<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 2000
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________________to_______________________
Commission file number 1-12338
VESTA INSURANCE GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware 63-1097283
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3760 River Run Drive 35243
Birmingham, Alabama (Zip Code)
(Address of principal executive offices)
(205) 970-7000
(Registrant's telephone number, including area code)
Not Applicable
(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. [X] Yes No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
The number of shares outstanding of the registrant's common stock,
$.01 par value, as of May 10, 2000
18,825,832
1
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VESTA INSURANCE GROUP, INC.
Index
Page
----
PART I FINANCIAL INFORMATION
Item 1. Financial Statements:
Consolidated Balance Sheets at March 31, 2000 and
December 31, 1999 ........................................... 1
Consolidated Statements of Income and Comprehensive
Income for the Three Months Ended March 31, 2000 and 1999 ... 2
Consolidated Statements of Cash Flow for the Three Months
Ended March 31, 2000 and 1999 ............................... 3
Notes to Consolidated Financial Statements .................. 4
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations ......................... 8
PART II OTHER INFORMATION
Item 1. Legal Proceedings ........................................... 14
Item 2. Changes in Securities ....................................... 15
Item 3. Defaults Upon Senior Securities ............................. 16
Item 4. Submission of Matters to a Vote of Security Holders ......... 16
Item 5. Other Information ........................................... 16
Item 6. Exhibits and Reports on Form 8-K ............................ 17
2
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PART I
Item 1. Financial Statements
VESTA INSURANCE GROUP, INC.
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands except share and per share data)
<TABLE>
<CAPTION>
March 31 December 31,
2000 1999
----------- ------------
(Unaudited)
<S> <C> <C>
Assets:
Investments:
Fixed maturities available for sale--at fair value (cost: 2000--$320,345;
1999--$348,760...................................................................... $313,369 $339,429
Equity securities--at fair value: (cost: 2000--$2,092; 1999--$2,092)................. 1,671 1,865
Short-term investments ............................................................. 78,258 125,026
-------- --------
Total investments .................................................................. 393,298 466,320
Cash................................................................................... 13,580 17,677
Accrued investment income ............................................................ 7,580 5,460
Premiums in course of collection (net of allowances for losses of $2,469 in 2000
and $2,412 in 1999) ............................................................... 32,572 41,206
Reinsurance balances receivable ...................................................... 189,078 193,345
Reinsurance recoverable on paid losses ............................................... 74,546 77,925
Deferred policy acquisition costs .................................................... 36,780 40,357
Property and equipment ............................................................... 14,461 15,602
Income tax receivable ................................................................ -- --
Deferred income taxes ................................................................ 13,816 13,489
Other assets ......................................................................... 21,784 19,514
Goodwill and other intangibles......................................................... 26,167 24,914
-------- --------
Total assets ...................................................................... $823,662 $915,809
======== ========
Liabilities:
Reserves for:
Losses and loss adjustment expenses ................................................ 331,221 354,709
Unearned premiums .................................................................. 118,313 133,029
-------- --------
449,534 487,738
Deferred gain on retroactive reinsurance ............................................. 3,275 3,275
Reinsurance balances payable ......................................................... 1,860 3,439
Other liabilities .................................................................... 13,193 33,191
Short term debt ...................................................................... -- 5,000
Long term debt ....................................................................... 107,116 141,876
-------- --------
Total liabilities .................................................................. 574,978 674,519
Commitments and contingencies (Note C)
Deferrable Capital Securities .......................................................... 41,225 41,225
Stockholders' equity
Preferred stock, $.01 par value, 5,000,000 shares authorized, issued: 2000 and
1999--2,950,000 shares............................................................... 30 30
Common stock, $.01 par value, 32,000,000 shares authorized, issued: 2000 and
1999--18,964,322 shares ........................................................... 190 190
Additional paid-in capital ........................................................... 172,272 179,046
Accumulated other comprehensive income, net of income tax (benefit) of $(2,589)
and $(3,346) in 2000 and 1999, respectively ........................................ (4,809) (6,213)
Retained earnings .................................................................... 47,852 41,862
Treasury stock (138,490 shares at cost at March 31, 2000 and December 31, 1999)........ (6,274) (13,048)
Receivable from issuance of restricted stock ......................................... (1,802) (1,802)
-------- --------
Total stockholders' equity ......................................................... 207,459 200,065
-------- --------
Total liabilities, Deferrable Capital Securities and stockholders' equity .......... $823,662 $915,809
======== ========
</TABLE>
3
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VESTA INSURANCE GROUP, INC.
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
(Amounts in thousands except per share data)
STATEMENTS OF INCOME
<TABLE>
<CAPTION>
Three months ended
March 31 ,
2000 1999
------- --------
(Unaudited)
<S> <C> <C>
Revenues:
Net premiums written ..................................................................... $56,673 $ 43,641
Decrease in unearned premiums ............................................................ 11,233 61,963
------- --------
Net premiums earned ...................................................................... 67,906 105,604
Net investment income .................................................................... 7,065 6,564
Gain on sale of assumed reinsurance renewal rights ....................................... -- 15,000
Other..................................................................................... 327 1,335
------- --------
Total revenues ......................................................................... 75,298 128,503
Expenses:
Losses and loss adjustment expenses incurred ............................................. 47,061 61,710
Policy acquisition expenses .............................................................. 10,278 35,812
Operating expenses ....................................................................... 10,250 11,675
Interest on debt ......................................................................... 3,403 3,757
Goodwill amortization .................................................................... 151 270
------- --------
Total expenses ......................................................................... 71,143 113,224
Income from continuing operations before income taxes and deferrable capital securities .... 4,155 15,279
Income taxes ............................................................................... 1,330 4,794
Deferrable capital securities interest, net of income tax .................................. 571 1,362
------- --------
Income from continuing operations ...................................................... $ 2,254 $ 9,123
Income(loss) from discontinued operations, net of tax....................................... -- (330)
------- --------
Income before extraordinary item............................................................ 2,254 8,793
Gain on debt extinguishments, net of tax.................................................... 4,567 --
------- --------
Net income.................................................................................. 6,821 8,793
Preferred stock dividend.................................................................... 563 --
------- --------
Income available to common shareholders..................................................... $ 6,258 $ 8,793
======= ========
Basic net income from continuing operations per common share................................ $ .12 $ .49
======= ========
Basic net income available to common stockholders per common share.......................... $ .33 $ .47
======= ========
Diluted net income from continuing operations per common share.............................. $ .09 $ .49
======= ========
Diluted net income per common share......................................................... $ .28 $ .47
======= ========
Dividends declared per common share......................................................... $ .0125 $ --
======= ========
</TABLE>
STATEMENTS OF COMPREHENSIVE INCOME
<TABLE>
<CAPTION>
<S> <C> <C>
Net income.................................................................................. $ 6,821 $ 8,793
Other comprehensive income, net of tax:
Unrealized gains (losses) on available-for-sale securities net of applicable taxes
(benefit) of $756 and $(1,002) in 2000 and 1999, respectively.......................... 1,404 (1,861)
------- --------
Comprehensive Income........................................................................ $ 8,225 $ 6,932
======= ========
</TABLE>
See accompanying Notes to Consolidated Financial Statements
4
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VESTA INSURANCE GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOW
(Dollar amounts in thousands)
<TABLE>
<CAPTION>
Three months ended
March 31,
2000 1999
-------- --------
(Unaudited)
<S> <C> <C>
Operating Activities:
Net Income .......................................................................... $ 6,821 $ 8,793
Adjustments to reconcile net income to cash used in operations:
Change in:
Loss and LAE reserves ......................................................... (23,488) (20,969)
Unearned premium reserve ...................................................... (14,716) (47,526)
Reinsurance balances payable .................................................. (1,579) 8,881
Accrued income taxes .......................................................... 1,328 7,507
Other liabilities ............................................................. (20,827) (11,928)
Premiums in course of collection .............................................. 8,634 4,330
Reinsurance balances receivable ............................................... 4,267 (17,389)
Reinsurance recoverable on paid losses ........................................ 3,379 16,113
Other assets .................................................................. (5,643) (2,684)
Policy acquisition costs amortized ............................................... 10,278 39,246
Policy acquisition costs deferred ................................................ (6,701) (13,198)
Amortization and depreciation .................................................... 1,284 1,564
Gain on debt extinguishments....................................................... (6,717) --
Gain on disposition of property, plant and equipment ............................. -- (29)
-------- --------
Net cash used in operations ................................................... (43,680) (27,289)
Investing Activities:
Investments sold or matured:
Fixed maturities available for sale--matured, called or sold ..................... 37,926 29,778
Investments acquired:
Fixed maturities available for sale .............................................. (12,066) (1,000)
Net decrease (increase) in short-term investments ................................... 46,768 (8,068)
Additions to property, plant and equipment .......................................... -- (924)
Dispositions of property, plant and equipment ....................................... -- 31
-------- --------
Net cash provided from investing activities ................................... 72,628 19,817
Financing Activities:
Net proceeds (disposition)long and short term debt .................................. (33,045) --
Dividends paid ...................................................................... -- (698)
Capital contributions and change in receivable from restricted stock ................ (584)
-------- --------
Net cash used in financing activities ......................................... (33,045) (1,282)
Increase (decrease) in cash ........................................................... (4,097) (8,754)
Cash at beginning of period ........................................................... 17,677 25,321
-------- --------
Cash at end of period ................................................................. $ 13,580 $ 16,567
======== ========
</TABLE>
See accompanying Notes to Consolidated Financial Statements
5
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VESTA INSURANCE GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands)
Note A--Significant Accounting Policies
Basis of Presentation: The accompanying unaudited financial statements have
been prepared in conformity with generally accepted accounting principles and,
in the opinion of management, reflect adjustments (consisting of normal
recurring accruals) necessary for a fair presentation of results for such
periods. The results of operations and cash flows for any interim period are not
necessarily indicative of results for the full year. These financial statements
should be read in conjunction with the financial statements and related notes
thereto in the Company's audited consolidated balance sheets as of December 31,
1999 and 1998 and the related consolidated statements of operations,
stockholders' equity and cash flows for each of the three years in the period
ended December 31, 1999 which were filed with the Securities and Exchange
Commission on Form 10-K dated March 30, 2000. Certain amounts in the financial
statements presented have been reclassified from amounts previously reported in
order to be comparable between years. These reclassifications have no effect on
previously reported stockholders' equity or net income during the period
involved.
