<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
(x) QUARTERLY REPORT UNDER SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR QUARTER ENDED JUNE 30, 1998
( ) TRANSITION REPORT, PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 1-7801
ORION CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-6069054
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
9 Farm Springs Road, Farmington, Connecticut 06032
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (860)674-6600
Former name, former address and former fiscal year if changed since last report.
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes(x) No ( )
27,562,439 shares of Common Stock, $1.00 par value, of the registrant were
outstanding on August 7, 1998.
Page 1 of 34
Exhibit Index Appears at Page 32
1
<PAGE>
ORION CAPITAL CORPORATION
FORM 10-Q INDEX
For the Quarter Ended June 30, 1998
Page
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements:
Consolidated Balance Sheet at June 30, 1998 (Unaudited)
and December 31, 1997 3 - 4
Consolidated Statement of Earnings for the three and six-
months ended June 30, 1998 and 1997 (Unaudited) 5
Consolidated Statement of Stockholders' Equity for the
six-months ended June 30, 1998 and 1997 (Unaudited),
and for the year ended December 31, 1997 6
Consolidated Statement of Cash Flows for the six-months
ended June 30, 1998 and 1997 (Unaudited) 7 - 8
Notes to Consolidated Financial Statements (Unaudited) 9 -14
Independent Accountants' Review Report 15
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 16 - 27
PART II. OTHER INFORMATION 28
2
<PAGE>
PART I. FINANCIAL INFORMATION
ORION CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
ASSETS
<TABLE>
<CAPTION>
June 30,1998 December 31,
(In millions) (Unaudited) 1997
- -------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS:
Investments: -
Fixed maturities, at amortized cost
(market $312.5 - 1998 and $322.4 - 1997) .............. $ 303.5 $ 312.8
Fixed maturities, at market (amortized cost
$1,362.7 - 1998 and $1,395.4 - 1997) .................. 1,428.8 1,469.8
Common stocks, at market (cost $150.4 -
1998 and $163.0 - 1997) ............................... 216.0 245.4
Non-redeemable preferred stocks, at market
(cost $172.0 - 1998 and $183.6 - 1997) ................ 184.8 193.1
Other long-term investments .............................. 118.7 94.3
Short-term investments ................................... 302.4 228.3
---------- ----------
Total investments .................................. 2,554.2 2,543.7
Cash ..................................................... 21.3 9.3
Accrued investment income ................................ 25.6 29.6
Investment in affiliate .................................. 30.7 31.3
Accounts and notes receivable ............................ 200.1 189.3
Reinsurance recoverables and prepaid reinsurance ......... 821.6 622.2
Deferred policy acquisition costs ........................ 158.6 147.1
Property and equipment ................................... 80.1 70.8
Excess of cost over fair value of net assets acquired .... 166.6 140.0
Other assets ............................................. 140.8 100.8
---------- ----------
Total assets ....................................... $ 4,199.6 $ 3,884.1
========== ==========
</TABLE>
[FN]
See Notes to Consolidated Financial Statements (Unaudited)
3
<PAGE>
ORION CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEET
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
June 30, 1998 December 31,
(In millions, except for share data) (Unaudited) 1997
- --------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES:
Policy liabilities: -
Losses ................................................ $ 1,553.4 $ 1,476.4
Loss adjustment expenses .............................. 410.0 395.3
Unearned premiums ..................................... 617.0 551.6
Policyholders' dividends .............................. 21.0 20.5
---------- ----------
Total policy liabilities ................................ 2,601.4 2,443.8
Notes payable ........................................... 209.9 310.2
Other liabilities ....................................... 363.6 282.0
---------- ----------
Total liabilities ....................................... 3,174.9 3,036.0
---------- ----------
Contingencies (Note 7)
Company-obligated mandatorily redeemable preferred
capital securities of subsidiary trusts holding solely
the junior subordinated debentures of the Company .... 250.0 125.0
STOCKHOLDERS' EQUITY:
Preferred stock, authorized 5,000,000 shares; issued
and outstanding - none
Common stock, $1 par value; authorized 50,000,000
shares; issued 30,675,300 shares ..................... 30.7 30.7
Capital surplus ......................................... 149.6 152.1
Retained earnings ....................................... 540.4 469.5
Accumulated other comprehensive income .................. 95.1 109.2
Treasury stock, at cost (3,001,907 shares -
1998 and 3,069,756 shares - 1997) ..................... (36.2) (34.3)
Deferred compensation on restricted stock ............... (4.9) (4.1)
---------- ----------
Total stockholders equity .......................... 774.7 723.1
---------- ----------
Total liabilities and stockholders equity .......... $ 4,199.6 $ 3,884.1
========== ==========
</TABLE>
[FN]
See Notes to Consolidated Financial Statements (Unaudited)
4
<PAGE>
ORION CAPITAL CORPORATON AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF EARNINGS
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
-------------------- ---------------------
(In millions, except for per share data) 1998 1997 1998 1997
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
REVENUES:
Premiums earned ................................. $ 370.4 $ 335.2 $ 719.2 $ 659.2
Net investment income ........................... 42.5 41.3 83.9 81.5
Realized investment gains ....................... 22.7 8.4 51.7 24.2
Other income .................................... 7.0 5.2 12.6 10.1
--------- --------- --------- ---------
Total revenues ................................. 442.6 390.1 867.4 775.0
--------- --------- --------- ---------
EXPENSES:
Losses incurred ................................. 199.1 173.5 377.7 343.5
Loss adjustment expenses ........................ 51.6 52.2 105.3 101.1
Amortization of deferred policy acquisition costs 103.1 93.3 203.9 188.1
Other insurance expenses ........................ 7.8 10.5 14.7 16.6
Dividends to policyholders ...................... 7.2 4.8 13.6 9.9
Interest expense ................................ 3.1 6.2 8.9 12.3
Other expenses .................................. 12.5 10.6 23.5 21.7
--------- --------- --------- ---------
Total expenses ................................. 384.4 351.1 747.6 693.2
--------- --------- --------- ---------
Earnings before equity in earnings (loss) of
affiliate, federal income taxes and minority
interest expense .............................. 58.2 39.0 119.8 81.8
Equity in earnings (loss) of affiliate .......... -- 0.3 (0.7) 0.9
--------- --------- --------- ---------
Earnings before federal income taxes and
minority interest expense ..................... 58.2 39.3 119.1 82.7
Federal income taxes ............................ 16.7 10.0 32.7 20.8
Minority interest expense:
Subsidiary trust preferred securities, net
of federal income taxes ..................... 3.3 1.8 6.1 3.3
Subsidiary net earnings ....................... -- 2.1 -- 3.7
--------- --------- --------- ---------
Net earnings ................................... $ 38.2 $ 25.4 $ 80.3 $ 54.9
========= ========= ========= =========
Net earnings per basic common share ............ $ 1.39 $ 0.93 $ 2.93 $ 2.01
========= ========= ========= =========
Net earnings per diluted common share .......... $ 1.36 $ 0.91 $ 2.85 $ 1.97
========= ========= ========= =========
</TABLE>
[FN]
See Notes to Consolidated Financial Statements (Unaudited)
5
<PAGE>
ORION CAPITAL CORPORATON AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Six Months Ended Six Months Ended Year Ended
June 30, 1998 June 30, 1997 December 31, 1997
(In millions) (Unaudited) (Unaudited)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
COMMON STOCK:
Balance, beginning of period $ 30.7 $ 15.3 $ 15.3
Stock issued in 2-for-1
common stock split - 15.4 15.4
------- ------- -------
Balance, end of period $ 30.7 $ 30.7 $ 30.7
======= ======= =======
CAPITAL SURPLUS:
Balance, beginning of period $ 152.1 $ 158.6 $ 158.6
Exercise of stock options and net
issuance of restricted stock (2.5) (0.4) 0.5
Acquisition of Guaranty National - - 8.4
Stock issued in 2-for-1
common stock split - (15.4) (15.4)
------- ------- -------
Balance, end of period $ 149.6 $ 142.8 $ 152.1
======= ======= =======
RETAINED EARNINGS:
Balance, beginning of period $ 469.5 $ 370.8 $ 370.8
Net earnings 80.3 $ 80.3 54.9 $ 54.9 115.8 $ 115.8
------ ------ -------
Dividends declared (9.4) (8.3) (17.1)
------- ------- -------
Balance, end of period $ 540.4 $ 417.4 $ 469.5
======= ======= =======
ACCUMULATED OTHER
COMPREHENSIVE INCOME:
Balance, beginning of period $ 109.2 $ 70.1 $ 70.1
Unrealized investment
gains (losses), net of taxes (14.1) 7.9 41.3
Unrealized foreign exchange
translation losses, net of taxes - (0.4) (2.2)
------ ------ -------
Other comprehensive income (loss) (14.1) (14.1) 7.5 7.5 39.1 39.1
------- ------ ------- ------ ------- -------
Comprehensive income $ 66.2 $ 62.4 $ 154.9
====== ====== =======
Balance, end of period $ 95.1 $ 77.6 $ 109.2
======= ======= =======
TREASURY STOCK:
Balance, beginning of period $ (34.3) $ (35.0) $ (35.0)
Exercise of stock options and net
issuance of restricted stock 6.6 0.6 3.2
Acquisition of treasury stock (8.5) (0.9) (2.5)
------- ------- -------
Balance, end of period $ (36.2) $ (35.3) $ (34.3)
======= ======= =======
DEFERRED COMPENSATION ON
RESTRICTED STOCK:
Balance, beginning of period $ (4.1) $ (3.1) $ (3.1)
Net issuance of restricted stock (1.6) 0.2 (1.9)
Amortization of deferred
compensation on restricted stock 0.8 0.4 0.9
------- ------- -------
Balance, end of period $ (4.9) $ (2.5) $ (4.1)
======= ======= =======
</TABLE>
[FN]
See Notes to Consolidated Financial Statements (Unaudited)
6
<PAGE>
ORION CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months Ended June 30,
-------------------------
(In millions) 1998 1997
- ----------------------------------------------------------------------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Premiums collected ......................................... $ 741.6 $ 667.7
Net investment income collected ............................ 82.0 69.2
Losses and loss adjustment expenses paid ................... (501.0) (429.9)
Policy acquisition costs paid .............................. (228.8) (207.9)
Dividends paid to policyholders ............................ (13.1) (10.9)
Interest paid .............................................. (11.3) (12.0)
Payments on trust preferred securities ..................... (7.3) --
Federal income tax payments ................................ (31.6) (18.0)
Other payments ............................................. (17.7) (23.3)
-------- --------
Net cash provided by operating activities .................. 12.8 34.9
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Maturities of fixed maturity investments ................... 63.3 62.8
Sales of fixed maturity investments ........................ 526.8 158.4
Sales of equity securities ................................. 258.7 95.5
Investments in fixed maturities ............................ (502.2) (342.1)
Investments in equity securities ........................... (205.0) (79.6)
Acquisition of businesses, net of cash acquired ............ (36.0) --
Net purchases of short-term investments .................... (76.6) (49.4)
Other receipts (payments) .................................. (27.5) 6.7
-------- --------
Net cash provided by (used in) investing activities ........ 1.5 (147.7)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of trust preferred securities ... 121.9 123.0
Proceeds from exercise of stock options .................... 0.8 0.3
Repayment of notes payable ................................. (109.5) (0.4)
Dividends paid to stockholders ............................. (8.9) (7.7)
Purchases of common stock .................................. (6.6) (0.7)
Other receipts ............................................. -- 0.3
-------- --------
Net cash provided by (used in) financing activities ........ (2.3) 114.8
-------- --------
Net increase in cash ....................................... 12.0 2.0
Cash balance, beginning of period .......................... 9.3 11.6
-------- --------
Cash balance, end of period ................................ $ 21.3 $ 13.6
======== ========
</TABLE>
[FN]
See Notes to Consolidated Financial Statements (Unaudited)
7
<PAGE>
ORION CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS - (Continued)
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months Ended June 30,
-------------------------
(In millions) 1998 1997
- --------------------------------------------------------------------------------------
<S> <C> <C>
RECONCILIATION OF NET EARNINGS TO NET CASH
PROVIDED BY OPERATING ACTIVITIES:
Net earnings ............................................ $ 80.3 $ 54.9
-------- --------
ADJUSTMENTS:
Depreciation and amortization ........................... 9.0 6.1
Amortization of excess of cost over fair
value of net assets acquired ......................... 2.7 1.5
Deferred federal income taxes ........................... (4.0) (1.9)
Amortization of fixed maturity investments .............. (0.5) (1.2)
Non-cash investment income .............................. (9.0) (9.2)
Equity in (earnings) loss of affiliate,
net of dividends received ............................ 0.7 (0.7)
Realized investment gains ............................... (51.6) (24.1)
Minority interest in subsidiary earnings ................ -- 3.7
Other ................................................... 0.1 --
CHANGES IN ASSETS AND LIABILITIES:
Decrease (increase) in accrued investment income ........ 4.2 (2.6)
Increase in accounts and notes receivable ............... (12.4) (17.3)
Decrease (increase) in reinsurance recoverable
and prepaid reinsurance .............................. (84.3) 16.6
Increase in deferred policy acquisition costs ........... (10.1) (5.6)
Increase in other assets ................................ (3.0) (4.5)
Increase (decrease) in losses ........................... 17.7 (14.9)
Increase in loss adjustment expenses .................... 14.9 22.6
Increase in unearned premiums ........................... 43.2 6.6
Increase (decrease) in policyholders' dividends ......... 0.5 (1.0)
Increase in other liabilities ........................... 14.4 5.9
-------- --------
Total adjustments and changes .......................... (67.5) (20.0)
-------- --------
Net cash provided by operating activities ............... $ 12.8 $ 34.9
======== ========
</TABLE>
[FN]
See Notes to Consolidated Financial Statements (Unaudited)
8
<PAGE>
ORION CAPITAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Six Months Ended June 30, 1998 and 1997
NOTE 1 - BASIS OF FINANCIAL STATEMENT PRESENTATION
The consolidated financial statements and notes thereto are prepared in
accordance with generally accepted accounting principles for property and
casualty insurance companies. The consolidated financial statements include
Orion Capital Corporation ("Orion") and its wholly-owned subsidiaries
(collectively the "Company"). The Company's investment in its unconsolidated
affiliate is accounted for using the equity method. All material intercompany
balances and transactions have been eliminated.
The Company completed two tender offers, which increased its ownership of
Guaranty National Corporation ("Guaranty National") from 49.5% to 81% in July
1996 and to 100% in December 1997. A minority interest charge was recorded by
the Company for the portion of Guaranty National's earnings attributable to the
shares not owned by the Company in 1997 until it became a wholly-owned
subsidiary.
As of January 1, 1998 the Company adopted Financial Accounting Standard No.
130, "Reporting Comprehensive Income". This statement establishes standards for
the reporting and presentation of comprehensive income and its components in
financial statements. Comprehensive income encompasses all changes in
shareholders' equity (except those arising from transactions with shareholders)
and includes net income, net unrealized capital gains or losses on
available-for-sale securities and foreign currency translation adjustments. This
new standard requires additional disclosures and does not affect the Company's
financial position or results of operations.
In the opinion of management, the accompanying consolidated financial
statements reflect all adjustments (consisting solely of normal recurring
adjustments) necessary to present fairly the Company's results of operations,
financial position and cash flows for all periods presented. Although these
consolidated financial statements are unaudited, they have been reviewed by the
Company's independent accountants, Deloitte & Touche LLP, for conformity with
accounting requirements for interim financial reporting. Their report on such
review is included herein. These consolidated financial statements should be
read in conjunction with the consolidated financial statements and notes thereto
included in the Company's 1997 Annual Report on Form 10-K.
NOTE 2 - ACQUISITIONS
On April 30, 1998 the Company completed the acquisition of the non-standard
personal automobile insurance business of North Carolina - based Strickland
Insurance Group, Inc. ("Strickland"). The acquisition included two insurance
companies, a premium finance company, a claim adjusting firm and a general
agency in Florida. In 1997, Strickland reported approximately $99 million of
personal automobile gross premiums written and $46 million of net premiums
written. The purchase price was $44.0 million in cash, subject to adjustment,
and included acquisition expenses of $0.2 million. The Company made cash
payments of $38.5 million, to Strickland on April 30, 1998 and $2.0 million in
1997 with $3.3 million of the purchase price retained by the Company in part to
secure obligations of Strickland. Simultaneous with the acquisition, the
9
<PAGE>
Company repaid $9.4 million of Strickland bank debt. The acquisition includes a
purchase price contingency for loss development incurred by the acquired
business during the period from the acquisition date to December 31, 2000
pertaining to accident years prior to the acquisition date. The Company used
cash and short-term investments to fund the acquisition and debt payments. The
acquisition was accounted for as a purchase and accordingly, the acquired
business has been included in the Company's consolidated financial statements
since the date of acquisition. The total consideration exceeded the fair value
of the net assets acquired by approximately $28.9 million, subject to
adjustment, and is being amortized over 25 years.
As described in Note 9, the Company completed the acquisition of Grocers
Insurance Company from United Grocers, Inc. on July 9, 1998.
NOTE 3 - INVESTMENT IN AFFILIATE
As of June 30, 1998 the Company owned 24.7% of the common stock of
Intercargo Corporation ("Intercargo"), a publicly held company. The Company
records its share of Intercargo's operating results on a quarterly lag, after
Intercargo has reported its financial results. Summarized financial information
of Intercargo reflected by the Company for the three and six month periods ended
June 30, 1998 and 1997 is as follows:
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
--------------------------- -------------------------
(In millions) 1998 1997 1998 1997
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
REVENUES:
Premiums earned ........................ $ 11.7 $ 13.7 $ 28.5 $ 30.1
Investment and other income ............ 1.8 1.3 3.8 5.0
------- ------- ------- -------
13.5 15.0 32.3 35.1
------- ------- ------- -------
EXPENSES:
Insurance expenses ..................... 12.9 13.6 31.7 31.3
Interest ............................... -- 0.2 -- 0.5
------- ------- ------- -------
12.9 13.8 31.7 31.8
------- ------- ------- -------
Earnings before equity in earnings
of affiliate and federal income taxes 0.6 1.1 0.6 3.3
Equity in earnings of affiliate ........ -- 1.0 -- 2.0
Federal income taxes ................... (0.2) (0.3) (2.3) (0.6)
------- ------- ------- -------
Net earnings (loss) .................... $ 0.4 $ 1.8 $ (1.7) $ 4.7
======= ======= ======= =======
Company's proportionate share,
including goodwill amortization ..... $ - $ 0.3 $ (0.7) $ 0.9
======= ======= ======= =======
</TABLE>
10
<PAGE>
NOTE 4 - REINSURANCE
In the normal course of business, the Company's insurance subsidiaries
reinsure certain risks, generally on an excess-of-loss or pro rata basis, with
other companies to limit exposure to losses. Reinsurance does not discharge the
primary liability of the original insurer. The table below summarizes certain
reinsurance information.
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
--------------------------- -------------------------
(In millions) 1998 1997 1998 1997
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Direct premiums written $ 445.5 $ 376.7 $ 887.3 $ 748.3
Reinsurance assumed 54.8 30.0 68.9 55.2
------- ------- ------- -------
Gross premiums written 500.3 406.7 956.2 803.5
Reinsurance ceded (115.5) (66.5) (202.4) (129.0)
------- ------- ------- -------
Net premiums written $ 384.8 $ 340.2 $ 753.8 $ 674.5
======= ======= ======= =======
Direct premiums earned $ 442.5 $ 372.0 $ 878.1 $ 734.1
Reinsurance assumed 29.3 29.1 40.2 62.6
------- ------- ------- -------
Gross premiums earned 471.8 401.1 918.3 796.7
Reinsurance ceded (101.4) (65.9) (199.1) (137.5)
------- ------- ------- -------
Net premiums earned $ 370.4 $ 335.2 $ 719.2 $ 659.2
======= ======= ======= =======
Loss and loss adjustment expenses
incurred recoverable from reinsurers $ 95.5 $ 41.6 $ 165.8 $ 74.2
======= ======= ======= =======
</TABLE>
NOTE 5 - TRUST PREFERRED SECURITIES
The Company-obligated mandatorily redeemable preferred capital securities of
subsidiary trusts holding solely the junior subordinated debentures of the
Company ("Trust Preferred Securities") comprise the following:
<TABLE>
<CAPTION> June 30, December 31,
(In millions) 1998 1997
- -----------------------------------------------------------------------------
<S> <C> <C>
8.73% Trust Preferred Securities
due January 1, 2037 $ 125.0 $ 125.0
7.701% Trust Preferred Securities
due April 15, 2028 125.0 -
--------- ---------
$ 250.0 $ 125.0
========= =========
</TABLE>
On February 2, 1998 Orion issued $125 million of 7.701% Junior Subordinated
Deferrable Interest Debentures due April 15, 2028 to Orion Capital Trust II, a
Delaware statutory business trust sponsored by the Company. Orion Capital Trust
II then sold $125 million of 7.701% capital securities, which mature on April
15, 2028 ("Capital Securities"), in a private placement. Approximately $100
million of the net proceeds from the sale of the junior subordinated debentures
were used to retire bank indebtedness of Guaranty National. Orion registered the
Capital Securities under the Securities Act of 1933 pursuant to an exchange
offer which expired on June 4, 1998. On January 13, 1997 Orion issued $125
million of 8.73% Trust Preferred Securities which may be redeemed without
premium on or after January 1, 2007.
11
<PAGE>
The Trust Preferred Securities are subordinate to all liabilities of
the Company. The Company may defer interest distributions on the Trust Preferred
Securities; however, during any period when such cumulative distributions have
been deferred, Orion may not declare or pay any dividends or distributions on
its common stock. The Trusts are consolidated in the Company's financial
statements because they are wholly-owned by the Company. The sole assets of the
Trusts are the Debentures issued by Orion. Orion has given its partial
guarantee, which when taken together with the Company's obligations under the
declaration of the Trusts, the Debentures, and the indentures pursuant to which
the Trust Preferred Securities are issued including its obligations to pay
costs, expenses, debts and liabilities of the Trusts (other than with respect to
the Trust Preferred Securities), provides a full and unconditional guarantee of
amounts due on the Trust Preferred Securities.
NOTE 6 - STOCKHOLDERS' EQUITY AND EARNINGS PER COMMON SHARE
In the first half of 1998, the Company repurchased 132,000 shares of
its common stock at an aggregate cost of $6.6 million under a stock repurchase
program approved by the Board of Directors (see Note 9) and 34,744 shares at an
aggregate cost of $1.9 million relating to employee benefit plans.
Basic earnings per share computations are based on the weighted average
number of shares of common stock outstanding during the period excluding
dilution. Diluted earnings per share reflects the potential decrease that could
occur if all stock options and other stock-based awards were exercised and
converted into common stock, if their effect is dilutive. The weighted average
common shares were 27,457,000 and 27,299,000 for the three months ended, and
27,429,000 and 27,302,000 for the six months ended June 30, 1998 and 1997,
respectively. The weighted average common and diluted equivalent shares were
28,160,000 and 27,803,000 for the three months ended, and 28,145,000 and
27,801,000 for the six months ended June 30, 1998 and 1997, respectively.
NOTE 7 - CONTINGENCIES
Orion and its subsidiaries are routinely engaged in litigation incidental
to their businesses. Management believes that there are no significant legal
proceedings pending against the Company which, net of reserves established
therefor, are likely to result in judgments for amounts that are material to the
financial condition, liquidity or results of operations of Orion and its
consolidated subsidiaries, taken as a whole.
12
<PAGE>
NOTE 8 - ACCUMULATED OTHER COMPREHENSIVE INCOME
Accumulated other comprehensive income balances, net of taxes, are as follows:
<TABLE>
<CAPTION>
Unrealized Unrealized Foreign Accumulated Other
Investment Gains Exchange Translation Comprehensive
(Losses) Gains (Losses) Income (Loss)
(In millions)
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Six Months ended June 30, 1998:
Balance, beginning of period ........... $ 113.6 $ (4.4) $ 109.2
Current period change .................. (14.1) -- (14.1)
--------- --------- ---------
Balance, end of period ................. $ 99.5 $ (4.4) $ 95.1
========= ========= =========
Six Months ended June 30, 1997:
Balance, beginning of period ........... $ 72.3 $ (2.2) $ 70.1
Current period change .................. 7.9 (0.4) 7.5
--------- --------- ---------
Balance, end of period ................. $ 80.2 $ (2.6) $ 77.6
========= ========= =========
Year ended December 31, 1997:
Balance, beginning of year ............. $ 72.3 $ (2.2) $ 70.1
Current year change .................... 41.3 (2.2) 39.1
--------- --------- ---------
Balance, end of year ................... $ 113.6 $ (4.4) $ 109.2
========= ========= =========
</TABLE>
The pretax unrealized investment gains (losses) were $(21.7) million and
$12.1 million for the six months ended June 30, 1998 and 1997, respectively, and
$62.9 million for the year ended December 31, 1997. The pre-tax unrealized
foreign exchange translation losses were $0.6 million for the three months ended
June 30, 1997 and $3.4 million for the year ended December 31, 1997.
NOTE 9 - SUBSEQUENT EVENTS
On July 8, 1998 the Company entered into a credit agreement with a group of
banks which provides for unsecured borrowings up to $150 million. The credit
agreement expires on July 8, 2003 and provides for two one-year extensions. The
Company intends to use the credit facility for general corporate purposes which
may include acquisitions. The credit agreement carries an annual facility fee on
unused amounts of the limit. Borrowings under the credit agreement bear interest
at LIBOR (London Interbank Offerred Rate) plus a margin based upon the Company's
credit ratings. The credit agreement requires the Company to maintain certain
financial covenants and limits the Company's ability to incur secured
indebtedness or certain contingent obligations except for certain secured
indebtedness. There are currently no borrowings under this credit agreement.
On July 9, 1998 the Company completed the acquisition of Grocers Insurance
Group ("Grocers") from United Grocers, Inc ("United"). Grocers is an
Oregon-based specialty insurance holding company serving the grocery and food
service industry. In 1997, Grocers reported approximately $23 million of net
13
<PAGE>
premiums written, principally general liability, property and workers
compensation with the majority of its volume concentrated in the Northwestern
states. The purchase price was $36.3 million in cash. The Company paid
approximately $32.3 million to United on July 9, 1998. The Company retained $4.0
million of the purchase price to secure obligations of United and Grocers. The
Company used cash and short-term investments to fund the purchase. The
acquisition will be accounted for as a purchase and accordingly, Grocers will be
included in the Company's consolidated financial statements from the date of
acquisition.
The Company recently announced plans to accelerate the realignment
of Orion Specialty because it has not met the Company's profitability
expectations. The realignment is anticipated to negatively impact the
Company's operating results in the second half of 1998 by approximately
$12.5 million on a pre-tax basis or $.35 per diluted share on an after-tax
basis. The realignment is planned to result in Orion Specialty's
continued shift away from commodity business, primarily commercial
auto and transportation, to a smaller number of more client-focused
programs and specialty niches. The realignment is expected to result in the
cancellation of business with current net premium volume of approximately $100
million on an annual basis. Under the realignment plan, the Company will
record a charge of $36.7 million in the third quarter related to the cancelled
business. Major components of this charge will include loss reserve
strengthening of $27.8 million, which is based upon a recently completed
actuarial study, severance and program termination expenses of $7.0 million,
and asset write downs of $1.9 million.
Part of the realignment plan will include the sale of Orion
Specialty's Colorado Casualty unit, which produces approximately $55
million in annual net premiums written, but consists largely of business
which does not fit the Company's specialization strategy. On August 12, 1998,
the Company reached an agreement to sell Colorado Casualty to Liberty
Mutual Insurance Company. The transaction is expected to result in a pre-tax
operating gain of approximately $24.2 million. The Company anticipates that
sale will be completed in the late third quarter or early fourth quarter
of 1998, subject to regulatory approvals.
The Company's Board of Directors increased authorization for purchases
of its common stock by an additional $50 million on August 4, 1998, increasing
the remaining stock purchases authorization to $66.4 million at August 7, 1998.
14
<PAGE>
INDEPENDENT ACCOUNTANT'S REVIEW REPORT
Board of Directors and Stockholders
Orion Capital Corporation
Farmington, Connecticut
We have reviewed the accompanying consolidated balance sheet of Orion
Capital Corporation and subsidiaries (the "Company") as of June 30, 1998, and
the related consolidated statements of earnings for the three-month and
six-month periods ended June 30, 1998 and 1997, and the statements of
stockholders' equity and cash flows for the six-month periods ended June 30,
1998 and 1997. These financial statements are the responsibility of the
Company's management.
We conducted our review in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and of making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with generally accepted auditing standards, the objective of which is
the expression of an opinion regarding the financial statements taken as a
whole. Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications
that should be made to such consolidated financial statements for them to be in
conformity with generally accepted accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet of Orion Capital Corporation
and subsidiaries as of December 31, 1997, and the related consolidated
statements of earnings, stockholders' equity and cash flows for the year then
ended; and in our report dated February 11, 1998, we expressed an unqualified
opinion on those consolidated financial statements. The consolidated statements
of earnings and cash flows for the year ended December 31, 1997 are not
presented herein. In our opinion, the information set forth in the accompanying
consolidated balance sheet as of December 31, 1997 and related consolidated
statement of stockholders' equity for the year then ended is fairly stated, in
all material respects, in relation to the consolidated financial statements from
which it has been derived.
DELOITTE & TOUCHE LLP
Hartford, Connecticut
July 29, 1998
15
<PAGE>
ORION CAPITAL CORPORATION AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1998 AND 1997
GENERAL
Orion Capital Corporation ("Orion") and its wholly-owned subsidiaries
(collectively the "Company") operate principally in the property and casualty
insurance business. The Company reports its insurance operations in three
segments. In addition, the miscellaneous income and expenses (primarily
interest, general and administrative expenses and other consolidating
elimination entries) of the parent company are reported as a fourth segment. As
result of the acquisition of Guaranty National, the 1997 segment disclosures
have been revised to conform with the current basis of presentation. The three
insurance segments as of June 30, 1998 are as follows:
REGIONAL OPERATIONS - this segment includes the workers compensation insurance
products and services sold by the EBI Companies ("EBI").
SPECIAL PROGRAMS - this segment comprises the following:
DPIC Companies ("DPIC"), which markets professional liability insurance;
Orion Specialty, which writes specialty insurance programs and commercial
non-standard automobile insurance;
Wm. H. McGee ("McGee"), an underwriting management company that
specializes in ocean marine, inland marine and commercial property
insurance; and
The Company's 24.7% interest in Intercargo Corporation ("Intercargo"),
which sells insurance coverages for international trade.
GUARANTY NATIONAL COMPANIES ("Guaranty National") - this segment specializes in
non-standard personal automobile insurance.
The Company increased its ownership of Guaranty National to 100% in December
1997. Beginning in 1998, the commercial business lines of Guaranty National were
consolidated with Connecticut Specialty to form a new company named Orion
Specialty. Orion Specialty focuses on specialty commercial insurance.
Following the formation of Orion Specialty, Guaranty National became
substantially a personal non-standard automobile insurance operation. The
Company increased its ownership in Guaranty National, in part, to provide
Guaranty National with additional financing options, on terms that may not be
available to it as an independent entity, so that it can continue its expansion
in the non-standard personal automobile insurance business.
16
<PAGE>
On April 30, 1998 the Company completed the acquisition of the non-standard
personal automobile insurance business of North Carolina - based Strickland
Insurance Group, Inc. ("Strickland"). The acquisition included two insurance
companies, a premium finance company, a claim adjusting firm and a general
agency in Florida. In 1997, Strickland reported approximately $99 million of
personal automobile gross premiums written and $46 million of net premiums
written. The purchase price was $44.0 million in cash subject to adjustment. The
acquisition was accounted for as a purchase and accordingly, the acquired
business has been included in the Company's consolidated financial statements
from the date of acquisition. The total consideration exceeded the fair value of
the acquired net assets by approximately $28.9 million, subject to adjustment,
and is being amortized over 25 years.
On July 9, 1998 the Company completed the acquisition of Grocers Insurance Group
("Grocers") from United Grocers, Inc. for $36.3 million in cash. Grocers is an
Oregon-based specialty insurance holding company serving the grocery and food
service industry. In 1997, Grocers wrote approximately $23 million of net
premiums, principally general liability, property and workers compensation with
the majority of its volume concentrated in the Northwestern states. The
acquisition will be accounted for as a purchase. Grocers will be included in the
Company's consolidated financial statements from the date of acquisition.
The Company recently announced plans to accelerate the realignment of Orion
Specialty because it has not met the Company's profitability
expectations. The realignment is anticipated to negatively impact the Company's
operating results in the second half of 1998 by approximately $12.5 million on
a pre-tax basis or $.35 per diluted share on an after-tax basis. The realign-
ment is planned to result in Orion Specialty's continued shift away
from commodity business, primarily commercial auto and transportation,
to a smaller number of more client-focused programs and specialty niches.
The realignment is expected to result in the cancellation of business with
current net premium volume of approximately $100 million on an annual basis.
Under the realignment plan, the Company will record a charge of $36.7 million
in the third quarter of 1998 related to the cancelled business. Major
components of this charge will include loss reserve strengthening of $27.8
million, which is based upon a recently completed actuarial study, severance
and program termination expenses of $7.0 million and asset write downs of
$1.9 million.
Part of the realignment will include the sale of Orion Specialty's Colorado
Casualty unit, which produces approximately $55 million in net premiums
written annually, but consists largely of business which does not fit the
Company's specialization strategy. On August 12, 1998, the Company reached
an agreement to sell Colorado Casualty to Liberty Mutual Insurance Company.
The transaction is expected to result in a pre-tax operating gain of
approximately $24.2 million. The Company anticipates that sale will be
completed in the late third quarter or early fourth quarter of 1998, subject to
regulatory approvals.
