TO ARTICLE VI - FINANCIAL COVENANTS. Each
applicable financial covenant set forth in "ARTICLE VI FINANCIAL COVENANTS" of
the Existing Credit Agreement is hereby amended so that any Swap Unwind Fees
paid by the Borrower in connection with the mandatory prepayment(s) required by
SECTION 2.10(a) from the Net Cash Proceeds from the issuance of the Debt
Securities shall not be considered in the calculation of such covenant.
SECTION 2.7 AMENDMENT TO SECTION 6.2 - CONSOLIDATED TOTAL DEBT TO CASH
FLOW AVAILABLE FOR DEBT SERVICE RATIO. Section 6.2 - CONSOLIDATED TOTAL DEBT TO
CASH FLOW AVAILABLE FOR DEBT SERVICE 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 6.2 in its place:
SECTION 6.2 CONSOLIDATED TOTAL DEBT TO CASH FLOW AVAILABLE FOR
DEBT SERVICE 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 March 31, 2003, a Consolidated Total Debt to Cash Flow
Available for Debt Service Ratio of not greater than 3.0:1.0, calculated on
a rolling four-quarter basis. For purposes of calculating the Consolidated
Total Debt to Cash Flow Available for Debt Service Ratio, the Junior
Subordinated Debt Securities shall be excluded from Consolidated Total
Debt.
SECTION 2.8 AMENDMENT TO SECTION 7.1(h) - INDEBTEDNESS. Section 7.1 -
INDEBTEDNESS of "ARTICLE VII NEGATIVE COVENANTS" of the Existing Credit
Agreement is hereby amended to strike the word "and" at the end of Section
7.1(g), to re-designate Section 7.1(h) as Section 7.1(j) and to add the
following new Section 7.1(h) and Section 7.1(i):
(h) the separate Guarantees by the Borrower with
respect to certain "Securities" to be issued by FPIC Trust I as
contemplated by Declaration I and by FPIC Trust II as contemplated by
Declaration II;
(i) the Debt Securities; and
SECTION 2.9 AMENDMENT TO SECTION 7.2(f) - NEGATIVE PLEDGE. Section 7.2 -
Negative Pledge of "ARTICLE VII NEGATIVE COVENANTS" of the Existing Credit
Agreement is hereby amended to strike the word "and" at the end of Section
7.2(e), to re-designate Section 7.2(f) as Section 7.2(g) and to add the
following new Section 7.2(f):
(f) Liens created in favor of any Lender on the Capital
Stock of any Subsidiary Pledgee (which Liens may be on a parity basis with
the Liens on such Capital Stock held by the Collateral Agent at any time on
behalf of the Lenders under the Stock Pledge Agreements) to secure any and
all liabilities and obligations of the Borrower or any Subsidiary, monetary
or otherwise, under any interest rate Hedging Agreement relating to the
Obligations or any other obligations of the Borrower entered into with any
counterparty that is a Lender (or an Affiliate thereof) at the time such
Hedging Agreement is entered
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into; PROVIDED, that such Liens, in the aggregate as to all such
counterparty Lenders, shall not exceed $2,000,000 at any time outstanding;
and
SECTION 2.10 AMENDMENT TO SECTION 7.2(g) - NEGATIVE PLEDGE. Section 7.2 -
Negative Pledge of "ARTICLE VII NEGATIVE COVENANTS" of the Existing Credit
Agreement is hereby amended to delete newly designated Section 7.2(g) in its
entirety and to insert the following new Section 7.2(g) in its place:
(g) extensions, renewals, or replacements of any Lien
referred to in paragraphs (b) through (f) of this Section; PROVIDED, that
the principal amount of the Indebtedness secured thereby is not increased
and that any such extension, renewal or replacement is limited to the
assets originally encumbered thereby.
SECTION 2.11 AMENDMENT TO SECTION 7.4(e) - INVESTMENTS, LOANS, ETC.