Income per share: Basic weighted average common shares outstanding for the
three month period ended March 31, 2000 and 1999 was 18,825,832 and 18,691,120,
respectively. Basic EPS is computed by dividing income available to common
stockholders by the weighted average common shares outstanding for the period.
Diluted EPS is calculated by adding to shares outstanding the additional net
effect of potentially dilutive securities or contracts which could be exercised
or converted into common shares and adding back preferred stock dividends to net
income available to common shareholders. Diluted weighted average shares
outstanding for the three month period ended March 31, 2000 and 1999 was
24,764,974 and 18,691,120, respectively.
Earnings per share for discontinued operations and extraordinary gains are as
follows:
March 31,
2000 1999
---- -----
Basic Earnings per share
Discontinued Operations $ -- $(.02)
Extraordinary Gain $.24 --
Diluted Earnings per share
Discontinued Operations $ -- $(.02)
Extraordinary Gain $.19 --
Note B--Extinguishment of Long Term Debt
The Company recorded an extraordinary gain of $4.6 million after taxes as a
result of the early redemption of approximately $21.5 million of its 12.5%
Senior Notes due December 30, 2006 and approximately $13.1 million of its 8.75%
Senior Debentures due July 15, 2025. The cash requirements for the early
redemptions was internally generated. The warrants attached to the 12.5% Senior
Notes have been cancelled.
Note C--Commitments and Contingencies
Securities Litigation
Subsequent to the filing of its quarterly report on Form 10-Q for the period
ended March 31, 1998 with the Securities and Exchange Commission, the Company
became aware of certain accounting irregularities consisting of inappropriate
reductions of reserves and overstatements of premium income in the Company's
reinsurance business that had been recorded in the fourth quarter of 1997 and
the first quarter of 1998. The Company promptly commenced an internal
investigation to determine the exact scope and amount of such reductions and
overstatements. This investigation concluded that inappropriate amounts had, in
fact, been recorded and the Company determined it should restate its previously
issued 1997 financial statements and first quarter 1998 Form 10-Q. Additionally,
during its internal investigation the Company re-evaluated the accounting
methodology being utilized to recognize earned premium income in its reinsurance
business. The Company had historically reported certain assumed reinsurance
premiums as earned in the year in which the related reinsurance contracts were
entered even though the terms of those contracts frequently bridged two years.
The Company determined that reinsurance
6
<PAGE>
premiums should be recognized as earned over the contract period and corrected
the error in its accounting methodology by restating previously issued financial
statements. The Company issued press releases, which were filed with the
Securities and Exchange Commission, on June 1, 1998 and June 29, 1998 announcing
its intention to restate its historical financial statements.
The Company restated its previously issued financial statements for 1995, 1996
and 1997 and its first quarter 1998 Form 10-Q for the above items by issuance of
a current report on Form 8-K dated August 19, 1998. These restatements resulted
in a cumulative decrease to stockholder's equity of $75.2 million through March
31, 1998.
Commencing in June 1998, Vesta and several of its current and former officers
and directors were named in several purported class action lawsuits in the
United States District Court for the Northern District of Alabama and in one
purported class action lawsuit in the Circuit Court of Jefferson County,
Alabama. Several of Vesta's officers and directors also have been named in a
derivative action lawsuit in the Circuit Court of Jefferson County, Alabama, in
which Vesta is a nominal defendant.
The class action lawsuit filed in the Circuit Court of Jefferson County,
Alabama has been dismissed and the derivative case has been placed on the
administrative docket. The class actions filed in the United States District
Court for the Northern District of Alabama have been consolidated into a single
action in that district. The class representatives in that action have filed (a)
a consolidated amended complaint alleging that the defendants violated the
federal securities laws and (b) a motion for class certification, which was
granted in 1999. The consolidated amended complaint also added as defendants
Torchmark Corporation and the Company's predecessor auditors, KPMG Peat Marwick,
LLP. The consolidated amended complaint alleges various violations of the
federal securities law and seeks unspecified but potentially significant
damages.
The Company has notified its directors and officers liability insurance
companies of these lawsuits and the consolidated amended complaint. The
litigation is still in the preliminary stages and there has been no discovery
conducted in the securities case. The Company intends to vigorously defend this
litigation and intends to explore all available rights and remedies it may have
under the circumstances. In related litigation, in September, 1998, Cincinnati
Insurance Company ("Cincinnati"), one of the Company's directors and officers
liability insurance carriers, filed a lawsuit in the United States District
Court for the Northern District of Alabama seeking to avoid coverage under its
directors and officers liability and other policies. The Company filed a motion
to dismiss Cincinnati's complaint on jurisdictional grounds in federal court
(which was granted), and filed a lawsuit against Cincinnati in the Circuit Court
of Jefferson County, Alabama seeking damages arising out of Cincinnati's
actions. Cincinnati has filed an answer and counterclaim in that case again
seeking to avoid coverage.
Indemnification Agreements And Liability Insurance
Pursuant to Delaware law and by-laws, the Company is obligated to indemnify
its current and former officers and directors for certain liabilities arising
from their employment with or service to the Company. The Company believes that
these indemnification obligations extend to its current and former officers' and
directors' costs of defense and other liabilities which may arise out of the
securities litigation described above.
The Company has purchased directors' and officers' liability insurance ("D&O
insurance") for the purposes of covering among other things the costs incurred
in connection with these indemnification obligations. For the period in which
most of the claims against the Company and certain of its directors and officers
were asserted, the Company had in place a primary D&O insurance policy providing
$25 million in coverage and an excess D&O insurance policy covering for an
additional $25 million in coverage. The issuer of the primary D&O insurance
policy, Cincinnati, has attempted to avoid coverage as discussed above, and the
Company is vigorously resisting its efforts to do so.
Subsequent to the initiation of the class actions described above, the Company
secured additional excess D&O insurance providing coverage for losses in excess
of $50 million up to $110 million, or additional excess coverage of $60 million
for the class actions. The Company paid for this additional excess policy in
full in 1998.
There matters are in their early stages and their ultimate outcome cannot be
determined. Accordingly, the Company has not currently set aside any financial
reserves relating to any of the above-referenced actions.
7
<PAGE>
Other Litigation and Arbitration
The Company, through its subsidiaries, is routinely a party to pending or
threatened legal proceedings and arbitration relating to the regular conduct of
its insurance business. These proceedings involve alleged breaches of contract,
torts, including bad faith and fraud claims and miscellaneous other specified
relief. Based upon information presently available, and in light of legal and
other defenses available to the Company and its subsidiaries, management does
not consider liability from any threatened or pending litigation regarding
routine matters to be material.
As discussed above, the Company corrected its accounting for assumed
reinsurance business through restatement of its previously issued financial
statements. Similar corrections were made on a statutory accounting basis
through recording cumulative adjustments in Vesta Fire's 1997 statutory
financial statements. The impact of this correction has been reflected in
amounts ceded under the Company's 20 percent whole account quota share treaty
which was terminated on June 30, 1998 on a run-off basis. The Company believes
such treatment is appropriate under the terms of this treaty and has calculated
the quarterly reinsurance billings presented to the three treaty participants
accordingly. The aggregate amount included herein as recoverable from such
reinsurers totaled $54.4 million at March 31, 1999. The Company has collected
approximately $48.5 million from significant reinsurers via the conversion of
collateral on hand.
NRMA, one of the participants in the 20 percent whole account quota share
treaty, has filed a lawsuit in the United States District Court for the
Northern District of Alabama contesting the Company's claim and the validity of
the treaty, and is seeking return of the $34.5 million. The Company has filed a
demand for arbitration as provided for the treaty and has filed a motion to
compel arbitration which was recently granted in a United States District Court
action. The Company has filed for arbitration against the other two participants
on the treaty and those arbitrations are in their early stages. While management
believes its interpretation of the treaty's terms and computations based thereon
are correct, these matters are in their early stages and their ultimate outcome
cannot be determined at this time.
A dispute has arisen with F&G Re (on behalf of USF&G) under two aggregate stop
loss reinsurance treaties whereby F&G assumed certain risk from the Company.
During 1999, F&G Re filed for arbitration under those two treaties.
While management believes its interpretation of the treaties' terms and
computations based thereon are correct, this arbitration is in its early stages
and its ultimate outcome cannot be determined at this time.
On September 23, 1999, Torchmark Corporation, the Company's largest common
stockholder, filed a lawsuit in the Circuit Court of Jefferson County, Alabama
against the Company asserting breach of contract, conversion and breach of duty
in connection with the Company's preparation and filing of a registration
statement covering its shares in accordance with certain registration rights
claimed by Torchmark. This claim seeks an injunction requiring a registration
statement to be filed, as well as compensatory and punitive damages. This
litigation is in its early stages, and management is unable to assess the
damages that may be awarded, if any. However, management does not believe that
such damages, if any, would materially and adversely affect the Company's
financial position or results of operations.
On June 23, 1999, a subsidiary of Torchmark filed suit in the Circuit Court of
Jefferson County, Alabama against two subsidiaries of the Company. The lawsuit
claims that the Company's subsidiaries have failed to pay certain sums due under
a marketing and administrative services agreement between the parties. The suit
also seeks payment of certain commissions and administrative expenses. This
litigation is in its early stages, and management is unable to assess the
damages that may be awarded, if any. However, management does not believe that
such damages, if any, would materially and adversely affect the Company's
financial position or results of operations.