17
<PAGE>
RESULTS OF OPERATIONS
OVERVIEW
Earnings (loss) by segment before federal income taxes and minority interest
expense are summarized as follows:
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
------------------------------------ ----------------------------------
(In millions) 1998 1997 % Change 1998 1997 % Change
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Regional Operations ........ $ 24.5 $ 16.8 45.8% $ 52.9 $ 37.5 41.1%
Special Programs ........... 27.7 16.5 67.9% 57.4 37.6 52.7%
Guaranty National .......... 10.4 9.8 6.1% 18.3 16.7 9.6%
------ ------ ----- ------ ------ -----
62.6 43.1 45.2% 128.6 91.8 40.1%
Other ...................... (4.4) (3.8) 15.8% (9.5) (9.1) 4.4%
------ ------ ----- ------ ------ -----
$ 58.2 $ 39.3 48.1% $119.1 $ 82.7 44.0%
====== ====== ===== ====== ====== =====
</TABLE>
Operating earnings, after-tax realized investment gains, net earnings and per
diluted common share amounts are summarized as follows:
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
----------------------------------------- --------------------------------------
(In millions, except share data) 1998 1997 % Change 1998 1997 % Change
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Operating earnings $ 23.4 $ 20.3 15.3% $ 46.7 $ 39.7 18.0%
After-tax realized investment
gains 14.8 5.1 189.9% 33.6 15.2 120.6%
-------- -------- ------ -------- -------- ------
Net earnings $ 38.2 $ 25.4 50.3% $ 80.3 $ 54.9 46.5%
======== ======== ====== ======== ======== ======
Per diluted common share:
Operating earnings $ 0.83 $ 0.73 13.7% $ 1.66 $ 1.42 16.9%
After-tax realized investment
gains 0.53 0.18 194.4% 1.19 0.55 116.4%
-------- -------- ------ -------- -------- ------
Net earnings $ 1.36 $ 0.91 49.5% $ 2.85 $ 1.97 44.7%
======== ======== ====== ======== ======== ======
</TABLE>
The Company's operating earnings increased 15.3% in the second quarter of 1998
and 18.0% in the first half of 1998 compared to the same 1997 periods. Operating
earnings represents earnings after taxes, excluding net realized investment
gains. On a diluted per common share basis, operating earnings increased 13.7%
in the second quarter of 1998 and 16.9% in the first half of 1998 compared to
the same 1997 periods. The strong performance from the Company's insurance
operations, in particular EBI, DPIC and Guaranty National, combined with
significant increases in after-tax realized investment gains resulted in a 50.3%
and 46.5% increase in net earnings for the second quarter and first half of
1998, respectively, compared to the same 1997 periods. Weighted average common
shares and diluted equivalents outstanding were 28,160,000 for the second
quarter of 1998 and 28,145,000 for the six months ended June 30, 1998 and
27,803,000 and 27,801,000, for the corresponding 1997 periods, respectively.
18
<PAGE>
REVENUES
Revenues are summarized as follows:
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
---------------------------------------- ----------------------------------------
(In millions) 1998 1997 % Change 1998 1997 % Change
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net premiums written $ 384.8 $ 340.2 13.1% $ 753.8 $ 674.5 11.8%
======== ======== ====== ======== ======== ======
Net premiums earned $ 370.4 $ 335.2 10.5% $ 719.2 $ 659.2 9.1%
Net investment income 42.5 41.3 2.9% 83.9 81.5 2.9%
Realized investment gains 22.7 8.4 170.2% 51.7 24.2 113.6%
Other 7.0 5.2 34.6% 12.6 10.1 24.8%
-------- -------- ------ -------- -------- ------
$ 442.6 $ 390.1 13.5% $ 867.4 $ 775.0 11.9%
======== ======== ====== ======== ======== ======
</TABLE>
PREMIUMS WRITTEN
The Company's net premiums written by segment are as follows:
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
---------------------------------------- ----------------------------------------
(In millions) 1998 1997 % Change 1998 1997 % Change
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Regional Operations $ 106.8 $ 90.0 18.6% $ 217.4 $ 177.8 22.3%
Special Programs 171.5 167.9 2.1% 333.8 332.3 0.5%
Guaranty National 106.5 82.3 29.4% 202.6 164.4 23.2%
-------- -------- ----- -------- -------- -----
$ 384.8 $ 340.2 13.1% $ 753.8 $ 674.5 11.8%
======== ======== ===== ======== ======== =====
</TABLE>
In November 1996, the Company sold the renewal book of business of its assumed
reinsurance operation to concentrate on businesses where the Company can better
service its specialized niche markets. Excluding premiums from this operation,
the Company's net premiums written increased by 14.3% in the second quarter of
1998 and 13.3% in the first half of 1998 over the same 1997 periods.
Regional Operations
Net premiums written for Regional Operations increased by 18.6% in the second
quarter of 1998 and 22.3% in the first half of 1998 from comparable 1997 periods
largely due to growth generated by EBI's multi-state program established in
1997. Additionally, the increase in net premiums written in 1998 is attributed
to EBI's continued geographic expansion and penetration, partly offset by the
impact of statutory rate reductions of last year.
19
<PAGE>
SPECIAL PROGRAMS
Net premiums written from Special Programs are as follows:
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
---------------------------------------- ----------------------------------------
(In millions) 1998 1997 % Change 1998 1997 % Change
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Orion Specialty $ 101.8 $ 101.7 0.1% $ 205.3 $ 203.7 0.8%
DPIC 49.7 47.0 5.6% 92.0 91.0 1.1%
McGee 20.2 15.9 27.6% 36.8 28.6 28.8%
------- ------- ------- ------- ------- -------
171.7 164.6 4.3% 334.1 323.3 3.3%
Assumed reinsurance (0.2) 3.3 -106.3% (0.3) 9.0 -103.6%
------- ------- ------- ------- ------- -------
$ 171.5 $ 167.9 2.1% $ 333.8 $ 332.3 0.5%
======= ======= ======= ======= ======= =======
</TABLE>
Net premiums written by DPIC for professional liability insurance, the largest
special program, increased in 1998 primarily as a result of continual high
levels of policy renewals and growth in project policies offset in part by rate
reductions in a very competitive professional liability insurance market.
Orion Specialty's net premiums written increased slightly due to increases in
net premiums from the contract and brokerage division and standard commercial
insurance operations, partly offset by lower premiums from the cancelled truck
liability, cancelled ocean marine and coal mine programs.
McGee's net premiums written increase in 1998 reflects the Company's greater
participation in the underwriting pools managed by McGee. The Company's
participation in McGee's United States pool is approximately 71% and 52% in 1998
and 1997, respectively. Participation in McGee's Canadian pool is approximately
72% and 61% in 1998 and 1997, respectively.
GUARANTY NATIONAL
The net premiums written growth in 1998 over the comparable 1997 period is
primarily due to the acquisitions of Strickland's non-standard personal
automobile insurance business and Unisun Insurance Company, growth in the
monthly product business in California, and increases in premiums from the
Northwestern states, offset in part, by modest rate reductions due from a very
competitive market. Premium growth in California is primarily attributed to
enacted legislation requiring all drivers to maintain liability insurance.
PREMIUMS EARNED
The Company's premiums earned increased 10.5% and 9.1% in the second quarter and
first half of 1998 compared to the same 1997 periods, respectively. Premiums
earned reflect the recognition of income from the changing levels of net premium
writings.
20
<PAGE>
NET INVESTMENT INCOME
Pre-tax net investment income was $83.9 million and $81.5 million for the first
half of 1998 and 1997, and $42.5 million and $41.3 million for the corresponding
second quarter periods, respectively. The pre-tax yields on the average
investment portfolio were 7.0% for the first six months of 1998 and 7.1% for the
first six months of 1997, with after-tax yields of 5.3% and 5.4%, respectively.
Net investment income increased 2.9% in both the first half and second quarter
of 1998 primarily due to a higher investment base. The higher investment base
for 1998 reflects the investment of proceeds from the issuance of $125 million
7.701% Trust Preferred Securities in February 1998 and the effects of positive
operating cash flow. These increases have been partly offset by cash used for
acquisitions as well as repayment of the $100 million bank indebtedness of
Guaranty National.
Net investment income reflects equity earnings in limited partnership
investments of $3.8 million for the second quarter of 1998 and $3.9 million for
the same 1997 period, and $9.0 million for the first half of 1998 and $8.6
million for the same 1997 period. Over 50% of the equity earnings in 1998
resulted from three limited partnership investments. Earnings from limited
partnership investments can vary considerably from year-to-year. The Company's
long-term experience with limited partnership investments has been quite
favorable; however, they represent only 4.5% and 3.6% of total investments at
June 30, 1998 and December 31, 1997, respectively.
Fixed maturity investments, which the Company has both the positive intent and
the ability to hold to maturity, are recorded at amortized cost. Fixed maturity
investments which may be sold in response to, among other things, changes in
interest rates, prepayment risk, income tax strategies or liquidity needs are
classified as available-for-sale and are carried at market value. The carrying
value of fixed maturity and short-term investments is $2,034.7 million at June
30, 1998 and $2,010.9 million at December 31, 1997, or approximately 79.0% and
78.8% of the Company's cash and investments, respectively.
The Company's investment philosophy is to achieve a superior rate of return
after taxes, while maintaining a proper balance of safety, liquidity, maturity
and marketability. The Company invests primarily in investment grade securities
and strives to enhance the average return of its portfolio through limited
investment in a diversified group of non-investment grade fixed maturity
securities or securities that are not rated. The risk of loss due to default is
generally considered greater for non-investment grade securities than for
investment grade securities because the former, among other things, are often
subordinated to other indebtedness of the issuer and are often issued by highly
leveraged companies. At June 30, 1998 and December 31, 1997, the Company's
investment in non-investment grade and non-rated fixed maturity securities were
carried at $238.3 million and $256.7 million, respectively. These investments
represented a total of 9.3% and 10.1% of cash and investments and 5.7% and 6.6%
of total assets at June 30, 1998 and December 31, 1997, respectively.
REALIZED INVESTMENT GAINS
Net realized investment gains are $51.7 million and $24.2 million for the first
six months of 1998 and 1997, and $22.7 million and $8.4 million for
corresponding second quarter period, respectively. Approximately 25% of the
year-to-date 1998 net realized investment gains resulted from the sale of two
21
<PAGE>
investments in entities which were acquired or taken public during the first
quarter. Realized investment gains may be reduced by provisions for losses on
securities deemed to be other-than-temporarily impaired. Impairment provisions
of $2.5 million and $1.8 million were recognized in the six months ended June
30, 1998 and 1997, respectively. Any such provision is based on available
information at the time and is made in consideration of the decline in the
financial condition of the issuers of such securities. Realized investment gains
(losses) vary from period to period, depending on market conditions relative to
the Company's investment holdings, the timing of investment sales generating
gains and losses, the occurrence of events which give rise to
other-than-temporary impairment of investments, and other factors.
EXPENSES AND OTHER
Operating Ratios
The following table sets forth certain ratios of insurance operating expenses to
premiums earned:
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
----------------------------------- --------------------------
1998 1997 1998 1997
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Loss and loss adjustment expenses 67.7% 67.3% 67.2% 67.5%
Policy acquisition costs and other
insurance expenses 30.0% 31.0% 30.3% 31.0%
------ ------ ------ ------
Total before policyholders' dividends 97.7% 98.3% 97.5% 98.5%
Policyholders' dividends 1.9% 1.4% 1.9% 1.5%
------ ------ ------ ------
Combined ratio 99.6% 99.7% 99.4% 100.0%
====== ====== ====== ======
Loss and loss adjustment expenses ratio by segment:
Regional Operations 58.1% 59.0% 57.3% 58.8%
Special Programs 73.2% 69.9% 71.5% 70.2%
Guaranty National 68.9% 71.3% 70.4% 71.4%
</TABLE>
The improvement in the loss ratio for Regional Operations results from the
favorable loss experience and lower loss expenses achieved by EBI through its
service-oriented approach offset in part by less favorable loss development
relating to prior accident years. EBI's service oriented approach is to work
with its customers to prevent losses and reduce claim costs.
The increase in the 1998 loss ratio for Special Programs compared to 1997 is
primarily attributable to higher losses from program business at Orion
Specialty, including cancelled programs, and an increased unfavorable effect of
the assumed reinsurance business exited in late 1996. Net earned premiums from
the exited reinsurance business declined at a greater rate than losses in 1998
compared to 1997. The loss ratio at DPIC has improved in 1998 in relation to
1997 as a result of its loss prevention competencies.
Guaranty National's loss ratio improved in 1998 compared to 1997 primarily due
to a decline in claims frequency and claims severity.
22
<PAGE>
The ratios of policy acquisition costs and other insurance expenses to premiums
earned (the "expense ratio") are 30.0% and 30.3% for the three months and six
months ended June 30, 1998, respectively, and 31.0% for the respective 1997
periods. Policy acquisition costs include direct costs, such as commissions,
premium taxes, and salaries that relate to and vary with the production of new
business. These costs are deferred and amortized as the related premiums are
earned, subject to a periodic test for recoverability.
Management believes that the Company's reserves for loss and loss adjustment
expenses make reasonable and sufficient provision for the ultimate cost of all
losses on claims incurred. However, there can be no assurance that changes in
loss trends will not result in additional development of prior years' reserves
in the future. The Company will record $27.8 million of loss reserve
strengthening relating to the Orion Specialty realignment plan in the third
quarter of 1998. Provisions for losses and loss adjustment expenses include
development of loss and loss adjustment expense reserves relating to prior
accident years, which increased the calendar year combined ratio by 1.1
percentage points in the first half of 1998 and 0.6 percentage points in
the same period of 1997.Variability in claim emergence and settlement patterns
and other trends in loss experience can result in future development patterns
different than expected. After considering the additonal reserve strengthening
to be recorded for Orion Specialty realignment, the Company believes that any
such variability or development will generally continue at the low levels
experienced in recent years, considering actions that have been taken to
increase reserving levels,improve underwriting standards and emphasize loss
prevention and control.
The Company limits both current losses and future development of losses by
ceding business to reinsurers. The Company continually monitors the financial
strength of its reinsurers and, to the Company's knowledge, has no material
exposure with regard to potential unrecognized losses due to reinsurers having
known financial difficulties.
INTEREST EXPENSE
Interest expense is $3.1 million and $6.2 million for the second quarters of
1998 and 1997, and $8.9 million and $12.3 million for the first half of 1998 and
1997, respectively. Interest expense declined in 1998 as a result of the
repayment of the $100 million bank indebtedness of Guaranty National in February
1998 with proceeds from the issuance of the Company's 7.701% Trust Preferred
Securities.
OTHER EXPENSES
Other expenses are $12.5 million and $10.6 million for the second quarters of
1998 and 1997, respectively, and $23.5 million and $21.7 million for the first
half of 1998 and 1997, respectively. The increase is partly due to higher
goodwill amortization from acquisitions in 1997 and 1998.
EQUITY IN EARNINGS (LOSS) OF AFFILIATE
Equity in earnings (loss) of affiliate consists of earnings (loss) from the
Company's 24.7% investment in Intercargo. The Company records its share of
Intercargo's results in the subsequent quarter.
23
<PAGE>
FEDERAL INCOME TAXES
Federal income taxes (including tax benefits from subsidiary trust preferred
securities) and the related effective tax rates are $14.9 million (28.1%) and
$9.0 million (24.7%) for the second quarters of 1998 and 1997, respectively. The
corresponding amounts for the first six months of 1998 and 1997 are $29.4
million (26.8%) and $19.0 million (24.5%), respectively. The Company's effective
tax rates for 1998 and 1997 are less than the statutory tax rate of 35%
primarily because of income derived from tax- advantaged securities.
MINORITY INTEREST EXPENSE
Minority interest expense in subsidiary Trust Preferred Securities of $3.3
million and $6.1 million for three months and six months ended June 30, 1998,
and $1.8 million and $3.3 million for corresponding 1997 periods, respectively.
Minority interest expense in subsidiary Trust Preferred Securities represents
the financing cost, after the federal income tax benefit, on Orion's 8.73% and
7.701% Trust Preferred Securities. The increase in 1998 reflects minority
interest expense associated with the issuance of $125 million 7.701% Trust
Preferred Securities in February 1998.
Minority interest expense of $2.1 million and $3.7 million was recorded for the
after-tax portion of Guaranty National's 1997 second quarter and six month
earnings attributable to stockholders of Guaranty National other than the
Company, respectively. Guaranty National became a wholly-owned subsidiary of the
Company in December 1997.
LIQUIDITY AND CAPITAL RESOURCES
Cash provided by operating activities decreased by $22.1 million to $12.8
million in the first six months of 1998 from $34.9 million in the same 1997
period. The decrease in operating cash flow for 1998 is the result of higher
payments for losses, policy acquisition costs, federal income taxes, minority
interest from subsidiary trust preferred securities and policyholders'
dividends, and includes loss payments for the assumed reinsurance business
exited by the Company in 1996 and acceleration of claim settlements.
Furthermore, reinsurance recoverable has increased as a result of recent
acquisitions. Partially offsetting these increased cash outflows are higher
premiums collected, reflective of the Company's current rate of growth, as well
as higher investment income collected and funds held for others.
The Company's investment activities provided $1.5 million of cash in the first
six months of 1998 and used $147.7 million of cash in the first six months of
1997. Cash is used in investment activities primarily for purchases of
investments and acquisition activities. Investment purchases are funded by
maturities and sales of investments, as well as by the net cash from operating
cash flows after cash provided by or used in financing activities. Cash used for
acquisitions totaled $46.8 million (excluding acquired cash of $10.8 million) in
the first six months of 1998. The Company paid $38.5 million, to Strickland for
the purchase its non-standard personal automobile insurance business on April
30,1998 and $2.0 million in 1997 with $3.3 million of the purchase price
retained by the Company in part to secure obligations of Strickland. On July 9,
1998 the Company paid approximately $32.5 million to United Grocers, Inc. for
the purchase of Grocers Insurance with $4.0 million of the purchase price
retained by the Company to secure obligations of United and Grocers.
24
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The Company's financing activities used $2.3 million of cash for the first six
months of 1998 and provided $114.8 million of cash for the same 1997 period. The
net proceeds from the issuance of trust preferred securities by the Company
provided $121.9 million and $123.0 million of cash in 1998 and 1997,
respectively. Net proceeds from the issuance of the 7.701% Trust Preferred
Securities were used to repay the $100 million bank indebtedness of Guaranty
National in February 1998. Simultaneous with the acquisition of Strickland's
non-standard personal automobile business, the Company repaid $9.4 million of
assumed bank debt in the acquisition. Cash used in financing activities also
includes dividend payments, scheduled debt repayments and payments related to
the Company common stock repurchase program. Orion increased the quarterly
dividend rate on its common stock by 12.5% and 14.3% in the second quarters of
1998 and 1997, respectively.
Orion's uses of cash consist of debt service, dividends to stockholders and
overhead expenses. These cash uses are funded from existing available cash,
financing transactions and receipt of dividends, reimbursement of overhead
expenses and amounts in lieu of federal income taxes from Orion's insurance
subsidiaries. Payments of dividends by Orion's insurance subsidiaries must
comply with insurance regulatory limitations concerning stockholder dividends
and capital adequacy. State insurance regulators have broad discretionary
authority with respect to limitations on the payment of dividends by insurance
companies. Limitations under current regulations are well in excess of Orion's
cash requirements.
Orion's insurance subsidiaries maintain liquidity in their investment portfolios
substantially in excess of that required to pay claims and expenses. The
insurance subsidiaries held cash and short-term investments of $239.3 million
and $160.4 million at June 30, 1998 and December 31, 1997, respectively. The
consolidated policyholders' surplus of Orion's insurance subsidiaries is $808.1
million and $789.0 million at June 30, 1998 and December 31, 1997, respectively.
The Company's statutory operating leverage ratios of trailing twelve months net
premiums written to policyholders' surplus is 1.8:1 at both June 30, 1998 and
December 31, 1997.
The terms of Orion's indentures for its $100 million of 7.25% Senior Notes due
2005 and its $110 million of 9.125% Senior Notes due 2002 limit the amount of
liens and guarantees by the Company and its ability to incur secured
indebtedness without equally and ratably securing the senior notes. Management
does not believe that these limitations unduly restrict the Company's operations
or limit Orion's ability to pay dividends on its stock. At June 30, 1998 the
Company is in compliance with the terms of its senior note indentures.
Management believes that the Company continues to have substantial sources of
capital and liquidity from the capital markets and bank borrowings.
On January 13, 1997 Orion issued $125 million of 8.73% Junior Subordinated
Deferrable Interest Debentures due January 1, 2037 (the "8.73% Debentures") to
Orion Capital Trust I ("Trust I"), a Delaware statutory business trust sponsored
by Orion. Trust I simultaneously sold $125 million of 8.73% capital securities
(the "8.73% Trust Preferred Securities") which have substantially the same terms
as the 8.73% Debentures. The net proceeds from the sale of the 8.73% Trust
Preferred Securities were used in part for the acquisition of Guaranty National
common stock in December 1997. The 8.73% Trust Preferred Securities may be
redeemed without premium on or after January 1, 2007.
25
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On February 2, 1998 Orion issued $125 million of 7.701% Junior Subordinated
Deferrable Interest Debentures due April 15, 2028 (the "7.701% Debenture") to
Orion Capital Trust II ("Trust II"), a Delaware statutory business trust
sponsored by Orion. Trust II then sold $125 million of 7.701% capital securities
(the "7.701% Trust Preferred Securities"), which have substantially the same
terms as the 7.701% Debentures, in a private placement. The net proceeds from
the sales of the 7.701% Trust Preferred Securities were used to repay $100
million bank indebtedness of Guaranty National in February 1998.
The 8.73% and 7.701% capital securities are subordinated to all liabilities of
the Company. The Company may defer interest distributions on these capital
securities; however, during any period when such cumulative distributions have
been deferred, Orion may not declare or pay any dividends or distributions on
its common stock.
On July 8, 1998 the Company entered into a credit agreement with a group of
banks which provides for unsecured borrowings up to $150 million. The credit
agreement expires on July 8, 2003 and provides for two one-year extension
periods. The Company intends to use the credit facility for general corporate
purposes which may include acquisitions. The credit agreement carries an annual
facility fee on the unused amounts of the credit facility. Borrowings under the
credit agreement bear interest at LIBOR (London Interbank Offerred Rate) plus a
margin based upon the Company's credit ratings. The credit agreement requires
the Company to maintain certain financial covenants including a maximum debt to
total capitalization ratio of 0.4 to 1.0, as defined, and a minimum combined
statutory surplus of $650 million plus 30% of the Company's aggregate combined
annual statutory net income. The credit agreement limits the Company's ability
to incur secured indebtedness or certain contingent obligations except for
indebtedness secured by liens specifically permitted by the credit agreement and
additional secured indebtedness with a principal amount not exceeding 10% of the
Company's consolidated net worth, as defined. There are currently no borrowings
under this credit agreement. Management does not believe that the credit
agreement's covenants or limitations unduly restrict the Company's operations or
limit Orion's ability to acquire additional indebtedness.
For the year-to-date period to August 7, 1998 the Company has repurchased
235,800 shares of its common stock at an aggregate cost of $11.6 million under a
stock repurchase program approved by the Board of Directors. The Company's Board
of Directors increased authorization for purchases of its common stock by an
additional $50 million on August 4, 1998, increasing the remaining stock
purchase authorization to $66.4 million at August 7, 1998.
LEGAL PROCEEDINGS
Orion and its subsidiaries are routinely engaged in litigation incidental to
their businesses. Management believes that there are no significant legal
proceedings pending against the Company which, net of reserves established
therefor, are likely to result in judgments for amounts that are material to the
financial condition, liquidity or results of operations of Orion and its
consolidated subsidiaries, taken as a whole.
26
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ACCOUNTING PRONOUNCEMENTS TO BE ADOPTED
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related Information", which
changes the way public companies report information about segments. This
statement will be adopted by the Company in the fourth quarter of 1998.
Financial statement disclosures for prior periods are required to be restated.
The Company is in the process of evaluating the disclosure requirements and
presently expects that the adoption of this standard will have no impact on the
Company's consolidated results of operation, financial position or cash flows.
FORWARD-LOOKING STATEMENTS
All statements made in this quarterly report that do not reflect historical
information are forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
involve known and unknown risks, uncertainties and other factors that may cause
the actual results, performance or achievements of the Company to be materially
different from any future results, performance or achievements expressed or
implied by the forward-looking statements. Such factors include, among other
things, (i) general economic and business conditions; (ii) interest rate
changes; (iii) competition and regulatory environment in which the Company
operates; (iv) claims frequency; (v) claims severity; (vi) medical cost
inflation; (vii) increases in the cost of property repair; (viii) the number of
new and renewal policy applications submitted to the Company; and (ix) other
factors over which the Company has little or no control. The Company disclaims
any obligation to update or to publicly announce the impact of any such factors
or any revisions to any forward-looking statements to reflect future events or
developments.
27
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PART II. OTHER INFORMATION
ITEM 1. - NONE
ITEM 2. - SECURITIES OF THE REGISTRANT.
On September 11, 1996 the Board of Directors adopted the 1996 Equity
Incentive Plan, pursuant to which options to purchase 700,000 shares were
authorized for issuance. The Plan was approved by the stockholders on April 9,
1997.
A Registration Statement on Form S-8 was filed with respect to the Plan on
July 10, 1998 covering 1,400,000 shares (the original authorization, adjusted to
give effect to a two-for-one stock split in July, 1997). Through June 30, 1998,
21,605 shares were, upon exercise of options awarded pursuant to the Plan,
acquired by and issued to participants in the Plan.
ITEM 3. - NONE
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS
At the Orion Annual Meeting of Stockholders held on May 28, 1998 ("Annual
Meeting"), 27,529,520 shares of Orion Common Stock were outstanding and entitled
to vote (the "Outstanding Common Stock") and 26,895,878 shares of Outstanding
Common Stock or 97.7% consisting of a quorum, were represented at the Annual
Meeting, in person or by proxy.
PROPOSAL 1
At the Annual Meeting the directors nominated were elected by the following
votes:
Number of Shares Number of Shares
Voted For Withheld
W. Marston Becker 26,702,949 192,929
Gordon F. Cheesbrough 26,757,717 138,161
John C. Colman 26,756,418 139,460
David H. Elliott 26,741,773 154,105
Victoria R. Fash 26,760,198 135,680
Robert H. Jeffrey 26,757,129 138,749
Gordon W. Kreh 26,761,521 134,357
Warren B. Lyons 26,758,417 137,461
James K. McWilliams 26,755,067 140,811
Ronald W. Moore 26,760,941 134,937
William B. Weaver 26,747,290 148,588
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PROPOSAL 2
Shareholders ratified the selection of Deloitte & Touche LLP as the independent
certified public accountants, as auditors for the Company for the year 1998. The
vote was as follows:
26,797,844 shares or 99.64% of the Company's Common Stock represented at the
meeting were voted FOR. 16,665 shares or .06% of the Company's Common Stock
represented at the meeting were voted AGAINST.
81,369 shares or .30% of the Company's Common Stock represented at the meeting
ABSTAINED.
There were no Broker Non-Votes on this proposal.
PROPOSAL 3
Shareholders approved the Orion Capital Corporation Employees' Stock Purchase
Plan. The vote was as follows:
26,091,584 shares or 94.78% of the Company's outstanding Common Stock were voted
FOR.
515,684 shares or 1.87% of the Company's outstanding Common Stock were voted
AGAINST.
288,610 shares or 1.05% of the Company's outstanding Common Stock ABSTAINED.
There were no Broker Non-Votes on this proposal.
ITEM 5. - NONE
ITEM 6. - EXHIBITS AND REPORTS ON FORM 8-K
Exhibits
Exhibit 3(ii): By-Laws of the Company, as amended on July
29, 1998.
Exhibit 4: Credit Agreement, dated as of July 8, 1998,
between the Company, the lenders named therein,
First Union National Bank, as Administrative Agent,
Bank of America National Trust and Savings Association,
as Documentation Agent, and Fleet National Bank, as
Syndication Agent.
Exhibit 11: Computation of Earnings Per Common Share.
29
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Exhibit 15: Deloitte & Touche LLP Letter re:unaudited interim
financial information.
Exhibit 27: Financial Data Schedule.
Report on Form 8-K
None.
30
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
ORION CAPITAL CORPORATION
Date: August 12, 1998 By: /s/ W. Marston Becker
--------------------------
Chairman of the Board and
Chief Executive Officer
Date: August 12, 1998 By: /s/ Donald W. Ebbert, Jr.
-----------------------------
Executive Vice President and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit 3(ii): By-Laws of the Company, as amended on July
29, 1998.
Exhibit 4: Credit Agreement, dated as of July 8, 1998,
between the Company, the lenders named therein,
First Union National Bank, as Administrative
Agent, Bank of America National Trust and Savings
Association, as Documentation Agent, and Fleet
National Bank, as Syndication Agent.
Exhibit 11: Computation of Earnings Per Common Share
Exhibit 15: Deloitte & Touche LLP Letter
Re:unaudited interim financial information
Exhibit 27: Financial Data Schedule
32
As Amended 7/29/98
Exhibit 3(ii)
BY-LAWS
OF
ORION CAPITAL CORPORATION
(a Delaware corporation)
ARTICLE I.
Offices
Section 1. REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II.
Meetings of Stockholders
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall be held at
such time and such place, within or without the State of Delaware, as shall be
stated in the notice of the meeting or a duly executed waiver of notice thereof.
Section 2. ANNUAL MEETINGS. The annual meeting of stockholders shall be
held at such date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, for the purpose of
electing a Board of Directors, and for the transaction of such other business as
may properly be brought before the meeting.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Restated Certificate of Incorporation, may be called by the Chairman of the
Board and shall be called by the Chairman of the Board or Secretary at the
request in writing of a majority of the Board of Directors. Such request shall
state the purpose or purposes of the proposed meeting, and the business
transacted at any such special meeting of stockholders shall be limited to the
purposes set forth in the notice.
Section 4. NOMINATIONS; INTRODUCTION OF BUSINESS AT A MEETING OF
STOCKHOLDERS.
(a) Only persons who are nominated in accordance with the procedures
set forth in these By-Laws shall be eligible to serve as directors. Nominations
of persons for election to the Board of Directors of the Corporation may be made
at a meeting of stockholders (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 4(a), who
shall be entitled to vote for the election of directors at the meeting and who
complies with the notice procedures set forth in this Section 4(a). Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation not
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less than sixty (60) days nor more than ninety (90) days prior to the meeting,
regardless of any postponement, deferral or adjournment of that meeting to a
later date; provided, however, that in the event that less than seventy (70)
days' notice or public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting or such public disclosure was made. Such
stockholder's notice shall contain the written consent of each proposed nominee
to serve as a director if so elected and shall set forth (i) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director and as to each person, acting alone or in conjunction with one or more
other persons as a partnership, limited partnership, syndicate or other group,
who participates or is expected to participate in making such nomination or in
organizing, directing or financing such nomination or solicitation of proxies to
vote for the nominee (w) the name, age, residence address, and business address
of each proposed nominee and of each such person; (x) the principal occupation
or employment, and the name, type of business and address of the corporation or
other organization in which such employment is carried on, of each proposed
nominee and of each such person; (y) the amount of stock of the Corporation
owned beneficially, either directly or indirectly, by each proposed nominee and
each such person; and (z) a description of any arrangement or understanding of
each proposed nominee and of each such person with each other or any other
person regarding future employment or any future transaction to which the
Corporation will or may be a party, and (ii) as to the stockholder giving the
notice (x) the name and address, as they appear on the Corporation's books, of
such stockholder and (y) the class and number of shares of the Corporation which
are beneficially owned by such stockholder. At the request of the Board of
Directors, any person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder's notice of nomination which pertains
to the nominee. Subject to the rights of holders of preferred stock, no person
shall be eligible to serve as a director of the Corporation unless nominated in
accordance with the procedures set forth in the By-Laws. The chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures prescribed by the
By-Laws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded. Notwithstanding the foregoing
provisions of this Section 4(a), a stockholder shall also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Section.
(b) At an annual meeting of the stockholders, only such business shall
be conducted as shall have been brought before the annual meeting (i) by or at
the direction of the Board of Directors or (ii) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 4(b), who shall be entitled to vote at such annual
meeting and who complies with the notice of procedures set forth in this Section
4(b). For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the annual meeting, regardless of any postponement, deferral or adjournment
of that meeting to a later date; provided, however, that in the event that less
than seventy (70) days' notice or prior public disclosure of the date of the
annual meeting is given or made to stockholders, notice by the stockholder to be
timely must be received no later than the close of business on the 10th day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (ii) the name and address, as they appear on the
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<PAGE>
Corporation's books, of the stockholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business shall be
conducted at the stockholder meeting except in accordance with the procedures
set forth in this section 4(b).The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not properly
brought before the meeting and in accordance with the provisions of the By-Laws,
and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 4(b), a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section.
Section 5. STOCKHOLDER LISTS. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, showing the address of and
the number of shares registered in the name of each stockholder. Such list shall
be open to examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period not less than ten (10)
days prior to the meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. The list
shall be produced and kept at the time and place of election during the whole
time thereof and may be inspected by any stockholder who is present.
Section 6. QUORUM AND ADJOURNMENT. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the Restated Certificate of Incorporation. If, however, such
quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new date is set for the determination
of the stockholders entitled to vote at the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote
at the meeting.
Section 7. VOTING. When a quorum is present at any meeting, in all
matters other than the election of Directors, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy, and entitled to vote, shall decide any question brought before such
meeting, or unless the question is one upon which by express provision of
statute or the Restated Certificate of Incorporation a different vote is
required, in which case such express provision shall govern and control the
decision of such question. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at such meeting
and entitled to vote on the election of directors.
Section 8. VOTING AND PROXIES. At all meetings of stockholders, every
stockholder having the right to vote shall be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by such stockholder and
bearing a date not more than one (1) year prior to said meeting, unless said
instrument shall provide for a longer period. Each stockholder entitled to vote
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<PAGE>
at such meeting shall have one vote for each share of stock entitled to vote and
registered in his name on the books of the Corporation. Except as provided by
statute, the vote at any meeting of stockholders need not be by ballot unless so
directed by the chairman of the meeting.
Section 9. STOCK LEDGER. The original or duplicate stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the list
required under Article II, Section 5 of these By-Laws or the books of the
Corporation, or to vote in person or by proxy at any meeting of the
stockholders.
Section 10. NOTICE. Written or printed notice of each meeting of the
stockholders, whether annual or special, stating the place, date and hour of the
meeting, and, in the case of a special meeting, the purpose or purposes thereof,
shall be given to each stockholder of record of the Corporation entitled to vote
at such meeting, either personally by mail, not less than ten (10) days or more
than sixty (60) days prior to the meeting.
Section 11. RECORD DATE.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which shall
not precede the date such record date is fixed and shall not be more than sixty
(60) days nor less than ten (10) days before the date of such meeting. If no
record date is fixed, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be the close of business
on the day next preceding the day on which notice is given. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorized
or take corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within ten (10) days after the date
on which such a request is received, adopt a resolution fixing the record date.