Section 7.4 - INVESTMENTS, LOANS, ETC. of "ARTICLE VII NEGATIVE COVENANTS" of
the Existing Credit Agreement is hereby amended to delete Section 7.4(e) in its
entirety and to insert the following new Section 7.4(e) in its place:
(e) Investments made by the Borrower in or to any
Subsidiary and by any Subsidiary to the Borrower or in or to another
Subsidiary; PROVIDED, that (i) any common stock held by any Loan Party
shall be pledged pursuant to the Stock Pledge Agreement (subject, in the
case of any Insurance Subsidiary, to any limitations under applicable law)
and (ii) the aggregate amount of Investments by Loan Parties in or to, and
Guarantees by Loan Parties of Indebtedness of any Subsidiary that is not a
Subsidiary Loan Party (excluding all such Investments and Guarantees
permitted under clause (a) of this SECTION 7.4 and, in the case of the
Borrower's proposed Investments in First Professionals, (i) such Investment
that is already planned as of the Closing Date and set forth on SCHEDULE
7.4, and (ii) such Investment in the amount of up to $4,500,000 planned to
be made by the Borrower from the proceeds of the Debt Securities in
April/May 2003) shall not exceed $500,000 at any time outstanding;
SECTION 2.12 AMENDMENT TO SECTION 7.4(h) - INVESTMENTS, LOANS, ETC.
Section 7.4 - Investments, Loans, Etc. of "ARTICLE VII NEGATIVE COVENANTS" of
the Existing Credit Agreement is hereby amended to delete the word "and" at the
end of Section 7.4(g), to re-designate Section 7.4(h) as Section 7.4(i) and to
add the following new Section 7.4(h):
(h) Investments made by the Borrower in FPIC Trust I and
FPIC Trust II; PROVIDED, that such Investments shall be in the form of
Junior Subordinated Debt Securities in principal amount not exceeding, in
the case of FPIC Trust I, $310,000 and, in the case of FPIC Trust II,
$620,000, at any time outstanding;
SECTION 2.13 AMENDMENT TO SECTION 7.5 - RESTRICTED PAYMENTS. Section
7.5 - RESTRICTED PAYMENTS of "ARTICLE VII NEGATIVE COVENANTS" of the Existing
Credit Agreement is hereby amended to delete such Section in its entirety and to
insert the following new Section 7.5 in its place:
SECTION 7.5 RESTRICTED PAYMENTS. The Borrower will not, and
will not permit its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any dividend on any class of its stock, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or
other acquisition of, any shares of common stock or Indebtedness
subordinated to the Obligations of the Borrower or any options, warrants,
or other rights to purchase such common stock or such Indebtedness, whether
now or hereafter outstanding (each, a "RESTRICTED PAYMENT"), except for (a)
dividends payable by the Borrower solely in shares of any class of its
common stock, (b) Restricted Payments made by any Subsidiary to the
Borrower or to another Subsidiary Loan Party and by any Subsidiary
Controlled by an Insurance Subsidiary to such Insurance Subsidiary or to
another Subsidiary Controlled by such Insurance Subsidiary, (c) cash
repurchases of the common stock of the Borrower during fiscal year 2003;
PROVIDED, that with respect to this clause (c), (i) the Aggregate Revolving
Commitments have been permanently reduced at the time such repurchase is
made to an amount equal to or less than the sum of (A) the amount of the
Liquid Collateral at such time plus (B) $30,000,000, and (ii) the aggregate
amount of all such cash repurchases made by the Borrower in such fiscal
year does not exceed $2,000,000, and (d) cash dividends paid on, and cash
repurchases of, the common stock of the
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Borrower during fiscal year 2004 and thereafter; PROVIDED, that with
respect to this clause (d), (i) the Aggregate Revolving Commitments have
been permanently reduced at the time such dividend is paid or repurchase is
made to an amount equal to or less than the sum of (A) the amount of the
Liquid Collateral at such time plus (B) $30,000,000, (ii) the aggregate
amount of all such Restricted Payments (including without limitation, cash
repurchases of the common stock of the Borrower) made by the Borrower in
any such fiscal year does not exceed 50% of Consolidated Net Income (if
greater than $0) earned during the immediately preceding fiscal year, and
(iii) the aggregate amount of all such cash repurchases made by the
Borrower in such fiscal year does not exceed $2,000,000; and FURTHER
PROVIDED, that with respect to each of clauses (a), (b), (c) and (d), no
Default or Event of Default has occurred and is continuing at the time any
such Restricted Payment is made. Except as otherwise permitted above in
this SECTION 7.5, the Borrower will not repurchase any of its Capital Stock
without the prior written consent of the Required Lenders.
SECTION 2.14 AMENDMENT TO SECTION 7.7 - TRANSACTIONS WITH AFFILIATES.