8
<PAGE>
Note D--Subsequent Event
On April 3, 2000, the Company redeemed approximately $22.5 million of its 12.5%
Senior Notes, due December 30, 2006. The 12.5% Senior Notes have been
completely redeemed with the closing of this transaction. The cash requirement
for the early redemption was generated by a combination of internally generated
funds and a $5 million draw down on the Company's line of credit.
Note E--Segment Information
<TABLE>
<CAPTION>
Period Ended March 31,
------------------------
2000 1999
-------- ----------
<S> <C> <C>
Reinsurance operations
Net premiums earned ................................................................. $ 11,341 $ 33,166
Net investment income and realized gain ............................................. 1,176 2,368
Gain on sale of renewal rights ...................................................... -- 15,000
Underwriting gain (loss) ............................................................ 3,701 (2,650)
-------- ----------
Total Reinsurance operations........................................................ 4,877 14,718
Personal operations
Net premiums earned ................................................................. 56,565 72,438
Net investment income and realized gain ............................................. 5,889 4,809
Other income ........................................................................ 327 1,063
Underwriting gain (loss) ............................................................ (3,384) (1,284)
-------- ----------
Total Personal operations........................................................... 2,832 4,588
Commercial operations(discontinued)
Net premiums earned ................................................................. 2,320 18,553
Net investment income and realized gain ............................................. 241 1,232
Other income/(expense) .............................................................. 9 272
Underwriting loss ................................................................... (250) (2,012)
-------- ----------
Total Commercial operations (discontinued).......................................... 0 (508)
Other operations
Interest expense .................................................................... 3,403 3,757
Goodwill.............................................................................. 151 270
-------- ----------
Total pretax income from operations ............................................... $ 4,155 $ 14,771
======== ==========
Total indentifiable assets
Reinsurance operations
Investments and other assets ...................................................... $ 70,013 $ 393,400
Deferred acquisition costs ........................................................ 6,555 27,127
Personal operations
Investments and other assets ...................................................... 691,117 528,421
Deferred acquisition costs ........................................................ 29,897 39,644
Commercial operations
Investments and other assets ....................................................... 99,008 285,839
Deferred acquisition costs ......................................................... 328 8,138
-------- ----------
Total assets ...................................................................... $826,905 $1,282,569
======== ==========
</TABLE>
9
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
Results of Operations
The Company writes primary insurance on selected Personal lines risks only,
balanced between risks of property damage (which is susceptible to faster
determination of ultimate loss but is highly unpredictable) and casualty
exposure (which is more predictable but takes longer to determine the ultimate
loss).
In the past, we also wrote primary insurance on a variety of Commercial Lines
risks, as well as treaty Reinsurance for small and mid-size insurance companies
and regional specific Reinsurance for large insurance companies. In each of
these segments, we focused principally on property coverages, for which ultimate
losses generally can be more promptly determined than on casualty risks. In
1999, we sold the rights to a substantial portion of our reinsurance assumed
business for a pre-tax gain of $15 million (a large block of policies 100%
reinsured from CIGNA was retained and is being converted from assumed to
direct), and decided to discontinue our commercial lines segment. The
commercial lines segment is discussed herein as a discontinued operation.
Our revenues from operations are derived primarily from net premiums earned on
risks written or reinsured by our insurance subsidiaries, investment income and
investment gains or losses. Our expenses consist primarily of payments for
claims and underwriting expenses, including agents' commissions and operating
expenses.
Known Trends and Uncertainties
Significant factors influencing results of operations include the supply and
demand for property and casualty insurance as well as the number and magnitude
of catastrophic losses such as hurricanes, windstorms, fires and severely cold
weather.
The Company seeks to manage its risk exposure by adjusting the mix and volume
of business written in response to changes in price and maintaining extensive
reinsurance.
The Company has historically followed a practice of reinsuring a portion of
its primary business to reduce the variability of its earnings. The Company's
loss reserve levels historically have remained relatively stable from year to
year despite changes in premium volume. The Company is continuing to cede
portions of insurance risks while using its capital base to gradually increase,
on a selective basis, its retention of certain property risks.
Because catastrophe loss events are by their nature unpredictable, historical
results of operations may not be indicative of expected results of future
operations. The Company markets its primary personal insurance products
throughout the United States. While the Company seeks to reduce its exposure to
catastrophic events through the purchase of reinsurance, the occurrence of one
or more major catastrophes in any given period could have a material adverse
impact on the Company's results of operations and financial condition and could
result in substantial outflows of cash as losses are paid.
Other certain known trends and uncertainties which may affect our future
results are discussed more fully below.
Competition: The property and casualty insurance industry is highly
competitive on the basis of both price and service. In recent years there has
been a trend in the property and casualty industry toward consolidation which
could result in even more competitive pricing. We also face competition from
foreign insurance companies, captive insurance companies and risk retention
groups. In the future, the industry, including us, may face increasing insurance
underwriting competition from banks and other financial institutions.
Litigation: See "Part II Item 1--Legal Proceedings" and Note C to the
Consolidated Financial Statements for discussion of the current status of
litigation.
Reliance on Performance of Reinsurers: We evaluate the credit quality of the
reinsurers and retrocessionares to which we cede business. No assurance can be
given regarding the future ability of any of our reinsurers to meet their
obligations.
10
<PAGE>
Inflation: We do not believe our results over the last three fiscal years have
been materially affected by inflation due in part to the predominantly short-
tail nature of our business. The potential adverse impacts of inflation include:
(i) a decline in the market value of our fixed maturity investment portfolio,
(ii) an increase in the ultimate cost of settling claims which remain unsettled
for a significant period of time, and (iii) an increase in our operating
expenses. Historically, the effect of inflation on our reserves has not been
material.
Comparison of First Quarter 2000 to First Quarter 1999
Net income decreased by $2.0 million, or 22.7%, to $6.8 million for the
quarter ended March 31, 2000, from $8.8 million for the quarter ended March 31,
1999. On a diluted per share basis, net income for the first quarter of 2000 was
$.28 per share versus net income of $.47 per share for the first quarter of
1999. The decrease in net income is primarily attributable to a $9.8 million
after tax gain from the sale of certain reinsurance renewal rights in the
reinsurance segment in the first quarter of 1999 partially offset by a $4.6
million extraordinary gain from extinguishment of debt recorded in the first
quarter of 2000.
Premiums, Loss and LAE--Personal Lines
Gross premiums written for personal lines decreased by $19.5 million, or
26.4%, to $54.4 million for the quarter ended March 31, 2000, from $73.9 million
for the quarter ended March 31, 1999. The decline in personal lines gross
written premiums is primarily attributable to the sale of Vesta County Mutual
which accounted for $16.9 million of gross written premium in the first quarter
of 1999. The remaining $2.6 million decrease in gross premium written was due to
declines in the homeowner's and auto lines.
Net premiums written for personal lines decreased by $16.8 million, or 25.4%,
to $49.1 million for the quarter ended March 31, 2000, from $65.9 million for
the quarter ended March 31, 1999. Net premiums earned for personal lines
decreased $15.9 million, or 21.9% to $56.5 million for the quarter ended March
31, 2000, from $72.4 million for the quarter ended March 31, 1999. The decrease
in net premiums written and net premiums earned are primarily attributable to
the decrease in gross written premiums.
Loss and loss adjustment expenses ("LAE") for personal lines decreased by
$6.8 million, or 14.6%, to $39.8 million for the quarter ended March 31, 2000,
from $46.6 million for the quarter ended March 31, 1999. The loss and LAE ratio
for personal lines for the quarter ended March 31, 2000 was 70.4% as compared to
64.3% at March 31, 1999. The decrease in loss and LAE incurred is primarily
attributable to the decline in earned premium. The increase in the loss and LAE
ratio is primarily attributable to higher losses from multiple storms occurring
during the quarter.
Premiums, Loss and LAE--Reinsurance
Gross premiums written for reinsurance increased by $23.3 million, or 163.0%
to $9.0 million for the quarter ended March 31, 2000 from $(14.3) million for
the quarter ended March 31, 1999. The increase in gross written premiums is
primarily attributable to the novation of certain treaties to Hart Re in the
first quarter of 1999.
Net premiums written for reinsurance increased by $29.8 million, or 133.6% to
$7.5 million for the quarter ended March 31, 2000 from $(22.3) million for the
quarter ended March 31, 1999. The increase in net written premiums for
reinsurance is primarily attributable to the large unearned portfolio transfer
in the first quarter of 1999 related to the 100% reinsurance quota share treaty
entered into effective January 1, 1999 with Hart Re. Net premiums earned
decreased $21.8 million, or 65.8% to $11.4 million for the quarter ended March
31, 2000, from $33.2 million for the quarter ended March 31, 1999. The decline
in net premiums earned was primarily attributable to the sale of a substantial
portion of our reinsurance assumed business to Hart Re.
Loss and LAE for reinsurance decreased by $7.8 million, or 51.9%, to $7.3
million for the quarter ended March 31, 2000, from $15.1 million for the quarter
ended March 31, 1999. The loss and LAE ratio for assumed reinsurance for the
quarter ended March 31, 2000 was 64.1% as compared to 64.3% for the quarter
ended March 31, 1999. The decrease in loss and LAE incurred for assumed
reinsurance was primarily due to a decrease in net premiums earned.
11
<PAGE>
Policy Acquisition Expenses and Other Expenses from Continuing Operations
Policy acquisition expenses decreased by $25.5 million, or 71.3% to $10.3
million for the quarter ended March 31, 2000, from $35.8 million for the quarter
ended March 31, 1999. The decrease in policy acquisition expenses is primarily
attributable to declines in earned premium. Other expenses include operating
expenses not directly related to the generation of premium revenue, interest on
debt and goodwill amortization. Operating expenses decreased $1.4 million. These
factors caused the underwriting expense ratio to decrease from 45.0% in the
first quarter of 1999 to 30.3% in the first quarter of 2000.