If no record date has been fixed by the Board of Directors within ten (10) days
of the date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date thereafter on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of stockholders' meetings are
recorded, to the attention of the Secretary of the Corporation. Delivery shall
be by hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior action by the
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<PAGE>
Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 12. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. In the event of
the delivery to the Corporation of a written consent or consents purporting to
authorize or take corporate action and/or related revocations (each such written
consent and any revocation thereof is referred to in this Section 12 as a
"Consent"), the Secretary of the Corporation shall provide for the safekeeping
of such Consents and shall as soon as practicable thereafter conduct such
reasonable investigation as he or she deems necessary or appropriate for the
purpose of ascertaining the validity of such Consents and all matters incident
thereto, including, without limitation, whether the holders of shares having the
requisite voting power to authorize or take the action specified in the Consents
have given consent; provided, however, that if the corporate action to which the
Consents relate is the removal or election of one or more members of the Board
of Directors, the Secretary of the Corporation shall designate an independent,
qualified inspector with respect to such Consents and such inspector shall
discharge the functions of the Secretary of the Corporation under this Section
12. If after such investigation the Secretary or the inspector (as the case may
be) shall determine that any action purportedly taken by such Consents has been
validly taken, that fact shall be certified on the records of the Corporation
kept for the purpose of recording the proceedings of meetings of the
stockholders and the Consents shall be filed with such records. In conducting
the investigation required by this Section 12, the Secretary or the inspector
may, at the expense of the Corporation, retain to assist them special legal
counsel and any other necessary or appropriate professional advisors, and such
other personnel as they may deem necessary or appropriate.
ARTICLE III.
Directors
Section 1. NUMBER AND QUALIFICATION OF DIRECTORS. The number of directors
which shall constitute the whole Board shall not be less than five (5) nor more
than fifteen (15). The exact number shall be that number specified from time to
time by duly adopted resolutions of the Board. The directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2 of this
Article III, and each director shall hold office until his or her successor is
duly elected and qualified or until his or her earlier resignation or removal.
No individual may run for election or reelection to the Board or be appointed a
director from and after the date he or she reaches 70 years of age.
Section 2. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Vacancies caused by
death, resignation, removal or otherwise, and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
the stockholders of the Corporation and each director so chosen shall hold
office until the next annual election of directors and until his or her
successor is duly elected and qualified or until his or her earlier resignation
or removal.
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Section 3. POWERS. The business of the Corporation shall be managed by or
under the direction of its Board of Directors which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the Restated Certificate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders.
Section 4. PLACE OF MEETINGS. The Board of Directors of the Corporation may
hold meetings, both regular and special, within or without the State of
Delaware.
Section 5. ORGANIZATIONAL MEETING. The organizational meeting of each
newly elected Board of Directors shall be held immediately after the annual
meeting of stockholders or at such time and place as shall be designated by the
Chairman of the Board or as may otherwise be fixed by the vote of the
stockholders at the annual meeting and if such meeting is held immediately after
the annual meeting of stockholders or if a majority of the whole Board shall be
present, no notice of such meeting shall be necessary to the newly elected
directors in order legally to constitute the meeting provided a quorum shall be
present; or they may meet at such time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the Board of
Directors or as shall be specified in a written waiver signed by all of the
directors.
Section 6. REGULAR MEETINGS. Regular meetings of the Board of Directors may
be held without notice at such time and at such place as shall from time to time
be determined by the Board.
Section 7. SPECIAL MEETINGS. Special meetings of the Board of Directors
may, at any time and for any purpose permitted by law, either be called by the
Chairman of the Board or by the Secretary if the Secretary shall have received
written request therefor from any two directors, which meetings shall be held at
the time and place designated by the person or persons calling the meeting.
Notice of the time, place and purpose of such meeting shall be given to the
directors by the Secretary, or in case of his or her absence, refusal or
inability to act, by any other officer. Any such notice may be given by mail, by
telegraph, by telephone, by personal service or any means thereby as to
different directors. If the notice is by mail, then it shall be deposited in the
mail at least forty-eight hours before the time of the meeting; if by telegram,
by delivery of the message to the telegraph company at least twelve (12) hours
before the time of the meeting; if by telephone or personal service, at least
twelve (12) hours before the time of the meeting.
Section 8. QUORUM. At all meetings of the Board of Directors, a
majority of the whole Board shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by statute or by the Restated Certificate
of Incorporation or by these By-Laws. Any meeting of the Board of Directors may
be adjourned to meet again at a stated time and place. If a quorum shall not be
present at any meeting of the Board of Directors, a majority of the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
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Section 9. ACTION WITHOUT A MEETING. Unless otherwise restricted by the
Restated Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board or
of such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee.
Section 10. MEETINGS BY CONFERENCE TELEPHONE. Unless otherwise restricted
by the Restated Certificate of Incorporation or these By-Laws, members of the
Board of Directors or any committee thereof may participate in a meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting in this manner shall constitute
presence in person at such meeting.
Section 11. COMMITTEES. There are hereby established an Executive
Committee, an Audit and Information Services Committee, a Compensation and
Nomination Committee and a Finance and Investment Committee, each of which shall
have the powers and functions set forth in the following paragraphs of this
Section 11 and such additional powers as may be delegated to it by the Board of
Directors. The Board of Directors may, by resolution passed by a majority of the
whole Board, establish one or more additional standing committees or special
committees of the Board of Directors. Each committee of the Board of Directors
shall have such powers and functions as may be delegated to it by the Board of
Directors, except as limited by the General Corporation Law of the State of
Delaware. The Board of Directors may abolish any committee established by or
pursuant to this Section 11 as it may deem advisable. Each such committee shall
consist of three or more members, the exact number to be determined from time to
time by the Board of Directors. Designation of members of each such committee
shall be made by the Board of Directors. The Board may also designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any such committee or committees, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not he or she or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
The Executive Committee, during intervals between meetings of the Board
of Directors, shall have and may exercise, in the best interests of the
Corporation, all of the powers of the Board of Directors in the management and
control of the business of the Corporation, except as limited by the General
Corporation Law of the State of Delaware and except with respect to matters
within the powers of the Audit and Information Services Committee, the
Compensation and Nomination Committee or the Investment Committee. The powers of
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the Executive Committee shall be exercised in a manner which is consistent with
any specific directions of the Board of Directors as to the conduct of the
Corporation's affairs. All action taken by the Executive Committee shall be
reported to the Board of Directors at the next meeting of the Board following
the Executive Committee meeting at which such action was taken.
The Audit and Information Services Committee, a majority of which shall
not be employees of the Corporation, shall confer periodically with the
Corporation's independent accountants in respect of the preparation of the
Corporation's financial statements and the maintenance of proper financial
records and controls, shall make such recommendations to the Board of Directors
with respect thereto as it shall deem advisable and shall bring to the attention
of the Board of Directors the criticisms and recommendations of such independent
accountants. The Audit and Information Services Committee shall also be
empowered to periodically review the adequacy, accuracy and security of the
Corporation's data processing and information systems and establish such
standards and procedures with respect thereto as the Committee deems necessary
and appropriate. The Audit Committee and Information Services Committee shall
also perform such other functions as may be delegated to it by the Board of
Directors.
The Compensation and Nomination Committee shall consist entirely of
members who are not officers or employees of the Corporation. The Compensation
and Nomination Committee shall be empowered to review the amount and terms of
compensation paid to the principal executive officers of the Corporation and to
the principal executive officers of the Corporation's subsidiaries, and to
authorize, or to recommend to the Board of Directors of the Corporation and such
subsidiaries the authorization of such salary levels and employment agreements
with respect to such officers as such Committee may deem appropriate. The
Compensation and Nomination Committee shall also be empowered to authorize, or
recommend to the Board of Directors the authorization of such general incentive
compensation arrangements, including any bonus, stock option or special
compensation plans for the Corporation, as such Committee may deem appropriate.
The Compensation and Nomination Committee shall also recommend to the Board of
Directors annually a slate of nominees to the Board of Directors to be proposed
to the shareholders, and, from time to time, to recommend persons to fill any
vacancy on the Board, such recommendation to be based on general criteria (as
established by the full Board of Directors) for the selection of members of the
Board. The Compensation and Nomination Committee shall also perform such other
functions as may be delegated to it by the Board of Directors.
The Finance and Investment Committee shall be empowered to establish and
approve or recommend to the Board of Directors the adoption of the Corporation's
investment policies and to review such policies for conformance to applicable
federal and state laws and regulations and for consistency with the
Corporation's objectives. The Finance and Investment Committee shall also be
empowered to review the Corporation's portfolio for compliance with approved
policies and to approve, where appropriate, exceptions to defined policies. The
Corporation's Chief Investment Officer shall serve as a non-voting member of the
Finance and Investment Committee. The Finance and Investment Committee shall
also perform such other functions as may be delegated to it by the Board of
Directors.
Section 12. REMUNERATION. The directors may be paid for their expenses,
if any, including but not limited to those incurred in connection with
attendance at each meeting of the Board of Directors, and may be paid a fixed
sum for attendance at each meeting of the Board of Directors, a stated salary, a
fee as such director or any combination thereof. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
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ARTICLE IV.
Notices
Section 1. MANNER OF NOTICES. Whenever under the provisions of statute
or of the Restated Certificate of Incorporation or of these By-Laws notice is
required to be given to any director, committee member, officer or stockholder,
it shall not be construed to mean personal notice, but such notice may be given,
in the case of stockholders, in writing, by mail, by depositing the same in a
post office or letter box, in a postpaid, sealed wrapper, addressed to such
stockholder, at such address as appears on the books of the Corporation, or, in
default of other address, to such stockholder at the General Post Office in the
City of Wilmington, Delaware, and, in the case of directors, committee members
and officers, by telephone or by mail or telegram to the last business address
known to the Secretary, and such notice shall be deemed to be given at the time
when the same shall be thus mailed or telegraphed or telephoned.
Section 2. WAIVER. Whenever any notice is required to be given under the
provisions of statute or of the Restated Certificate of Incorporation or of
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of any and all objections to the date, time, and purposes of
such meeting, and the sufficiency of notice thereof, except when the person
attends a meeting for the purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE V.
Officers
Section 1. OFFICERS. The officers of the Corporation shall be appointed
by the Board of Directors and shall be a Chairman of the Board of Directors, a
President, a Vice Chairman of the Board of Directors who shall preside over
meetings of the Board of Directors in the absence of the Chairman, one or more
Vice Presidents (which term may include Executive Vice President, Senior Vice
President and any other title approved by the Board of Directors), a Secretary
and a Treasurer or a Chief Financial Officer who serves as the Treasurer. The
Board of Directors may also choose one or more assistant officers. Any two or
more offices may be held by the same person except for the offices of Chairman
of the Board and Secretary, which shall be held by two individuals.
Section 2. ELECTION. The Board of Directors at its first organizational
meeting after each annual meeting of stockholders, shall choose a Chairman of
the Board of Directors, a President, a Vice Chairman of the Board of Directors,
one or more Vice Presidents as set forth in Article V, Section 1, a Secretary
and a Treasurer.
Section 3. APPOINTMENT OF SUBORDINATE OFFICERS. The Board of Directors may
appoint or empower the Chairman of the Board to appoint, such other officers and
agents as deemed necessary who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors.
Section 4. SALARIES. The salaries of the Chairman of the Board, President,
all Vice Presidents, the Secretary and the Treasurer of the Corporation shall be
fixed by the Board of Directors.
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Section 5. TERM OF OFFICE: REMOVAL AND RESIGNATION. After his or her
appointment to an office of the Corporation an individual shall hold such office
until a new slate of officers is appointed by the Board of Directors at an
organizational meeting thereof, or until any other time that his or her
successor is chosen and has qualified, or until his or her earlier removal or
resignation. Any officer appointed by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the entire Board of Directors.
Any officer at any time may resign from any or all of the offices he or she
holds, and his or her resignation may be either oral or written. Unless
otherwise specified in the form of resignation, the acceptance of the
resignation shall not be necessary to make it effective. Any vacancy occurring
in any office of the Corporation may be filled by appointment by the Board of
Directors.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be the
Chief Executive Officer of the Corporation with the powers of general manager,
and he or she shall have supervision over and may exercise general executive
powers concerning all of the operations and business of the Corporation, with
the authority from time to time to delegate to other officers such executive and
other powers and duties as he or she may deem advisable. He or she shall preside
at all meetings of the stockholders and the Board of Directors.
Section 7. THE PRESIDENT. The President shall, in the absence of the
Chairman of the Board and the Vice-Chairman of the Board, preside at all
meetings of the stockholders and the Board of Directors. The President shall
have the same power as the Chairman of the Board to execute and deliver such
certificates, contracts, bonds, mortgages, notes and other instruments and
documents for and on behalf of the Corporation and under the seal of the
Corporation where so required. He shall have general responsibility for the
management of the operations of the Corporation and shall perform such duties,
in that regard, as are incident to his office or properly required of him by the
Chairman of the Board or by the Board of Directors.
Section 8. VICE PRESIDENT. The Vice President or Vice Presidents, as the
case may be, shall perform such duties and have such powers as the Board of
Directors may from time to time prescribe.
Section 9. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all of the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
committees when required. He or she shall give, or cause to be given, notice of
all meetings of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of
Directors or Chairman of the Board and have custody of the corporate seal of the
Corporation and he or she, or an Assistant Secretary, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
or her signature.
Section 10. ASSISTANT SECRETARY. The Assistant Secretary or, if there
be more than one, the Assistant Secretaries, in the order determined by the
Board of Directors (or in the absence of any such determination, then in the
order of their appointment), shall, in the absence or disability of the
Secretary or in the event of his or her inability or refusal to act, perform the
duties and exercise the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
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Section 11. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors.
Section 12. DISBURSEMENT OF FUNDS. The Treasurer shall disburse the funds
of the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chairman of the Board
and the Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of his or her transactions as Treasurer and of
the financial condition of the Corporation.
Section 13. ASSISTANT TREASURER. The Assistant Treasurer or, if there shall
be more than one, the Assistant Treasurers, in the order determined by the Board
of Directors (or in the absence of any such determination, then in the order of
their appointment), shall, in the absence of the Treasurer or in the event of
his or her inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
ARTICLE VI.
Certificates of Stock
Section 1. CERTIFICATES OF STOCK. Every holder of stock in the Corporation
shall be entitled to have a certificate certifying the number of shares owned by
him or her in the Corporation. Such certificate shall be signed by or in the
name of the Corporation by the Chairman of the Board or the President or a Vice
President and also signed by the Treasurer or an Assistant Treasurer, or the
Secretary, or an Assistant Secretary of the Corporation.
Section 2. SIGNATURES. Any or all of the signatures on a certificate may be
a facsimile. In case any officer, transfer agent, or registrar who signed, or
whose facsimile signature has been placed upon a certificate, shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he or she
were such officer, transfer agent, or registrar at the date of issue.
Section 3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
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Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his or her legal representative, to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate or
certificates alleged to have been lost, stolen or destroyed.
Section 4. TRANSFERS OF STOCK. Upon surrender to the Corporation or a
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, to cancel the old certificate and to record the
transaction upon its books.
Section 5. REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
treat the person registered on its books as the owner of any share or shares of
stock as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to, or interest in, such share or shares
on the part of any other person, whether or not it shall have actual or other
notice thereof, except as otherwise provided by applicable law.
ARTICLE VII.
General Provisions
Section 1. DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Restated Certificate of Incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting,
pursuant to applicable law. Dividends may be paid in cash, in property, or in
shares of the capital stock of the Corporation.
Section 2. CHECKS. All checks or demands for monies and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 3. FISCAL YEAR. The fiscal year of the Corporation shall be on a
calendar year basis unless otherwise fixed by resolution of the Board of
Directors.
Section 4. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the corporation and the words "Corporate Seal, Delaware."
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise. It shall not be necessary to the validity of
any instrument executed by any authorized official of the Corporation that the
execution of such instrument be evidenced by the corporate seal, and all
documents, instruments, contracts and writings of all kinds signed on behalf of
the Corporation by any authorized officer or officers thereof shall be as
effectual and binding on the Corporation without the corporate seal as if the
execution of the same had been evidenced by affixing the corporate seal thereto.
ARTICLE VIII.
Amendments
These By-Laws, or any of them, may be altered, amended or repealed, and
new By-Laws may be adopted either: (i) by the Board of Directors, by vote of a
majority of the directors present at any regular meeting of the Board and
without previous notice, or at any special meeting of the Board, provided that
notice of such proposed alteration, amendment, repeal or adoption of new By-Laws
is given in the notice of such special meeting, or by written consent without a
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meeting signed by all directors; or (ii) by the stockholders, at any annual
meeting of stockholders and without previous notice, or at any special meeting
of stockholders, provided that notice of such proposed alteration, amendment,
repeal or adoption is given in the notice of special meeting.
ARTICLE IX.
Indemnification of Officers and Directors
Section 1. INDEMNITY FOR CERTAIN EXPENSES, JUDGMENTS, FINES AND
SETTLEMENTS. The Corporation shall indemnify and make whole any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Corporation subsequent to March 30, 1976, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
subsequent to March 30, 1976, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendre or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in,
or not opposed to, the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his or
her conduct was unlawful.
Section 2. INDEMNITY FOR CERTAIN DEFENSE AND SETTLEMENT EXPENSES --
COURT APPROVAL. The Corporation shall indemnify and make whole any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a director,
officer, employee or agent of the Corporation subsequent to March 30, 1976, or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise subsequent to March 30, 1976, against expenses (including
attorneys' fees) actually and reasonably incurred by him or her in connection
with the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the Corporation, except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Section 3. INDEMNITY FOR SUCCESSFUL DEFENSE OF CERTAIN MATTERS.
Notwithstanding the other provisions of this Article IX, to the extent that a
director, officer, employee or agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
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in Section 1 or 2 of this Article IX, or in defense of any claim, issue or
matter therein, he or she shall be indemnified and made whole against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
Section 4. DETERMINATION THAT STANDARD OF CONDUCT HAS BEEN MET. Any
indemnification under Sections 1 or 2 of this Article IX (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he or she has met the applicable
standard of conduct set forth in said Sections 1 or 2. Such determination shall
be made (a) by the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or proceeding, or (b) if
such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders.
Section 5. PAYMENT OF EXPENSES IN ADVANCE. Expenses incurred by any person
who may have a right of indemnification under this Article IX in defending a
civil or criminal action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director, officer, employee or agent
to repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation as authorized in this Article IX.
Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
Section 6. OTHER INDEMNIFICATION RIGHTS NOT AFFECTED BY THIS ARTICLE. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article IX shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
By-Law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
Section 7. INSURANCE. Upon resolution passed by the Board of Directors,
the Corporation may purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him or her and incurred by him
or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
against such liability under the provisions of this Article IX or the General
Corporation Law of the State of Delaware, as amended.
Section 8. INDEMNIFICATION TO THE FULLEST EXTENT PERMITTED BY LAW. The
Corporation shall, to the fullest extent permitted by applicable law from time
to time in effect, indemnify any and all persons who are or were directors,
officers, employees or agents of this Corporation subsequent to March 30, 1976,
or who are or were serving at the request of this Corporation as directors,
officers, employees or agents of another corporation, partnership, joint
venture, trust or other enterprise subsequent to March 30, 1976, from and
against any and all of the expenses, liabilities or other matters referred to in
or covered by said law.
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Section 9. CONSTITUENT AND RESULTING CORPORATION. For the purposes of
this Article IX, references to "the Corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation subsequent to March 30, 1976, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
subsequent to March 30, 1976, shall stand in the same position under the
provisions of this Article IX with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent corporation
if its separate existence had continued.
Section 10. OTHER ENTERPRISE. For the purposes of this Article IX,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any taxes assessed on a person with respect
to an employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as reflected to in
this Article IX.
Section 11. CONTINUING BENEFIT. The indemnification and advancement of
expenses provided by or granted pursuant to this Article IX shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
ARTICLE X.
Annual Reports
A periodic report, including profit and loss statements and balance
sheets, prepared in accordance with generally accepted accounting principles,
shall be made to stockholders at least once a year.
<PAGE>
Exhibit 4
CREDIT AGREEMENT
among
ORION CAPITAL CORPORATION,
THE LENDERS NAMED HEREIN,
FIRST UNION NATIONAL BANK,
as Administrative Agent,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Documentation Agent,
and
FLEET NATIONAL BANK,
as Syndication Agent
$150,000,000 Senior Unsecured Credit Facility
Arranged by
FIRST UNION CAPITAL MARKETS A division of Wheat First
Securities, Inc.
Dated as of July 8, 1998
<PAGE>
TABLE OF CONTENTS
Page
RECITALS .................... ................................................1
ARTICLE I
DEFINITIONS
1.1 Defined Terms.........................................................1
1.2 Accounting Terms.....................................................17
1.3 Other Terms; Construction............................................17
ARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1 Commitments..........................................................18
2.2 Borrowings...........................................................21
2.3 Disbursements; Funding Reliance; Domicile of Loans...................22
2.4 Notes................................................................23
2.5 Termination and Reduction of Commitments.............................23
2.6 Mandatory Payments and Prepayments...................................24
2.7 Voluntary Prepayments................................................24
2.8 Interest.............................................................25
2.9 Fees.................................................................26
2.10 Interest Periods.....................................................26
2.11 Conversions and Continuations........................................27
2.12 Method of Payments; Computations.....................................28
2.13 Recovery of Payments.................................................29
2.14 Use of Proceeds......................................................30
2.15 Pro Rata Treatment...................................................30
2.16 Increased Costs; Change in Circumstances; Illegality; etc............31
2.17 Taxes................................................................33
2.18 Compensation.........................................................35
ARTICLE IV
CONDITIONS OF BORROWING
3.1 Conditions of Initial Borrowing......................................35
3.2 Conditions of All Borrowings.........................................37
ARTICLE V
REPRESENTATIONS AND WARRANTIES
4.1 Corporate Organization and Power.....................................38
4.2 Authorization; Enforceability........................................38
4.3 No Violation.........................................................39
4.4 Governmental and Third-Party Authorization; Permits..................39
4.5 Litigation...........................................................40
4.6 Taxes................................................................40
4.7 Subsidiaries.........................................................40
4.8 Full Disclosure......................................................40
4.9 Margin Regulations...................................................41
4.10 No Material Adverse Change...........................................41
4.11 Financial Matters....................................................41
4.12 Ownership of Properties..............................................42
4.13 ERISA................................................................43
4.14 Environmental Matters................................................43
4.15 Compliance With Laws.................................................44
4.16 Regulated Industries.................................................44
4.17 Insurance............................................................44
ARTICLE VI
AFFIRMATIVE COVENANTS
5.1 Financial Statements.................................................45
5.2 Statutory Financial Statements.......................................46
5.3 Other Business and Financial Information.............................47
5.4 Corporate Existence; Franchises; Maintenance of Properties...........49
5.5 Compliance with Laws.................................................49
5.6 Payment of Obligations...............................................49
5.7 Insurance............................................................49
5.8 Maintenance of Books and Records; Inspection.........................49
5.9 Ownership of Insurance Subsidiaries..................................50
5.10 Year 2000 Compatibility..............................................50
5.11 Further Assurances...................................................50
ARTICLE VII
FINANCIAL COVENANTS
6.1 Capitalization Ratio.................................................51
6.2 Consolidated Statutory Surplus.......................................51
ARTICLE VIII
NEGATIVE COVENANTS
7.1 Merger; Consolidation................................................51
7.2 Indebtedness.........................................................51
7.3 Liens................................................................51
7.4 Disposition of Assets................................................53
7.5 Transactions with Affiliates.........................................53
7.6 Lines of Business....................................................54
7.7 Limitation on Certain Restrictions...................................54
7.8 Fiscal Year..........................................................55
7.9 Accounting Changes...................................................55
ARTICLE IX
EVENTS OF DEFAULT
8.1 Events of Default....................................................55
8.2 Remedies: Termination of Commitments, Acceleration, etc..............57
8.3 Remedies: Set-Off....................................................58
ARTICLE X
THE ADMINISTRATIVE AGENT
9.1 Appointment..........................................................58
9.2 Nature of Duties.....................................................59
9.3 Exculpatory Provisions...............................................59
9.4 Reliance by Administrative Agent.....................................59
9.5 Non-Reliance on Administrative Agent and Other Lenders...............60
9.6 Notice of Default....................................................60
9.7 Indemnification......................................................61
9.8 The Administrative Agent in its Individual Capacity..................61
9.9 Successor Administrative Agent.......................................62
9.10 Syndication Agent, Documentation Agent...............................62
ARTICLE XI
MISCELLANEOUS
10.1 Fees and Expenses....................................................63
10.2 Indemnification......................................................63
10.3 Governing Law; Consent to Jurisdiction...............................64
10.4 Arbitration; Preservation and Limitation of Remedies.................64
10.5 Notices..............................................................65
10.6 Amendments, Waivers, etc.............................................66
10.7 Assignments, Participations..........................................67
10.8 No Waiver............................................................69
10.9 Successors and Assigns...............................................69
10.10 Survival....................................................69
10.11 Severability................................................70
10.12 Construction................................................70
10.13 Confidentiality.............................................70
10.14 Counterparts; Effectiveness.................................70
10.15 Disclosure of Information...................................71
10.16 Entire Agreement............................................71
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of the 8th day of July, 1998 (this
"Agreement"), is made among ORION CAPITAL CORPORATION, a Delaware corporation
with its principal offices in Farmington, Connecticut (the "Borrower"), the
banks and financial institutions listed on the signature pages hereto or that
become parties hereto after the date hereof (collectively, the "Lenders"), FIRST
UNION NATIONAL BANK ("First Union"), as administrative agent for the Lenders (in
such capacity, the " Administrative Agent"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as documentation agent (in such capacity, the
"Documentation Agent"), and FLEET NATIONAL BANK, as syndication agent (in such
capacity, the "Syndication Agent").
RECITALS
A. The Borrower has requested that the Lenders make available to the Borrower a
revolving credit facility in the aggregate principal amount of $150,000,000. The
Borrower will use the proceeds of this facility for working capital and general
corporate purposes, including acquisitions, all as more fully described herein.
B. The Lenders are willing to make available to the Borrower the credit facility
described herein subject to and on the terms and conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants and
agreements herein contained, the parties hereto hereby agree as follows:
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ARTICLE I
DEFINITIONS
1.1 Defined Terms. For purposes of this Agreement, in addition to the terms
defined elsewhere herein, the following terms shall have the meanings set forth
below (such meanings to be equally applicable to the singular and plural forms
thereof):
"Account Designation Letter" shall mean a letter from the Borrower to the
Administrative Agent, duly completed and signed by an Authorized Officer and in
form and substance satisfactory to the Administrative Agent, listing any one or
more accounts to which the Borrower may from time to time request the
Administrative Agent to forward the proceeds of any Loans made hereunder.
"Adjusted LIBOR Rate" shall mean, at any time with respect to any LIBOR Loan, a
rate per annum equal to the LIBOR Rate as in effect at such time plus the
Applicable Margin Percentage for LIBOR Loans as in effect at such time.
"Affiliate" shall mean, as to any Person, each other Person that directly, or
indirectly through one or more intermediaries, owns or controls, is controlled
by or under common control with, such Person or is a director or officer of such
Person. For purposes of this definition, with respect to any Person "control"
shall mean (i) the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise, or (ii)
the beneficial ownership of securities or other ownership interests of such
Person having 20% or more of the combined voting power of the then outstanding
securities or other ownership interests of such Person ordinarily (and apart
from rights accruing under special circumstances) having the right to vote in
the election of directors or other governing body of such Person.
"Administrative Agent" shall mean First Union, in its capacity as Administrative
Agent appointed under Article IX, and its successors and permitted assigns in
such capacity.
"Agreement" shall mean this Credit Agreement, as amended, modified or
supplemented from time to time.
"Annual Statement" shall mean, with respect to any Insurance Subsidiary for any
fiscal year, the unaudited financial statements of such Insurance Subsidiary for
such fiscal year as required to be filed with the Insurance Regulatory Authority
of its jurisdiction of legal domicile and in accordance with the laws of such
jurisdiction, together with all requested exhibits and schedules thereto.
"Applicable Margin Percentage" shall mean, at any time, the applicable
percentage (a) to be added to the LIBOR Rate for purposes of determining the
Adjusted LIBOR Rate, and (b) to be used in calculating the commitment fee
payable pursuant to Section 2.9(a), in each case as determined under the
following matrix with reference to the ratings given to the Borrower's senior
unsecured long-term publicly traded Indebtedness without third party credit
enhancement:
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Applicable Margin
Applicable Margin Percentage for
Rating Status Percentage for LIBOR Loans Commitment Fee
Level I Status 0.125% 0.075%
Level II Status 0.155% 0.085%
Level III Status 0.205% 0.095%
Level IV Status 0.250% 0.100%
Level V Status 0.325% 0.125%
For purposes of determining any Applicable Margin Percentage at any date:
(i) "Level I Status" exists at such date if, as of such date the Borrower has
any senior unsecured long-term publicly traded Indebtedness that is rated,
without third party credit enhancement, (y) A2 or higher by Moody's or (z) A or
higher by Standard & Poor's or Duff & Phelps;
(ii) "Level II Status" exists at such date if, as of such date, Level I Status
does not exist and the Borrower has any senior unsecured long-term publicly
traded Indebtedness that is rated, without third party credit enhancement, (y)
A3 by Moody's or (z) A- by Standard & Poor's or Duff & Phelps;
(iii) "Level III Status" exists at such date if, as of such date, neither Level
I Status nor Level II Status exists and the Borrower has any senior unsecured
long-term publicly traded Indebtedness that is rated, without third party credit
enhancement, (y) Baa1 by Moody's or (z) BBB+ by Standard & Poor's or Duff &
Phelps;
(iv) "Level IV Status" exists at such date if, as of such date, neither Level I
Status, Level II Status nor Level III Status exists and the Borrower has any
senior unsecured long-term publicly traded Indebtedness that is rated, without
third party credit enhancement, (y) Baa2 by Moody's or (z) BBB by Standard &
Poor's or Duff & Phelps; and
(v) "Level V Status" exists at such date if, as of such date, none of Level I
Status, Level II Status, Level III Status nor Level IV Status exists.
Any adjustment required in the Applicable Margin Percentages as a result of a
change in any of such ratings shall be effective as of the fifth day after the
effective date of such change.
"Assignee" shall have the meaning given to such term in Section 10.7(a).
"Assignment and Acceptance" shall mean an Assignment and Acceptance entered into
between a Lender and an Assignee and accepted by the Administrative Agent and
the Borrower, in substantially the form of Exhibit D.
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"Authorized Officer" shall mean, with respect to any action specified herein,
any officer of the Borrower duly authorized by resolution of the board of
directors of the Borrower to take such action on its behalf, and whose signature
and incumbency shall have been certified to the Administrative Agent by the
secretary or an assistant secretary of the Borrower.
"Bankruptcy Code" shall mean 11 U.S.C ss.ss 101 et seq.,as amended from time to
time, and any successor statute.
"Base Rate" shall mean the higher of (i) the per annum interest rate publicly
announced from time to time by First Union in Charlotte, North Carolina, to be
its prime rate (which may not necessarily be its best lending rate), as adjusted
to conform to changes as of the opening of business on the date of any such
change in such prime rate, or (ii) the Federal Funds Rate plus 0.5% per annum,
as adjusted to conform to changes as of the opening of business on the date of
any such change in the Federal Funds Rate.
"Base Rate Loan" shall mean, at any time, any Loan that bears interest at such
time at the Base Rate.
"Borrower Margin Stock" shall mean shares of capital stock of the Borrower that
are held by the Borrower or any of its Subsidiaries and that constitute Margin
Stock.
"Borrowing" shall mean the incurrence by the Borrower (including as a result of
conversions and continuations of outstanding Loans pursuant to Section 2.11) on
a single date of a group of Loans of a single Type and, in the case of LIBOR
Loans, as to which a single Interest Period is in effect.
"Borrowing Date" shall mean, with respect to any Borrowing, the date upon which
such Borrowing is made.
"Business Day" shall mean (i) any day other than a Saturday or Sunday, a legal
holiday or a day on which commercial banks in Charlotte, North Carolina are
required by law to be closed and (ii) in respect of any determination relevant
to a LIBOR Loan, any such day that is also a day on which tradings are conducted
in the London interbank Eurodollar market.
"Capitalization Ratio" shall mean, as of the last day of any fiscal quarter, the
ratio of (i) Consolidated Indebtedness as of such date to (ii) the sum of
Consolidated Indebtedness and Consolidated Net Worth, each as of such date;
provided, however, that, solely for the purposes of this definition and not for
any other purpose of this Agreement, Consolidated Indebtedness shall not include
(a) any Qualified Junior Subordinated Debentures, (b) any Qualified Trust
Securities, or (c) the Borrower's guarantee to the holders of any Qualified
Trust Securities of obligations of the issuing Qualified Trust under and with
respect to such Qualified Trust Securities.
"Capital Stock" shall mean (i) with respect to any Person that is a corporation,
any and all shares, interests or equivalents in capital stock (whether voting or
nonvoting, and whether common or preferred) of such corporation, and (ii) with
respect to any Person that is not a corporation, any and all partnership,
membership, limited liability company or other equity interests of such Person;
and in each case, any and all warrants, rights or options to purchase any of the
foregoing.
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"Closing Date" shall mean the first date (which may be prior to or concurrent
with the date of the initial Borrowing hereunder) upon which the conditions set
forth in Section 3.1 are satisfied or waived as provided herein.
"Combined Net Written Premiums" shall mean, at any time, the aggregate (without
duplication) of Net Written Premiums of each Insurance Subsidiary at such time,
after eliminating the effect thereupon of any transactions among the Insurance
Subsidiaries.
"Combined Statutory Net Income" shall mean, at any time, the aggregate (without
duplication) of Statutory Net Income of each Insurance Subsidiary at such time,
after eliminating the effect thereupon of any transactions among the Insurance
Subsidiaries.
"Combined Statutory Surplus" shall mean, at any time, the aggregate (without
duplication) of Statutory Surplus of each Insurance Subsidiary at such time,
after eliminating the effect thereupon of any transactions among the Insurance
Subsidiaries.
"Commitment" shall mean, with respect to any Lender at any time, the amount set
forth opposite such Lender's name on its signature page hereto under the caption
"Commitment" or, if such Lender has entered into one or more Assignment and
Acceptances, the amount set forth for such Lender at such time in the Register
maintained by the Administrative Agent pursuant to Section 10.7(b) as such
Lender's "Commitment," as such amount may be reduced at or prior to such time
pursuant to the terms hereof.
"Compliance Certificate" shall mean a fully completed and duly executed
certificate in the form of Exhibit C-1 or Exhibit C-2, as applicable, together
with the applicable Covenant Compliance Worksheet.