Section 7.7 - Transactions with Affiliates of "ARTICLE VII NEGATIVE COVENANTS"
of the Existing Credit Agreement is hereby amended to delete such Section in its
entirety and to insert the following new Section 7.7 in its place:
SECTION 7.7 TRANSACTIONS WITH AFFILIATES. The Borrower will not,
and will not permit any of its Subsidiaries to , sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire
any property or assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except (a) in the ordinary course of business
at prices and on terms and conditions not less favorable to the Borrower or
such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties, (b) transactions between or among the Borrower and
its Subsidiaries not involving any other Affiliates, (c) any Restricted
Payment permitted by SECTION 7.5 and (d) transactions between the Borrower
and FPIC Trust I contemplated by Declaration I and/or FPIC Trust II
contemplated by Declaration II.
SECTION 2.15 ADDITION OF NEW SECTION 7.14 - CERTAIN COVENANTS RELATING TO
DEBT SECURITIES. The following new Section 7.14 - Certain Covenants Relating to
Debt Securities is hereby added to the Existing Agreement:
SECTION 7.14 CERTAIN COVENANTS RELATING TO DEBT SECURITIES. The
Borrower will not, and will not permit or cause any of its Subsidiaries to:
(a) make any payment, whether for principal, interest,
compensation, fees, expenses or any other amounts whatsoever, on, in
connection with or otherwise relating to the Debt Securities at any time
following the occurrence and during the continuance of (i) any Event of
Default based upon or resulting from the Borrower's failure to pay any
principal of, or interest on, any Loan, or any of the other Obligations
when and as the same shall become due and payable, or (ii) any other Event
of Default if the effect thereof is to accelerate the maturity of the Loans
or any of the other Obligations;
(b) redeem any of the Debt Securities, in whole or in part,
prior to maturity, without the prior written consent of the Required
Lenders;
(c) enter into incur or permit to exist any agreement, including
without limitation, the Declarations and the Indentures, that prohibits,
restricts or imposes any condition upon the ability of the Borrower or any
such Subsidiary to pay and perform the Obligations as and when due;
(d) modify or amend the Declarations, the Junior Indentures or
any related agreement, or permit or allow the same to be modified or
amended, in any way that would cause the Obligations not to be included as
"Senior Indebtedness" thereunder;
(e) permit or allow FPIC Trust I to own or hold any assets or
property other than the Junior Subordinated Debt Securities I (or the
proceeds thereof), or to engage in any business other than the sale of the
"Securities" contemplated by Declaration I or other activities deemed
necessary, advisable or incidental thereto; and
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(f) permit or allow FPIC Trust II to own or hold any assets or
property other than the Junior Subordinated Debt Securities II (or the
proceeds thereof), or to engage in any business other than the sale of the
"Securities" contemplated by Declaration II or other activities deemed
necessary, advisable or incidental thereto.
SECTION 2.16 AMENDMENT TO SECTION 8.1(R) - EVENTS OF DEFAULT. Section
8.1 - Events of Default of "ARTICLE VIII EVENTS OF DEFAULT" of the Existing
Credit Agreement is hereby amended to re-designate Section 8.1(r) as Section
8.1(s) and to add the following new Section 8.1(r):
(r) the Borrower shall default in the performance or
observance of any term, condition or provision of the Declarations, the
Indentures or any related document or instrument if the effect of such
default is to accelerate, or permit the acceleration of, the maturity of
the Indebtedness in respect of the Debt Securities, or the Indebtedness in
respect of such Debt Securities otherwise is accelerated at any time; or
ARTICLE III
CONSENT AND WAIVER OF COVENANT VIOLATION
SECTION 3.1 CONSENT AND WAIVER.
(a) Under the terms and conditions of Section 2.10(a) -
MANDATORY PREPAYMENTS; MANDATORY LIQUID COLLATERAL of Section 2.10
PREPAYMENTS of "ARTICLE II - AMOUNT AND TERMS OF THE COMMITMENTS" of the
Existing Credit Agreement, the Borrower is required to make mandatory
principal prepayments from 100% of Net Cash Proceeds received from any
Equity Issuance or Debt Issuance. Notwithstanding the foregoing provisions
of Section 2.10(a) to the contrary, the Administrative Agent and the
Lenders hereby agree that, subject to the payment in full of the
outstanding Term Loans, the Net Cash Proceeds from the issuance of the Debt
Securities may be used by the Borrower (i) to make an Investment of up to
$4,500,000 in First Professionals, and (ii) to pay the Swap Unwind Fees, in
each case, in lieu of the mandatory principal prepayment otherwise required
by said Section 2.10(a) and, further, pursuant to Section 10.2(b) of the
Existing Credit Agreement, hereby agree, effective as of the Amendment No.