Net Investment Income from Continuing Operations
Net investment income increased by $.5 million, or 7.6%, to $7.1 million for
the quarter ended March 31, 2000, from $6.6 million for the quarter ended March
31, 1999. The weighted average yield on invested assets (excluding realized and
unrealized gains) was 8.7% for the quarter ended March 31, 2000, compared with
6.0% for the quarter ended March 31, 1999. The increase in investment income is
primarily attributable to the increased investment yield resulting from a lower
percentage of tax exempt securities in the current portfolio.
Federal Income Taxes
Federal income taxes decreased by $3.5 million, or 72.9%, to $1.3 million for
the quarter ended March 31, 2000. The effective rate on pre-tax income was 32.0%
for the quarters ended March 31, 2000 and 1999.
Income/(loss) from discontinued operations, net of tax
Net premiums earned for commercial lines decreased by $16.2 million, or
87.5%, to $2.3 million for the quarter ended March 31, 2000, from $18.5 million
for the quarter ended March 31, 1999 as a result of the Company's exit from the
commercial lines.
Loss and LAE for commercial lines decreased by $10.1 million, or 87.6%, to
$1.4 million for the quarter ended March 31, 2000, from $11.5 million for the
quarter ended March 31, 1999. The loss and LAE ratio for the quarter ended March
31, 2000 was 61.5% as compared to 38.0% for the quarter ended March 31, 1999.
The increase in loss and LAE ratio is primarily attributable to run off of the
commercial lines business. Policy acquisition expenses decreased $4.2 million as
a result of decreased earned premium. Operating expenses decreased $3.9 million,
from $4.4 million for the quarter ended March 31, 1999 to $.5 million for the
quarter ended March 31, 2000. The decrease was largely attributable to reduced
expenses from workforce reductions consistent with discontinuing the business.
Liquidity and Capital Resources
Vesta is a holding company whose principal asset is its investment in the
capital stock of the companies constituting the Vesta Group, a group of wholly
owned property and casualty insurance companies including Vesta Fire. The
insurance subsidiaries comprising the Vesta Group are individually supervised by
various state insurance regulators. Vesta Fire is our principal operating
subsidiary and reinsures substantially all business from our other operating
subsidiaries.
Dividends
The principal uses of funds at the holding company level are to pay operating
expenses, principal and interest on outstanding indebtedness and deferrable
capital securities and dividends to stockholders if declared by the Board of
Directors. During the last three years, our insurance subsidiaries have produced
operating results and paid dividends sufficient to fund our needs. Except for
the regulatory restrictions described above, we are not aware of any demands or
commitments of the insurance subsidiaries that would prevent them from paying
dividends sufficient to meet our anticipated needs (including debt service) for
at least the next twelve months.
As a holding company with no other business operations, we rely primarily upon
dividend payments from Vesta Fire to meet our cash requirements (including its
debt service) and to pay dividends to our stockholders.
12
<PAGE>
Transactions between Vesta and its insurance subsidiaries, including the payment
of dividends to Vesta by such subsidiaries, are subject to certain limitations
under the insurance laws of those subsidiaries' domiciliary states. The
insurance laws of the state of Illinois, where Vesta Fire is domiciled, permit
the payment of dividends in any year which, together with other dividends or
distributions made within the preceding 12 months, do not exceed the greater of
10% of statutory surplus as of the end of the preceding year or the net income
for the preceding year, with larger dividends payable only after receipt of
prior regulatory approval.
Non-recurring Sources
On September 30, 1999, we established collateralized revolving credit
facilities in the aggregate amount of $20 million with The Banc Corporation and
its banking subsidiary The Bank, consisting of a $15 million loan from The Bank
and a $5 million loan from The Banc Corporation
On December 30, 1999, we repaid $15 million of the principal amount
outstanding under The Banc credit facilities and cancelled the related credit
agreements. In connection with the repayment of this debt, we restructured our
commercial credit facility to consist of the following lines of credit, each of
which was provided by The Bank:
. a $5 million unsecured line;
. an additional $10 million line, secured by a pledge of the management
contract between our wholly owned management company, J. Gordon Gaines,
Inc., and our operating insurance subsidiaries.
Each of these credit facilities bore interest at The Bank's prime rate and were
to mature on December 29, 2001. As of December 31, 1999, we had borrowed all $5
million available under the unsecured line, and we had not borrowed any amounts
under the $10 million secured line. On February 29, 2000 we repaid the
remaining $5 million outstanding on the revolving line of credit and cancelled
the related credit agreement effective February 29, 2000.
On March 3, 2000 we established a revolving credit facility with First
Commercial Bank, Birmingham, Alabama ("First Commercial") which consists of the
following lines of credit:
. a $7.5 million unsecured line which bears interest at First Commercial's
prime rate +1/4%;
. an additional $7.5 million line which bears interest at First Commercial's
prime rate, secured by a pledge of the management contract between our
wholly owned management company, J. Gordon Gaines, Inc., and our operating
insurance subsidiaries.
Each of these newly established credit facilities mature on December 31, 2002.
In addition, the credit agreements related to these facilities contain typical
financial covenants which require us to maintain certain financial standards.
As of March 31, 2000, $15 million of the credit facility is available.
Subsequently on April 3, 2000 the Company drew $5 million from the credit
facility to partially fund a debt repurchase.
Long Term Debt and Preferred Stock
In 1995, we issued $100 million principal amount of our 8.75% Senior
Debentures due 2025. As of December 31, 1999, all $100 million of these senior
debentures remained outstanding. We purchased $4.5 million of these Senior
Debentures from one of the holders for approximately $3.3 million plus accrued
interest through March 14, 2000. Also on March 27, 2000 we purchased $8.7
million of these Senior Debentures from one of the holders for approximately
$6.5 million, plus accrued interest, through the closing date of the
transaction.
In 1997, our single purpose finance subsidiary, Vesta Capital Trust I, issued
$100 million principal amount of its 8.525% Deferrable Interest Capital
Securities. We have unconditionally guaranteed Vesta Capital Trust's obligation
to make semi-annual distributions on these capital securities, and we have
issued a debenture in a like amount to Vesta Capital Trust which requires us to
make interest payments in the same amounts and at the same time as the
distributions which are payable on these capital securities. The terms of the
capital securities and the underlying debenture permit us to defer interest
payments on the debentures, and, therefore, distributions on the capital
securities, for up to ten years. We exercised this right of deferral with
respect to the semi-annual payment originally due July 15, 1999. While we have
elected to resume payment on these capital securities effective January 15,
2000, including all accrued amounts due since July 15, 1999, we may elect to
defer payments again in the future.
13
<PAGE>
In the event we elect to defer such payments again in the future, we will not be
permitted to pay any dividends on our common stock or other equity securities,
including the preferred stock held by the Birmingham Investment Group, LLC.
On December 30, 1999, the Company exchanged $58.8 million of the Deferrable
Capital Securities for $44.1 million of 12.5% Senior Notes, due 2005. The
resulting after-tax gain of $9.5 million was recorded directly to retained
earnings. As of December 31, 1999, approximately $41.2 million of the 8.525%
Deferrable Capital Securities and $44.1 million of the 12.50% Senior Notes
remained outstanding. On March 20, 2000, we purchased approximately $21.6
million of these Senior Notes from one of the holders for approximately $17.7
million plus accrued interest through March 14, 2000. On April 3, 2000, we
redeemed the remaining $22.5 million 12.5% Senior Notes for approximately $20.5
million plus accrued interest through April 7, 2000.
On September 30, 1999, we issued approximately $25 million of our Series A
Convertible Preferred Stock to the Birmingham Investment Group, LLC in which we
sold 2,950,000 shares of our preferred stock at $8.50 per share. Each share of
the preferred stock is convertible into two shares of our common stock and
carries a cumulative dividend rate of 9%, compounded semi-annually. The
preferred stock will automatically be converted into shares of common stock at
the date at which our common stock achieves an average closing price of $8.00
per share for twenty consecutive trading days. As of March 31, 2000, all $25
million of this preferred stock remained outstanding.
Annual distribution obligations for the Company's long term debt and preferred
stock outstanding at March 31, 2000 are as follows:
<TABLE>
<CAPTION>
Security Principal Annual Interest Obligation
- ------------------------------------- ------------------------------ --------------------------------
<S> <C> <C>
8.75% Senior Debentures due 2025 $86.8 million $7.6 million
8.525% Deferrable Capital Securities
due 2027 $41.2 million $3.5 million
12.5% Senior Notes due 2005 $22.5 million $2.8 million
Series A convertible Preferred Stock $25 million $2.25 million
</TABLE>
Subsidiaries
The principal sources of funds for our insurance subsidiaries are premiums,
investment income and proceeds from the sale or maturity of invested assets.
Such funds are used principally for the payment of claims, operating expenses,
commissions and the purchase of investments. On a consolidated basis, net cash
used in operations for the period ended March 31, 2000 and 1999, was $(43.7)
million and $(27.3) million, respectively. The net cash used in operations is
primarily attributable to the declines in loss reserves and unearned premium
reserves as a result of the Company's exit from the reinsurance assumed and
commercial lines business.
As of March 31, 2000, the Company's investment portfolio consisted of short-
term investments (20.4%), U.S. Government securities (15.5%), mortgage-backed
securities (20.4%), corporate bonds (32.9%), foreign government securities
(0.9%), municipal bonds (7.1%) and equity securities (0.5%). The Company expects
current cash flow to be sufficient to meet operating needs, although invested
assets have been categorized as available for sale in the event short-term cash
needs exceed available resources. The Company adjusts its holdings of cash,
short-term investments and invested assets available for sale according to its
seasonal cash flow needs.
Inflation
The Company does not believe its results have been materially affected by
inflation due in part to the predominantly short-tail nature of its business.
The potential adverse impacts of inflation include: (i) a decline in the market
value of the Company's fixed maturity investment portfolio; (ii) an increase in
the ultimate cost of settling claims which remain unresolved for a significant
period of time; and (iii) an increase in the Company's operating expenses.