"Consolidated Indebtedness" shall mean, as of any date of determination, the
aggregate (without duplication) of all Indebtedness of the Borrower and its
Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Net Income" shall mean, for any period, net income (or loss) for
the Borrower and its Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Worth" shall mean, as of any date of determination, the net
worth of the Borrower and its Subsidiaries as of such date, determined on a
consolidated basis in accordance with GAAP; provided, however, that,
notwithstanding the foregoing, determinations of Consolidated Net Worth shall
(i) exclude any Disqualified Capital Stock, (ii) include the aggregate
outstanding amount of any Qualified Trust Securities, and (iii) be made without
regard to the requirements of Statement of Financial Accounting Standards No.
115 issued by the Financial Accounting Standards Board of the American Institute
of Certified Public Accountants.
5
<PAGE>
"Consolidated Total Assets" shall mean, at any time, the aggregate (without
duplication) of all assets of the Borrower and its Subsidiaries that are
required to be included on the asset side of the consolidated balance sheet of
the Borrower and its Subsidiaries at such time, determined on a consolidated
basis in accordance with GAAP.
"Contingent Obligation" shall mean, with respect to any Person, any direct or
indirect liability of such Person with respect to any Indebtedness, liability or
other obligation (other than obligations pursuant to intercompany transactions
with Wholly Owned Subsidiaries) (the "primary obligation") of another Person
(the "primary obligor"), whether or not contingent, (a) to purchase, repurchase
or otherwise acquire such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or provide funds (i) for the
payment or discharge of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor in respect thereof to make
payment of such primary obligation or (d) otherwise to assure or hold harmless
the owner of any such primary obligation against loss or failure or inability to
perform in respect thereof; provided, however, that, with respect to the
Borrower and its Subsidiaries, the term Contingent Obligation shall not include
(x) endorsements for collection or deposit in the ordinary course of business
and (y) obligations entered into in the ordinary course of an Insurance
Subsidiary's business under or in respect of insurance policies or contracts
issued by it or to which it is a party, including Reinsurance Agreements (and
security posted by any such Insurance Subsidiary in the ordinary course of its
business to secure obligations thereunder). The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof.
"Covenant Compliance Worksheet" shall mean a fully completed worksheet in the
form of Attachment A to Exhibit C-1 or Exhibit C-2, as applicable.
"Credit Documents" shall mean this Agreement, the Notes and the Fee Letter, in
each case as amended, modified, supplemented or restated from time to time.
"Default" shall mean any event or condition that, with the passage of time or
giving of notice, or both, would constitute an Event of Default.
"Disqualified Capital Stock" shall mean, with respect to any Person, any Capital
Stock of such Person that, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the happening
of any event or otherwise, (i) matures or is mandatorily redeemable or subject
to any mandatory repurchase requirement, pursuant to a sinking fund obligation
or otherwise, (ii) is redeemable or subject to any mandatory repurchase
requirement at the sole option of the holder thereof, or (iii) is convertible
into or exchangeable for (whether at the option of the issuer or the holder
thereof) (a) debt securities or (b) any Capital Stock referred to in (i) or (ii)
above, in each case under (i), (ii) or (iii) above at any time on or prior to
the ninetieth day following of the Maturity Date; provided, however, that only
the portion of Capital Stock that so matures or is mandatorily redeemable, is so
redeemable at the option of the holder thereof, or is so convertible or
exchangeable on or prior to such date shall be deemed to be Disqualified Capital
Stock.
6
<PAGE>
"Dollars" or "$" shall mean dollars of the United States of America.
"Duff & Phelps" shall mean Duff & Phelps Credit Rating Co., its successors and
assigns.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
"ERISA Affiliate" shall mean any Person (including any trade or business,
whether or not incorporated) that would be deemed to be under "common control"
with, or a member of the same "controlled group" as, the Borrower or any of its
Subsidiaries, within the meaning of Sections 414(b), (c), (m) or (o) of the
Internal Revenue Code or Section 4001 of ERISA.
"ERISA Event" shall mean any of the following with respect to a Plan or
Multiemployer Plan, as applicable: (i) a Reportable Event with respect to a Plan
or a Multiemployer Plan, (ii) a complete or partial withdrawal by the Borrower
or any ERISA Affiliate from a Multiemployer Plan that results in liability under
Section 4201 or 4204 of ERISA, or the receipt by the Borrower or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA, (iii) the distribution
by the Borrower or any ERISA Affiliate under Section 4041 or 4041A of ERISA of a
notice of intent to terminate any Plan or the taking of any action to terminate
any Plan, (iv) the commencement of proceedings by the PBGC under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Plan, or the receipt by the Borrower or any ERISA Affiliate of a notice from any
Multiemployer Plan that such action has been taken by the PBGC with respect to
such Multiemployer Plan, (v) the institution of a proceeding by any fiduciary of
any Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which is not dismissed within thirty (30) days, (vi) the
imposition upon the Borrower or any ERISA Affiliate of any liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section
4007 of ERISA, or the imposition or threatened imposition of any Lien upon any
assets of the Borrower or any ERISA Affiliate as a result of any alleged failure
to comply with the Internal Revenue Code or ERISA in respect of any Plan, (vii)
the engaging in or otherwise becoming liable for a nonexempt Prohibited
Transaction by the Borrower or any ERISA Affiliate, (viii) a violation of the
applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit
rule under Section 401(a) of the Internal Revenue Code by any fiduciary of any
Plan for which the Borrower or any of its ERISA Affiliates may be directly or
indirectly liable or (ix) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Internal Revenue Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the trust of which such
Plan is a part if the Borrower or an ERISA Affiliate fails to timely provide
security to such Plan in accordance with the provisions of such sections.
"Eligible Assignee" shall mean (i) a commercial bank organized under the laws of
the United States or any state thereof and having total assets in excess of
$1,000,000,000, (ii) a commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development or any successor thereto (the "OECD") or a political subdivision of
any such country and having total assets in excess of $1,000,000,000, provided
that such bank or other financial institution is acting through a branch or
agency located in the United States, in the country under the laws of which it
is organized or in another country that is also a member of the OECD, (iii) the
central bank of any country that is a member of the OECD, (iv) a finance company
or other financial institution or fund that (A) is engaged in making, purchasing
or otherwise investing in loans in the ordinary course of its business, (B) has
total assets in excess of $500,000,000, and (C) is not, and does not have a
substantial interest in, an insurance company, unless otherwise agreed to by the
Borrower, (v) any Affiliate of an existing Lender or (vi) any other Person
approved by the Required Lenders and the Borrower, which approval shall not be
unreasonably withheld (provided that the Borrower's consent shall not be
required in the event a Default or Event of Default shall have occurred and be
continuing).
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"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of its business
and not in response to any third party action or request of any kind) or
proceedings relating in any way to any actual or alleged violation of or
liability under any Environmental Law or relating to any permit issued, or any
approval given, under any such Environmental Law (collectively, "Claims"),
including, without limitation, (i) any and all Claims by governmental or
regulatory authorities or agencies for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable Environmental
Law and (ii) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Substances or arising from alleged injury or threat of
injury to human health or the environment.
"Environmental Laws" shall mean any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals, rules of
common law and orders of courts or governmental or regulatory authorities or
agencies, relating to the protection of human health or occupational safety or
the environment, now or hereafter in effect and in each case as amended from
time to time, including, without limitation, requirements pertaining to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation or
remediation of Hazardous Substances.
"Event of Default" shall have the meaning given to such term in Section 8.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute, and all rules and regulations from time
to time promulgated thereunder.
"Federal Funds Rate" shall mean, for any period, a fluctuating per annum
interest rate (rounded upwards, if necessary, to the nearest 1/100 of one
percentage point) equal for each day during such period to the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by the Administrative Agent.
"Federal Reserve Board" shall mean the Board of Governors of the Federal Reserve
System or any successor thereto.
"Fee Letter" shall mean the letter from First Union to the Borrower, dated May
21, 1998, relating to certain fees payable by the Borrower in respect of the
transactions contemplated by this Agreement, as amended, modified or
supplemented from time to time.
"Financial Officer" shall mean, with respect to the Borrower, the chief
financial officer, vice president - finance, chief accounting officer or
treasurer of the Borrower.
"First Extension Request" shall have the meaning given to such term in Section
2.1(b).
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"GAAP" shall mean generally accepted accounting principles, as set forth in the
statements, opinions and pronouncements of the Accounting Principles Board, the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board, consistently applied and maintained, and containing disclosure
of the effect on the financial position or results of operations of any material
change in the application of accounting principles and practices during the
relevant reporting period, as in effect from time to time (subject to the
provisions of Section 1.2).
"Hazardous Substances" shall mean any substances or materials (i) that are or
become defined as hazardous wastes, hazardous substances, pollutants,
contaminants or toxic substances under any Environmental Law, (ii) that are
defined by any Environmental Law as toxic, explosive, corrosive, ignitable,
infectious, radioactive, mutagenic or otherwise hazardous, (iii) the presence of
which require investigation or response under any Environmental Law, (iv) that
consist of underground or aboveground storage tanks, whether empty, filled or
partially filled with any substance, or (v) that contain, without limitation,
asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation,
petroleum hydrocarbons, petroleum derived substances or wastes, crude oil,
nuclear fuel, natural gas or synthetic gas.
"Hedge Agreement" shall mean any interest or foreign currency rate swap, cap,
collar, option, hedge, forward rate or other similar agreement or arrangement
designed to protect against fluctuations in interest rates or currency exchange
rates.
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"Indebtedness" shall mean, with respect to any Person, other than intercompany
transactions with Wholly Owned Subsidiaries, (without duplication), (i) all
indebtedness and obligations of such Person for borrowed money or in respect of
loans or advances of any kind, (ii) all obligations of such Person evidenced by
notes, bonds, debentures or similar instruments, (iii) all reimbursement
obligations of such Person with respect to surety bonds and letters of credit
(in each case, whether or not drawn or matured and in the stated amount
thereof), but excluding, in the case of the Borrower and its Subsidiaries, (w)
letters of credit to the extent cash collateralized, (x) letters of credit
issued for the account of Insurance Subsidiaries in the ordinary course of their
business to secure reinsurance obligations, (y) up to (pound) UK 7,000,000 in
face amount of the letter of credit issued in favor of Lloyd's c/o The Lloyd's
Corporate Membership Unit for the account of Security Re, Inc., and (z) other
letters of credit to the extent that the aggregate face amount of such letters
of credit outstanding on the measurement date is not in excess of $5,000,000,
(iv) all obligations of such Person to pay the deferred purchase price of
property or services (other than trade or other accounts payable arising in the
ordinary course of business), (v) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person, (vi) all obligations of such Person as lessee under
leases that are or are required to be, in accordance with GAAP, recorded as
capital leases, to the extent such obligations are required to be so recorded,
(vii) all Disqualified Capital Stock issued by such Person, with the amount of
Indebtedness represented by such Disqualified Capital Stock being equal to the
greater of its voluntary or involuntary liquidation preference and its maximum
fixed repurchase price, but excluding accrued dividends, if any (for purposes
hereof, the " maximum fixed repurchase price" of any Disqualified Capital Stock
that does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified
Capital Stock were purchased on any date on which Indebtedness shall be required
to be determined pursuant to this Agreement, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such fair
market value shall be determined reasonably and in good faith by the board of
directors or other governing body of the issuer of such Disqualified Capital
Stock), (viii) the net termination obligations of such Person under any Hedge
Agreements (other than Hedge Agreements in respect of Indebtedness incurred
pursuant to this Agreement), calculated as of any date as if such agreement or
arrangement were terminated as of such date, and (ix) all indebtedness referred
to in clauses (i) through (viii) above secured by any Lien on any property or
asset owned or held by such Person regardless of whether the indebtedness
secured thereby shall have been assumed by such Person or is nonrecourse to the
credit of such Person.
"Insurance Code" shall mean, with respect to any Insurance Subsidiary, the
insurance code of any state where such Insurance Subsidiary is domiciled or
conducting business, as amended from time to time, and any successor statute,
together with all rules and regulations from time to time promulgated
thereunder.
"Insurance Regulatory Authority" shall mean, with respect to any Insurance
Subsidiary, the insurance department or similar governmental or regulatory
authority or agency charged with regulating the insurance business of insurance
companies or insurance holding companies, in its jurisdiction of legal domicile
and, to the extent that it has regulatory authority over such Insurance
Subsidiary, in each other jurisdiction in which such Insurance Subsidiary
conducts business or is licensed to conduct business.
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"Insurance Subsidiary" shall mean any Subsidiary of the Borrower the ability of
which to pay dividends is regulated by an Insurance Regulatory Authority or that
is otherwise required to be regulated thereby in accordance with the applicable
Requirements of Law of its jurisdiction of legal domicile.
"Interest Period" shall have the meaning given to such term in Section 2.10.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute, and all rules and regulations from
time to time promulgated thereunder.
"LIBOR Loan" shall mean, at any time, any Loan that bears interest at such time
at the Adjusted LIBOR Rate.
"LIBOR Rate" shall mean, with respect to each LIBOR Loan comprising part of the
same Borrowing for any Interest Period, an interest rate per annum obtained by
dividing (i) (y) the rate of interest appearing on Telerate Page 3750 (or any
successor page) (rounded upward, if necessary, to the nearest 1/16 of one
percentage point) or (z) if no such rate is available, the rate of interest
determined by the Administrative Agent to be the rate or the arithmetic mean of
rates (rounded upward, if necessary, to the nearest 1/16 of one percentage
point) at which Dollar deposits in immediately available funds are offered by
First Union to first-tier banks in the London interbank Eurodollar market, in
each case under (y) and (z) above at approximately 11:00 a.m., London time, two
(2) Business Days prior to the first day of such Interest Period for a period
substantially equal to such Interest Period and in an amount substantially equal
to the amount of First Union's LIBOR Loan comprising part of such Borrowing, by
(ii) the amount equal to 1.00 minus the Reserve Requirement (expressed as a
decimal) for such Interest Period.
"Lender" shall mean each financial institution signatory hereto and each other
financial institution that becomes a "Lender" hereunder pursuant to Sections 2.1
or 10.7, and their respective successors and assigns.
"Lending Office" shall mean, with respect to any Lender, the office of such
Lender designated as its "Lending Office" on its signature page hereto or in an
Assignment and Acceptance, or such other office as may be otherwise designated
in writing from time to time by such Lender to the Borrower and the
Administrative Agent. A Lender may designate separate Lending Offices as
provided in the foregoing sentence for the purposes of making or maintaining
different Types of Loans, and, with respect to LIBOR Loans, such office may be a
domestic or foreign branch or Affiliate of such Lender.
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"Lien" shall mean any mortgage, pledge, hypothecation, assignment, security
interest, lien (statutory or otherwise), preference, priority, charge or other
encumbrance of any nature, whether voluntary or involuntary, including, without
limitation, the interest of any vendor or lessor under any conditional sale
agreement, title retention agreement, capital lease or any other lease or
arrangement having substantially the same effect as any of the foregoing.
"Loans" shall have the meaning given to such term in Section 2.1.
"Margin Stock" shall have the meaning given to such term in Regulation U.
"Material Adverse Change" shall mean a material adverse change in the condition
(financial or otherwise), operations, prospects, business, properties or assets
of the Borrower and its Subsidiaries, taken as a whole.
"Material Adverse Effect" shall mean a material adverse effect upon (i) the
condition (financial or otherwise), operations, prospects, business, properties
or assets of the Borrower and its Subsidiaries, taken as a whole, (ii) the
ability of the Borrower or any Subsidiary to perform its obligations under this
Agreement or any of the other Credit Documents to which it is a party or (iii)
the legality, validity or enforceability of this Agreement or any of the other
Credit Documents or the rights and remedies of the Administrative Agent and the
Lenders hereunder and thereunder.
"Material Assets" shall mean (i) (y) any one or more assets, properties or
businesses of the Borrower or any of its Subsidiaries comprising, individually
or in the aggregate, greater than ten percent (10%) of Consolidated Total
Assets, and (z) any issued and outstanding shares of Capital Stock (other than
directors' and similar qualifying shares) of any Significant Subsidiary, and
(ii) any one or more insurance product lines to which greater than ten percent
(10%) of Combined Net Written Premiums are attributable, in each case as
determined as of (and, with respect to Combined Net Written Premiums, for the
period of four fiscal quarters ending on) the last day of the fiscal quarter
then most recently ended for which financial statements and a Covenant
Compliance Certificate have been delivered pursuant to Section 5.1 or Section
5.2, as applicable, and Section 5.3; provided that in no event shall the term
"Material Assets" include (i) any shares of Capital Stock of a Subsidiary that
(x) has transferred or assigned all or substantially all of its assets to
another Subsidiary in a transaction or series of transactions permitted under
Section 7.1 or 7.4, (y) immediately prior to such transfer or assignment, was a
Significant Subsidiary, and (z) as a result of such transfer or assignment, is
no longer a Significant Subsidiary, or (ii) any Borrower Margin Stock to the
extent the fair market value thereof exceeds 25% of the fair market value of the
assets of the Borrower and its Subsidiaries (including Borrower Margin Stock).
"Maturity Date" shall mean the fifth anniversary of the Closing Date, as such
date may be extended pursuant to Section 2.1.
"Moody's" shall mean Moody's Investor Service, Inc., its successors and assigns.
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"Multiemployer Plan" shall mean any "multiemployer plan" within the meaning of
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate makes,
is making or is obligated to make contributions or has made or been obligated to
make contributions.
"NAIC" shall mean the National Association of Insurance Commissioners and any
successor thereto.
"Net Income" shall mean, for any period for any Person or business, net income
(or loss) for such Person or business for such period, determined on a
consolidated basis in accordance with GAAP.
"Net Written Premiums" shall mean, with respect to any Insurance Subsidiary at
any time, the amount of premiums written (after deducting or adding premiums on
business ceded to or assumed from others) as shown on line 32, page 9, Part 2B,
column 4 of the Annual Statement of such Insurance Subsidiary, or the amount
determined in a consistent manner for any date other than a date as of which an
Annual Statement of such Insurance Subsidiary is prepared.
"Notes" shall mean the promissory notes of the Borrower in substantially the
form of Exhibit A, together with any amendments, modifications and supplements
thereto, substitutions therefor and restatements thereof.
"Notice of Borrowing" shall have the meaning given to such term in
Section 2.2(b).
"Notice of Conversion/Continuation" shall have the meaning given to such term in
Section 2.11(b).
"Obligations" shall mean all principal of and interest (including, to the
greatest extent permitted by law, post-petition interest) on the Loans and all
fees, expenses, indemnities and other obligations owing, due or payable at any
time by the Borrower to the Administrative Agent, any Lender or any other Person
entitled thereto, under this Agreement or any of the other Credit Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any successor
thereto.
"Participant" shall have the meaning given to such term in Section 10.7(d).
"Permitted Liens" shall have the meaning given to such term in Section 7.3.
"Person" shall mean any corporation, association, joint venture, partnership,
limited liability company, organization, business, individual, trust, government
or agency or political subdivision thereof or any other legal entity.
"Plan" shall mean any "employee pension benefit plan" within the meaning of
Section 3(2) of ERISA that is subject to the provisions of Title IV of ERISA
(other than a Multiemployer Plan) and to which the Borrower or any ERISA
Affiliate may have any liability.
"Prohibited Transaction" shall mean any transaction described in (i) Section 406
of ERISA that is not exempt by reason of Section 408 of ERISA or by reason of a
Department of Labor prohibited transaction individual or class exemption or (ii)
Section 4975(c) of the Internal Revenue Code that is not exempt by reason of
Section 4975(c)(2) or 4975(d) of the Internal Revenue Code.
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"Qualified Junior Subordinated Debentures" shall mean securities of the Borrower
of the type represented by (and including) the Borrower's outstanding 7.701%
Exchange Junior Subordinated Deferrable Interest Debentures due April 15, 2028
and 8.73% Exchange Junior Subordinated Deferrable Interest Debentures due
January 1, 2037 (the "Existing Junior Subordinated Debentures"), which
securities are issued to a Qualified Trust and have the following features: (i)
such securities shall not by their terms mature or become mandatorily
redeemable, or be redeemable or subject to any mandatory prepayment or
repurchase requirement at the option of the holder, at any time on or prior to
the ninetieth day following the Maturity Date, (ii) the Borrower shall have the
right (so long as no event of default exists with respect to such securities) to
defer the payment of interest on such securities from time to time for a
deferral period comprised of consecutive payment periods aggregating at least
five years (or such shorter aggregate deferral period as the Borrower may
elect), and (iii) such securities shall be subordinate and junior in right of
payment to the Indebtedness evidenced by this Agreement on terms and conditions
substantially similar to those set forth in the indentures for the Existing
Junior Subordinated Debentures as in effect on the date hereof.
"Qualified Trust" shall mean any statutory business trust, all of the common
securities of which are owned by the Borrower, that is the issuer of Qualified
Trust Securities and that holds as its sole assets Qualified Junior Subordinated
Debentures, and shall include Orion Capital Trust I and Orion Capital Trust II.
"Qualified Trust Securities" shall mean capital securities of the type
represented by (and including) the outstanding 7.701% Exchange Capital
Securities of Orion Capital Trust II and the 8.73% Exchange Capital Securities,
which securities are issued by and represent beneficial interests in a Qualified
Trust and have terms consistent, mutatis mutandis, with those terms described in
clauses (i) and (ii) of the definition of "Qualified Junior Subordinated
Debentures."
"Quarterly Statement" shall mean, with respect to any Insurance Subsidiary for
any fiscal quarter, the financial statements of such Insurance Subsidiary for
such fiscal quarter as required to be filed with the Insurance Regulatory
Authority of its jurisdiction of legal domicile, together with all requested
exhibits and schedules thereto.
"Register" shall have the meaning given to such term in Section 10.7(b).
"Regulations D, T, U and X" shall mean Regulations D, T, U and X, respectively,
of the Federal Reserve Board, and any successor regulations.
"Remaining Lender" shall have the meaning given to such term in Section 2.1(c).
"Repaid Lender" shall have the meaning given to such term in Section 2.1(b).
"Reportable Event" shall mean (i) any "reportable event" within the meaning of
Section 4043(c) of ERISA for which the 30-day notice under Section 4043(a) of
ERISA has not been waived by the PBGC (including any failure to meet the minimum
funding standard of, or timely make any required installment under, Section 412
of the Internal Revenue Code or Section 302 of ERISA, regardless of the issuance
of any waivers in accordance with Section 412(d) of the Internal Revenue Code),
(ii) any such " reportable event" subject to advance notice to the PBGC under
Section 4043(b)(3) of ERISA, (iii) any application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the Internal
Revenue Code, and (iv) a cessation of operations described in Section 4062(e) of
ERISA.
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"Required Lenders" shall mean the Lenders holding outstanding Loans and
Unutilized Commitments (or, after the termination of the Commitments,
outstanding Loans) representing at least a majority of the aggregate at such
time of all outstanding Loans and Unutilized Commitments (or, after the
termination of the Commitments, the aggregate at such time of all outstanding
Loans).
"Requirement of Law" shall mean, with respect to any Person, any statute, law,
treaty, rule, regulation, order, decree, writ, injunction or determination of
any arbitrator or court or governmental or regulatory authority or agency, in
each case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Reserve Requirement" shall mean, with respect to any Interest Period, the
reserve percentage (expressed as a decimal) in effect from time to time during
such Interest Period, as provided by the Federal Reserve Board, applied for
determining the maximum reserve requirements (including, without limitation,
basic, supplemental, marginal and emergency reserves) applicable to First Union
under Regulation D with respect to "Eurocurrency liabilities" within the meaning
of Regulation D, or under any similar or successor regulation with respect to
Eurocurrency liabilities or Eurocurrency funding.
"Responsible Officer" shall mean, with respect to the Borrower, the president,
the chief executive officer, the chief operating officer, the chief financial
officer, any senior executive officer, or any other Financial Officer of the
Borrower.
"SAP" shall mean, with respect to any Insurance Subsidiary, the statutory
accounting practices prescribed or permitted by the Insurance Regulatory
Authority of its jurisdiction of legal domicile, consistently applied and
maintained in conformity with those used in the preparation of the most recent
financial statements described in Section 4.11(b), and containing disclosure of
the effect on the financial position or results of operations of any material
change in the application of accounting principles and practices during the
relevant reporting period, as in effect from time to time (subject to the
provisions of Section 1.2).
"Second Extension Request" shall have the meaning given to such term in Section
2.1(c).
"Significant Insurance Subsidiary" shall mean, at the relevant time of
determination, any Insurance Subsidiary that is a Significant Subsidiary at such
time.
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"Significant Subsidiary" shall mean, at the relevant time of determination, any
Subsidiary of the Borrower having (after the elimination of intercompany
accounts) (i) assets comprising greater than ten percent (10%) of Consolidated
Total Assets, (ii) assets to which Net Written Premiums comprising greater than
ten percent (10%) of Combined Net Written Premiums are attributable, or (iii)
Statutory Surplus comprising greater than ten percent (10%) of Combined
Statutory Surplus, in each case as determined as of (and, with respect to
Combined Net Written Premiums, for the period of four fiscal quarters ending on)
the last day of the fiscal quarter then most recently ended for which financial
statements and a Covenant Compliance Certificate have been delivered pursuant to
Section 5.1 or Section 5.2, as applicable, and Section 5.3 (it being understood
that, for purposes of clause (ii) above, only a Subsidiary having assets to
which Net Written Premiums comprising ten percent (10% of Combined Net Written
Premiums are attributable on the relevant date of determination shall be a
Significant Subsidiary with respect to such assets, regardless of whether such
Subsidiary owned or held such assets during the four-quarter period or any
portion thereof over which Combined Written Premiums are calculated for purposes
of such clause (ii)).
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a division of
the McGraw-Hill Companies, its successors and assigns.
"Statutory Net Income" shall mean, with respect to any Insurance Subsidiary for
any period, the amount shown on line 16, column 1, page 4 of the Annual
Statement of such Insurance Subsidiary for such period, or the amount determined
in a consistent manner for any period other than a period for which an Annual
Statement of such Insurance Subsidiary is prepared.
"Statutory Surplus" shall mean, with respect to any Insurance Subsidiary at any
time, the amount shown on line 25, column 1, page 3 of the Annual Statement of
such Insurance Subsidiary, or the amount determined in a consistent manner for
any date other than a date as of which an Annual Statement of such Insurance
Subsidiary is prepared.
"Subsidiary" shall mean, with respect to any Person, any corporation or other
Person of which more than fifty percent (50%) of the outstanding Capital Stock
having ordinary voting power to elect a majority of the board of directors,
board of managers or other governing body of such Person, is at the time,
directly or indirectly, owned or controlled by such Person and one or more of
its other Subsidiaries or a combination thereof (irrespective of whether, at the
time, securities of any other class or classes of any such corporation or other
Person shall or might have voting power by reason of the happening of any
contingency). When used without reference to a parent entity, the term
"Subsidiary" shall be deemed to refer to a Subsidiary of the Borrower.
"Termination Date" shall mean the Maturity Date or such earlier date of
termination of the Commitments pursuant to Section 2.5 or Section 8.2.
"Type" shall have the meaning given to such term in Section 2.2(a).
"Unfunded Pension Liability" shall mean, with respect to any Plan or
Multiemployer Plan, the excess of its benefit liabilities under Section
4001(a)(16) of ERISA over the current value of its assets, determined in
accordance with the applicable assumptions used for funding under Section 412 of
the Code for the applicable plan year.
"Unutilized Commitment" shall mean, with respect to any Lender at any time, such
Lender's Commitment at such time less the aggregate principal amount of all
Loans made by such Lender that are outstanding at such time.
"Wholly Owned" shall mean, with respect to any Subsidiary of any Person, that
100% of the outstanding Capital Stock (other than directors' and similar
qualifying shares) of such Subsidiary is owned, directly or indirectly, by such
Person.
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1.2 Accounting Terms. Except as specifically provided otherwise in this
Agreement, all accounting terms used herein that are not specifically defined
shall have the meanings customarily given them, and all financial computations
hereunder shall be made, in accordance with GAAP (or, to the extent that such
terms apply solely to any Insurance Subsidiary or if otherwise expressly
required, SAP). Notwithstanding anything to the contrary in this Agreement, for
purposes of calculation of the financial covenants set forth in Article VI, all
accounting determinations and computations hereunder shall be made in accordance
with GAAP or SAP as in effect as of the date of this Agreement applied on a
basis consistent with the application used in preparing the most recent
financial statements of the Borrower referred to in Section 4.11(a) or 4.11(b),
as applicable. In the event that any changes in GAAP or SAP after such date are
required to be applied to the Borrower and would materially affect the
computation of the financial covenants contained in Article VI, such changes
shall be followed only from and after the date this Agreement shall have been
amended to take into account any such changes. References to amounts on
particular exhibits, schedules, lines, pages and columns of any Annual Statement
or Quarterly Statement are based on the format promulgated by the NAIC for the
1997 Annual Statements and Quarterly Statements. In the event such format is
changed in future years so that different information is contained in such items
or they no longer exist, or if the Annual Statement or Quarterly Statement is
replaced by the NAIC or by any Insurance Regulatory Authority after the date
hereof such that different forms of financial statements are required to be
furnished by the Insurance Subsidiaries in lieu thereof, such references shall
be to information consistent with that reported in the referenced item in the
1997 Annual Statements or Quarterly Statements, as the case may be.
1.3 Other Terms; Construction. Unless otherwise specified or unless the context
otherwise requires, all references herein to sections, annexes, schedules and
exhibits are references to sections, annexes, schedules and exhibits in and to
this Agreement, and all terms defined in this Agreement shall have the defined
meanings when used in any other Credit Document or any certificate or other
document made or delivered pursuant hereto.
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ARTICLE II
AMOUNT AND TERMS OF THE LOANS
2.1 Commitments. (a) Each Lender severally agrees, subject to and on the terms
and conditions of this Agreement, to make loans (each, a "Loan," and
collectively, the "Loans") to the Borrower, from time to time on any Business
Day during the period from and including the Closing Date to but not including
the Termination Date, in an aggregate principal amount at any time outstanding
not greater than its Commitment at such time, provided that no Borrowing of
Loans shall be made if, immediately after giving effect thereto, the aggregate
principal amount of Loans outstanding at such time would exceed the aggregate
Commitments at such time. Subject to and on the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow Loans.
(b) Subject to the provisions of this Section, the Borrower may, in a writing
delivered to the Administrative Agent and each Lender at any time not less than
sixty (60) days nor more than 120 days prior to the first anniversary of the
date of this Agreement, request the Lenders to extend the Maturity Date by a
period of one (1) year (a "First Extension Request"), provided that (i) no
Lender shall be obligated under any circumstances to approve any First Extension
Request, and the decision to approve or deny any First Extension Request shall
be in the sole and absolute discretion of each Lender, (ii) no extension of the
Maturity Date pursuant to a First Extension Request shall be made without the
approval of Lenders holding at least seventy-five percent (75%) of the
Commitments, and (iii) in no event shall the Maturity Date be extended pursuant
to a First Extension Request beyond the sixth anniversary of the Closing Date.
In the event the Borrower makes a First Extension Request as provided
hereinabove, each Lender will, not later than thirty (30) days after delivery of
such First Extension Request, deliver to the Administrative Agent written notice
of its decision whether to approve or deny such First Extension Request,
provided that the failure of any Lender to deliver such notice shall be deemed a
decision to deny such First Extension Request and shall not affect any
obligations of the Borrower hereunder or result in any liability on the part of
any Lender to the Borrower. The Administrative Agent will promptly notify the
Borrower of the decision of the Lenders. If all the Lenders approve such First
Extension Request, then the Maturity Date shall be extended by a period of one
(1) year after the Maturity Date then in effect. If Lenders holding at least
seventy-five percent (75%) of the Commitments approve such First Extension
Request and the number of Lenders not approving such request is one, then (i) if
such non-approving Lender is not replaced pursuant to Section 2.1(d), then, on
the Maturity Date (without regard to the requested extension thereof), the
Borrower shall repay all outstanding Loans of such non-approving Lender,
together with all accrued but unpaid interest thereon and any accrued but unpaid
fees owing to it hereunder, in full, and such Lender's Commitment shall be
terminated (the Lender to be repaid hereunder shall be referred to as a "Repaid
Lender"), and (ii) subject to compliance with the provisions of the preceding
clause (i), the Maturity Date shall be extended by a period of one (1) year
after the Maturity Date then in effect. If Lenders holding at least seventy-five
(75%) of the Commitments approve such First Extension Request and the number of
Lenders not approving such request is greater than one, then (i) as to any one
(but not more than one) non-approving Lender that is not replaced pursuant to
Section 2.1(d), on the Maturity Date (without regard to the requested extension
thereof), the Borrower shall repay all outstanding Loans of such non- approving
Lender, together with all accrued but unpaid interest thereon and any accrued
but unpaid fees owing to it hereunder, in full, and such Lender's Commitment
shall be terminated (the Lender to be repaid hereunder shall be referred to as a
"Repaid Lender"), and (ii) subject to compliance with the provisions of the
preceding clause (i), the Maturity Date shall be extended by a period of one (1)
year after the Maturity Date then in effect, subject further to the Borrower
identifying one or more Replacement Lenders (as defined in Section 2.1(d)) for
the non-approving Lenders (other than the one Repaid Lender to be repaid on the
Maturity Date (without regard to the requested extension thereof) under the
preceding clause (i)). If any one or more Lenders holding more than twenty-five
percent (25%) of the Commitments denies or is deemed to have denied the First
Extension Request, then the Maturity Date shall not be extended except pursuant
to Section 2.1(c).
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(c) Subject to the provisions of this Section, the Borrower may, in a writing
delivered to the Administrative Agent and each Lender other than any Repaid
Lender (such Lenders, collectively, the "Remaining Lenders") not less than sixty
(60) days nor more than 120 days prior to the second anniversary of the date of
this Agreement, request the Remaining Lenders to extend the Maturity Date by a
period of one (1) year (a "Second Extension Request"), provided that (i) no
Remaining Lender shall be obligated under any circumstances to approve any
Second Extension Request, and the decision to approve or deny any Second
Extension Request shall be in the sole and absolute discretion of each Remaining
Lender, (ii) no extension of the Maturity Date pursuant to a Second Extension
Request shall be made without the approval of Remaining Lenders holding at least
seventy-five percent (75%) of the Commitments then held by Remaining Lenders,
and (iii) in no event shall the Maturity Date be extended beyond the seventh
anniversary of the Closing Date. In the event the Borrower makes a Second
Extension Request as provided hereinabove, each Remaining Lender will, not later
than thirty (30) days after delivery of such Second Extension Request, deliver
to the Administrative Agent written notice of its decision whether to approve or
deny such Second Extension Request, provided that the failure of any Remaining
Lender to deliver such notice shall be deemed a decision to deny such Second
Extension Request and shall not affect any obligations of the Borrower hereunder
or result in any liability on the part of any Remaining Lender to the Borrower.