3 Effective Date, to waive the mandatory prepayment covenant set forth in
Section 2.10(a) of the Existing Credit Agreement to permit the use of such
Net Cash Proceeds to make such Investments and such payment; provided, that
the Borrower shall be in full compliance with such mandatory prepayment
covenant at all times after the Amendment No. 3 Effective Date.
(b) Further, under the terms and conditions of Section 2.10(a) -
MANDATORY PREPAYMENTS; MANDATORY LIQUID COLLATERAL of Section 2.10
PREPAYMENTS of "ARTICLE II - AMOUNT AND TERMS OF THE COMMITMENTS" of the
Existing Credit Agreement, all such mandatory prepayments are required to
be applied as follows: FIRST, to the Term Loans to the remaining
amortization payments in inverse order of maturity, second, after all Term
Loans have been repaid, to the Revolving Loans (with a corresponding
permanent reduction in the Revolving Commitments), and LAST, after all
Revolving Loans have been repaid, to a cash collateral account in respect
of the LC Exposure. Notwithstanding the foregoing provisions of Section
2.10(a) to the contrary, the Administrative Agent and the Lenders hereby
agree that the Net Cash Proceeds but, in no event, less than an amount
equal to $9,000,000 from the issuance of the Debt Securities shall be
applied as follows: FIRST, to the Term Loans, as required by SECTION 4.3,
to the remaining amortization payments in inverse order of maturity, and
SECOND, after all Term Loans have been repaid, at the election of the
Borrower, either (i) to the Revolving Loans (with a corresponding permanent
reduction in the Revolving Commitments) or (ii) to additional Liquid
Collateral to be pledged to the Collateral Agent pursuant to the Liquid
Collateral Pledge Agreement(s) as security in respect of the Revolving
Credit Exposure and, further, pursuant to Section 10.2(b) of the Existing
Credit Agreement, hereby agree, effective as of the Amendment No. 3
Effective Date, to waive the mandatory prepayment covenant set forth in
Section 2.10(a) of the Existing Credit Agreement to permit such application
of such Net Cash Proceeds; PROVIDED, that the Borrower shall be in full
compliance with such mandatory prepayment covenant at all times after the
Amendment No. 3 Effective Date.
8
(c) Further, under the terms and conditions of Section 2.10(a) -
MANDATORY PREPAYMENTS; MANDATORY LIQUID COLLATERAL of Section 2.10
PREPAYMENTS of "ARTICLE II - AMOUNT AND TERMS OF THE COMMITMENTS" of the
Existing Credit Agreement, the Borrower is required, during fiscal year
2003, (i) to make mandatory principal prepayments on the Term Loans and/or
(ii) to provide Liquid Collateral, in form and substance acceptable to the
Administrative Agent, for the Loans quarterly, in the amount of $350,000.00
on or before each of March 31, 2003, June 30, 2003, September 30, 2003 and
December 31, 2003. Notwithstanding the foregoing provisions of Section
2.10(a) to the contrary, the Administrative Agent and the Lenders hereby
agree that, subject to the payment in full of the outstanding Term Loans,
the Borrower shall not be required to make such mandatory principal
prepayments and/or to provide such Liquid Collateral for the Loans on such
quarterly dates in fiscal year 2003 and, further, pursuant to Section
10.2(b) of the Existing Credit Agreement, hereby agree, effective as of the
Amendment No. 3 Effective Date, to waive the mandatory prepayment covenant
set forth in Section 2.10(a) of the Existing Credit Agreement to permit the
Borrower to forego making such mandatory prepayments or providing such
Liquid Collateral in fiscal year 2003; PROVIDED, that the Borrower shall be
in full compliance with such mandatory prepayment covenant at all times
after fiscal year 2003. In addition, subject to the payment in full of the
outstanding Term Loans, the Administrative Agent and the Lenders hereby
agree that the Collateral Agent shall return to the Borrower the $350,000
in Liquid Collateral that the Borrower provided to the Collateral Agent in
March 2003.