Historically, the effect of inflation on the Company's reserves has not been
material.
Market Risk of Financial Instruments
14
<PAGE>
Vesta's principal assets are financial instruments, which are subject to the
market risk of potential losses from adverse changes in market rates and prices.
The Company's primary risk exposures are interest rate risk on fixed maturity
investments and equity price risk for domestic stocks. Vesta manages its
exposure to market risk by selecting investment assets with characteristics such
as duration, yield and liquidity to reflect the underlying characteristics of
the related insurance.
Year 2000
We do not believe we experienced any material operational problems as a result
of the date change to the Year 2000. However, the Y2K issue is also a concern
from an underwriting standpoint regarding the extent of liability for coverage
under various general liability, property and directors and officers liability
and product policies. We believe that minimal coverage could exist under some
current liability and product policies. This exposure should be minimal as
Commercial Lines business has historically excluded any manufacturing risks
which produce computer and computer dependent products.
The Insurance Services Office ("ISO") recently developed policy language
providing that there is no coverage for certain Y2K occurrences. The liability
exclusion has been accepted in over forty states and a companion filing for
property has been accepted in at least twenty states at this time. Several
states have not adopted or approved the property exclusion form citing
specifically that, because there is no coverage under the current property
contracts, there is no reason to accept a clarifying endorsement. We addressed
the Y2K issue by attaching the ISO exclusionary language to all general
liability policies with a rating classification which we believed could
potentially have Y2K losses. The Insurance Services Office exclusionary language
endorsement is included on all property policies. We believe these actions
should minimize our exposure to Y2K losses.
The foregoing information constitutes a Year 2000 Readiness Disclosure
pursuant to the Year 2000 Information and Readiness Disclosure Act.
Special Note Regarding Forward-Looking Statements
Any statement contained in this report which is not a historical fact, or
which might otherwise be considered an opinion or projection concerning the
Company or its business, whether express or implied, is meant as and should be
considered a forward-looking statement as that term is defined in the Private
Securities Litigation Reform Act of 1996. Forward-looking statements are based
on assumptions and opinions concerning a variety of known and unknown risks,
including but not necessarily limited to changes in market conditions, natural
disasters and other catastrophic events, increased competition, changes in
availability and cost of reinsurance, changes in governmental regulations, and
general economic conditions, as well as other risks more completely described in
the Company's filings with the Securities and Exchange Commission, including its
most recent Annual Report on Form 10-K. If any of these assumptions or opinions
prove incorrect, any forward-looking statements made on the basis of such
assumptions or opinions may also prove materially incorrect in one or more
respects.
PART II
Item 1. Legal Proceedings
Securities Litigation
Subsequent to the filing of its quarterly report on Form 10-Q for the period
ended March 31, 1998 with the Securities and Exchange Commission, the Company
became aware of certain accounting irregularities consisting of inappropriate
reductions of reserves and overstatements of premium income in the Company's
reinsurance business that had been recorded in the fourth quarter of 1997 and
the first quarter of 1998. The Company promptly commenced an internal
investigation to determine the exact scope and amount of such reductions and
overstatements. This investigation concluded that inappropriate amounts had, in
fact, been recorded and the Company determined it should restate its previously
issued 1997 financial statements and first quarter 1998 Form 10-Q. Additionally,
during its internal investigation the Company re-evaluated the accounting
methodology being utilized to recognize earned premium income in its reinsurance
business. The Company had historically reported certain assumed reinsurance
premiums as earned in the year in which the related reinsurance contracts were
entered
15
<PAGE>
even though the terms of those contracts frequently bridged two years. The
Company determined that reinsurance premiums should be recognized as earned over
the contract period and corrected the error in its accounting methodology by
restating previously issued financial statements. The Company issued press
releases, which were filed with the Securities and Exchange Commission, on June
1, 1998 and June 29, 1998 announcing its intention to restate its historical
financial statements.
The Company restated its previously issued financial statements for 1995, 1996
and 1997 and its first quarter 1998 Form 10-Q for the above items by issuance of
a current report on Form 8-K dated August 19, 1998. These restatements resulted
in a cumulative decrease to stockholder's equity of $75.2 million through March
31, 1998.
Commencing in June 1998, Vesta and several of its current and former officers
and directors were named in several purported class action lawsuits in the
United States District Court for the Northern District of Alabama and in one
purported class action lawsuit in the Circuit Court of Jefferson County,
Alabama. Several of Vesta's officers and directors also have been named in a
derivative action lawsuit in the Circuit Court of Jefferson County, Alabama, in
which Vesta is a nominal defendant.
The class action lawsuit filed in the Circuit Court of Jefferson County,
Alabama has been dismissed and the derivative case has been placed on the
administrative docket. The class actions filed in the United States District
Court for the Northern District of Alabama have been consolidated into a single
action in that district. The class representatives in that action have filed (a)
a consolidated amended complaint alleging that the defendants violated the
federal securities laws and (b) a motion for class certification, which was
granted in 1999. The consolidated amended complaint also added as defendants
Torchmark Corporation and the Company's predecessor auditors, KPMG Peat Marwick,
LLP. The consolidated amended complaint alleges various violations of the
federal securities law and seeks unspecified but potentially significant
damages.
The Company has notified its directors and officers liability insurance
companies of these lawsuits and the consolidated amended complaint. The
litigation is still in the preliminary stages and there has been no discovery
conducted in the securities case. The Company intends to vigorously defend this
litigation and intends to explore all available rights and remedies it may have
under the circumstances. In related litigation, in September, 1998, Cincinnati
Insurance Company ("Cincinnati"), one of the Company's directors and officers
liability insurance carriers, filed a lawsuit in the United States District
Court for the Northern District of Alabama seeking to avoid coverage under its
directors and officers liability and other policies. The Company filed a motion
to dismiss Cincinnati's complaint on jurisdictional grounds in federal court
(which was granted), and filed a lawsuit against Cincinnati in the Circuit Court
of Jefferson County, Alabama seeking damages arising out of Cincinnati's
actions. Cincinnati has filed an answer and counterclaim in that case again
seeking to avoid coverage.
Indemnification Agreements And Liability Insurance
Pursuant to Delaware law and its by-laws, the Company is obligated to
indemnify its current and former officers and directors for certain liabilities
arising from their employment with or service to the Company. The Company
believes that these indemnification obligations extend to its current and former
officers' and directors' costs of defense and other liabilities which may arise
out of the securities litigation described above.
The Company has purchased directors' and officers' liability insurance ("D&O
insurance") for the purposes of covering among other things the costs incurred
in connection with these indemnification obligations. For the period in which
most of the claims against the Company and certain of its directors and officers
were asserted, the Company had in place a primary D&O insurance policy providing
$25 million in coverage and an excess D&O insurance policy covering for an
additional $25 million in coverage. The issuer of the primary D&O insurance
policy, Cincinnati, has attempted to avoid coverage as discussed above, and the
Company is vigorously resisting its efforts to do so.
Subsequent to the initiation of the class actions described above, the Company
secured additional excess D&O insurance providing coverage for losses in excess
of $50 million up to $110 million, or additional excess coverage of $60 million
for the class actions. The Company paid for this additional excess policy in
full in 1998.
There matters are still in their early stages and their ultimate outcome
cannot be determined. The Company has not currently set aside any financial
reserves relating to any of the above-referenced actions.
16
<PAGE>
Other Litigation and Arbitration
The Company, through its subsidiaries, is routinely a party to pending or
threatened legal proceedings and arbitration relating to the regular conduct of
its insurance business. These proceedings involve alleged breaches of contract,
torts, including bad faith and fraud claims and miscellaneous other specified
relief. Based upon information presently available, and in light of legal and
other defenses available to the Company and its subsidiaries, management does
not consider liability from any threatened or pending litigation regarding
routine matters to be material.
As discussed above, the Company corrected its accounting for assumed
reinsurance business through restatement of its previously issued financial
statements. Similar corrections were made on a statutory accounting basis
through recording cumulative adjustments in Vesta Fire's 1997 statutory
financial statements. The impact of this correction has been reflected in
amounts ceded under the Company's 20 percent whole account quota share treaty
which was terminated on June 30, 1998 on a run-off basis. The Company believes
such treatment is appropriate under the terms of this treaty and has calculated
the quarterly reinsurance billings presented to the three treaty participants
accordingly. The aggregate amount included herein as recoverable from such
reinsurers totaled $54.4 million at March 31, 2000. The Company has collected
approximately $48.5 million from significant reinsurers via the conversion of
collateral on hand.
NRMA, one of the participants in the 20 percent whole account quota share
treaty, has filed a lawsuit in the United States District Court for the
Northern District of Alabama contesting the Company's claim and the validity of
the treaty, and is seeking return of the $34.5 million. The Company has filed a
demand for arbitration as provided for the treaty and has filed a motion to
compel arbitration which was recently granted in a United States District Court
action. The Company has filed for arbitration against the other two participants
on the treaty and those arbitrations are in their early stages. While management
believes its interpretation of the treaty's terms and computations based thereon
are correct, these matters are in their early stages and their ultimate outcome
cannot be determined at this time.
A dispute has arisen with F&G Re (on behalf of USF&G) under two aggregate stop
loss reinsurance treaties whereby F&G assumed certain risk from the Company.
During 1999, F&G Re filed for arbitration under those two treaties.
While management believes its interpretation of the treaties' terms and
computations based thereon are correct, this arbitration is in its early stages
and its ultimate outcome cannot be determined at this time.
On September 23, 1999, Torchmark Corporation, the Company's largest common
stockholder, filed a lawsuit in the Circuit Court of Jefferson County, Alabama
against the Company asserting breach of contract, conversion and breach of duty
in connection with the Company's preparation and filing of a registration
statement covering its shares in accordance with certain registration rights
claimed by Torchmark. This claim seeks an injunction requiring a registration
statement to be filed, as well as compensatory and punitive damages. This
litigation is in its early stages, and management is unable to assess the
damages that may be awarded, if any. However, management does not believe that
such damages, if any, would materially and adversely affect the Company's
financial position or results of operations.