The Administrative Agent will promptly notify the Borrower of the decision of
the Remaining Lenders. If all the Remaining Lenders approve such Second
Extension Request, then the Maturity Date shall be extended by a period of one
(1) year after the Maturity Date then in effect. If Remaining Lenders holding at
least seventy-five percent (75%) of the Commitments then held by Remaining
Lenders approve such Second Extension Request and the number of Remaining
Lenders not approving such request is one (and there is no Repaid Lender that
will be repaid pursuant to a First Extension Request under Section 2.1(b)), then
(i) if such non-approving Remaining Lender is not replaced pursuant to Section
2.1(d), then, on the Maturity Date (without regard to the requested extension
thereof), the Borrower shall repay all outstanding Loans of such non-approving
Remaining Lender, together with all accrued but unpaid interest thereon and any
accrued but unpaid fees owing to it hereunder, in full, and such Remaining
Lender's Commitment shall be terminated, and (ii) subject to compliance with the
provisions of the preceding clause (i), the Maturity Date shall be extended by a
period of one (1) year after the Maturity Date then in effect. If Remaining
Lenders holding at least seventy-five (75%) of the Commitments then held by
Remaining Lenders approve such Second Extension Request and the number of
Remaining Lenders not approving such request is greater than one (and there is
no Repaid Lender that will be repaid pursuant to a First Extension Request under
Section 2.1(b)), then (i) as to any one (but not more than one) non-approving
Remaining Lender that is not replaced pursuant to Section 2.1(d), on the
Maturity Date (without regard to the requested extension thereof), the Borrower
shall repay all outstanding Loans of such non-approving Remaining Lender,
together with all accrued but unpaid interest thereon and any accrued but unpaid
fees owing to it hereunder, in full, and such Remaining Lender's Commitment
shall thereupon be terminated, and (ii) subject to compliance with the
provisions of the preceding clause (i), the Maturity Date shall be extended by a
period of one (1) year after the Maturity Date then in effect, subject further
to the Borrower identifying one or more Replacement Lenders (as defined in
Section 2.1(d)) for the non-approving Remaining Lenders (other than the one non-
approving Remaining Lender to be repaid on the Maturity Date (without regard to
the requested extension thereof) under the preceding clause (i)). If Remaining
Lenders holding at least seventy-five (75%) of the Commitments then held by
Remaining Lenders approve such Second Extension Request and there is a Repaid
Lender that will be repaid pursuant to a First Extension Request under Section
2.1(b), then the Maturity Date shall be extended by a period of one (1) year
after the Maturity Date then in effect, subject to the Borrower identifying one
or more Replacement Lenders (as defined in Section 2.1(d)) for all of the
non-approving Remaining Lenders. If any one or more Remaining Lenders holding
more than twenty-five percent (25%) of the Commitments then held by Remaining
Lenders denies or is deemed to have denied the Second Extension Request, then
the Maturity Date shall not be extended and, unless all of the Remaining Lenders
agree otherwise, the Borrower shall not be entitled to deliver any further
extension request at any time thereafter.
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(d) The Borrower may, at any time and so long as no Default or Event of Default
has then occurred and is continuing, replace any Lender that has not approved a
First Extension Request or any Remaining Lender that has not approved a Second
Extension Request by written notice to such Lender and the Administrative Agent
given not more than ninety (90) days after any such event identifying one or
more Persons each of which shall be an Eligible Assignee and reasonably
acceptable to the Administrative Agent, which acceptance shall not be
unreasonably withheld (each, a "Replacement Lender"), to replace such Lender
(the "Replaced Lender"), provided that (i) the notice from the Borrower to the
Replaced Lender and the Administrative Agent provided for hereinabove shall
specify an effective date for such replacement (the "Replacement Effective
Date"), which shall be at least five (5) but no more than thirty (30) Business
Days after such notice is given, (ii) as of the Replacement Effective Date, each
Replacement Lender shall enter into an Assignment and Acceptance with the
Replaced Lender pursuant to Section 10.7(a) (but shall not be required to pay
the processing fee otherwise payable to the Administrative Agent pursuant to
Section 10.7(a)), pursuant to which such Replacement Lenders collectively shall
acquire, in such proportion among them as they may agree with the Borrower and
the Administrative Agent, all (but not less than all) of the Commitment and
outstanding Loans of the Replaced Lender, and, in connection therewith, shall
pay (y) to the Replaced Lender, as the purchase price in respect thereof, an
amount equal to the sum as of the Replacement Effective Date (without
duplication) of (1) the unpaid principal amount of, and all accrued but unpaid
interest on, all outstanding Loans of the Replaced Lender and (2) the Replaced
Lender's ratable share of all accrued but unpaid fees owing to the Replaced
Lender under Section 2.9(a), and (z) to the Administrative Agent, for its own
account, any amounts owing to the Administrative Agent by the Replaced Lender,
(iii) all other obligations of the Borrower owing to the Replaced Lender under
this Agreement (other than those specifically described in clause (ii) above in
respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full by the Borrower to the Replaced Lender on or
prior to the Replacement Effective Date, and (iv) the Borrower shall pay the
Administrative Agent the processing fee provided for in Section 10.7(a).
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2.2 Borrowings. (a) The Loans shall, at the option of the Borrower and subject
to the terms and conditions of this Agreement, be either Base Rate Loans or
LIBOR Loans (each, a "Type" of Loan), provided that (i) all Loans comprising the
same Borrowing shall, unless otherwise specifically provided herein, be of the
same Type, and (ii) any Loans made on or within three (3) Business Days after
the Closing Date shall be made initially as Base Rate Loans.
(b) In order to make a Borrowing (other than Borrowings involving continuations
or conversions of outstanding Loans, which shall be made pursuant to Section
2.11), the Borrower will give the Administrative Agent written notice not later
than 1:00 p.m., Charlotte time, three (3) Business Days prior to each Borrowing
to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing
to be comprised of Base Rate Loans; provided, however, that requests for the
Borrowing of any Loans to be made on the Closing Date may, at the discretion of
the Administrative Agent, be given later than the times specified hereinabove.
Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be
given in the form of Exhibit B-1 and shall specify (1) the aggregate principal
amount and initial Type of the Loans to be made pursuant to such Borrowing, (2)
in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be
applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing
Date"), which shall be a Business Day. Upon its receipt of a Notice of
Borrowing, the Administrative Agent will promptly notify each Lender of the
proposed Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing comprised of Base Rate
Loans shall not be less than $1,000,000 or, if greater, an integral
multiple of $500,000 in excess thereof (or, if less, in the amount of the
aggregate Unutilized Commitments), and the aggregate principal amount of
each Borrowing comprised of LIBOR Loans shall not be less than $3,000,000
or, if greater, an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the Type of Loans comprising
a Borrowing, the Borrower shall be deemed to have requested a Borrowing
comprised of Base Rate Loans; and
(iii)if the Borrower shall have failed to select the duration of the Interest
Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower
shall be deemed to have selected an Interest Period with a duration of one
month.
(c) Not later than 2:00 p.m., Charlotte time, on the requested Borrowing Date,
each Lender will make available to the Administrative Agent at its office
referred to in Section 10.5 (or at such other location as the
Administrative Agent may designate) an amount, in Dollars and in
immediately available funds, equal to the amount of the Loan to be made by
such Lender. To the extent the Lenders have made such amounts available to
the Administrative Agent as provided hereinabove, the Administrative Agent
will make the aggregate of such amounts available to the Borrower in
accordance with Section 2.3(a) and in like funds as received by the
Administrative Agent.
2.3 Disbursements; Funding Reliance; Domicile of Loans. (a) The Borrower hereby
authorizes the Administrative Agent to disburse the proceeds of each
Borrowing in accordance with the terms of any written instructions from any
of the Authorized Officers, provided that the Administrative Agent shall
not be obligated under any circumstances to forward amounts to any account
not listed in an Account Designation Letter. The Borrower may at any time
deliver to the Administrative Agent an Account Designation Letter listing
any additional accounts or deleting any accounts listed in a previous
Account Designation Letter.
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(b) Unless the Administrative Agent has received, prior to 2:00 p.m., Charlotte
time, on the relevant Borrowing Date, written notice from a Lender that
such Lender will not make available to the Administrative Agent such
Lender's ratable portion of the relevant Borrowing, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent in immediately available funds on such Borrowing Date
in accordance with the applicable provisions of Section 2.2, and the
Administrative Agent may, in reliance upon such assumption, but shall not
be obligated to, make a corresponding amount available to the Borrower on
such Borrowing Date. If and to the extent that such Lender shall not have
made such portion available to the Administrative Agent, and the
Administrative Agent shall have made such corresponding amount available to
the Borrower, such Lender, on the one hand, and the Borrower, on the other,
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon for each day from the
date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, (i) in the case of such
Lender, at the Federal Funds Rate, and (ii) in the case of the Borrower, at
the rate of interest applicable at such time to the Type of Loans
comprising such Borrowing, as determined under the provisions of
Section 2.8. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount shall constitute such Lender's Loan as
part of such Borrowing for purposes of this Agreement. The failure of any
Lender to make any Loan required to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to
make its Loan as part of such Borrowing, but no Lender shall be responsible
for the failure of any other Lender to make the Loan to be made by such
other Lender as part of any Borrowing.
(c) Each Lender may, at its option, make and maintain any Loan at, to or for
the account of any of its Lending Offices, provided that any exercise of
such option shall not affect the obligation of the Borrower to repay such
Loan to or for the account of such Lender in accordance with the terms of
this Agreement.
2.4 Notes. (a) The Loans made by each Lender shall be evidenced by a Note
appropriately completed in substantially the form of Exhibit A.
(b) Each Note issued to a Lender shall (i) be executed by the Borrower, (ii) be
payable to the order of such Lender, (iii) be dated as of the Closing Date
(or, in the case of a Note issued after the Closing Date, dated the
effective date of the applicable Assignment and Acceptance), (iv) be in a
stated principal amount equal to such Lender's Commitment, (v) bear
interest in accordance with the provisions of Section 2.8, as the same may
be applicable from time to time to the Loans made by such Lender, and
(vi) be entitled to all of the benefits of this Agreement and the other
Credit Documents and subject to the provisions hereof and thereof.
(c) Each Lender will record on its internal records the amount and Type of each
Loan made by it and each payment received by it in respect thereof and
will, in the event of any transfer of any of its Notes, either endorse on
the reverse side thereof or on a schedule attached thereto (or any
continuation thereof) the outstanding principal amount and Type of the
Loans evidenced thereby as of the date of transfer or provide such
information on a schedule to the Assignment and Acceptance relating to such
transfer; provided, however, that the failure of any Lender to make any
such recordation or provide any such information, or any error therein,
shall not affect the Borrower's obligations under this Agreement or the
Notes.
(d) Upon termination of the Commitments, payment in full of the Loans
hereunder, including all accrued but unpaid interest thereon, as well as
any premiums or penalties, if any, and the payment of any outstanding fees
earned hereunder or pursuant to the terms of any of the Credit Documents,
each Lender will mark its Note "paid in full" and promptly return to the
Borrower such canceled Note.
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2.5 Termination and Reduction of Commitments. (a) The Commitments shall be
automatically and permanently terminated at 5:00 p.m., Charlotte time, on
the Termination Date (or at 5:00 p.m., Charlotte time, on July 15, 1998,
but only if the Closing Date shall not have occurred on or prior to such
date).
(b) At any time and from time to time after the date hereof, upon not less than
five (5) Business Days' prior written notice to the Administrative Agent,
the Borrower may terminate in whole or reduce in part the aggregate
Unutilized Commitments, provided that any such partial reduction shall be
in an aggregate amount of not less than $5,000,000 or, if greater, an
integral multiple of $1,000,000 in excess thereof. The amount of any
termination or reduction made under this subsection (b) may not thereafter
be reinstated. Each reduction of the Commitments pursuant to this
subsection shall be applied ratably among the Lenders according to their
respective Commitments.
2.6 Mandatory Payments and Prepayments. (a) Except to the extent due or paid
sooner pursuant to the provisions of this Agreement, the aggregate
outstanding principal of the Loans shall be due and payable in full on the
Maturity Date.
(b) In the event that, at any time, the aggregate principal amount of Loans
outstanding at such time shall exceed the aggregate Commitments at such
time (after giving effect to any concurrent termination or reduction
thereof), the Borrower will immediately prepay the outstanding principal
amount of the Loans in the amount of such excess.
(c) Each payment or prepayment pursuant to the provisions of this Section shall
be applied ratably among the Lenders holding the Loans being prepaid, in
proportion to the principal amount held by each, and shall be applied first
to prepay all Base Rate Loans and thereafter any LIBOR Loans.
(d) Each payment or prepayment of a LIBOR Loan made pursuant to the provisions
of this Section on a day other than the last day of the Interest Period
applicable thereto shall be made together with all amounts required under
Section 2.18 to be paid as a consequence thereof.
2.7 Voluntary Prepayments. (a) At any time and from time to time, the Borrower
shall have the right to prepay the Loans, in whole or in part, without
premium or penalty (except as provided in clause (iii) below), upon written
notice given to the Administrative Agent not later than 1:00 p.m.,
Charlotte time, three (3) Business Days prior to each intended prepayment
of LIBOR Loans and one (1) Business Day prior to each intended prepayment
of Base Rate Loans, provided that (i) each partial prepayment shall be in
an aggregate principal amount of not less than $1,000,000 or, if greater,
an integral multiple of $500,000 in excess thereof, (ii) no partial
prepayment of LIBOR Loans made pursuant to any single Borrowing shall
reduce the aggregate outstanding principal amount of the remaining LIBOR
Loans under such Borrowing to less than $3,000,000 or to any greater amount
not an integral multiple of $1,000,000 in excess thereof, and (iii) unless
made together with all amounts required under Section 2.18 to be paid as a
consequence of such prepayment, a prepayment of a LIBOR Loan may be made
only on the last day of the Interest Period applicable thereto. Each such
notice shall be given in the form of Exhibit B-3 and shall specify the
proposed date of such prepayment and the aggregate principal amount and
Type of the Loans to be prepaid (and, in the case of LIBOR Loans, the
Interest Period of the Borrowing pursuant to which made), and shall be
irrevocable and shall bind the Borrower to make such prepayment on the
terms specified therein. Loans prepaid pursuant to this subsection (a) may
be reborrowed, subject to the terms and conditions of this Agreement.
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(b) Each prepayment of the Loans made pursuant to subsection (a) above shall be
applied ratably among the Lenders holding the Loans being prepaid, in
proportion to the principal amount held by each.
2.8 Interest. (a) The Borrower will pay interest in respect of the unpaid
principal amount of each Loan, from the date of Borrowing thereof until
such principal amount shall be paid in full, (i) at the Base Rate, as in
effect from time to time during the periods that such Loan is a Base Rate
Loan, and (ii) at the Adjusted LIBOR Rate, as in effect from time to time
during the periods that such Loan is a LIBOR Loan.
(b) Upon the occurrence and during the continuance of an Event of Default as
the result of failure by the Borrower to pay any principal of or interest
on any Loan, any fees or other amount hereunder when due (whether at
maturity, pursuant to acceleration or otherwise), and (at the election of
the Required Lenders) upon the occurrence and during the continuance of any
other Event of Default, all outstanding principal amounts of the Loans and,
to the greatest extent permitted by law, all interest accrued on the Loans
and all other accrued and outstanding fees and other amounts hereunder,
shall bear interest at a rate per annum equal to the interest rate
applicable from time to time thereafter to such Loans (whether the Base
Rate or the Adjusted LIBOR Rate) plus 2% (or, in the case of fees and other
amounts, at the Base Rate plus 2%), and, in each case, such default
interest shall be payable on demand. To the greatest extent permitted by
law, interest shall continue to accrue after the filing by or against the
Borrower of any petition seeking any relief in bankruptcy or under any law
pertaining to insolvency or debtor relief.
(c) Accrued (and theretofore unpaid) interest shall be payable as follows:
(i) in respect of each Base Rate Loan (including any Base Rate Loan or portion
thereof paid or prepaid pursuant to the provisions of Section 2.6, except
as provided hereinbelow), in arrears on the last Business Day of each
calendar quarter, beginning with the first such day to occur after the
Closing Date; provided, that in the event the Loans are repaid or prepaid
in full and the Commitments have been terminated, then accrued interest in
respect of all Base Rate Loans shall be payable together with such
repayment or prepayment on the date thereof;
(ii) in respect of each LIBOR Loan (including any LIBOR Loan or portion thereof
paid or prepaid pursuant to the provisions of Section 2.6, except as
provided hereinbelow), in arrears (y) on the last Business Day of the
Interest Period applicable thereto (subject to the provisions of clause
(iv) in Section 2.10) and (z) in addition, in the case of a LIBOR Loan with
an Interest Period having a duration of six months, on the date three
months after the first day of such Interest Period; provided, that in the
event all LIBOR Loans made pursuant to a single Borrowing are repaid or
prepaid in full, then accrued interest in respect of such LIBOR Loans shall
be payable together with such repayment or prepayment on the date thereof;
and
(iii)in respect of any Loan, at maturity (whether pursuant to acceleration or
otherwise) and, after maturity, on demand.
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(d) Nothing contained in this Agreement or in any other Credit Document shall
be deemed to establish or require the payment of interest to any Lender at
a rate in excess of the maximum rate permitted by applicable law. If the
amount of interest payable for the account of any Lender on any interest
payment date would exceed the maximum amount permitted by applicable law to
be charged by such Lender, the amount of interest payable for its account
on such interest payment date shall be automatically reduced to such
maximum permissible amount. In the event of any such reduction affecting
any Lender, if from time to time thereafter the amount of interest payable
for the account of such Lender on any interest payment date would be less
than the maximum amount permitted by applicable law to be charged by such
Lender, then the amount of interest payable for its account on such
subsequent interest payment date shall be automatically increased to such
maximum permissible amount, provided that at no time shall the aggregate
amount by which interest paid for the account of any Lender has been
increased pursuant to this sentence exceed the aggregate amount by which
interest paid for its account has theretofore been reduced pursuant to the
previous sentence.
(e) The Administrative Agent shall promptly notify the Borrower and the Lenders
upon determining the interest rate for each Borrowing of LIBOR Loans after
its receipt of the relevant Notice of Borrowing or Notice of
Conversion/Continuation, and upon each change in the Base Rate; provided,
however, that the failure of the Administrative Agent to provide the
Borrower or the Lenders with any such notice shall neither affect any
obligations of the Borrower or the Lenders hereunder nor result in any
liability on the part of the Administrative Agent to the Borrower or any
Lender. Each such determination (including each determination of the
Reserve Requirement) shall, absent manifest error, be conclusive and
binding on all parties hereto.
2.9 Fees. The Borrower agrees to pay:
(a) To the Administrative Agent, for the account of each Lender, a commitment
fee for each calendar quarter (or portion thereof) for the period from the
date of this Agreement to the Termination Date, at a per annum rate equal
to the Applicable Margin Percentage in effect for such fee from time to
time during such quarter, on such Lender's ratable share (based on the
proportion that its Commitment bears to the aggregate Commitments) of the
aggregate Commitments (without regard to usage), payable in arrears (i) on
the last Business Day of each calendar quarter, beginning with the first
such day to occur after the Closing Date, and (ii) on the Termination Date;
and
(b) To the Administrative Agent, for its own account, the annual administrative
fee described in paragraph (2) of the Fee Letter, on the terms, in the
amount and at the times set forth therein.
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2.10 Interest Periods. Concurrently with the giving of a Notice of Borrowing or
Notice of Conversion/Continuation in respect of any Borrowing comprised of
Base Rate Loans to be converted into, or LIBOR Loans to be continued as,
LIBOR Loans, the Borrower shall have the right to elect, pursuant to such
notice, the interest period (each, an "Interest Period") to be applicable
to such LIBOR Loans, which Interest Period shall, at the option of the
Borrower, be a one, two, three or six-month period; provided, however,
that:
(i) all LIBOR Loans comprising a single Borrowing shall at all times have the
same Interest Period;
(ii) the initial Interest Period for any LIBOR Loan shall commence on the date
of the Borrowing of such LIBOR Loan (including the date of any continuation
of, or conversion into, such LIBOR Loan), and each successive Interest
Period applicable to such LIBOR Loan shall commence on the day on which the
next preceding Interest Period applicable thereto expires;
(iii)LIBOR Loans may not be outstanding under more than five (5) separate
Interest Periods at any one time (for which purpose Interest Periods shall
be deemed to be separate even if they are coterminous);
(iv) if any Interest Period otherwise would expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding
Business Day unless such next succeeding Business Day falls in another
calendar month, in which case such Interest Period shall expire on the next
preceding Business Day;
(v) the Borrower may not select any Interest Period that begins prior to the
Closing Date or that expires after the Maturity Date;
(vi) if any Interest Period begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period
would otherwise expire, such Interest Period shall expire on the last
Business Day of such calendar month; and
(vii)if, upon the expiration of any Interest Period applicable to a Borrowing of
LIBOR Loans, the Borrower shall have failed to elect a new Interest Period
to be applicable to such LIBOR Loans, then the Borrower shall be deemed to
have elected to convert such LIBOR Loans into Base Rate Loans as of the
expiration of the then current Interest Period applicable thereto.
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2.11 Conversions and Continuations. (a) The Borrower shall have the right, on
any Business Day occurring on or after the Closing Date, to elect (i) to
convert all or a portion of the outstanding principal amount of any Base
Rate Loans into LIBOR Loans, or to convert any LIBOR Loans the Interest
Periods for which end on the same day into Base Rate Loans, or (ii) to
continue all or a portion of the outstanding principal amount of any LIBOR
Loans the Interest Periods for which end on the same day for an additional
Interest Period, provided that (x) any such conversion of LIBOR Loans into
Base Rate Loans shall involve an aggregate principal amount of not less
than $1,000,000 or, if greater, an integral multiple of $500,000 in excess
thereof; any such conversion of Base Rate Loans into, or continuation of,
LIBOR Loans shall involve an aggregate principal amount of not less than
$3,000,000 or, if greater, an integral multiple of $1,000,000 in excess
thereof; and no partial conversion of LIBOR Loans made pursuant to a single
Borrowing shall reduce the outstanding principal amount of such LIBOR Loans
to less than $3,000,000 or to any greater amount not an integral multiple
of $1,000,000 in excess thereof, (y) except as otherwise provided in
Section 2.16(d), LIBOR Loans may be converted into Base Rate Loans only on
the last day of the Interest Period applicable thereto (and, in any event,
if a LIBOR Loan is converted into a Base Rate Loan on any day other than
the last day of the Interest Period applicable thereto, the Borrower will
pay, upon such conversion, all amounts required under Section 2.18 to be
paid as a consequence thereof), and (z) no conversion of Base Rate Loans
into LIBOR Loans or continuation of LIBOR Loans shall be permitted during
the continuance of a Default or Event of Default.
(b) The Borrower shall make each such election by giving the Administrative
Agent written notice not later than 1:00 p.m., Charlotte time, three (3)
Business Days prior to the intended effective date of any conversion of
Base Rate Loans into, or continuation of, LIBOR Loans and one (1) Business
Day prior to the intended effective date of any conversion of LIBOR Loans
into Base Rate Loans. Each such notice (each, a "Notice of
Conversion/Continuation") shall be irrevocable, shall be given in the form
of Exhibit B-2 and shall specify (x) the date of such conversion or
continuation (which shall be a Business Day), (y) in the case of a
conversion into, or a continuation of, LIBOR Loans, the Interest Period to
be applicable thereto, and (z) the aggregate amount and Type of the Loans
being converted or continued. Upon the receipt of a Notice of
Conversion/Continuation, the Administrative Agent will promptly notify each
Lender of the proposed conversion or continuation. In the event that the
Borrower shall fail to deliver a Notice of Conversion/Continuation as
provided herein with respect to any outstanding LIBOR Loans, such LIBOR
Loans shall automatically be converted to Base Rate Loans upon the
expiration of the then current Interest Period applicable thereto (unless
repaid pursuant to the terms hereof). In the event the Borrower shall have
failed to select in a Notice of Conversion/Continuation the duration of the
Interest Period to be applicable to any conversion into, or continuation
of, LIBOR Loans, then the Borrower shall be deemed to have selected an
Interest Period with a duration of one month.
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2.12 Method of Payments; Computations. (a) All payments by the Borrower
hereunder shall be made without setoff, counterclaim or other defense, in
Dollars and in immediately available funds to the Administrative Agent, for
the account of the Lenders entitled to such payment (except as otherwise
expressly provided herein as to payments required to be made directly to
the Lenders) at its office referred to in Section 10.5, prior to 2:00 p.m.,
Charlotte time, on the date payment is due. Any payment made as required
hereinabove, but after 2:00 p.m., Charlotte time, shall be deemed to have
been made on the next succeeding Business Day. If any payment falls due on
a day that is not a Business Day, then such due date shall be extended to
the next succeeding Business Day (except that in the case of LIBOR Loans to
which the provisions of clause (iv) in Section 2.10 are applicable, such
due date shall be the next preceding Business Day), and such extension of
time shall then be included in the computation of payment of interest, fees
or other applicable amounts.
(b) The Administrative Agent will distribute to the Lenders like amounts
relating to payments made to the Administrative Agent for the account of
the Lenders as follows: (i) if the payment is received by 2:00 p.m.,
Charlotte time, in immediately available funds, the Administrative Agent
will make available to each relevant Lender on the same date, by wire
transfer of immediately available funds, such Lender's ratable share of
such payment (based on the percentage that the amount of the relevant
payment owing to such Lender bears to the total amount of such payment
owing to all of the relevant Lenders), and (ii) if such payment is received
after 2:00 p.m., Charlotte time, or in other than immediately available
funds, the Administrative Agent will make available to each such Lender its
ratable share of such payment by wire transfer of immediately available
funds on the next succeeding Business Day (or in the case of uncollected
funds, as soon as practicable after collected). If the Administrative Agent
shall not have made a required distribution to the appropriate Lenders as
required hereinabove after receiving a payment for the account of such
Lenders, the Administrative Agent will pay to each such Lender, on demand,
its ratable share of such payment with interest thereon at the Federal
Funds Rate for each day from the date such amount was required to be
disbursed by the Administrative Agent until the date repaid to such Lender.
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(c) Unless the Administrative Agent shall have received written notice from the
Borrower prior to the date on which any payment is due to any Lender
hereunder that such payment will not be made in full, the Administrative
Agent may assume that the Borrower has made such payment in full to the
Administrative Agent on such date, and the Administrative Agent may, in
reliance on such assumption, but shall not be obligated to, cause to be
distributed to such Lender on such due date an amount equal to the amount
then due to such Lender. If and to the extent the Borrower shall not have
so made such payment in full to the Administrative Agent, and without
limiting the obligation of the Borrower to make such payment in accordance
with the terms hereof, such Lender shall repay to the Administrative Agent
forthwith on demand such amount so distributed to such Lender, together
with interest thereon for each day from the date such amount is so
distributed to such Lender until the date repaid to the Administrative
Agent, at the Federal Funds Rate.
(d) All computations of interest and fees hereunder (including computations of
the Reserve Requirement) shall be made on the basis of a year consisting of
360 days and the actual number of days (including the first day, but
excluding the last day) elapsed.
2.13 Recovery of Payments. (a) The Borrower agrees that to the extent the
Borrower makes a payment or payments to or for the account of the
Administrative Agent or any Lender, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or
any other party under any bankruptcy, insolvency or similar state or
federal law, common law or equitable cause, then, to the extent of such
payment or repayment, the Obligation intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been received.
(b) If any amounts distributed by the Administrative Agent to any Lender are
subsequently returned or repaid by the Administrative Agent to the Borrower
or its representative or successor in interest, whether by court order or
by settlement approved by the Lender in question, such Lender will,
promptly upon receipt of notice thereof from the Administrative Agent, pay
the Administrative Agent such amount. If any such amounts are recovered by
the Administrative Agent from the Borrower or its representative or
successor in interest, the Administrative Agent will redistribute such
amounts to the Lenders on the same basis as such amounts were originally
distributed.
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2.14 Use of Proceeds. The proceeds of the Loans shall be used for working
capital and general corporate purposes (including acquisitions), in
accordance with the terms and provisions of this Agreement.
2.15 Pro Rata Treatment. (a) All fundings, continuations and conversions of
Loans shall be made by the Lenders pro rata on the basis of their
respective Commitments (in the case of the initial funding of Loans
pursuant to Section 2.2) or on the basis of their respective outstanding
Loans (in the case of continuations and conversions of Loans pursuant to
Section 2.11), as the case may be from time to time. All payments on
account of principal of or interest on any Loans, fees or any other
Obligations owing to or for the account of any one or more Lenders shall be
apportioned ratably among such Lenders in proportion to the amounts of such
principal, interest, fees or other Obligations owed to them respectively.
(b) Each Lender agrees that if it shall receive any amount hereunder (whether
by voluntary payment, realization upon security, exercise of the right of
setoff or banker's lien, counterclaim or cross action, or otherwise, other
than pursuant to Section 10.7) applicable to the payment of any of the
Obligations that exceeds its ratable share (according to the proportion of
(i) the amount of such Obligations due and payable to such Lender at such
time to (ii) the aggregate amount of such Obligations due and payable to
all Lenders at such time) of payments on account of such Obligations then
or therewith obtained by all the Lenders to which such payments are
required to have been made, such Lender shall forthwith purchase from the
other Lenders such participations in such Obligations as shall be necessary
to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each such other Lender shall be rescinded and
each such other Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery, together with an amount equal to such
other Lender's ratable share (according to the proportion of (i) the amount
of such other Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to the provisions of this
subsection may, to the fullest extent permitted by law, exercise any and
all rights of payment (including, without limitation, setoff, banker's lien
or counterclaim) with respect to such participation as fully as if such
participant were a direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or similar
law, any Lender receives a secured claim in lieu of a setoff to which this
subsection applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this subsection to share in the
benefits of any recovery on such secured claim.
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2.16 Increased Costs; Change in Circumstances; Illegality; etc. (a) If, at any
time after the date hereof and from time to time, the introduction of or
any change in any applicable law, rule or regulation or in the
interpretation or administration thereof by any central bank or
governmental or regulatory authority or agency charged with the
interpretation or administration thereof, or compliance by any Lender with
any guideline or request from any such central bank or governmental or
regulatory authority or agency (whether or not having the force of law),
shall (i) subject such Lender to any tax or other charge, or change the
basis of taxation of payments to such Lender, in respect of any of its
LIBOR Loans or any other amounts payable hereunder or its obligation to
make, fund or maintain any LIBOR Loans (other than any change in the rate
or basis of tax on the overall net income of such Lender or its applicable
Lending Office), (ii) impose, modify or deem applicable any reserve,
special deposit or similar requirement (other than as a result of any
change in the Reserve Requirement) against assets of, deposits with or for
the account of, or credit extended by, such Lender or its applicable
Lending Office, or (iii) impose on such Lender or its applicable Lending
Office any other condition, and the result of any of the foregoing shall be
to increase the cost to such Lender in an amount deemed by such Lender to
be material of making or maintaining any LIBOR Loans or to reduce the
amount of any sum received or receivable by such Lender hereunder in an
amount deemed by such Lender to be material, the Borrower will, promptly
upon demand therefor by such Lender, pay to such Lender such additional
amounts as shall compensate such Lender for such increase in costs or
reduction in return.
(b) If, at any time after the date hereof and from time to time, any Lender
shall have reasonably determined that the introduction of or any change in
any applicable law, rule or regulation regarding capital adequacy or in the
interpretation or administration thereof by any central bank or
governmental or regulatory authority or agency charged with the
interpretation or administration thereof, or compliance by such Lender with
any guideline or request from any such central bank or governmental or
regulatory authority or agency (whether or not having the force of law),
has or would have the effect, as a consequence of such Lender's Commitment
or Loans hereunder, of reducing, in an amount deemed by such Lender to be
material, the rate of return on the capital of such Lender or any Person
controlling such Lender to a level below that which such Lender or
controlling Person could have achieved but for such introduction, change or
compliance (taking into account such Lender's or controlling Person's
policies with respect to capital adequacy), the Borrower will, promptly
upon demand therefor by such Lender therefor, pay to such Lender such
additional amounts as will compensate such Lender or controlling Person for
such reduction in return.
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(c) If, on or prior to the first day of any Interest Period, (y) the
Administrative Agent shall have determined that adequate and reasonable
means do not exist for ascertaining the applicable LIBOR Rate for such
Interest Period or (z) the Administrative Agent shall have received written
notice from the Required Lenders of their determination that the rate of
interest referred to in the definition of "LIBOR Rate" upon the basis of
which the Adjusted LIBOR Rate for LIBOR Loans for such Interest Period is
to be determined will not adequately and fairly reflect the cost to such
Lenders of making or maintaining LIBOR Loans during such Interest Period,
the Administrative Agent will forthwith so notify the Borrower and the
Lenders. Upon such notice, (i) all then outstanding LIBOR Loans shall
automatically, on the expiration date of the respective Interest Periods
applicable thereto (unless then repaid in full), be converted into Base
Rate Loans, (ii) the obligation of the Lenders to make, to convert Base
Rate Loans into, or to continue, LIBOR Loans shall be suspended, and
(iii) any Notice of Borrowing or Notice of Conversion/Continuation given at
any time thereafter with respect to LIBOR Loans shall be deemed to be a
request for Base Rate Loans, in each case until the Administrative Agent or
the Required Lenders, as the case may be, shall have determined that the
circumstances giving rise to such suspension no longer exist (and the
Required Lenders, if making such determination, shall have so notified the
Administrative Agent), and the Administrative Agent shall have so notified
the Borrower and the Lenders.
(d) Notwithstanding any other provision in this Agreement, if, at any time
after the date hereof and from time to time, any Lender shall have
determined in good faith that the introduction of or any change in any
applicable law, rule or regulation or in the interpretation or
administration thereof by any central bank or governmental or regulatory
authority or agency charged with the interpretation or administration
thereof, or compliance with any guideline or request from any such central
bank or governmental or regulatory authority or agency (whether or not
having the force of law), has or would have the effect of making it
unlawful for such Lender to make or to continue to make or maintain LIBOR
Loans, such Lender will forthwith so notify the Administrative Agent and
the Borrower. Upon such notice, (i) each of such Lender's then outstanding
LIBOR Loans shall automatically, on the expiration date of the respective
Interest Period applicable thereto (or, to the extent any such LIBOR Loan
may not lawfully be maintained as a LIBOR Loan until such expiration date,
upon such notice), be converted into a Base Rate Loan, (ii) the obligation
of such Lender to make, to convert Base Rate Loans into, or to continue,
LIBOR Loans shall be suspended (including pursuant to any Borrowing for
which the Administrative Agent has received a Notice of Borrowing but for
which the Borrowing Date has not arrived), and (iii) any Notice of
Borrowing or Notice of Conversion/Continuation given at any time thereafter
with respect to LIBOR Loans shall, as to such Lender, be deemed to be a
request for a Base Rate Loan, in each case until such Lender shall have
determined that the circumstances giving rise to such suspension no longer
exist and shall have so notified the Administrative Agent, and the
Administrative Agent shall have so notified the Borrower.