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
mandatory prepayment covenant set forth in Section 2.10(a) of the Existing
Credit Agreement prior to the Amendment No. 3 Effective Date, and shall not be
construed to be (a) a waiver as to future compliance with Section 2.10(a) 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
This Amendment shall be and become effective as of the date hereof (the
"AMENDMENT NO. 3 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. 3":
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.
SECTION 4.3 PAY-OFF OF TERM LOANS. The Borrower shall have paid off the
Term Loans in full.
SECTION 4.4 PREPAYMENT OR ADDITIONAL LIQUID COLLATERAL; EXECUTION AND
DELIVERY OF SECURITY DOCUMENTS. The Borrower, at its election, either shall have
(a) prepaid the Revolving Loans (with a corresponding permanent reduction in the
Revolving Commitments) or (b) provided additional Liquid Collateral to the
Collateral Agent as security for the Revolving Credit Exposure, in each case, in
an amount not less than the difference between (i) $10,000,000 and (ii) the
amount required to pay the outstanding Term Loans in full, and further, in the
event the Borrower elects to provide additional Liquid Collateral under clause
(b) above, shall have executed and delivered to the Collateral Agent such Liquid
Collateral Pledge Agreements, Liquid Collateral Control Agreements and/or other
9
security documents as may be required by the Collateral Agent, all in form and
substance satisfactory to the Collateral Agent.
SECTION 4.5 AMENDMENT OF COLLATERAL DOCUMENTS. The Borrower and, if
applicable, each Subsidiary Pledgor, shall have executed and delivered to the
Collateral Agent such amendments to the Stock Pledge Agreements or such
additional stock pledge agreements, each in form and substance satisfactory to
the Collateral Agent, as may reasonably be required by the Collateral Agent to
provide for any parity lien on the "Collateral" thereunder contemplated by
Section 7.2(f). Further, the Borrower shall have executed and delivered to the
Collateral Agent such amendments to the Liquid Collateral Pledge Agreements,
each in form and substance satisfactory to the Collateral Agent, as may
reasonably be required by the Collateral Agent to provide for the Liquid
Collateral to secure the Revolving Credit Exposure and all other Obligations.
Notwithstanding any provisions of such amendments, said amendments shall not be
or become effective until the Amendment No. 3 Effective Date.
SECTION 4.6 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, certificates, resolutions, 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 4.7 PAYMENT OF WAIVER/MODIFICATION FEE. [Not Applicable]
SECTION 4.8 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
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.
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.
10
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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
11
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: /s/ Xxx X. Xxxxxx
-------------------------------
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: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
Revolving Commitment: $19,431,818 1
Term Loan Commitment: $0
--------------------------------------------------------------------------------
1 Subject to permanent reduction in accordance with such Lender's Pro Rata Share
as provided in this Amendment.
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COMPASS BANK
By: /s/ C. French Xxxxxxxxx, Jr.
----------------------------------
Name: C. French Xxxxxxxxx, Jr.
Title: Senior Vice President
Revolving Commitment: $6,818,182 1
Term Loan Commitment: $0
--------------------------------------------------------------------------------
1 Subject to permanent reduction in accordance with such Lender's Pro Rata Share
as provided in this Amendment.
S-2
XXXXX BROTHERS XXXXXXXX & CO.
By: X. Xxxxxx Xxxxxxxx
------------------------------
Name: X. Xxxxxx Xxxxxxxx
Title: Partner
Revolving Commitment: $4,431,818 1
Term Loan Commitment: $0
--------------------------------------------------------------------------------
1 Subject to permanent reduction in accordance with such Lender's Pro Rata Share
as provided in this Amendment.
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REGIONS BANK
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Revolving Commitment: $3,409,091 1
Term Loan Commitment: $0
--------------------------------------------------------------------------------
1 Subject to permanent reduction in accordance with such Lender's Pro Rata Share
as provided in this Amendment.
S-4
CAROLINA FIRST BANK
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
Revolving Commitment: $3,409,091 1
Term Loan Commitment: $0
--------------------------------------------------------------------------------
1 Subject to permanent reduction in accordance with such Lender's Pro Rata Share
as provided in this Amendment.
S-5
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 10th day of April, 2003.
FPIC INSURANCE AGENCY, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President and Treasurer
EMPLOYERS MUTUAL, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
PROFESSIONAL STRATEGY OPTIONS, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President and Treasurer
ADMINISTRATORS FOR THE PROFESSIONS, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
S-6
GROUP DATA CORPORATION
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
FPIC INTERMEDIARIES, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
S-7