On June 23, 1999, a subsidiary of Torchmark filed suit in the Circuit Court of
Jefferson County, Alabama against two subsidiaries of the Company. The lawsuit
claims that the Company's subsidiaries have failed to pay certain sums due under
a marketing and administrative services agreement between the parties. The suit
also seeks payment of certain commissions and administrative expenses. This
litigation is in its early stages, and management is unable to assess the
damages that may be awarded, if any. However, management does not believe that
such damages, if any, would materially and adversely affect the Company's
financial position or results of operation.
17
<PAGE>
Item 2. Changes in Securities
None.
Item 3. Defaults Upon Senior Securities
None.
Item 4. Submission of Matters to a Vote of Security Holders
None.
Item 5. Other Information
None.
18
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS INDEX
Exhibit
No. Description
- ---------- ---------------------------------------------------------------------------------------------------
<S> <C>
3.1 Restated Certificate of Incorporation of the Company, dated September 1, 1993 (filed as an exhibit
to the Company's Form 10-Q for the quarter ended June 30, 1998, filed on June 16, 1998 and
incorporated herein by reference (File No. 1-12338)).
3.2 By-Laws of the Company (Amended and Restated as of October 1, 1993) (filed as an exhibit to Amendment No.
1 to the Registration Statement on Form S-1 (Registration No. 33-68114) of Vesta Insurance
Group, Inc., filed on October 18, 1993 and incorporated herein by
reference (File No. 1-12338)).
3.3 Certificate of Designation, filed with the Secretary of State of the State of Delaware,
establishing rights and preferences of the Company's Series A Convertible Preferred Stock.
4.1 Indenture between the Company and Southtrust Bank of Alabama, National Association, dated
as of July 19, 1995 (filed as an exhibit to the Company's Form 10-K for the year ended
December 31, 1995, filed on March 28, 1996 and incorporated herein by reference (File
No. 1-12338)).
4.2 Supplemental Indenture between the Company and Southtrust Bank of Alabama, National
Association, dated July 19, 1995 (filed as an exhibit to the Company's Form 10-K for the year
ended December 31, 1995, filed on March 28, 1996 and incorporated herein by reference (File
No. 1-12338)).
4.3 Indenture dated as of January 31, 1997, between the Company and First Union National Bank
of North Carolina, as trustee (filed as an exhibit to the Company's Form 10-Q for the quarter
ended March 31, 1997, filed on May 13, 1997 and incorporated herein by reference (File
No. 1-12338)).
4.4 Amended and Restated Declaration of Trust, dated as of January 31, 1997, of Vesta Capital
Trust I (filed as an exhibit to the Company's Form 10-Q for the quarter ended March 31, 1997,
filed on May 13, 1997 and incorporated herein by reference (File No. 1-12338)).
4.5 Capital Securities Guarantee Agreement, dated as of January 31, 1997, between the Company
and First Union National Bank of North Carolina, as trustee (filed as an exhibit to the
Company's Form 10-Q for the quarter ended March 31, 1997, filed on May 13, 1997 and
incorporated by reference (File No. 1-12338)).
10.1 Separation and Public Offering Agreement between Torchmark Corporation and the Company
dated September 13, 1993 (filed as an exhibit to the Company's Form 10-K for the year ended
December 31, 1993, filed on March 28, 1994 and incorporated herein by reference (File
No. 1-2338)).
10.2 Marketing and Administrative Services Agreement between Liberty National Fire Insurance
Company, Liberty National Insurance Corporation and Liberty National Life Insurance Company
dated September 13, 1993 (filed as an exhibit to the Company's Form 10-K for the year ended
December 31, 1993, filed on March 28, 1994 and incorporated herein by reference (File
No. 1-2338)).
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
- ---------- ---------------------------------------------------------------------------------------------------
<S> <C>
10.3 Investment Services Agreement between Waddell & Reed Asset Management Company and the
Company (filed as an exhibit to Amendment No. 1 to the Registration Statement on Form S-1
(Registration No. 33-68114) of Vesta Insurance Group, Inc., filed on October 18, 1993 and
incorporated herein by reference (File No. 1-12338)) dated September 13, 1993.
10.5 Management Agreement between J. Gordon Gaines, Inc., Liberty National Fire Insurance
Company, Sheffield Insurance Corporation, Liberty National Insurance Corporation and Vesta
Insurance Corporation dated November 15, 1994 (filed as an exhibit to the Company's
Form 10-K for the year ended December 31, 1993, filed on March 28, 1994 and incorporated
herein by reference (File No. 1-2338)).
10.6 Form of Restricted Stock Agreement (filed as an exhibit to the Registration Statement on Form
S-1 (Registration No. 33-68114) of Vesta Insurance Group, Inc., filed on August 31, 1993 and
incorporated herein by reference (File No. 1-12338)).
10.7* The Company's Long Term Incentive Plan as amended effective as of May 16, 1995 (filed as an
exhibit to the Company's Form 10-Q for the quarter ended June 30, 1995, filed on August 14,
1995 and incorporated herein by reference (File No. 1-12338)).
10.8* Form of Non-Qualified Stock Option Agreement entered into by and between the Company and
certain of its executive officers and directors (filed as an exhibit to the Company's Form 10-K
for the year ended December 31, 1995, filed on March 28, 1996 and incorporated herein by
reference (File No. 1-12338)).
10.9* Cash Bonus Plan of the Company (filed as an exhibit to the Company's Form 10-K for the year
ended December 31, 1993, filed on March 28, 1994 and incorporated herein by reference (File
No. 1-2338)).
10.10* J. Gordon Gaines, Inc. Post Retirement Benefits Plan (filed as an exhibit to the Company's Form
10-K for the year ended December 31, 1994, filed on March 29, 1995 and incorporated herein by
reference (File No. 1-12338)).
10.11* J. Gordon Gaines, Inc. Retirement Savings Plan (filed as an exhibit to the Company's Form 10-K
for the year ended December 31, 1994, filed on March 29, 1995 and incorporated herein by
reference (File No. 1-12338)).
10.12*+ The Company's Non-Employee Director Stock Plan.
10.13 Employment Agreement between the registrant and Norman W. Gayle, III, dated as of September 30,
1999. (filed as an exhibit to the Registration Statement on Form S-1 (Registration No. 333-90473)
of Vesta Insurance Group, Inc., filed on November 5, 1999 and incorporated herein by reference.)
10.14 Employment Agreement between the registrant and James E. Tait, dated as of September 30, 1999.
(filed as an exhibit to the Registration Statement on Form S-1 (Registration No. 333-90473) of
Vesta Insurance Group, Inc., filed on November 5, 1999 and incorporated herein by reference.)
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
- ---------- ---------------------------------------------------------------------------------------------------
<S> <C>
10.15 Employment Agreement between the registrant and Donald W. Thornton, dated as of September 30,
1999. (filed as an exhibit to the Registration Statement on Form S-1 (Registration No. 333-90473)
of Vesta Insurance Group, Inc., filed on November 5, 1999 and incorporated herein by reference.)
10.16 Vesta Insurance Group, Inc. Executive Officer Incentive Compensation Plan. (filed as an exhibit to
the Registration Statement on Form S-1 (Registration No. 333-90473) of Vesta Insurance Group,
Inc., filed on November 5, 1999 and incorporated herein by reference.)
10.17 Office Lease between the Company and Torchmark Development Corporation, dated as of April
20, 1992 (filed as an exhibit to the Company's Form 10-K for the year ended December 31,
1993, filed on March 28, 1994 and incorporated herein by reference (File No. 1-12338)).
10.18 Agency Agreement between Liberty National Fire Insurance Company, Vesta Insurance
Corporation, Sheffield Insurance Corporation, and Overby-Seawell Company (filed as an exhibit
to Amendment No. 1 to the Registration Statement on Form S-1 (Registration No. 33-68114) of
Vesta Insurance Group, Inc., filed on October 18, 1993 and incorporated herein by reference
(File No. 1-12338)).
10.19 Commercial/Personal Property Risk Excess Reinsurance Contracts, dated July 1, 1993,
constituting the Company's Direct Per Risk Treaty Program, between Vesta Fire Insurance
Corporation, and its subsidiary and affiliated companies and various reinsurers (filed as an
exhibit to Amendment No. 1 to the Registration Statement on Form S-1 (Registration No.
33-68114) of Vesta Insurance Group, Inc., filed on October 18, 1993 and incorporated herein by
reference (File No. 1-12338)) renewed July 1, 1997.
10.20 Specific Regional Catastrophe Excess Contracts, dated January 1, 1996, constituting the
Company's Regional Property Catastrophe Program, between Vesta Fire Insurance Corporation
and various reinsurers (filed as an exhibit to the Company's Form 10-K for the year ended
December 31, 1995, filed on March 28, 1996 and incorporated herein by reference (File No.
1-12338)). Renewed January 1, 1998.
10.21 Casualty Excess of Loss Reinsurance Agreements, dated January 1, 1998, constituting the
Company's Casualty Excess of Loss Reinsurance Program, between Vesta Fire Insurance
Corporation, Vesta Insurance Corporation, Sheffield Insurance Corporation, Vesta Lloyds
Insurance Company and Employers Reinsurance Corporation, (filed as an exhibit to the
Company's Form 10-Q for the quarter ended March 31, 1998, filed on May 13, 1998 and
incorporated herein by reference (File No. 1-12338)).
10.22 Amendment to Catastrophe Reinsurance Contracts, dated July 1, 1995, constituting the
Company's Direct Property Catastrophe Program, between Vesta Fire Insurance Corporation,
Vesta Insurance Corporation, Sheffield Insurance Corporation, Vesta Lloyds Insurance Company,
Hawaiian Insurance & Guaranty Company, Limited and various reinsurers. (Filed as an exhibit
to the Company's Form 10-Q for the quarter ended September 30, 1995, filed on November 14,
1995 and incorporated herein by reference (File No. 1-12338)). Renewed July 1, 1997.