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(e) Determinations by the Administrative Agent or any Lender for purposes of
this Section of any increased costs, reduction in return, market
contingencies, illegality or any other matter shall, absent manifest error,
be conclusive, provided that such determinations are made in good faith. No
failure by the Administrative Agent or any Lender at any time to demand
payment of any amounts payable under this Section shall constitute a waiver
of its right to demand payment of any additional amounts arising at any
subsequent time. Nothing in this Section shall require or be construed to
require the Borrower to pay any interest, fees, costs or other amounts in
excess of that permitted by applicable law. If any Lender becomes entitled
to claim any increased costs or reduction in return pursuant to
subsections (a) or (b) above, it shall provide notice thereof to the
Borrower certifying (i) that one of the events described in such
subsections has occurred and describing in reasonable detail the nature of
such event, (ii) as to the increased costs or reduction in return resulting
from such event and (iii) as to the additional amount demanded by such
Lender and a reasonably detailed explanation of the calculation thereof.
2.17 Taxes. (a) Any and all payments by the Borrower hereunder or under any Note
shall be made, in accordance with the terms hereof and thereof, free and
clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding taxes imposed on, or measured by, the
overall net income (or franchise taxes imposed in lieu thereof) of the
Administrative Agent or any Lender by reason of any present or former
connection between the Administrative Agent or such Lender and the
jurisdiction of the governmental authority imposing such tax or any
political subdivision thereof, other than such a connection arising solely
from the Administrative Agent or such Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or the Notes (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note
to the Administrative Agent or any Lender, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section), the Administrative Agent or such Lender, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower will make such deductions, (iii)
the Borrower will pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law and (iv) the
Borrower will deliver to the Administrative Agent or such Lender, as the
case may be, evidence of such payment.
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(b) The Borrower will indemnify the Administrative Agent and each Lender for
the full amount of Taxes (including, without limitation, any Taxes imposed
by any jurisdiction on amounts payable under this Section) paid by the
Administrative Agent or such Lender, as the case may be, and any liability
(including penalties, interest and expenses, provided that the
Administrative Agent or such Lender, as the case may be, uses reasonable
efforts to avoid the imposition or accrual thereof if such efforts would
not, in the determination of the Administrative Agent or such Lender,
result in any additional costs, expense or risk to it) arising therefrom or
with respect thereto, whether or not such Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date
the Administrative Agent or such Lender, as the case may be, makes written
demand therefor.
(c) Each of the Administrative Agent and the Lenders agrees that if it
subsequently recovers, or receives a permanent net tax benefit with respect
to, any amount of Taxes (i) previously paid by it and as to which it has
been indemnified by or on behalf of the Borrower or (ii) previously
deducted by the Borrower (including, without limitation, any Taxes deducted
from any additional sums payable under clause (i) of subsection (a) above),
the Administrative Agent or such Lender, as the case may be, shall
reimburse the Borrower to the extent of the amount of any such recovery or
permanent net tax benefit (but only to the extent of indemnity payments
made, or additional amounts paid, by or on behalf of the Borrower under
this Section with respect to the Taxes giving rise to such recovery or tax
benefit); provided, however, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay to the Administrative
Agent or such Lender, as the case may be, the amount paid over to the
Borrower (together with any penalties, interest or other charges), in the
event the Administrative Agent or such Lender is required to repay such
amount to the relevant taxing authority or other governmental or regulatory
authority or agency. The determination by the Administrative Agent or any
Lender of the amount of any such recovery or permanent net tax benefit
shall, in the absence of manifest error, be conclusive and binding.
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(d) If any Lender is incorporated or organized under the laws of a jurisdiction
other than the United States of America or any state thereof (a "Non-U.S.
Lender") and claims exemption from United States withholding tax pursuant
to the Internal Revenue Code, such Non-U.S. Lender will deliver to each of
the Administrative Agent and the Borrower, on or prior to the Closing Date
(or, in the case of a Non-U.S. Lender that becomes a party to this
Agreement as a result of an assignment after the Closing Date, on the
effective date of such assignment), (i) in the case of a Non-U.S. Lender
that is a "bank" for purposes of Section 881(c)(3)(A) of the Internal
Revenue Code, a properly completed Internal Revenue Service Form 4224 or
1001, as applicable (or successor forms), certifying that such Non-U.S.
Lender is entitled to an exemption from or a reduction of withholding or
deduction for or on account of United States federal income taxes in
connection with payments under this Agreement or any of the Notes, together
with a properly completed Internal Revenue Service Form W-8 or W-9, as
applicable (or successor forms), and (ii) in the case of a Non-U.S. Lender
that is not a "bank" for purposes of Section 881(c)(3)(A) of the Internal
Revenue Code, a certificate in form and substance reasonably satisfactory
to the Administrative Agent and the Borrower and to the effect that
(x) such Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code, is not subject to regulatory or
other legal requirements as a bank in any jurisdiction, and has not been
treated as a bank for purposes of any tax, securities law or other filing
or submission made to any governmental authority, any application made to a
rating agency or qualification for any exemption from any tax, securities
law or other legal requirements, (y) is not a 10-percent shareholder for
purposes of Section 881(c)(3)(B) of the Internal Revenue Code and (z) is
not a controlled foreign corporation receiving interest from a related
person for purposes of Section 881(c)(3)(C) of the Internal Revenue Code,
together with a properly completed Internal Revenue Service Form W-8 or
W-9, as applicable (or successor forms). Each such Non-U.S. Lender further
agrees to deliver to each of the Administrative Agent and the Borrower an
additional copy of each such relevant form on or before the date that such
form expires or becomes obsolete or after the occurrence of any event
(including a change in its applicable Lending Office) requiring a change in
the most recent forms so delivered by it, in each case certifying that such
Non-U.S. Lender is entitled to an exemption from or a reduction of
withholding or deduction for or on account of United States federal income
taxes in connection with payments under this Agreement or any of the Notes,
unless an event (including, without limitation, any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery
would otherwise be required, which event renders all such forms
inapplicable or the exemption to which such forms relate unavailable and
such Non-U.S. Lender notifies the Administrative Agent and the Borrower
that it is not entitled to receive payments without deduction or
withholding of United States federal income taxes. Each such Non-U.S.
Lender will promptly notify the Administrative Agent and the Borrower of
any changes in circumstances that would modify or render invalid any
claimed exemption or reduction.
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(e) If any Lender is entitled to a reduction in (and not a complete exemption
from) the applicable withholding tax, the Borrower and the Administrative
Agent may withhold from any interest payment to such Lender an amount
equivalent to the applicable withholding tax after taking into account such
reduction. If any of the forms or other documentation required under
subsection (d) above are not delivered to the Administrative Agent as
therein required, then the Borrower and the Administrative Agent may
withhold from any interest payment to such Lender not providing such forms
or other documentation an amount equivalent to the applicable withholding
tax.
2.18 Compensation. The Borrower will compensate each Lender upon demand for all
losses, expenses and liabilities (including, without limitation, any loss,
expense or liability incurred by reason of the liquidation or reemployment
of deposits or other funds required by such Lender to fund or maintain
LIBOR Loans) that such Lender may incur or sustain (i) if for any reason
(other than a default by such Lender) a Borrowing or continuation of, or
conversion into, a LIBOR Loan does not occur on a date specified therefor
in a Notice of Borrowing or Notice of Conversion/Continuation, (ii) if any
repayment, prepayment or conversion of any LIBOR Loan occurs on a date
other than the last day of an Interest Period applicable thereto (including
as a consequence of acceleration of the maturity of the Loans pursuant to
Section 8.2), (iii) if any prepayment of any LIBOR Loan is not made on any
date specified in a notice of prepayment given by the Borrower or (iv) as a
consequence of any other failure by the Borrower to make any payments with
respect to any LIBOR Loan when due hereunder. Calculation of all amounts
payable to a Lender under this Section shall be made as though such Lender
had actually funded its relevant LIBOR Loan through the purchase of a
Eurodollar deposit bearing interest at the LIBOR Rate in an amount equal to
the amount of such LIBOR Loan, having a maturity comparable to the relevant
Interest Period; provided, however, that each Lender may fund its LIBOR
Loans in any manner it sees fit and the foregoing assumption shall be
utilized only for the calculation of amounts payable under this Section.
Determinations by any Lender for purposes of this Section of any such
losses, expenses or liabilities shall, absent manifest error, be
conclusive, provided that such determinations are made in good faith.
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ARTICLE III
CONDITIONS OF BORROWING
3.1 Conditions of Initial Borrowing. The obligation of each Lender to make
Loans in connection with the initial Borrowing hereunder is subject to the
satisfaction on or prior to the Closing Date of the following conditions
precedent:
(a) The Administrative Agent shall have received the following, each dated as of
the Closing Date:
(i) a Note for each Lender that is a party hereto as of the Closing Date, in
the amount of such Lender's Commitment, each duly completed in accordance
with the relevant provisions of Section 2.4 and executed by the Borrower;
and
(ii) the favorable opinion of John McCann, counsel to the Borrower, in
substantially the form of Exhibit E, addressed to the Administrative Agent
and the Lenders and addressing such other matters as the Administrative
Agent or any Lender may reasonably request, in sufficient copies for each
Lender.
(b) The Administrative Agent shall have received a certificate, signed by the
president, the chief executive officer, the chief operating officer, the
chief financial officer or the treasurer of the Borrower, in form and
substance satisfactory to the Administrative Agent, certifying that (i) all
representations and warranties of the Borrower contained in this Agreement
and the other Credit Documents are true and correct as of the Closing Date,
both immediately before and after giving effect to the consummation of the
transactions contemplated hereby, (ii) no Default or Event of Default has
occurred and is continuing, both immediately before and after giving effect
to the consummation of the transactions contemplated hereby, (iii) both
immediately before and after giving effect to the consummation of the
transactions contemplated hereby, no Material Adverse Change has occurred
since December 31, 1997, and there exists no event, condition or state of
facts that could reasonably be expected to result in a Material Adverse
Change, and (iv) all conditions to the initial extensions of credit
hereunder set forth in this Section have been satisfied or waived as
required hereunder.
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(c) The Administrative Agent shall have received a certificate of the secretary
or an assistant secretary of the Borrower, in form and substance
satisfactory to the Administrative Agent, certifying (i) that attached
thereto is a true and complete copy of the certificate of incorporation and
all amendments thereto of the Borrower certified as of a recent date by the
Secretary of State of Delaware, and that the same has not been amended
since the date of such certification, (ii) that attached thereto is a true
and complete copy of the bylaws of the Borrower as then in effect and as in
effect at all times from the date on which the resolutions referred to in
clause (iii) below were adopted to and including the date of such
certificate, and (iii) that attached thereto is a true and complete copy of
authorizing resolutions duly adopted by the Borrower authorizing the
execution, delivery and performance of this Agreement and the other Credit
Documents to which it is a party, and as to the incumbency and genuineness
of the signature of each officer of the Borrower executing this Agreement
or any of such other Credit Documents, and attaching all such copies of the
documents described above.
(d) The Administrative Agent shall have received (i) a certificate as of a
recent date of the good standing of each of the Borrower and the
Significant Subsidiaries under the laws of its jurisdiction of
organization, from the Secretary of State (or comparable governmental or
regulatory authority or agency) of such jurisdiction, and (ii) a
certificate as of a recent date of the qualification of the Borrower to
conduct business as a foreign corporation in the State of Connecticut, from
the Secretary of State of Connecticut.
(e) All legal matters, documentation, and corporate or other proceedings
incident to the transactions contemplated hereby shall be satisfactory in
form and substance to the Administrative Agent; all approvals, permits and
consents of any governmental or regulatory authorities or agencies
(including, without limitation, all relevant Insurance Regulatory
Authorities) or other Persons, if any, required in connection with the
execution and delivery of this Agreement and the other Credit Documents and
the consummation of the transactions contemplated hereby and thereby shall
have been obtained, without the imposition of conditions that are not
acceptable to the Administrative Agent, and all related filings, if any,
shall have been made, and all such approvals, permits, consents and filings
shall be in full force and effect and the Administrative Agent shall have
received such copies thereof as it shall have requested; all applicable
waiting periods shall have expired without any adverse action being taken
by any governmental or regulatory authority or agency having jurisdiction;
and no action, proceeding, investigation, regulation or legislation shall
have been instituted, threatened or proposed before, and no order,
injunction or decree shall have been entered by, any court or other
governmental or regulatory authority or agency, in each case to enjoin,
restrain or prohibit, to obtain substantial damages in respect of, or that
is otherwise related to or arises out of, this Agreement, any of the other
Credit Documents or the consummation of the transactions contemplated
hereby or thereby, or that could reasonably be expected to have a Material
Adverse Effect.
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(f) Since December 31, 1997, both immediately before and after giving effect to
the consummation of the transactions contemplated by this Agreement, there
shall not have occurred any Material Adverse Change or any event, condition
or state of facts that could reasonably be expected to result in a Material
Adverse Change.
(g) The Borrower shall have paid (i) to the Administrative Agent, the initial
payment of the annual administrative fee described in paragraph (2) of the
Fee Letter, and (ii) all other fees and expenses of the Administrative
Agent and the Lenders required hereunder or under any other Credit Document
to be paid on or prior to the Closing Date (including reasonable fees and
expenses of counsel) in connection with this Agreement and the transactions
contemplated hereby.
(h) The Administrative Agent shall have received an Account Designation Letter.
(i) The Administrative Agent and each Lender shall have received such other
documents, certificates, opinions and instruments in connection with the
transactions contemplated hereby as it shall have reasonably requested.
3.2 Conditions of All Borrowings. The obligation of each Lender to make any
Loans hereunder, including the initial Loans, is subject to the
satisfaction of the following conditions precedent on the relevant
Borrowing Date:
(a) The Administrative Agent shall have received a Notice of Borrowing in
accordance with Section 2.2(b);
(b) Each of the representations and warranties contained in Article IV shall be
true and correct on and as of such Borrowing Date or date of issuance with
the same effect as if made on and as of such date, both immediately before
and after giving effect to the Loans to be made on such date (except to the
extent any such representation or warranty is expressly stated to have been
made as of a specific date, in which case such representation or warranty
shall be true and correct in all material respects as of such date); and
(c) No Default or Event of Default shall have occurred and be continuing on
such date, both immediately before and after giving effect to the Loans to
be made.
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Each giving of a Notice of Borrowing, and the consummation of each Borrowing,
shall constitute a representation made by the Borrower that the statements
contained in subsections (b) and (c) above are true, both as of the date of such
notice or request and as of the relevant Borrowing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this Agreement
and to induce the Lenders to extend the credit contemplated hereby, the Borrower
represents and warrants to the Administrative Agent and the Lenders as follows:
4.1 Corporate Organization and Power. Each of the Borrower and its Subsidiaries
(i) is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, (ii) has the full
corporate power and authority to execute, deliver and perform the Credit
Documents to which it is or will be a party, to own and hold its property
and to engage in its business as presently conducted, and (iii) is duly
qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where the nature of its business or the ownership of
its properties requires it to be so qualified, except where the failure to
be so qualified would not, individually or in the aggregate, be reasonably
likely to have a Material Adverse Effect.
4.2 Authorization; Enforceability. The Borrower has taken, or on the Closing
Date will have taken, all necessary corporate action to execute, deliver
and perform each of the Credit Documents to which it is or will be a party,
and has, or on the Closing Date (or any later date of execution and
delivery) will have, validly executed and delivered each of the Credit
Documents to which it is or will be a party. This Agreement constitutes,
and each of the other Credit Documents upon execution and delivery will
constitute, the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally, by
general equitable principles or by principles of good faith and fair
dealing.
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4.3 No Violation. The execution, delivery and performance by the Borrower of
this Agreement and each of the other Credit Documents to which it is or
will be a party, and compliance by it with the terms hereof and thereof, do
not and will not (i) violate any provision of its certificate of
incorporation or bylaws or contravene any other material Requirement of Law
applicable to it, (ii) conflict with, result in a breach of or constitute
(with notice, lapse of time or both) a default under any material
indenture, agreement or other instrument to which it is a party, by which
it or any of its properties is bound or to which it is subject, or (iii)
result in or require the creation or imposition of any Lien upon any of its
properties or assets. Except as set forth on Schedule 4.3 or as otherwise
permitted by this Agreement, no Subsidiary is a party to any agreement or
instrument or otherwise subject to any restriction or encumbrance that
restricts or limits its ability to make dividend payments or other
distributions in respect of its Capital Stock, to repay Indebtedness owed
to the Borrower or any other Subsidiary, to make loans or advances to the
Borrower or any other Subsidiary, or to transfer any of its assets or
properties to the Borrower or any other Subsidiary, in each case other than
such restrictions or encumbrances existing under or by reason of the Credit
Documents or applicable Requirements of Law.
4.4 Governmental and Third-Party Authorization; Permits. (a) No consent,
approval, authorization or other action by, notice to, or registration or
filing with, any governmental or regulatory authority or agency or other
Person is or will be required as a condition to or otherwise in connection
with the due execution, delivery and performance by each of the Borrower
and its Subsidiaries of this Agreement or any of the other Credit Documents
to which it is or will be a party or the legality, validity or
enforceability hereof or thereof.
(b) Each of the Borrower and its Subsidiaries has, and is in good standing with
respect to, all governmental approvals, licenses, permits and
authorizations necessary to conduct its business as presently conducted and
to own or lease and operate its properties, except for those the failure to
obtain which would not be reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect.
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(c) Schedule 4.4 lists with respect to each Insurance Subsidiary, as of the
Closing Date, all of the jurisdictions in which such Insurance Subsidiary
holds licenses (including, without limitation, licenses or certificates of
authority from relevant Insurance Regulatory Authorities), permits or
authorizations to transact insurance and reinsurance business
(collectively, the "Licenses"), and indicates the line or lines of
insurance in which each such Insurance Subsidiary is permitted to be
engaged with respect to each License therein listed. To the knowledge of
the Borrower, except as set forth on Schedule 4.4, (i) no such License is
the subject of a proceeding for suspension, revocation or limitation or any
similar proceedings, (ii) there is no sustainable basis for such a
suspension, revocation or limitation, and (iii) no such suspension,
revocation or limitation is threatened by any relevant Insurance Regulatory
Authority, except in each of (i), (ii) or (iii), where the same would not
be reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect. No Insurance Subsidiary transacts any insurance business,
directly or indirectly, in any jurisdiction other than those listed on
Schedule 4.4, where such business requires any license, permit or other
authorization of a Insurance Regulatory Authority of such jurisdiction,
except where the same would not be reasonably likely, individually or in
the aggregate, to have a Material Adverse Effect.
4.5 Litigation. There are no actions, investigations, suits or proceedings
pending or, to the knowledge of the Borrower, threatened, at law, in equity
or in arbitration, before any court, other governmental or regulatory
authority or agency or other Person, (i) against or affecting the Borrower,
any of its Subsidiaries or any of their respective properties that would,
if adversely determined, be reasonably likely to have a Material Adverse
Effect, or (ii) with respect to this Agreement or any of the other Credit
Documents.
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4.6 Taxes. Each of the Borrower and its Subsidiaries has timely filed all
federal, state and local tax returns and reports required to be filed by it
and has paid all taxes, assessments, fees and other charges levied upon it
or upon its properties that are shown thereon as due and payable, other
than those (i) that are being contested in good faith and by proper
proceedings and for which adequate reserves have been established in
accordance with GAAP or (ii) the failure to file or pay which would not be
reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect. Such returns accurately reflect in all material respects
all liability for taxes of the Borrower and its Subsidiaries for the
periods covered thereby. There is no ongoing audit or examination or, to
the knowledge of the Borrower, other investigation by any governmental or
regulatory authority or agency of the tax liability of the Borrower or any
of its Subsidiaries, and there is no unresolved claim by any governmental
or regulatory authority or agency concerning the tax liability of the
Borrower or any of its Subsidiaries for any period for which tax returns
have been or were required to have been filed, other than claims for which
adequate reserves have been established in accordance with GAAP and claims
that, if adversely determined, would not be reasonably likely, individually
or in the aggregate, to have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries has waived or extended or has been
requested to waive or extend the statute of limitations relating to the
payment of any taxes.
4.7 Subsidiaries. Schedule 4.7 sets forth a list, as of the Closing Date, of
all of the Subsidiaries of the Borrower and, as to each such Subsidiary,
the percentage ownership (direct and indirect) of the Borrower in each
class of its capital stock and each direct owner thereof. Except for the
shares of capital stock expressly indicated on Schedule 4.7, there are no
shares of capital stock, warrants, rights, options or other equity
securities, or other Capital Stock of any Subsidiary of the Borrower
outstanding or reserved for any purpose. All outstanding shares of capital
stock of each Subsidiary of the Borrower are duly and validly issued, fully
paid and nonassessable.
4.8 Full Disclosure. All factual information heretofore or contemporaneously
furnished to the Administrative Agent or any Lender in writing by or on
behalf of the Borrower or any of its Subsidiaries for purposes of or in
connection with this Agreement and the transactions contemplated hereby is,
and all other such factual information hereafter furnished to the
Administrative Agent or any Lender in writing by or on behalf of the
Borrower or any of its Subsidiaries will be, true and accurate in all
material respects on the date as of which such information is dated or
certified (or, if such information has been amended or supplemented, on the
date as of which any such amendment or supplement is dated or certified)
and not made incomplete by omitting to state a material fact necessary to
make the statements contained therein, in light of the circumstances under
which such information was provided, not misleading.
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4.9 Margin Regulations. Neither the Borrower nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying Margin Stock.
No proceeds of the Loans will be used, directly or indirectly, to purchase
or carry any Margin Stock, to extend credit for such purpose or for any
other purpose that would violate or be inconsistent with Regulations T, U
or X or any provision of the Exchange Act.
4.10 No Material Adverse Change. There has been no Material Adverse Change since
December 31, 1997, and there exists no event, condition or state of facts
that could reasonably be expected to result in a Material Adverse Change.
4.11 Financial Matters. (a) The Borrower has heretofore furnished to the
Administrative Agent copies of (i) the audited consolidated balance sheets
of the Borrower and its Subsidiaries as of December 31, 1997, 1996, and
1995, and the related statements of income, cash flows and stockholders'
equity for the fiscal years then ended, together with the opinion of
Deloitte & Touche LLP thereon, and (ii) the unaudited consolidated balance
sheet of the Borrower and its Subsidiaries as of March 31, 1998, and the
related statements of income, cash flows and stockholders' equity for the
three-month period then ended. Such financial statements have been prepared
in accordance with GAAP (subject, with respect to the unaudited financial
statements, to the absence of notes required by GAAP and to normal year-end
adjustments) and present fairly the financial condition of the Borrower and
its Subsidiaries on a consolidated basis as of the respective dates thereof
and the consolidated results of operations of the Borrower and its
Subsidiaries for the respective periods then ended. Except as fully
reflected in the most recent financial statements referred to above and the
notes thereto, there are no material liabilities or obligations with
respect to the Borrower or any of its Subsidiaries of any nature whatsoever
(whether absolute, contingent or otherwise and whether or not due).
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(b) The Borrower has heretofore furnished to the Administrative Agent copies of
(i) the Annual Statement of each of the Significant Insurance Subsidiaries
as of December 31, 1997, and for the fiscal year then ended, each as filed
with the Insurance Regulatory Authority of its jurisdiction of legal
domicile, and (ii) the Quarterly Statement of each of the Significant
Insurance Subsidiaries as of March 31, 1998, and for the three-month period
then ended, each as filed with the Insurance Regulatory Authority of its
jurisdiction of legal domicile. Such statutory financial statements
(including, without limitation, the provisions made therein for investments
and the valuation thereof, reserves, policy and contract claims and
statutory liabilities) have been prepared in accordance with SAP (except as
may be reflected in the notes thereto and subject, with respect to the
Quarterly Statements, to the absence of notes required by SAP and to normal
year-end adjustments), were in compliance in all material respects with
applicable Requirements of Law when filed and present fairly the financial
position of the respective Significant Insurance Subsidiaries covered
thereby as of the respective dates thereof and the results of operations,
changes in capital and surplus and cash flow of the respective Significant
Insurance Subsidiaries covered thereby for the respective periods then
ended. Except for liabilities and obligations disclosed or provided for in
the most recent statutory financial statements referred to above
(including, without limitation, reserves, policy and contract claims and
statutory liabilities), there are no material liabilities or obligations
with respect to any Significant Insurance Subsidiary of any nature
whatsoever (whether absolute, contingent or otherwise and whether or not
due). All books of account of each Insurance Subsidiary fully and fairly
disclose all of its material transactions, properties, assets, investments,
liabilities and obligations, are in its possession and are true, correct
and complete in all material respects.
(c) The investments of each of the Insurance Subsidiaries reflected in its most
recently filed Annual Statement and Quarterly Statement comply in all
material respects with all applicable requirements of the Insurance
Regulatory Authority of its jurisdiction of legal domicile. The amounts
shown in the most recently filed Annual Statement and Quarterly Statement
for each of the Insurance Subsidiaries for reserves, policy and contract
claims, agents' balances and uncollected premiums and statutory liabilities
were computed in accordance with commonly accepted actuarial standards
consistently applied, were fairly stated in accordance with sound actuarial
principles, were computed on the basis of assumptions consistent with those
of the preceding fiscal year, and meet in all material respects the
requirements of the Insurance Regulatory Authority of its jurisdiction of
legal domicile. Such reserves as established by each Insurance Subsidiary
were, in the judgment of the Borrower, adequate as of such date for the
payment by such Insurance Subsidiary of all of its insurance benefits,
losses, claims and investigative expenses. Marketable securities and
short-term investments reflected in each Insurance Subsidiary's most
recently filed Annual Statement and Quarterly Statement are valued at cost,
amortized cost or market value, as required by applicable Requirements of
Law.
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(d) Each of the Borrower and its Significant Subsidiaries, after giving effect
to the consummation of the transactions contemplated hereby, (i) has
capital sufficient to carry on its businesses as conducted and as proposed
to be conducted, (ii) has assets with a fair saleable value, determined on
a going concern basis, (y) not less than the amount required to pay the
probable liability on its existing debts as they become absolute and
matured and (z) greater than the total amount of its liabilities (including
identified contingent liabilities, valued at the amount that can reasonably
be expected to become absolute and matured), and (iii) does not intend to,
and does not believe that it will, incur debts or liabilities beyond its
ability to pay such debts and liabilities as they mature.
4.12 Ownership of Properties. Each of the Borrower and its Subsidiaries (i) has
good and marketable title to all real property owned by it, (ii) holds
interests as lessee under valid leases in full force and effect with
respect to all material leased real and personal property used in
connection with its business, (iii) possesses or has rights to use
licenses, patents, copyrights, trademarks, service marks, trade names and
other assets sufficient to enable it to continue to conduct its business
substantially as heretofore conducted and without any material conflict
with the rights of others, and (iv) has good title to all of its other
properties and assets reflected in the most recent financial statements
referred to in Section 4.11(a) (except as sold or otherwise disposed of
since the date thereof in the ordinary course of business), in each case
under (i), (ii), (iii) and (iv) above free and clear of all Liens other
than Permitted Liens and in each case except to the extent the failure to
own or hold such property would not be reasonably likely, individually or
in the aggregate, to have a Material Adverse Effect.
4.13 ERISA. (a) Each of the Borrower and its ERISA Affiliates is in compliance
in all material respects with the applicable provisions of ERISA, and each
Plan is and has been administered in compliance in all material respects
with all applicable Requirements of Law, including, without limitation, the
applicable provisions of ERISA and the Internal Revenue Code, in each case
as in effect at the time the representations contained herein are made. No
ERISA Event (i) has occurred within the five-year period prior to the
Closing Date, (ii) has occurred and is continuing, or (iii) to the
knowledge of the Borrower, is reasonably expected to occur with respect to
any Plan. No Plan has any Unfunded Pension Liability as of the most recent
annual valuation date applicable thereto, and neither the Borrower nor any
ERISA Affiliate has engaged in a transaction that could be subject to
Section 4069 or 4212(c) of ERISA.
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(b) Neither the Borrower nor any ERISA Affiliate has had a complete or partial
withdrawal from any Multiemployer Plan, and neither the Borrower nor any
ERISA Affiliate would become subject to any liability under ERISA if the
Borrower or any ERISA Affiliate were to withdraw completely from all
Multiemployer Plans as of the most recent valuation date. No Multiemployer
Plan is in "reorganization" or is "insolvent" within the meaning of such
terms under ERISA.
4.14 Environmental Matters. Except as set forth on Schedule 4.14:
(a) No Hazardous Substances are or have been generated, used, located,
released, treated, disposed of or stored by the Borrower or any of its
Subsidiaries or, to the knowledge of the Borrower, by any other Person
(including any predecessor in interest) or otherwise, in, on or under any
portion of any real property, leased or owned, of the Borrower or any of
its Subsidiaries, except in material compliance with all applicable
Environmental Laws, and no portion of any such real property or, to the
knowledge of the Borrower, any other real property at any time leased,
owned or operated by the Borrower or any of its Subsidiaries, has been
contaminated by any Hazardous Substance; and no portion of any real
property, leased or owned, of the Borrower or any of its Subsidiaries has
been or is presently the subject of an environmental audit, assessment or
remedial action.
(b) No portion of any real property, leased or owned, of the Borrower or any of
its Subsidiaries has been used by the Borrower or any of its Subsidiaries
or, to the knowledge of the Borrower, by any other Person, as or for a
mine, a landfill, a dump or other disposal facility, a gasoline service
station, or (other than for petroleum substances stored in the ordinary
course of business) a petroleum products storage facility; no portion of
such real property or any other real property at any time leased, owned or
operated by the Borrower or any of its Subsidiaries has, pursuant to any
Environmental Law, been placed on the "National Priorities List" or
"CERCLIS List" (or any similar federal, state or local list) of sites
subject to possible environmental problems; and there are not and have
never been any underground storage tanks situated on any real property,
leased or owned, of the Borrower or any of its Subsidiaries.
(c) All activities and operations of the Borrower and its Subsidiaries are in
compliance with the requirements of all applicable Environmental Laws,
except to the extent the failure so to comply, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse
Effect. Each of the Borrower and its Subsidiaries has obtained all licenses
and permits under Environmental Laws necessary to its respective
operations; all such licenses and permits are being maintained in good
standing; and each of the Borrower and its Subsidiaries is in compliance
with all terms and conditions of such licenses and permits, except for such
licenses and permits the failure to obtain, maintain or comply with which
would not be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
is involved in any suit, action or proceeding, or has received any notice,
complaint or other request for information from any governmental or
regulatory authority or agency or other Person, with respect to any actual
or alleged Environmental Claims that, if adversely determined, would be
reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect; and, to the knowledge of the Borrower, there are no
threatened actions, suits, proceedings or investigations with respect to
any such Environmental Claims, nor any basis therefor.
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4.15 Compliance With Laws. Each of the Borrower and its Subsidiaries has filed
all material reports, documents and other materials required to be filed by
it under all applicable Requirements of Law with any governmental or
regulatory authority or agency, has retained all material records and
documents required to be retained by it under all applicable Requirements
of Law, and is otherwise in compliance with all applicable Requirements of
Law in respect of the conduct of its business and the ownership and
operation of its properties, except for such Requirements of Law the
failure to comply with which, individually or in the aggregate, would not
be reasonably likely to have a Material Adverse Effect.
4.16 Regulated Industries. Neither the Borrower nor any of its Subsidiaries is
(i) an "investment company," a company "controlled" by an "investment
company," or an "investment advisor," within the meaning of the Investment
Company Act of 1940, as amended, or (ii) a "holding company," a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company," within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
4.17 Insurance. The assets, properties and business of the Borrower and its
Subsidiaries are insured against such hazards and liabilities, under such
coverages and in such amounts, as are customarily maintained by prudent
companies similarly situated and under policies issued by insurers of
recognized responsibility.
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ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the Commitments
and the payment in full of all principal and interest with respect to the Loans
together with all other amounts then due and owing hereunder:
5.1 Financial Statements. The Borrower will deliver to each Lender:
(a) As soon as available and in any event within sixty (60) days after the end
of each of the first three fiscal quarters of each fiscal year, beginning
with the fiscal quarter ending June 30, 1998, an unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as of the end of such
fiscal quarter and unaudited consolidated statements of income, cash flows
and stockholders' equity for the Borrower and its Subsidiaries for the
fiscal quarter then ended and for that portion of the fiscal year then
ended, in each case setting forth comparative consolidated figures as of
the end of and for the corresponding period in the preceding fiscal year,
all in reasonable detail and prepared in accordance with GAAP (subject to
the absence of notes required by GAAP and subject to normal year-end
adjustments) applied on a basis consistent with that of the preceding
quarter or containing disclosure of the effect on the financial condition
or results of operations of any change in the application of accounting
principles and practices during such quarter; and
(b) As soon as available and in any event within 105 days after the end of each
fiscal year, beginning with the fiscal year ending December 31, 1998, an
audited consolidated balance sheet of the Borrower and its Subsidiaries as
of the end of such fiscal year and audited consolidated statements of
income, cash flows and stockholders' equity for the Borrower and its
Subsidiaries for the fiscal year then ended, including the notes thereto,
in each case setting forth comparative figures as of the end of and for the
preceding fiscal year, all in reasonable detail and certified by the
independent certified public accounting firm regularly retained by the
Borrower or another independent certified public accounting firm of
recognized national standing reasonably acceptable to the Required Lenders,
together with (y) a report thereon by such accountants that is not
qualified as to going concern or scope of audit and to the effect that such
financial statements present fairly the consolidated financial condition
and results of operations of the Borrower and its Subsidiaries as of the
dates and for the periods indicated in accordance with GAAP applied on a
basis consistent with that of the preceding year or containing disclosure
of the effect on the financial condition or results of operations of any
change in the application of accounting principles and practices during
such year, and (z) a report by such accountants to the effect that, based
on and in connection with their examination of the financial statements of
the Borrower and its Subsidiaries, they obtained no knowledge of the
occurrence or existence of any Default or Event of Default relating to
accounting or financial reporting matters, or a statement specifying the
nature and period of existence of any such Default or Event of Default
disclosed by their audit; provided, however, that such accountants shall
not be liable by reason of the failure to obtain knowledge of any Default
or Event of Default that would not be disclosed or revealed in the course
of their audit examination.
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5.2 Statutory Financial Statements. The Borrower will deliver to each Lender:
(a) As soon as practicable and in any event within sixty (60) days after the
end of each of the first three fiscal quarters of each fiscal year,
beginning with the fiscal quarter ending June 30, 1998, a Quarterly
Statement of each Significant Insurance Subsidiary as of the end of such
fiscal quarter and for that portion of the fiscal year then ended, in the
form filed with the Insurance Regulatory Authority of its jurisdiction of
legal domicile, prepared in accordance with SAP applied on a basis
consistent with that of the preceding quarter or containing disclosure of
the effect on the financial condition or results of operations of any
change in the application of accounting principles and practices during
such quarter;
(b) As soon as practicable and in any event within seventy-five (75) days after
the end of each fiscal year, beginning with the fiscal year ending December
31, 1998, an Annual Statement of each Significant Insurance Subsidiary as
of the end of such fiscal year and for the fiscal year then ended, in the
form filed with the Insurance Regulatory Authority of its jurisdiction of
legal domicile, prepared in accordance with SAP applied on a basis
consistent with that of the preceding year or containing disclosure of the
effect on the financial condition or results of operations of any change in
the application of accounting principles and practices during such year;
(c) As soon as practicable and in any event within 106 days after the end of
each fiscal year, beginning with the fiscal year ending December 31, 1998,
the insurance expense exhibits, actuarial opinions and management
discussion and analysis required to be filed with the Annual Statement of
each Significant Insurance Subsidiary as of the end of such fiscal year and
for the fiscal year then ended, in the form filed with the Insurance
Regulatory Authority of its jurisdiction of legal domicile; and
(d) As soon as practicable and in any event within 135 days after the end of
each fiscal year, beginning with the fiscal year ending December 31, 1998,
the combined Annual Statement of the Insurance Subsidiaries as of the end
of such fiscal year and for the fiscal year then ended, in the form filed
with the Connecticut Department of Insurance, prepared in accordance with
SAP applied on a basis consistent with that of the preceding year or
containing disclosure of the effect on the financial condition or results
of operations of any change in the application of accounting principles and
practices during such year, together with a certificate of a Financial
Officer of the Borrower to the effect that such Annual Statement fairly
presents the statutory combined financial condition of the Insurance
Subsidiaries in accordance with SAP.
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5.3 Other Business and Financial Information. The Borrower will deliver to each
Lender:
(a) Concurrently with each delivery of the financial statements described in
Sections 5.1, 5.2(a) and 5.2(b), a Compliance Certificate in the form of
Exhibit C-1 (in the case of the financial statements described in
Section 5.1) or Exhibit C-2 (in the case of the financial statements
described in Sections 5.2(a) and 5.2(b)) with respect to the period covered
by the financial statements then being delivered, executed by a Financial
Officer of the Borrower, together, in the case of the financial statements
described in Section 5.1, with a Covenant Compliance Worksheet reflecting
the computation of the financial covenant set forth in Section 6.1 as of
the last day of the period covered by such financial statements, and in the
case of the financial statements described in Sections 5.2(a) and 5.2(b),
with a Covenant Compliance Worksheet reflecting the computation of the
financial covenant set forth in Section 6.2 as of the last day of the
period covered by such financial statements;
(b) Promptly upon receipt thereof, copies of the final executed "management
letter" submitted to the Borrower by its certified public accountants in
connection with each annual audit;
(c) Promptly upon the sending, filing or receipt thereof, copies of (i) all
financial statements, reports, notices and proxy statements that the
Borrower shall send or make available generally to its shareholders,
(ii) all Forms 10-K, 10-Q and 8-K and registration statements and
prospectuses (after such documents become effective) that the Borrower
shall file with the Securities and Exchange Commission, the National
Association of Securities Dealers, Inc. or any national securities
exchange, (iii) all significant reports on examination or similar
significant reports, final financial examination reports or significant
market conduct examination reports by the NAIC or any Insurance Regulatory
Authority or any governmental or regulatory authority or agency with
respect to any Insurance Subsidiary's insurance business, (iv) all
significant filings made under applicable state insurance holding company
acts by the Borrower or any of its Subsidiaries, including, without
limitation, filings seeking approval of transactions with Affiliates, and
(v) all financial press releases made by the Borrower;
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(d) Promptly upon (and in any event within five (5) Business Days after) any
Responsible Officer of the Borrower obtaining knowledge thereof, written
notice of any of the following:
(i) the occurrence of any Default or Event of Default, together with a written
statement of a Responsible Officer of the Borrower specifying the nature of
such Default or Event of Default, the period of existence thereof and the
action that the Borrower has taken and proposes to take with respect
thereto;
(ii) the institution of any action, suit, investigation or proceeding against or
affecting the Borrower or any of its Subsidiaries, including any such
investigation or proceeding by any Insurance Regulatory Authority or other
governmental or regulatory authority or agency (other than routine or
periodic inquiries, investigations or reviews), that would, if adversely
determined, be reasonably likely, individually or in the aggregate, to have
a Material Adverse Effect, and any material development in any litigation
or other proceeding previously reported pursuant to Section 4.5 or this
subsection;
(iii)the receipt by the Borrower or any of its Subsidiaries from any
governmental or regulatory authority or agency of (y) any notice asserting
any failure by the Borrower or any of its Subsidiaries to be in compliance
with applicable Requirements of Law or that threatens the taking of any
action against the Borrower or such Subsidiary or sets forth circumstances
that, if taken or adversely determined, would be reasonably likely to have
a Material Adverse Effect, or (z) any notice of any actual or threatened
suspension, limitation or revocation of, failure to renew, or imposition of
any restraining order, escrow or impoundment of funds in connection with,
any license, permit, accreditation or authorization (including, without
limitation, any License) of the Borrower or any of its Subsidiaries, where
such action would be reasonably likely to have a Material Adverse Effect;
(iv) The occurrence of any changes in any Insurance Code governing the dividend
practices of any of the Insurance Subsidiaries that would be reasonably
likely to have a Material Adverse Effect;
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(v) Any change in the rating of any Insurance Subsidiary by A.M. Best & Co.,
Inc.;
(vi) Any change in the rating of the Borrower's senior unsecured long-term debt
by Standard & Poor's, Moody's or Duff & Phelps;
(vii)the occurrence of any ERISA Event, together with (x) a written statement of
a Responsible Officer of the Borrower specifying the details of such ERISA
Event and the action that the Borrower has taken and proposes to take with
respect thereto, (y) a copy of any notice with respect to such ERISA Event
that may be required to be filed with the PBGC and (z) a copy of any notice
delivered by the PBGC to the Borrower or such ERISA Affiliate with respect
to such ERISA Event; and
(viii) any other matter or event that has, or would be reasonably likely to
have, a Material Adverse Effect, together with a written statement of a
Responsible Officer of the Borrower setting forth the nature and period of
existence thereof and the action that the Borrower has taken and proposes
to take with respect thereto;
(e) Within sixty (60) days after request therefor by the Required Lenders from
time to time (but not more than once per year) consolidated projected
financial statements for the Borrower and its Subsidiaries in such scope
and detail as may be prepared for its own internal purposes; and
(f) As promptly as reasonably possible, such other information about the
business, condition (financial or otherwise), operations or properties of
the Borrower or any of its Subsidiaries (including any Plan and any
information required to be filed under ERISA) as the Administrative Agent
or any Lender may from time to time reasonably request.
5.4 Corporate Existence; Franchises; Maintenance of Properties. The Borrower
will, and will cause each of its Significant Subsidiaries to, (i) maintain
and preserve in full force and effect its corporate existence, except as
expressly permitted otherwise by Sections 7.1 or 7.4, (ii) obtain, maintain
and preserve in full force and effect all other rights, franchises,
licenses, permits, certifications, approvals and authorizations required by
governmental or regulatory authorities or agencies and necessary to the
ownership, occupation or use of its properties or the conduct of its
business, except to the extent the failure to do so would not be reasonably
likely to have a Material Adverse Effect, and (iii) keep all material
properties in good working order and condition (normal wear and tear
excepted) and from time to time make all necessary repairs to and renewals
and replacements of such properties, except to the extent that any of such
properties are obsolete or are being replaced.
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5.5 Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply in all respects with all Requirements of Law
applicable in respect of the conduct of its business and the ownership and
operation of its properties, except to the extent the failure so to comply
would not be reasonably likely to have a Material Adverse Effect.
5.6 Payment of Obligations. Except to the extent failure to do so would not be
reasonably likely to have a Material Adverse Effect, the Borrower will, and
will cause each of its Subsidiaries to, (i) pay all Indebtedness as and
when due (subject to any applicable subordination provisions) and otherwise
comply with and perform all contracts, agreements and instruments creating
or evidencing Indebtedness to which it is a party, and (ii) pay and
discharge all taxes, assessments and governmental charges or levies imposed
upon it, upon its income or profits or upon any of its properties, prior to
the date on which penalties would attach thereto, and all lawful claims
that, if unpaid, might become a Lien (other than a Permitted Lien) upon any
of the properties of the Borrower or any of its Subsidiaries; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to pay any such tax, assessment, charge, levy or claim that is
being contested in good faith and by proper proceedings and as to which the
Borrower or such Subsidiary is maintaining adequate reserves with respect
thereto in accordance with GAAP.
5.7 Insurance. The Borrower will, and will cause each of its Subsidiaries to,
maintain with financially sound and reputable insurance companies insurance
with respect to its assets, properties and business, against such hazards
and liabilities, of such types and in such amounts, as is customarily
maintained by companies in the same or similar businesses similarly
situated.
5.8 Maintenance of Books and Records; Inspection. The Borrower will, and will
cause each of its Subsidiaries to, (i) maintain adequate books, accounts
and records, in which full, true and correct entries shall be made of all
financial transactions in relation to its business and properties, and
prepare all financial statements required under this Agreement, in each
case in accordance with GAAP or SAP, as applicable, and in compliance with
the requirements of any governmental or regulatory authority or agency
having jurisdiction over it, and (ii) permit employees or agents of the
Administrative Agent or any Lender to inspect its properties and examine or
audit its books, records, working papers and accounts and make copies and
memoranda of them, and to discuss its affairs, finances and accounts with
its officers and employees and, upon notice to the Borrower, the
independent public accountants of the Borrower and its Subsidiaries (and by
this provision the Borrower authorizes such accountants to discuss the
finances and affairs of the Borrower and its Subsidiaries), all at such
times and from time to time, upon reasonable notice and during business
hours, as may be reasonably requested.
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5.9 Ownership of Insurance Subsidiaries. Except as permitted by Sections 7.1 or
7.4, the Borrower will, and will cause each of its Subsidiaries to, take
such action from time to time as shall be necessary to ensure that it owns
at all times at least the same percentage of issued and outstanding shares
of each class of Capital Stock of its Insurance Subsidiaries as is owned on
the date hereof.
5.10 Year 2000 Compatibility. Each of the Borrower and its Subsidiaries shall
take such action as is necessary to assure that its computer based systems
are able to operate and effectively process data including dates on or
after January 1, 2000 if such operating or processing failure would be
reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect. At the Administrative Agent's request, the Borrower and
each of its Subsidiaries shall provide to the Administrative Agent
reasonable assurance of its Year 2000 compatibility or progress thereto.
5.11 Further Assurances. The Borrower will, and will cause each of its
Subsidiaries to, make, execute, endorse, acknowledge and deliver any
amendments, modifications or supplements hereto and restatements hereof and
any other agreements, instruments or documents, and take any and all such
other actions, as may from time to time be reasonably requested by the
Administrative Agent or the Required Lenders to effect, confirm or further
assure or protect and preserve the interests, rights and remedies of the
Administrative Agent and the Lenders under this Agreement and the other
Credit Documents.
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ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that, until the termination of the Commitments
and the payment in full of all principal and interest with respect to the Loans
together with all other amounts then due and owing hereunder:
6.1 Capitalization Ratio. The Borrower will not permit the Capitalization Ratio
to be greater than 0.4 to 1.0 as of the last day of any fiscal quarter,
beginning with the fiscal quarter ending June 30, 1998.
6.2 Combined Statutory Surplus. The Borrower will not permit Combined Statutory
Surplus, at any time from and after the Closing Date, to be less than (i)
$650,000,000 plus (ii) 30% of the aggregate of Combined Statutory Net
Income for each fiscal year ending on or after December 31, 1998 up to and
including the date of determination (provided that Combined Statutory Net
Income for any such fiscal year shall be taken into account for purposes of
this calculation only if positive).
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the Commitments
and the payment in full of all principal and interest with respect to the Loans
together with all other amounts then due and owing hereunder:
7.1 Merger; Consolidation. The Borrower will not, and will not permit or cause
any of its Significant Subsidiaries to, liquidate, wind up or dissolve, or
enter into any consolidation, merger or other combination, or agree to do
any of the foregoing; provided, however, that the Borrower or any
Significant Subsidiary may merge or consolidate with another Person so long
as (x) the surviving entity is the Borrower or a Wholly Owned Subsidiary
(and in any event, if the Borrower is a party to such merger or
consolidation, the surviving entity shall be the Borrower), and (y)
immediately after giving effect thereto, no Default or Event of Default
would exist.
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7.2 Secured Indebtedness. The Borrower will not, and will not permit or cause
any of its Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness or Contingent Obligations secured by a Lien of or upon any
assets , properties, shares of Capital Stock or Indebtedness of any
Subsidiary which assets, properties, shares or Indebtedness are owned or
held by the Borrower or any other Subsidiary ("Secured Indebtedness"),
except for (i) Secured Indebtedness secured by Liens expressly permitted
under clause (vi) of Section 7.3, and (ii) Secured Indebtedness in an
aggregate principal amount outstanding at any time not exceeding ten
percent (10%) of Consolidated Net Worth as of the last day of the fiscal
quarter then most recently ended for which financial statements and a
Compliance Certificate have been delivered pursuant to Sections 5.1 and
5.3.
7.3 Liens. The Borrower will not, and will not permit or cause any of its
Subsidiaries to, directly or indirectly, make, create, incur, assume or
suffer to exist, any Lien upon or with respect to any part of its property
or assets, whether now owned or hereafter acquired, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income
or profits under the Uniform Commercial Code of any state or under any
similar recording or notice statute, or agree to do any of the foregoing,
other than the following (collectively, "Permitted Liens"):
(i) Liens in existence on the Closing Date and set forth on Schedule 7.3;
(ii) Liens imposed by law, such as Liens of carriers, warehousemen, mechanics,
materialmen and landlords, and other similar Liens incurred in the ordinary
course of business for sums not constituting borrowed money that are not
overdue for a period of more than thirty (30) days or that are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP (if so required);
(iii)Liens (other than any Lien imposed by ERISA, the creation or incurrence of
which would result in an Event of Default under Section 8.1(k)) incurred in
the ordinary course of business in connection with worker's compensation,
unemployment insurance or other forms of governmental insurance or
benefits, or to secure the performance of letters of credit, bids, tenders,
statutory obligations, surety and appeal bonds, leases, government
contracts and other similar obligations (other than obligations for
borrowed money) entered into in the ordinary course of business;
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(iv) Liens for taxes, assessments or other governmental charges or statutory
obligations that are not delinquent or remain payable without any penalty
or that are being contested in good faith by appropriate proceedings and
for which adequate reserves have been established in accordance with GAAP
(if so required);
(v) Liens securing Indebtedness permitted under clause (ii) of Section 7.2
(which Liens shall include purchase money Liens not expressly permitted
under clause (vi) of this Section 7.3);
(vi) Liens upon equipment, real property or other fixed assets acquired by the
Borrower or any of its Subsidiaries, securing Indebtedness incurred to
finance the payment of all or part of the purchase price thereof (including
in connection with capital leases), which Liens secure purchase money
Indebtedness not exceeding $1,000,000 with respect to each Lien
individually or $10,000,000 with respect to all such Liens in the
aggregate;
(vii)any attachment or judgment Lien not constituting an Event of Default under
Section 8.1(j) that is being contested in good faith by appropriate
proceedings and for which adequate reserves have been established in
accordance with GAAP (if so required);
(viii) Liens arising from the filing, for notice purposes only, of financing
statements in respect of true leases;
(ix) Liens arising under insurance holding company statutes or regulations;
(x) Liens upon cash and United States government and agency securities of the
Borrower and its Subsidiaries, securing obligations incurred in connection
with reverse repurchase transactions and other similar investment
management transactions of such types and in such amounts as are customary
for companies similar to the Borrower in size and lines of business and
that are entered into by the Borrower and its Subsidiaries in the ordinary
course of business;
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(xi) Liens on Borrower Margin Stock, to the extent the fair market value thereof
exceeds 25% of the fair market value of the assets of the Borrower and its
Subsidiaries (including Borrower Margin Stock);
(xii)with respect to any real property occupied by the Borrower or any of its
Subsidiaries, all easements, rights of way, licenses and similar
encumbrances on title that do not materially impair the use of such
property for its intended purposes; and
(xiii) interests of counterparties under leases, licenses and franchises to
which the Borrower or any of its Subsidiaries is a party.
7.4 Disposition of Assets. The Borrower will not, and will not permit or cause
any of its Subsidiaries to, directly or indirectly, sell, assign, lease,
convey, transfer or otherwise dispose of (whether in one or a series of
related transactions) any Material Assets, or enter into any arrangement
with any Person providing for the lease by the Borrower or any Subsidiary
as lessee of any Material Assets that have been sold or transferred by the
Borrower or such Subsidiary to such Person, or agree to do any of the
foregoing; provided, however, that the Borrower or any Subsidiary may, to
the extent permitted by applicable Requirements of Law and each relevant
Insurance Regulatory Authority, sell, assign or otherwise dispose of any of
its Material Assets to the Borrower or another Wholly Owned Subsidiary so
long as (y) if the Material Assets assigned are the assets or Capital Stock
of an Insurance Subsidiary, such sale, assignment or disposition will not
materially reduce the aggregate amount of dividends or distributions that
could be realized, directly or indirectly, by the Borrower from its
Subsidiaries, and (z) immediately after giving effect thereto, no Default
or Event of Default would exist.
7.5 Transactions with Affiliates. The Borrower will not, and will not permit or
cause any of its Subsidiaries to, enter into any transaction material to
the Borrower and its Subsidiaries, taken as a whole, with any officer,
director, stockholder or other Affiliate of the Borrower or any Subsidiary,
except in the ordinary course of its business and upon fair and reasonable
terms that are not substantially less favorable to it than would obtain in
a comparable arm's length transaction with a Person other than an Affiliate
of the Borrower or such Subsidiary; provided, however, that nothing
contained in this Section shall prohibit:
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(i) transactions described on Schedule 7.5 or otherwise expressly permitted
under this Agreement;
(ii) transactions pursuant to employee benefit plans, employment contracts and
other employment arrangements established or entered into in the ordinary
course of business;
(iii)the payment by the Borrower of reasonable and customary fees to members of
its board of directors; and
(iv) transactions between or among the Borrower and its Wholly Owned
Subsidiaries.
7.6 Lines of Business. The Borrower will not, and will not permit or cause any
of its Significant Subsidiaries to, engage in any business other than the
property and casualty insurance business, the businesses in which the
Borrower and its Subsidiaries are engaged on the Closing Date, or (in each
instance) a business reasonably incidental or related thereto (the
"Permitted Lines of Business"); provided, however, that if the Borrower or
any Subsidiary shall acquire the Capital Stock or assets of a Person or
business that (i) is engaged in a business other than the Permitted Lines
of Business and (ii) after giving pro forma effect to such acquisition as
if it were consummated on the first day of the period of four fiscal
quarters ending on the last day of the fiscal quarter then most recently
ended, has (A) assets as of the date of such acquisition comprising greater
than five percent (5%) of Consolidated Total Assets as of the last day of
the fiscal quarter then most recently ended or (B) Net Income comprising
greater than five percent (5%) of Consolidated Net Income for the period of
four fiscal quarters ending on the last day of the fiscal quarter then most
recently ended, the Borrower or such Subsidiary shall be permitted to
engage in such business for a period of 180 days from the date of such
acquisition; but provided further that, notwithstanding the foregoing, the
Borrower will not permit the aggregate of the businesses other than the
Permitted Lines of Business engaged in by the Borrower and its Subsidiaries
to have, as of the last day of any fiscal quarter, (x) assets comprising
greater than twenty percent (20%) of Consolidated Total Assets as of such
date or (y) Net Income for the four fiscal quarters ending on such date
comprising greater than twenty percent (20%) of Consolidated Net Income for
such period.
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7.7 Limitation on Certain Restrictions. The Borrower will not, and will not
permit or cause any of its Subsidiaries to, directly or indirectly, create
or otherwise cause or suffer to exist or (become effective any contractual
restriction or encumbrance on (i) the ability of the Borrower and its
Subsidiaries to perform and comply with their respective obligations under
the Credit Documents or (ii) the ability of any Subsidiary of the Borrower
to make any dividend payments or other distributions in respect of its
Capital Stock, to repay Indebtedness owed to the Borrower or any other
Subsidiary, to make loans or advances to the Borrower or any other
Subsidiary, or to transfer any of its assets or properties to the Borrower
or any other Subsidiary, in each case other than such restrictions or
encumbrances existing under or by reason of the Credit Documents or
applicable Requirements of Law and such restrictions or encumbrances as
would not be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect.
7.8 Fiscal Year. The Borrower will not, and will not permit or cause any of its
Subsidiaries to, change the ending date of its fiscal year to a date other
than December 31 unless (i) the Borrower shall have given the Lenders
written notice of its intention to change such fiscal year at least sixty
(60) days prior to the effective date thereof and (ii) prior to such
effective date this Agreement shall have been amended to make any changes
in the financial covenants and other terms and conditions to the extent
necessary, in the reasonable determination of the Required Lenders, to
reflect the new fiscal year ending date.
7.9 Accounting Changes. The Borrower will not, and will not permit or cause any
of its Subsidiaries to, make or permit any material change in its
accounting policies or reporting practices, except as may be required or
permitted by GAAP or SAP, as applicable.
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ARTICLE VIII
EVENTS OF DEFAULT
8.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default":
(a) The Borrower shall fail to pay any principal of the Loans when due;
(b) The Borrower shall fail to pay any interest on the Loans, any fees or any
other Obligation when due, and such failure shall continue unremedied for
three (3) Business Days;
(c) The Borrower shall fail to observe, perform or comply with any condition,
covenant or agreement contained in any of Sections 2.14, 5.4(i), 5.9 or in
Article VI or Article VII;
(d) The Borrower or any of its Subsidiaries shall fail to observe, perform or
comply with any condition, covenant or agreement contained in this
Agreement or any of the other Credit Documents other than those enumerated
in subsections (a) and (b) above, and such failure shall continue
unremedied for any grace period specifically applicable thereto or, if no
such grace period is applicable, for a period of thirty (30) days after the
earlier of (y) the date on which a Responsible Officer of the Borrower
acquires knowledge thereof and (z) the date on which written notice thereof
is delivered by the Administrative Agent or any Lender to the Borrower;
(e) Any representation or warranty made by or on behalf of the Borrower or any
of its Subsidiaries in this Agreement, any of the other Credit Documents or
in any certificate, instrument, report or other document furnished in
connection herewith or therewith or in connection with the transactions
contemplated hereby or thereby shall prove to have been false or misleading
in any material respect as of the time made or furnished;
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(f) The Borrower or any of its Subsidiaries shall (i) fail to pay when due
(whether by scheduled maturity, acceleration or otherwise and after giving
effect to any applicable grace period) any principal of or interest on any
Indebtedness (other than the Indebtedness incurred pursuant to this
Agreement and intercompany Indebtedness) having an aggregate principal
amount of at least $20,000,000 or (ii) fail to observe, perform or comply
with any condition, covenant or agreement contained in any agreement or
instrument evidencing or relating to any such Indebtedness, or any other
event shall occur or condition exist in respect thereof, and the effect of
such failure, event or condition is to cause, or permit the holder or
holders of such Indebtedness (or a trustee or agent on its or their behalf)
to cause (with the giving of notice, lapse of time, or both), such
Indebtedness to become due, or to be prepaid, redeemed, purchased or
defeased, prior to its stated maturity;
(g) The Borrower or any of its Significant Subsidiaries shall (i) file a
voluntary petition or commence a voluntary case seeking liquidation,
winding-up, reorganization, dissolution, arrangement, readjustment of debts
or any other relief under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to controvert in a timely and
appropriate manner, any petition or case of the type described in
subsection (g) below, (iii) apply for or consent to the appointment of or
taking possession by a custodian, trustee, receiver or similar official for
or of itself or all or a substantial part of its properties or assets,
(iv) fail generally, or admit in writing its inability, to pay its debts
generally as they become due, (v) make a general assignment for the benefit
of creditors or (vi) take any corporate action to authorize or approve any
of the foregoing;
(h) Any involuntary petition or case shall be filed or commenced against the
Borrower or any of its Significant Subsidiaries seeking liquidation,
winding-up, reorganization, dissolution, arrangement, readjustment of
debts, the appointment of a custodian, trustee, receiver or similar
official for it or all or a substantial part of its properties or any other
relief under the Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect, and such petition or
case shall continue undismissed and unstayed for a period of sixty (60)
days; or an order, judgment or decree approving or ordering any of the
foregoing shall be entered in any such proceeding;
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(i) Any Insurance Regulatory Authority or other governmental or regulatory
authority or agency having jurisdiction shall issue any order of
conservation, supervision, rehabilitation or liquidation or any other order
of similar effect in respect of any Significant Insurance Subsidiary, and
such action, individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect;
(j) Any one or more money judgments, writs or warrants of attachment,
executions or similar processes involving an aggregate amount (exclusive of
amounts fully bonded or covered by insurance as to which the surety or
insurer, as the case may be, has acknowledged its liability in writing) in
excess of $20,000,000 shall be entered or filed against the Borrower or any
of its Subsidiaries or any of their respective properties and (i) the same
shall not be dismissed, stayed or discharged for a period of sixty (60)
days or is not otherwise being appropriately contested in good faith and in
a manner reasonably satisfactory to the Required Lenders, or (ii) the same
is not dismissed, stayed or discharged within five (5) days prior to the
date of any proposed sale of assets of the Borrower or any Subsidiary
pursuant thereto;
(k) Any ERISA Event or any other event or condition shall occur or exist with
respect to any Plan or Multiemployer Plan and, as a result thereof,
together with all other ERISA Events and other events or conditions then
existing, the Borrower and its ERISA Affiliates have incurred or would be
reasonably likely to incur liability to any one or more Plans or
Multiemployer Plans or to the PBGC (or to any combination thereof) in
excess of $20,000,000;
(l) Any one or more licenses, permits, accreditations or authorizations of the
Borrower or any of its Subsidiaries shall be suspended, limited or
terminated or shall not be renewed, or any other action shall be taken, by
any governmental or regulatory authority or agency in response to any
alleged failure by the Borrower or any of its Subsidiaries to be in
compliance with applicable Requirements of Law, and such action,
individually or in the aggregate, has or would be reasonably likely to have
a Material Adverse Effect; or
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(m) Any of the following shall occur: (i) any Person or group of Persons acting
in concert as a partnership or other group shall, as a result of a tender
or exchange offer, open market purchases, privately negotiated purchases or
otherwise, have become, after the date hereof, the "beneficial owner"
(within the meaning of such term under Rule 13d-3 under the Exchange Act)
of securities of the Borrower representing 20% or more of the combined
voting power of the then outstanding securities of the Borrower ordinarily
(and apart from rights accruing under special circumstances) having the
right to vote in the election of directors; or (ii) the Board of Directors
of the Borrower shall cease to consist of a majority of the individuals who
constituted the Board of Directors as of the date hereof or who shall have
become a member thereof subsequent to the date hereof after having been
nominated, or otherwise approved in writing, by at least a majority of
individuals who constituted the Board of Directors of the Borrower as of
the date hereof (or their replacements approved as herein required).
8.2 Remedies: Termination of Commitments, Acceleration, etc. Upon and at any
time after the occurrence and during the continuance of any Event of
Default, the Administrative Agent shall at the direction, or may with the
consent, of the Required Lenders, take any or all of the following actions
at the same or different times:
(a) Declare the Commitments to be terminated, whereupon the same shall
terminate (provided that, upon the occurrence of an Event of Default
pursuant to Section 8.1(g) or Section 8.1(h), the Commitments shall
automatically be terminated);
(b) Declare all or any part of the outstanding principal amount of the Loans to
be immediately due and payable, whereupon the principal amount so declared
to be immediately due and payable, together with all interest accrued
thereon and all other amounts payable under this Agreement, the Notes and
the other Credit Documents, shall become immediately due and payable
without presentment, demand, protest, notice of intent to accelerate or
other notice or legal process of any kind, all of which are hereby
knowingly and expressly waived by the Borrower (provided that, upon the
occurrence of an Event of Default pursuant to Section 8.1(g) or
Section 8.1(h), all of the outstanding principal amount of the Loans and
all other amounts described in this subsection (b) shall automatically
become immediately due and payable without presentment, demand, protest,
notice of intent to accelerate or other notice or legal process of any
kind, all of which are hereby knowingly and expressly waived by the
Borrower);
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(c) Take any and all action necessary to obtain, at the Borrower's expense and
as soon as reasonably possible, with respect to each Significant Insurance
Subsidiary, a current actuarial review and valuation statement of, and
opinion as to the adequacy of, such Insurance Subsidiary's loss and loss
adjustment expense reserve positions with respect to the insurance business
then in force, and covering such other subjects as are customary in
actuarial reviews and as may be requested by the Required Lenders, prepared
by an independent actuarial firm acceptable to the Required Lenders in
accordance with reasonable actuarial assumptions and procedures (the
Borrower hereby agreeing to cooperate in connection therewith); and
(d) Exercise all rights and remedies available to it under this Agreement, the
other Credit Documents and applicable law.
8.3 Remedies: Set-Off. In addition to all other rights and remedies available
under the Credit Documents or applicable law or otherwise, upon and at any
time after the occurrence and during the continuance of any Event of
Default, each Lender may, and each is hereby authorized by the Borrower, at
any such time and from time to time, to the fullest extent permitted by
applicable law, without presentment, demand, protest or other notice of any
kind, all of which are hereby knowingly and expressly waived by the
Borrower, to set off and to apply any and all deposits (general or special,
time or demand, provisional or final) and any other property at any time
held (including at any branches or agencies, wherever located), and any
other indebtedness at any time owing, by such Lender to or for the credit
or the account of the Borrower against any or all of the Obligations to
such Lender now or hereafter existing, whether or not such Obligations may
be contingent or unmatured, the Borrower hereby granting to each Lender a
continuing security interest in and Lien upon all such deposits and other
property as security for such Obligations. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent 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.
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ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1 Appointment. Each Lender hereby irrevocably appoints and authorizes First
Union to act as Administrative Agent hereunder and under the other Credit
Documents and to take such actions as agent on its behalf hereunder and
under the other Credit Documents, and to exercise such powers and to
perform such duties, as are specifically delegated to the Administrative
Agent by the terms hereof or thereof, together with such other powers and
duties as are reasonably incidental thereto.
9.2 Nature of Duties. The Administrative Agent shall have no duties or
responsibilities other than those expressly set forth in this Agreement and
the other Credit Documents. The Administrative Agent shall not have, by
reason of this Agreement or any other Credit Document, a fiduciary
relationship in respect of any Lender; and nothing in this Agreement or any
other Credit Document, express or implied, is intended to or shall be so
construed as to impose upon the Administrative Agent any obligations or
liabilities in respect of this Agreement or any other Credit Document
except as expressly set forth herein or therein. The Administrative Agent
may execute any of its duties under this Agreement or any other Credit
Document by or through agents or attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact that it selects with reasonable care. The Administrative
Agent shall be entitled to consult with legal counsel, independent public
accountants and other experts selected by it with respect to all matters
pertaining to this Agreement and the other Credit Documents and its duties
hereunder and thereunder and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of
such counsel, accountants or experts. The Lenders hereby acknowledge that
the Administrative Agent shall not be under any duty to take any
discretionary action permitted to be taken by it pursuant to the provisions
of this Agreement or any other Credit Document unless it shall be requested
in writing to do so by the Required Lenders (or, where a higher percentage
of the Lenders is expressly required hereunder, such Lenders).
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9.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action taken or omitted to be taken by it or
such Person under or in connection with the Credit Documents, except for
its or such Person's own gross negligence or willful misconduct, (ii)
responsible in any manner to any Lender for any recitals, statements,
information, representations or warranties herein or in any other Credit
Document or in any document, instrument, certificate, report or other
writing delivered in connection herewith or therewith, for the execution,
effectiveness, genuineness, validity, enforceability or sufficiency of this
Agreement or any other Credit Document, or for the financial condition of
the Borrower, its Subsidiaries or any other Person, or (iii) required to
ascertain or make any inquiry concerning the performance or observance of
any of the terms, provisions or conditions of this Agreement or any other
Credit Document or the existence or possible existence of any Default or
Event of Default, or to inspect the properties, books or records of the
Borrower or any of its Subsidiaries.
9.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any notice,
statement, consent or other communication (including, without limitation,
any thereof by telephone, telecopy, telex, telegram or cable) believed by
it in good faith to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons. The Administrative Agent may deem and
treat each Lender as the owner of its interest hereunder for all purposes
hereof unless and until a written notice of the assignment, negotiation or
transfer thereof shall have been given to the Administrative Agent in
accordance with the provisions of this Agreement. The Administrative Agent
shall be entitled to refrain from taking or omitting to take any action in
connection with this Agreement or any other Credit Document (i) if such
action or omission would, in the reasonable opinion of the Administrative
Agent, violate any applicable law or any provision of this Agreement or any
other Credit Document or (ii) unless and until it shall have received such
advice or concurrence of the Required Lenders (or, where a higher
percentage of the Lenders is expressly required hereunder, such Lenders) as
it deems appropriate or it shall first have been indemnified to its
satisfaction by the Lenders against any and all liability and expense
(other than liability and expense arising from its own gross negligence or
willful misconduct) that may be incurred by it by reason of taking,
continuing to take or omitting to take any such action. Without limiting
the foregoing, no Lender shall have any right of action whatsoever against
the Administrative Agent as a result of the Administrative Agent's acting
or refraining from acting hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders (or, where a
higher percentage of the Lenders is expressly required hereunder, such
Lenders), and such instructions and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders (including all
subsequent Lenders).