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
- ---------- ---------------------------------------------------------------------------------------------------
<S> <C>
10.23 Amendment to Catastrophe Reinsurance Contracts, dated January 1, 1996, constituting the
Company's Direct Property Catastrophe Program, between Vesta Fire Insurance Corporation,
Vesta Insurance Corporation, Sheffield Insurance Corporation, Vesta Lloyds Insurance Company,
Hawaiian Insurance & Guaranty Company, Limited and various reinsurers (filed as an exhibit to
the Company's Form 10-K for the year ended December 31, 1995, filed on March 28, 1996 and
incorporated herein by reference (File No. 1-12338)). Renewed January 1, 1998.
10.24 + Credit Agreement dated March 3, 2000 between Vesta Insurance Group, Inc. and First Commercial Bank
establishing a $7.5 million revolving unsecured credit facility.
10.25 + Credit Agreement, dated March 3, 1999, between Vesta Insurance Group, Inc. and First Commercial
Bank establishing a $7.5 million revolving secured credit facility.
10.26 Stock Purchase Agreement between Anthem Casualty Insurance Group, Inc., and Vesta Insurance Group,
Inc., dated April 23, 1997 (filed as an exhibit to the Company's Form 10-Q for the year ended
September 30, 1997, filed on November 13, 1997 and incorporated herein by reference (File No.
1-12338))
10.27 Business Transfer and Management Agreement between Vesta Fire Insurance Corporation and its
affiliated Companies and CIGNA Property and Casualty Insurance Company and its affiliated
companies, dated January 28, 1998 (filed as an exhibit to the Company's Form 10-K for the year
ended December 31, 1997, filed on March 27, 1998 (File No. 1-12338)).
10.28 Agreement for Data Processing Services between Shelby Insurance Company and Policy
Management Systems Corporation, dated January 1, 1998 (filed as an exhibit to the Company's
Form 10-Q for the period from June 30, 1998, filed on August 20, 1998 and incorporated herein
by reference (File No. 1-12338)).
10.29 Agreement by and among Hartford Fire Insurance Company, J. Gordon Gaines, Inc. and Vesta Fire
Insurance Corporation (filed as Exhibit 2.1 to the Company's Form 8-K filed April 12, 1999)
10.30 Convertible Preferred Stock Purchase Agreement by and between Vesta Insurance Group, Inc. and
Birmingham Investment Group, LLC (filed as Exhibit 10.1 to the Company's Form 8-K filed on July 2,
1999)
10.31 Acquisition Agreement between Vesta Insurance Group, Inc., Vesta Management Corporation of Texas,
Inc. and Employers' Reinsurance Corporation (filed as Exhibit 10.2 to the Company's Form 8-K filed
on July 2, 1999)
27 + Financial Data Schedule
99.1 Risk Factors (filed as an exhibit to the Company's Form 10-K for the year ended December 31, 1999,
filed on March 30, 2000 and incorporated herein by reference (File No. 1-12338))
</TABLE>
_______
*These are the Company's compensatory plans.
+Filed herewith.
b) Reports on Form 8-K.
None
Exhibit 11. Statement re computation of per share earnings
22
<PAGE>
VESTA INSURANCE GROUP, INC.
COMPUTATION OF EARNINGS PER SHARE
<TABLE>
<CAPTION>
Period Ended March 31,
--------------------------
<S> <C> <C>
2000 1999
------- -------
(in thousands except per
share data)
BASIC EARNINGS PER SHARE:
Weighted average common shares outstanding......................................... 18,826 18,691
Net Income available to common shareholders........................................ $ 6,258 $ 8,793
Basic earnings per share........................................................... $ 0.33 $ 0.47
DILUTED EARNINGS PER SHARE:
Weighted average common shares outstanding......................................... 18,826 18,691
Net effect of the assumed exercise of stock options and nonvested restricted
stock-based on the treasury stock method using average market price for the
year.............................................................................. 5,939 0
------- -------
Total weighted average common shares and common stock equivalents outstanding ..... 24,765 18,691
Net income......................................................................... $ 6,821 $ 8,793
Diluted earnings per share......................................................... $ 0.28 $ 0.47
======= =======
</TABLE>
23
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
Vesta Insurance Group, Inc.
Date: May 15, 2000
/s/ James E. Tait
-------------------------
James E. Tait
Executive Vice President
and Chief Financial Officer
(Principal Financial Officer)
Date: May 15, 2000
/s/ W. Perry Cronin
-----------------------
W. Perry Cronin
Senior Vice President,
Controller and Treasurer
(Principal Accounting Officer)
24
<PAGE>
EXHIBIT 10.12
VESTA INSURANCE GROUP, INC.
NON-EMPLOYEE DIRECTOR STOCK PLAN
(adjusted to give effect to 3-for-2 stock split effected January 22, 1996)
(As amended by the Board of Directors on January 1, 2000
and ratified by the Company's stockholders on May 8, 2000)
Section 1. Purpose of the Plan. The purpose of the Vesta Insurance
-------------------
Group, Inc. Non-Employee Director Stock Plan (the "Plan") is to provide stock
based compensation to eligible directors of Vesta Insurance Group, Inc. (the
"Company") in order to encourage the highest level of director performance and
to promote long-term shareholder value by providing such directors with a
proprietary interest in the Company's success and progress through grants of
shares of the Company's Common Stock ("Common Stock") which are restricted in
accordance with the terms and conditions set forth below ("Restricted Shares")
and by granting them options to purchase shares of Common Stock ("Options").
Section 2. Certain Definitions.
-------------------
(a) "Board" means the Board of Directors of the Company.
(b)
(c) "Change of Control" has the meaning set forth in Section 8(b) hereof.
(d)
(e) "Change of Control Price" shall have the meaning set forth in Section 8(d)
hereof.
(f)
(g) "Code" means the Internal Revenue Code of 1986, as amended.
(h)
(i) "Committee" means the Compensation Committee of the Board.
(j)
(k) "Common Stock" means the common stock of the Company.
(l)
(m) "Company" means Vesta Insurance Group, Inc., a Delaware corporation.
(n)
(o) "Director Fee" means the annual retainer fee or other attendance fees
payable to a Non-Employee Director in accordance with the Company's regular
payment practices with respect to service on the Board.
(p)
(q) "Disability" means a permanent and total disability as determined under
procedures established by the Committee for purposes of the Plan. The
determination of Disability for purposes of this Plan shall not be construed to
be an admission of disability for any other purpose.
(r)
(s) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(t) "Fair Market Value" means, as of any given date, the closing price of the
Common Stock on the New York Stock Exchange Composite Tape or, if not listed on
such exchange, any other national exchange on which the Common Stock is listed
or on NASDAQ. If
<PAGE>
there is no regular public trading market for such stock, the Fair Market Value
of the Common Stock shall be determined by the Committee in good faith.
(u)
(v) "Non-Employee Director" means each member of the Board who is not an
employee of the Company or any of its subsidiaries at the date of each grant or
award.
(w)
(x) "Normal Retirement" means the date specified by the Board as the retirement
date for members of the Board.
(y)
(z) "Options" means options to purchase shares of Common Stock granted pursuant
to Section 6 of the Plan.
(aa)
(bb) "Plan" means the Vesta Insurance Group, Inc. Non-Employee Director Stock
Plan.
(cc)
(dd) "Potential Change of Control" has the meaning set forth in Section 8(c)
hereof.
(ee)
(ff) "Payment Date" means the date on which the Company pays Director Fees or
issues restricted stock in lieu thereof in accordance with Section 7 hereof.
(gg)
(hh) "Restricted Stock" means shares of Common Stock granted pursuant to Section
7 of the Plan.
(ii)
(jj) "Restricted Stock Agreement" means a written agreement evidencing an award
of Restricted Stock and setting forth the terms and conditions of such award.
(kk)
(ll) "Rule 16b-3" means Rule 16b-3, as currently in effect or as hereinafter
amended or modified, promulgated under the Exchange Act.
(mm)
(nn) Section 3. Administration of the Plan.
--------------------------
(oo)
(pp) The Plan shall be administered by the Compensation Committee of the Board
of Directors of the Company. Grants of Initial Options and Annual Options under
the Plan and the amount and nature of the awards of Restricted Stock shall be
made automatically as provided in Section 6 and Section 7, respectively, and the
number of shares of Common Stock which may be subject to Initial Options and
Annual Options may be increased or decreased in the Committee's discretion as
provided in Section 6(d). The Compensation Committee shall have full authority
to interpret the Plan, to promulgate such rules and regulations with respect to
the Plan as it deems desirable, and to make all other determinations necessary
or appropriate for the administration of the Plan, and such determinations shall
be final and binding upon all persons having an interest in the Plan.
(qq)
(rr) Section 4. Common Stock Subject to the Plan.
--------------------------------
(ss)
2
<PAGE>
(tt) (a) The total number of shares of Common Stock reserved and
available for distribution under the Plan shall be 780,000. Such shares may
consist, in whole or in part, of authorized and unissued shares or treasury
shares. If any shares of Common Stock that have been optioned cease to be
subject to option, or if any shares subject to any Restricted Stock award
granted hereunder are forfeited or such award otherwise terminates, such shares
shall again be available for distribution in connection with future awards under
the Plan.
(uu)
(vv) (b) In the event of any merger, reorganization, consolidation,
recapitalization, Common Stock dividend, or other change in corporate structure
affecting the Common Stock, a substitution or adjustment shall be made in the
aggregate number of shares reserved for issuance under the Plan, in the number
and option price of shares subject to outstanding Stock Options granted under
the Plan and in the number of shares subject to Restricted Stock awards granted
under the Plan as may be determined to be appropriate by the Committee, in its
sole discretion, provided that the number of shares subject to any award shall
always be a whole number.
(ww)
(xx) Section 5. Participation.
-------------
(yy)
(zz) Each Non-Employee Director shall be eligible to participate in the Plan.