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9.5 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representation or warranty to it and that no act by the
Administrative Agent or any such Person hereinafter taken, including any
review of the affairs of the Borrower and its Subsidiaries, shall be deemed
to constitute any representation or warranty by the Administrative Agent to
any Lender. Each Lender represents to the Administrative Agent that (i) it
has, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, properties, financial and other condition
and creditworthiness of the Borrower and its Subsidiaries and made its own
decision to enter into this Agreement and extend credit to the Borrower
hereunder, and (ii) it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking
action hereunder and under the other Credit Documents and to make such
investigation as it deems necessary to inform itself as to the business,
prospects, operations, properties, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries. Except as expressly
provided in this Agreement and the other Credit Documents, the
Administrative Agent shall have no duty or responsibility, either initially
or on a continuing basis, to provide any Lender with any credit or other
information concerning the business, prospects, operations, properties,
financial or other condition or creditworthiness of the Borrower, its
Subsidiaries or any other Person that may at any time come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
9.6 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
unless the Administrative Agent shall have received written notice from the
Borrower or a Lender referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a "notice of default."
In the event that the Administrative Agent receives such a notice, the
Administrative Agent will give notice thereof to the Lenders as soon as
reasonably practicable; provided, however, that if any such notice has also
been furnished to the Lenders, the Administrative Agent shall have no
obligation to notify the Lenders with respect thereto. The Administrative
Agent shall (subject to Sections 9.4 and 10.6) take such action with
respect to such Default or Event of Default as shall reasonably be directed
by the Required Lenders; provided that, unless and until the Administrative
Agent shall have received such directions, the Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders except to the extent
that this Agreement expressly requires that such action be taken, or not be
taken, only with the consent or upon the authorization of the Required
Lenders or all of the Lenders.
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9.7 Indemnification. To the extent the Administrative Agent is not reimbursed
by or on behalf of the Borrower, and without limiting the obligation of the
Borrower to do so, the Lenders agree (i) to indemnify the Administrative
Agent and its officers, directors, employees, agents, attorneys-in-fact and
Affiliates, ratably in proportion to their respective percentages as used
in determining the Required Lenders as of the date of determination, from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, attorneys' fees and expenses) or disbursements of any kind or
nature whatsoever that may at any time (including, without limitation, at
any time following the repayment in full of the Loans and the termination
of the Commitments) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this
Agreement or any other Credit Document or any documents contemplated by or
referred to herein or the transactions contemplated hereby or thereby or
any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing, and (ii) to reimburse the
Administrative Agent upon demand, ratably in proportion to their respective
percentages as used in determining the Required Lenders as of the date of
determination, for any expenses incurred by the Administrative Agent in
connection with the preparation, negotiation, execution, delivery,
administration, amendment, modification, waiver or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement or any of
the other Credit Documents (including, without limitation, reasonable
attorneys' fees and expenses and compensation of agents and employees paid
for services rendered on behalf of the Lenders); provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements to the extent resulting from the gross negligence or willful
misconduct of the party to be indemnified.
9.8 The Administrative Agent in its Individual Capacity. With respect to its
Commitment, the Loans made by it and the Note or Notes issued to it, the
Administrative Agent in its individual capacity and not as Administrative
Agent shall have the same rights and powers under the Credit Documents as
any other Lender and may exercise the same as though it were not performing
the agency duties specified herein; and the terms "Lenders," "Required
Lenders," "holders of Notes" and any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in
its individual capacity. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, make investments in, and generally
engage in any kind of banking, trust, financial advisory or other business
with the Borrower, any of its Subsidiaries or any of their respective
Affiliates as if the Administrative Agent were not performing the agency
duties specified herein, and may accept fees and other consideration from
any of them for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.
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9.9 Successor Administrative Agent. The Administrative Agent may resign at any
time by giving ten (10) days' prior written notice to the Borrower and the
Lenders. Upon any such notice of resignation, the Required Lenders will,
with the prior written consent of the Borrower (which consent shall not be
unreasonably withheld), appoint from among the Lenders a successor to the
Administrative Agent (provided that the Borrower's consent shall not be
required in the event a Default or Event of Default shall have occurred and
be continuing). If no successor to the Administrative Agent shall have been
so appointed by the Required Lenders and shall have accepted such
appointment within such ten-day period, then the retiring Administrative
Agent may, on behalf of the Lenders and after consulting with the Lenders
and the Borrower, appoint a successor Administrative Agent from among the
Lenders. Upon the acceptance of any appointment as Administrative Agent by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Credit Documents. After any
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this Article shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent. If no
successor to the Administrative Agent has accepted appointment as
Administrative Agent by the thirtieth (30th) day following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall thereafter perform all of the duties of the Administrative
Agent hereunder and under the other Credit Documents until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided for hereinabove.
9.10 Syndication Agent, Documentation Agent. Notwithstanding any other provision
of this Agreement or any of the other Credit Documents, the Syndication
Agent and the Documentation Agent are named as such for recognition
purposes only, and in their capacities as such shall have no powers,
rights, duties, responsibilities or liabilities with respect to this
Agreement and the other Credit Documents and the transactions contemplated
hereby and thereby.
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ARTICLE X
MISCELLANEOUS
10.1 Fees and Expenses. The Borrower agrees (i) whether or not the transactions
contemplated by this Agreement shall be consummated, to pay upon demand all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and expenses of counsel
to the Administrative Agent) in connection with the preparation,
negotiation, execution, delivery and syndication of this Agreement and the
other Credit Documents, and any amendment, modification or waiver hereof or
thereof or consent with respect hereto or thereto, (ii) to pay upon demand
all reasonable out-of-pocket costs and expenses of the Administrative Agent
and each Lender (including, without limitation, reasonable attorneys' fees
and expenses) in connection with (y) any refinancing or restructuring of
the credit arrangement provided under this Agreement, whether in the nature
of a "work-out," in any insolvency or bankruptcy proceeding or otherwise
and whether or not consummated, and (z) the enforcement, attempted
enforcement or preservation of any rights or remedies under this Agreement
or any of the other Credit Documents, whether in any action, suit or
proceeding (including any bankruptcy or insolvency proceeding) or
otherwise, and (iii) to pay and hold the Administrative Agent and each
Lender harmless from and against all liability for any intangibles,
documentary, stamp or other similar taxes, fees and excises, if any,
including any interest and penalties, and any finder's or brokerage fees,
commissions and expenses (other than any fees, commissions or expenses of
finders or brokers engaged by the Administrative Agent or any Lender), that
may be payable in connection with the transactions contemplated by this
Agreement and the other Credit Documents.
10.2 Indemnification. The Borrower agrees, whether or not the transactions
contemplated by this Agreement shall be consummated, to indemnify and hold
the Administrative Agent and each Lender and each of their respective
directors, officers, employees, agents and Affiliates (each, an
"Indemnified Person") harmless from and against any and all claims, losses,
damages, obligations, liabilities, penalties, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) of
any kind or nature whatsoever, whether direct, indirect or consequential
(collectively, "Indemnified Costs"), that may at any time be imposed on,
incurred by or asserted against any such Indemnified Person as a result of,
arising from or in any way relating to the preparation, execution,
performance or enforcement of this Agreement or any of the other Credit
Documents, any of the transactions contemplated herein or therein or any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loans, or any action, suit or
proceeding (including any inquiry or investigation) by any Person, whether
threatened or initiated, related to any of the foregoing, and in any case
whether or not such Indemnified Person is a party to any such action,
proceeding or suit or a subject of any such inquiry or investigation;
provided, however, that no Indemnified Person shall have the right to be
indemnified hereunder for any Indemnified Costs to the extent resulting
from the gross negligence or willful misconduct of such Indemnified Person.
All of the foregoing Indemnified Costs of any Indemnified Person shall be
paid or reimbursed by the Borrower, as and when incurred and upon demand.
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10.3 Governing Law; Consent to Jurisdiction. THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS HAVE BEEN EXECUTED, DELIVERED AND ACCEPTED IN, AND SHALL BE
DEEMED TO HAVE BEEN MADE IN, NORTH CAROLINA AND SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA (WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF). EACH
PARTY HEREBY CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED WITHIN THE STATE OF NORTH CAROLINA FOR ANY PROCEEDING
INSTITUTED HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS, OR ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER CREDIT
DOCUMENTS, OR ANY PROCEEDING TO WHICH THE ADMINISTRATIVE AGENT OR ANY
LENDER OR THE BORROWER IS A PARTY, INCLUDING ANY ACTIONS BASED UPON,
ARISING OUT OF, OR IN CONNECTION WITH ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER OR THE BORROWER. THE
BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF JURISDICTION OR
IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY SUCH PROCEEDING.
THE BORROWER CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR
CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH HEREINBELOW, AND SERVICE
SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT
THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER
POSTAGE PREPAID AND PROPERLY ADDRESSED. NOTHING IN THIS SECTION SHALL AFFECT THE
RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE
RIGHT OF ANY PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY IN
THE COURTS OF ANY OTHER JURISDICTION.
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10.4 Arbitration; Preservation and Limitation of Remedies. (a) Upon demand of
any party hereto, whether made before or after institution of any judicial
proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Agreement or any other Credit Document
("Disputes") between or among the Borrower, its Subsidiaries, the
Administrative Agent and the Lenders, or any of them, shall be resolved by
binding arbitration as provided herein. Institution of a judicial
proceeding by a party does not waive the right of any party to demand
arbitration hereunder. Disputes may include, without limitation, tort
claims, counterclaims, claims brought as class actions, claims arising from
documents executed in the future, disputes as to whether a matter is
subject to arbitration, or claims arising out of or connected with the
transactions contemplated by this Agreement and the other Credit Documents.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association (the "AAA"), as in effect from time to
time, and the Federal Arbitration Act, Title 9 of the U.S. Code, as
amended. All arbitration hearings shall be conducted in the city in which
the principal office of the Administrative Agent is located. A hearing
shall begin within ninety (90) days of demand for arbitration and all
hearings shall be concluded within 120 days of demand for arbitration.
These time limitations may not be extended unless a party shows cause for
extension and then for no more than a total of sixty (60) days. The
expedited procedures set forth in Rule 51 et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000. All applicable
statutes of limitation shall apply to any Dispute. A judgment upon the
award may be entered in any court having jurisdiction. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys
selected from the Commercial Financial Dispute Arbitration Panel of the
AAA. The single arbitrator selected for expedited procedure shall be a
retired judge from the highest court of general jurisdiction, state or
federal, of the state where the hearing will be conducted. Notwithstanding
the foregoing, this arbitration provision does not apply to Disputes under
or related to any Hedge Agreement that is a Credit Document. The parties do
not waive applicable federal or state substantive law except as provided
herein.
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(b) Notwithstanding the preceding binding arbitration provisions, the parties
hereto agree to preserve, without diminution, certain remedies that any
party hereto may employ or exercise freely, either alone, in conjunction
with or during a Dispute. Any party hereto shall have the right to proceed
in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, as applicable: (i) all rights of
self-help, including peaceful occupation of real property and collection of
rents, set-off, and peaceful possession of personal property;
(ii) obtaining provisional or ancillary remedies, including injunctive
relief, sequestration, garnishment, attachment, appointment of a receiver
and filing an involuntary bankruptcy proceeding; and (iii) when applicable,
a judgment by confession of judgment. Any claim or controversy with regard
to any party's entitlement to such remedies is a Dispute. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute. The parties hereto
agree that, except in the case of willful misconduct, no party shall have a
remedy of punitive or exemplary damages against any other party in any
Dispute, and each party hereby waives any right or claim to punitive or
exemplary damages that it has now or that may arise in the future in
connection with any Dispute, whether such Dispute is resolved by
arbitration or judicially. The parties acknowledge that by agreeing to
binding arbitration they have irrevocably waived any right they may have to
a jury trial with regard to a Dispute.
10.5 Notices. All notices and other communications provided for hereunder shall
be in writing (including telegraphic, telex, facsimile transmission or
cable communication) and mailed, telegraphed, telexed, telecopied, cabled
or delivered to the party to be notified at the following addresses:
(a) if to the Borrower, to 9 Farm Springs Road, Farmington, Connecticut 06032,
Attention: Treasurer, Telecopy No. (860) 674-6991, with a copy to the
attention of the Secretary, Telecopy No. (860) 674-6890;
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(b) if to the Administrative Agent, to First Union National Bank, One First
Union Center, DC-4, 301 South College Street, Charlotte, North Carolina
28288-0680, Attention: Syndication Agency Services, Telecopy No. (704)
383-0288; and
(c) if to any Lender, to it at the address set forth on its signature page
hereto (or if to any Lender not a party hereto as of the date hereof, at
the address set forth in its Assignment and Acceptance);
or in each case, to such other address as any party may designate for
itself by like notice to all other parties hereto. All such notices
and communications shall be effective upon receipt by the party to
whom sent.
10.6 Amendments, Waivers, etc. No amendment, modification, waiver or discharge
or termination of, or consent to any departure by the Borrower from, any
provision of this Agreement or any other Credit Document, shall be
effective unless in a writing signed by the Required Lenders (or by the
Administrative Agent at the direction or with the consent of the Required
Lenders), and then the same shall be effective only in the specific
instance and for the specific purpose for which given; provided however,
that no such amendment, modification, waiver, discharge, termination or
consent shall:
(a) unless agreed to by each Lender directly affected thereby, (i) reduce or
forgive the principal amount of any Loan, reduce the rate of or forgive any
interest thereon, or reduce or forgive any fees or other Obligations (other
than fees payable to the Administrative Agent for its own account), or
(ii) except as set forth in Section 2.1, extend the Maturity Date or any
other date fixed for the payment of any principal of or interest on any
Loan (other than additional interest payable under Section 2.8(b) at the
election of the Required Lenders, as provided therein), any fees (other
than fees payable to the Administrative Agent for its own account) or any
other Obligations;
(b) unless agreed to by all of the Lenders, (i) increase or extend any
Commitment of any Lender (it being understood that a waiver of any Event of
Default, if agreed to by the requisite Lenders hereunder, shall not
constitute such an increase), (ii) change the percentage of the aggregate
Commitments or of the aggregate unpaid principal amount of the Loans, or
the number or percentage of Lenders, that shall be required for the Lenders
or any of them to take or approve, or direct the Administrative Agent to
take, any action hereunder (including as set forth in the definition of
"Required Lenders" and in Section 2.1), or (iii) change any provision of
Section 2.15 or this Section; and
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(c) unless agreed to by the Administrative Agent in addition to the Lenders
required as provided hereinabove to take such action, affect the rights or
obligations of the Administrative Agent hereunder or under any of the other
Credit Documents;
and provided further that the Fee Letter may be amended or modified, and
any rights thereunder waived, in a writing signed by the parties
thereto.
10.7 Assignments, Participations. (a) Each Lender may assign to one or more
other Eligible Assignees (each, an "Assignee") all or a portion of its
rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the outstanding Loans made by it and
the Note or Notes held by it); provided, however, that (i) any such
assignment (other than an assignment to a Lender or an Affiliate of a
Lender) shall not be made without the prior written consent of the
Administrative Agent and the Borrower (to be evidenced by its
counterexecution of the relevant Assignment and Acceptance), which consent
shall not be unreasonably withheld (provided that the Borrower's consent
shall not be required in the event a Default or Event of Default shall have
occurred and be continuing), (ii) each such assignment shall be of a
uniform, and not varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement, (iii) no such assignment shall
be in an aggregate principal amount (determined as of the date of the
Assignment and Acceptance with respect to such assignment) less than
$5,000,000, determined by combining the amount of the assigning Lender's
outstanding Loans and Unutilized Commitment being assigned pursuant to such
assignment (or, if less, the entire Commitment of the assigning Lender),
and (iv) the parties to each such assignment will execute and deliver to
the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with any Note or Notes subject to
such assignment, and the Assignor and/or the Assignee will pay a
nonrefundable processing fee of $3,000 to the Administrative Agent for its
own account. Upon such execution, delivery, acceptance and recording of the
Assignment and Acceptance, from and after the effective date specified
therein, which effective date shall be at least five Business Days after
the execution thereof (unless the Administrative Agent shall otherwise
agree), (A) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of the assigning Lender hereunder with respect thereto and (B)
the assigning Lender shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than rights under the provisions
of this Agreement and the other Credit Documents relating to
indemnification or payment of fees, costs and expenses, to the extent such
rights relate to the time prior to the effective date of such Assignment
and Acceptance) and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the
remaining portion of such assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto). The terms
and provisions of each Assignment and Acceptance shall, upon the
effectiveness thereof, be incorporated into and made a part of this
Agreement, and the covenants, agreements and obligations of each Lender set
forth therein shall be deemed made to and for the benefit of the
Administrative Agent and the other parties hereto as if set forth at length
herein.
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(b) The Administrative Agent will maintain at its address for notices referred
to herein a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amount of
the Loans owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower and each Lender at any reasonable
time and from time to time upon reasonable prior notice.
(c) Upon its receipt of a duly completed Assignment and Acceptance executed by
an assigning Lender and an Assignee and, if required, counterexecuted by
the Borrower, together with the Note or Notes subject to such assignment
and the processing fee referred to in subsection (a) above, the
Administrative Agent will (i) accept such Assignment and Acceptance,
(ii) on the effective date thereof, record the information contained
therein in the Register and (iii) give notice thereof to the Borrower and
the Lenders. Within five (5) Business Days after its receipt of such
notice, the Borrower, at its own expense, will execute and deliver to the
Administrative Agent, in exchange for the surrendered Note or Notes, a new
Note or Notes to the order of the Assignee (and, if the assigning Lender
has retained any portion of its rights and obligations hereunder, to the
order of the assigning Lender), prepared in accordance with the provisions
of Section 2.4 as necessary to reflect, after giving effect to the
assignment, the Commitments of the Assignee and (to the extent of any
retained interests) the assigning Lender, dated the date of the replaced
Note or Notes and otherwise in substantially the form of Exhibit A. The
Administrative Agent will return canceled Notes to the Borrower.
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(d) Each Lender may, without the consent of the Borrower, the Administrative
Agent or any other Lender, sell to one or more other Persons other than an
insurance company, insurance holding company or any financial institution
that has a substantial interest in an insurance company, unless agreed to
by the Borrower (each, a "Participant") participations in any portion
comprising less than all of its rights and obligations under this Agreement
(including, without limitation, a portion of its Commitment, the
outstanding Loans made by it and the Note or Notes held by it); provided,
however, that (i) such Lender's obligations under this Agreement
(including, without limitation, those under Section 10.13) shall remain
unchanged and such Lender shall remain solely responsible for the
performance of such obligations, (ii) no Lender shall sell any
participation that, when taken together with all other participations, if
any, sold by such Lender, covers all of such Lender's rights and
obligations under this Agreement, (iii) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement, and no Lender shall permit any Participant to have any
voting rights or any right to control the vote of such Lender with respect
to any amendment, modification, waiver, consent or other action hereunder
or under any other Credit Document (except as to actions that would
(x) reduce or forgive the principal amount of any Loan, reduce the rate of
or forgive any interest thereon, or reduce or forgive any fees or other
Obligations, (y) extend the Maturity Date or any other date fixed for the
payment of any principal of or interest on any Loan, any fees or any other
Obligations, or (z) increase or extend any Commitment of any Lender), and
(iv) no Participant shall have any rights under this Agreement or any of
the other Credit Documents, each Participant's rights against the granting
Lender in respect of any participation to be those set forth in the
participation agreement, and all amounts payable by the Borrower hereunder
shall be determined as if such Lender had not granted such participation.
Notwithstanding the foregoing, each Participant shall have the rights of a
Lender for purposes of Sections 2.16(a), 2.16(b), 2.17, 2.18 and 8.3, and
shall be entitled to the benefits thereto, to the extent that the Lender
granting such participation would be entitled to such benefits if the
participation had not been made, provided that no Participant shall be
entitled to receive any greater amount pursuant to any of such Sections
than the Lender granting such participation would have been entitled to
receive in respect of the amount of the participation made by such Lender
to such Participant had such participation not been made.
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(e) Nothing in this Agreement shall be construed to prohibit any Lender from
pledging or assigning all or any portion of its rights and interest
hereunder or under any Note to any Federal Reserve Bank as security for
borrowings therefrom; provided, however, that no such pledge or assignment
shall release a Lender from any of its obligations hereunder.
(f) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section, disclose to the Assignee or Participant or proposed Assignee or
Participant any information relating to the Borrower and its Subsidiaries
furnished to it by or on behalf of any other party hereto, provided that
such Assignee or Participant or proposed Assignee or Participant agrees in
writing to keep such information confidential to the same extent required
of the Lenders under Section 10.13.
10.8 No Waiver. The rights and remedies of the Administrative Agent and the
Lenders expressly set forth in this Agreement and the other Credit
Documents are cumulative and in addition to, and not exclusive of, all
other rights and remedies available at law, in equity or otherwise. No
failure or delay on the part of the Administrative Agent or any Lender in
exercising any right, power or privilege shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or
privilege preclude other or further exercise thereof or the exercise of any
other right, power or privilege or be construed to be a waiver of any
Default or Event of Default. No course of dealing between any of the
Borrower and the Administrative Agent or the Lenders or their agents or
employees shall be effective to amend, modify or discharge any provision of
this Agreement or any other Credit Document or to constitute a waiver of
any Default or Event of Default. No notice to or demand upon the Borrower
in any case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the
right of the Administrative Agent or any Lender to exercise any right or
remedy or take any other or further action in any circumstances without
notice or demand.
10.9 Successors and Assigns. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto, and all references herein to any party shall be deemed
to include its successors and assigns; provided, however, that (i) the
Borrower shall not sell, assign or transfer any of its rights, interests,
duties or obligations under this Agreement without the prior written
consent of all of the Lenders and (ii) any Assignees and Participants shall
have such rights and obligations with respect to this Agreement and the
other Credit Documents as are provided for under and pursuant to the
provisions of Section 10.7.
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10.10Survival. All representations, warranties and agreements made by or on
behalf of the Borrower or any of its Subsidiaries in this Agreement and in
the other Credit Documents shall survive the execution and delivery hereof
or thereof and the making and repayment of the Loans. In addition,
notwithstanding anything herein or under applicable law to the contrary,
the provisions of this Agreement and the other Credit Documents relating to
indemnification or payment of fees, costs and expenses, including, without
limitation, the provisions of Sections 2.16(a), 2.16(b), 2.17, 2.18, 9.7,
10.1 and 10.2, shall survive the payment in full of all Loans, the
termination of the Commitments and any termination of this Agreement or any
of the other Credit Documents.
10.11Severability. To the extent any provision of this Agreement is prohibited
by or invalid under the applicable law of any jurisdiction, such provision
shall be ineffective only to the extent of such prohibition or invalidity
and only in such jurisdiction, without prohibiting or invalidating such
provision in any other jurisdiction or the remaining provisions of this
Agreement in any jurisdiction.
10.12Construction. The headings of the various articles, sections and
subsections of this Agreement have been inserted for convenience only and
shall not in any way affect the meaning or construction of any of the
provisions hereof. Except as otherwise expressly provided herein and in the
other Credit Documents, in the event of any inconsistency or conflict
between any provision of this Agreement and any provision of any of the
other Credit Documents, the provision of this Agreement shall control.
10.13Confidentiality. Each Lender agrees to exercise such care to maintain the
confidentiality of all confidential information provided to it by or on
behalf of the Borrower or any of its Subsidiaries in connection with this
Agreement or any other Credit Document that it would exercise with respect
to its own confidential information, and agrees not to use any such
information for any purpose or in any manner other than as permitted by
this Agreement; provided, however, that any Lender may disclose such
information (i) to its directors, employees and agents and to its auditors,
counsel and other professional advisors (provided that such Persons have
been made aware of the nonpublic and confidential nature of such
information and of the restrictions herein against disclosure thereof),
(ii) at the demand or request of any bank regulatory authority, court or
governmental or regulatory authority or agency having or asserting
jurisdiction over such Lender, as may be required pursuant to subpoena or
other legal process, or otherwise in order to comply with any applicable
Requirement of Law (provided that notice of any such subpoena or other
legal process shall be promptly furnished to the Borrower, unless such
notice is legally prohibited, so that the Borrower may seek an appropriate
protective order), (iii) in connection with any proceeding to enforce its
rights hereunder or under any other Credit Document or any other litigation
or proceeding related hereto to which it is a party, (iv) to the
Administrative Agent or any other Lender, (v) to the extent the same has
become publicly available other than as a result of a breach of this
Agreement and (vi) pursuant to and in accordance with the provisions and
limitations of Section 10.7(f).
81
<PAGE>
10.14Counterparts; Effectiveness. This Agreement may be executed in any number
of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. This
Agreement shall become effective upon the execution of a counterpart hereof
by each of the parties hereto and receipt by the Administrative Agent and
the Borrower of written or telephonic notification of such execution and
authorization of delivery thereof.
10.15Disclosure of Information. With the prior consent of the Borrower, which
shall not be unreasonably withheld, the Administrative Agent may disclose
information relating to this transaction to Gold Sheets and other similar
bank trade publications. Such information will consist of deal terms and
other information customarily found in such publications.
10.16Entire Agreement. THIS AGREEMENT AND THE OTHER DOCUMENTS AND INSTRUMENTS
EXECUTED AND DELIVERED IN CONNECTION HEREWITH (A) EMBODY THE ENTIRE
AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND THERETO RELATING
TO THE SUBJECT MATTER HEREOF AND THEREOF, (B) SUPERSEDE ANY AND ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS OF SUCH PERSONS, ORAL OR WRITTEN, RELATING TO
THE SUBJECT MATTER HEREOF AND THEREOF, INCLUDING, WITHOUT LIMITATION, THE
COMMITMENT LETTER FROM FIRST UNION TO THE BORROWER DATED MAY 21, 1998, BUT
SPECIFICALLY EXCLUDING THE FEE LETTER, AND (C) MAY NOT BE AMENDED,
SUPPLEMENTED, CONTRADICTED OR OTHERWISE MODIFIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the date first above written.
ORION CAPITAL CORPORATION
By: /s/ Craig A. Nyman
----------------------
Title: V.P.& Treasure
---------------------
(signatures continued)
<PAGE>
FIRST UNION NATIONAL BANK, as
Administrative Agent and as a Lender
By: /s/ Gail M. Golightly
-------------------------
Commitment:
$30,000,000 Title: Senior Vice President
----------------------------
Instructions for wire transfers to the
Administrative Agent:
First Union National Bank
ABA Routing No. 053000219
Charlotte, North Carolina
Account No.: 5000000015265
Account Name: Orion Capital Corporation
Attention: Syndication Agency Services
Address for notices as a Lender:
First Union National Bank
One First Union Center, 5th Floor
301 South College Street
Charlotte, North Carolina 28288-0735
Attention: Stuart A. Napshin
Telephone: (704) 383-3936
Telecopy: (704) 383-7611
Lending Office:
First Union National Bank
One First Union Center, 5th Floor
301 South College Street
Charlotte, North Carolina 28288-0735
Attention: Stuart A. Napshin
Telephone: (704) 383-3936
Telecopy: (704) 383-7611
(signatures continued)
<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Documentation Agent and as a Lender
By: /s/ Elizabeth W.F. Bishop
-----------------------------
Commitment:
$30,000,000 Title: Vice President
---------------------
Address for notices:
Bank of America National Trust and
Savings Association
231 South LaSalle
Chicago, Illinois 60697
Attention: Elizabeth Bishop
Telephone: (312) 828-6550
Telecopy: (312) 987-0889
Lending Office:
Bank of America National Trust and
Savings Association
231 South LaSalle
Chicago, Illinois 60697
Attention: Elizabeth Bishop
Telephone: (312) 828-6550
Telecopy: (312) 987-0889
(signatures continued)
<PAGE>
FLEET NATIONAL BANK, as Syndication
Agent and as a Lender
By: /s/ Anson Harris
--------------------
Commitment:
$30,000,000 Title: Vice President
---------------------
Address for notices:
Fleet National Bank
Mail Code: CTMO 0250
777 Main Street
Hartford, Connecticut 06115
Attention: Anson Harris
Telephone: (860) 986-7518
Telecopy: (860) 986-1264
Lending Office:
Fleet National Bank
777 Main Street
Hartford, Connecticut 06115
Attention: Anson Harris
Telephone: (860) 986-7518
Telecopy: (860) 986-1264
(signatures continued)
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Cynthia W. Priest
-------------------------
Commitment:
$20,000,000 Title: Vice President
---------------------
Address for notices:
The First National Bank of Chicago
One First National Plaza
Suite 0085
Chicago, Illinois 60670
Attention: Cynthia W. Priest
Telephone: (312) 732-9565
Telecopy: (312) 732-4033
Lending Office:
The First National Bank of Chicago
One First National Plaza
Suite 0085
Chicago, Illinois 60670
Attention: Cynthia W. Priest
Telephone: (312) 732-9565
Telecopy: (312) 732-4033
(signatures continued)
<PAGE>
MELLON BANK, N.A.
By: /s/ Susan M. Whitewood
--------------------------
Commitment:
$20,000,000 Title: Vice President
---------------------
Address for notices:
Mellon Bank, N.A.
One Mellon Bank Center
Room 370
Pittsburgh, Pennsylvania 15258
Attention: Susan Whitewood
Telephone: (412) 234-7112
Telecopy: (412) 234-8087
Lending Office:
Mellon Bank, N.A.
One Mellon Bank Center
Room 370
Pittsburgh, Pennsylvania 15258
Attention: Susan Whitewood
Telephone: (412) 234-7112
Telecopy: (412) 234-8087
(signatures continued)
<PAGE>
STATE STREET BANK AND TRUST
COMPANY
By: /s/ Edward M. Anderson
--------------------------
Commitment
$20,000,000 Title: Vice President
---------------------
Address for notices:
State Street Bank and Trust Company
105 Rosemont Road
Westwood, Massachusetts 02090-02318
Attention: Edward M. Anderson
Telephone: (781) 302-5305
Telecopy: (781) 302-8015
Lending Office:
State Street Bank and Trust Company
105 Rosemont Road
Westwood, Massachusetts 02090-02318
Attention: Edward M. Anderson
Telephone: (781) 302-5305
Telecopy: (781) 302-8015
<PAGE>
Exhibit 11
ORION CAPITAL CORPORATION AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
(UNAUDITED)
<TABLE>
<CAPTION> Three Months Ended Six Months Ended
June 30, June 30,
------------------------------ -------------------------
(In thousands, except per share data) 1998 1997 1998 1997
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
BASIC:
Weighted average number of shares outstanding 27,457 27,299 27,429 27,302
======== ======== ======== ========
Net earnings attributable to common stockholders $ 38,158 $ 25,381 $ 80,347 $ 54,859
======== ======== ======== ========
Net earnings per basis common shares $ 1.39 $ 0.93 $ 2.93 $ 2.01
======== ======== ======== ========
DILUTED:
Computation of weighted average number of
common and diluted equivalent shares
outstanding:-
Weighted average number of shares outstanding 27,457 27,299 27,429 27,302
Dilutive effect of stock options and stock awards 703 504 716 499
-------- -------- -------- --------
Weighted average number of common and
diluted equivalent shares 28,160 27,803 28,145 27,801
======== ======== ======== ========
Net earnings attributable to common stockholders $ 38,158 $ 25,381 $ 80,347 $ 54,859
======== ======== ======== ========
Net earnings per diluted common shares $ 1.36 $ 0.91 $ 2.85 $ 1.97
======== ======== ======== ========
</TABLE>
33
Exhibit 15
August 10, 1998
Orion Capital Corporation
9 Farm Springs Road
Farmington, CT 06032
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of Orion Capital Corporation and subsidiaries for the periods ended
June 30, 1998 and 1997, as indicated in our report dated July 29, 1998; because
we did not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which is included in your
Quarterly Report on Form 10-Q for the quarter ended June 30, 1998, is
incorporated by reference in Registration Statements No. 2-80636 and No.
333-58941 on Form S-8 relating to the Orion Capital Corporation 1982 Long-Term
Performance Incentive Plan, No. 333-58905 on Form S-8 relating to Orion Capital
Corporation Equity Incentive Plan, No. 2-63344 and No. 333-58889 on Form S-8
relating to the Orion Capital 401(K) and Profit Sharing Plan, No. 33-59847 and
No. 333-58939 on Form S-8 relating to the Orion Capital Corporation 1994 Stock
Option Plan for Non-Employee Directors, No. 333-44901 on Form S-8 relating to
the Wm. H. McGee & Co., Inc. 401(K) and Profit Sharing Plan, and No. 333-55671
on Form S-8 relating to Orion Capital Corporation Employees' Stock Purchase
Plan.
We also are aware that the aforementioned report, pursuant to Rule 436(c) under
the Securities Act, is not considered a part of the Registration Statement
prepared or certified by an accountant or a report prepared or certified by an
accountant within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Hartford, Connecticut
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> 7 Exhibit 27
<LEGEND>
THIS FINANCIAL SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
ORION CAPITAL CORPORATION'S FINANCIAL STATEMENTS FOR THE SIX MONTHS ENDED
JUNE 30, 1998, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-1-1998
<PERIOD-END> JUN-30-1998
<DEBT-HELD-FOR-SALE> 1,428,801
<DEBT-CARRYING-VALUE> 303,539
<DEBT-MARKET-VALUE> 312,469
<EQUITIES> 400,822
<MORTGAGE> 3,537
<REAL-ESTATE> 0
<TOTAL-INVEST> 2,554,215
<CASH> 21,269
<RECOVER-REINSURE> 662,026
<DEFERRED-ACQUISITION> 158,631
<TOTAL-ASSETS> 4,199,587
<POLICY-LOSSES> 1,963,452
<UNEARNED-PREMIUMS> 616,995
<POLICY-OTHER> 0
<POLICY-HOLDER-FUNDS> 20,993
<NOTES-PAYABLE> 209,891
<COMMON> 180,230
0
0
<OTHER-SE> 594,474
<TOTAL-LIABILITY-AND-EQUITY> 4,199,587
719,178
<INVESTMENT-INCOME> 83,913
<INVESTMENT-GAINS> 51,659
<OTHER-INCOME> 12,625
<BENEFITS> 483,025
<UNDERWRITING-AMORTIZATION> 203,895
<UNDERWRITING-OTHER> 28,287
<INCOME-PRETAX> 119,096
<INCOME-TAX> 32,683
<INCOME-CONTINUING> 80,347
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 80,347
<EPS-BASIC> 2.93
<EPS-DILUTED> 2.85
<RESERVE-OPEN> 1,390,727
<PROVISION-CURRENT> 475,402
<PROVISION-PRIOR> 7,623
<PAYMENTS-CURRENT> 234,522
<PAYMENTS-PRIOR> 266,521
<RESERVE-CLOSE> 1,377,253
<CUMULATIVE-DEFICIENCY> 7,623
</TABLE>