(aaa)
(bbb) Section 6. Non-Qualified Stock Options.
---------------------------
(ccc)
(ddd) General. Options granted to Non-Employee Directors under the
-------
Plan shall be options which are not intended to be "incentive stock options"
within the meaning of Section 422 of the Code.
(eee)
(fff) Annual Grant of Options. Options covering 5,000 shares of Common
-----------------------
Stock shall be granted to each Non-Employee Director automatically on the first
day of each calendar year in which the Common Stock is publicly traded on the
New York Stock Exchange (an "Annual Option"). If a Non-Employee Director who has
not previously served on the Board during a particular calendar year is elected
to the Board on a day during a calendar year which falls after the First Trading
Day, options covering 5,000 shares of Common Stock shall be granted to such Non-
Employee Director automatically on the first day following such Directors's
election to the Board in which the Common Stock is publicly traded on the New
York Stock Exchange (an "Initial Option").
(ggg)
(hhh) Discretion to Vary Option Size. Notwithstanding any provision of
------------------------------
the Plan to the contrary, and subject to the limitations set forth below, the
Board or the Committee may, in its sole discretion, increase or decrease the
number of shares of Common Stock subject to Initial Options or Annual Options
granted pursuant to Section 5(b) or 5(c), if the exercise of such discretion
would not preclude any transaction involving the Option from being exempt from
Section 16(b) of the Exchange Act pursuant to Rule 16b-3. In order to ensure the
Committee's ability to induce highly qualified persons to join the Board as Non-
Employee Directors, the Committee may increase the number of shares of Common
Stock subject to an Initial Option without limitation. In order to safeguard
against potentially self-interested transactions involving
3
<PAGE>
persons already serving as directors, however, the Committee may not increase
the number of shares of Common Stock subject to an Annual Option above 10,000
(subject to adjustment in accordance with Section 4(b) above).
(iii)
(jjj) Terms of Options. Options granted under the Plan shall be evidenced
----------------
by a written agreement in such form as the Committee shall from time to time
approve, which agreements shall comply with and be subject to the following
terms and conditions:
(kkk)
(i) Option Price. The option price per share of Common Stock
------------
purchasable under an Option shall be 100% of the Fair Market Value of the Common
Stock on the date of the grant of the Option.
(ii)
(iii) Option Term. Each Option shall be exercisable for a term of
-----------
ten (10) years from the date such Option is granted (subject to prior
termination as hereinafter provided).
(iv)
(v) Exercisability. Except as provided in Sections 8 and 9, Options
--------------
shall not become first exercisable by their terms until the expiration of six
(6) months from the date of the grant of the Option.
(vi)
(vii) Method of Exercise. Options may be exercised in whole or in
------------------
part at any time during the option period by giving written notice of exercise
to the Company specifying the number of shares to be purchased, accompanied by
payment in full of the purchase price, in cash, by check or such other
instrument as may be acceptable to the Committee. Payment in full or in part may
also be made in the form of unrestricted Common Stock already owned by the
optionee (based on the Fair Market Value of the Common Stock on the date the
Option is exercised). No shares of Common Stock shall be issued until full
payment therefor has been made. An optionee shall have the right to dividends or
other rights of a stockholder with respect to shares subject to an Option which
the optionee has given written notice of exercise and has paid in full for such
shares.
(viii)
(ix) Non-transferability of Options; Exception. Except as otherwise
-----------------------------------------
set forth in this Section 6(d)(v), no Option shall be transferable by the
optionee otherwise than by will or by the laws of descent and distribution, and
all Options shall be exercisable, during the optionee's lifetime, only by the
optionee. The Committee shall have the discretionary authority, however, to
grant Options which would be transferable to members of an optionee's immediate
family, including trusts for the benefit of such family members and partnerships
in which such family members are the only partners. For purposes of Section 9, a
transferred Option may be exercised by the transferee only to the extent that
the optionee would have been entitled had the option not been transferred.
(x)
(xi)
<PAGE>
(xii) Section 7. Restricted Stock.
----------------
(lll) Awards. Each Non-Employee Director may elect, pursuant to
------
a written irrevocable election, to receive Restricted Stock in lieu of part or
all of such Non-Employee Director's Director Fee. Such election shall be
effective beginning on the Payment Date immediately following the date which is
six (6) months after the date of such election. The number of shares of
Restricted Stock granted to a Non-Employee Director pursuant to such election
shall be equal to the dollar amount of Director Fees which the Non-Employee
Director has elected not to receive, divided by seventy-five percent (75%) of
the Fair Market Value of the Common Stock as of each applicable Payment Date.
Such an election by a Non-Employee Director shall continue in effect until the
earlier of (i) such Non-Employee Director's termination as a director of the
Company and (ii) the Payment Date immediately following the date which is six
(6) months following the receipt by the Company of a written election by such
Non-Employee Director to discontinue receiving Restricted Stock in lieu of all
or a portion of such Non-Employee Director's Director Fees or a written election
by a Non-Employee Director to change the amount of such election.
(mmm)
(nnn) Awards and Certificates.
-----------------------
(ooo)
(i) A Non-Employee Director who elects to receive Restricted Stock
pursuant to this Section 7 shall not have any rights with respect to such award,
unless and until such recipient has executed a Restricted Stock Agreement and
has delivered a fully executed copy thereof to the Company, and has otherwise
complied with the then applicable terms and conditions.
(ii)
(iii) A stock certificate in respect of shares of Restricted Stock
shall be issued in the name of each Non-Employee Director who receives
Restricted Stock. Such certificate shall be registered in the name of the Non-
Employee Director, and shall bear an appropriate legend referring to the terms,
conditions, and restrictions applicable to such award, substantially in the
following form:
(iv)
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the Vesta Insurance Group, Inc. Non-Employee Director
Stock Plan and a Restricted Stock Agreement entered into between the
registered owner and the Company. Copies of such Plan and Agreement
are on file in the offices of the Company, Post Office Box 43360, 3760
River Run Drive, Birmingham, Alabama 35243."
(i) The Committee shall require that the stock certificates
evidencing such shares be held in custody by the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any
Restricted Stock award, the Non-Employee Director shall have delivered a
stock power, endorsed in blank, relating to the Common Stock covered by
such award.
<PAGE>
(ii)
(b) Restrictions and Conditions. The shares of Restricted Stock awarded
---------------------------
pursuant to this Section 7 shall be subject to the following restrictions and
conditions:
(i) Subject to the provisions of this Plan and the Restricted Stock
Agreements, a Non-Employee Director shall not be permitted to sell, transfer,
pledge or assign shares of Restricted Stock awarded under the Plan for a period
of two (2) years following the effective date of the Restricted Stock Agreement
pursuant to which such shares of Restricted Stock were awarded.
(ii)
(iii) Except as provided in Section 7(b), a Non-Employee Director
shall have, with respect to the shares of Restricted Stock, all of the rights of
a stockholder of the Company, including the right to vote and to receive any
dividends. Dividends paid in stock of the Company or stock received in
connection with a stock split with respect to Restricted Stock shall be subject
to the same restrictions as on such Restricted Stock. Certificates for shares of
unrestricted Common Stock shall be delivered to the Non-Employee Director
promptly after, and only after, the period of forfeiture shall expire without
forfeiture in respect of such shares of Restricted Stock.
(iv)
(v) Section 8. Change of Control. The following acceleration and valuation
-----------------
provisions shall apply in the event of a "Change of Control" or "Potential
Change of Control," as defined in this Section 8:
(c) In the event of a "Change of Control," as defined in Section
8(b) below, unless otherwise determined by the Committee or the Board in writing
at or after the grant of awards hereunder, but prior to the occurrence of such
Change of Control, or, if and to the extent so determined by the Committee or
the Board in writing at or after the grant of awards hereunder (subject to any
right of approval expressly reserved by the Committee or the Board at the time
of such determination) in the event of a "Potential Change of Control," as
defined in Section 8(c) below:
(d)
(i) any Options awarded under the Plan not previously exercisable and
vested shall become fully exercisable and vested;
(ii)
(iii) the restrictions applicable to any Restricted Stock awards under the
Plan shall lapse and such shares and awards shall be deemed fully vested; and
(iv)
(v) the value of all outstanding Options and Restricted Stock awards
shall, to the extent determined by the Committee or after grant, be cashed out
on the basis of the "Change of Control Price" (as defined in Section 8(d) below)
as of the date the Change of Control occurs or Potential Change of Control is
determined to have occurred, or such other date as the Committee may determine
prior to the Change of Control or Potential Change of Control.
(vi)
(e) For purposes of Section 8(a) above, a "Change of Control" means the
happening of any of the following:
(f)
<PAGE>
(i) when any "person," as such term is used in Sections 13(d) and 14(d)
of the Exchange Act (other than the Company, Torchmark Corporation or its
subsidiary, or any Company employee benefit plan, including its trustee), is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing twenty
percent (20%) or more of the combined voting power of the Company's then
outstanding securities;
(ii)
(iii) the occurrence of any transaction or event relating to the Company
required to be described pursuant to the requirements of Item 6(e) of Schedule
14A of Regulation 14A of the Securities and Exchange Commission under the
Exchange Act;
(iv)
(v) when, during any period of two (2) consecutive years during the
existence of the Plan, the individuals who, at the beginning of such period,
constitute the Board cease, for any reason other than death, to constitute at
least a majority thereof, unless each director who was not a director at the
beginning of such period was elected by, or on the recommendation of, at least
two-thirds (2/3) of the directors at the beginning of such period; or
(vi)
(vii) the occurrence of a transaction requiring stockholder approval for
the acquisition of the Company by an entity other than the Company or a
subsidiary of Torchmark Corporation through purchase of assets, or by merger, or
otherwise.
(viii)
(g) For purposes of Section 8(a) above, a "Potential Change of Control" means
the happening of any of the following:
(h)
(i) the entering into an agreement by the Company, the consummation of
which would result in a Change of Control of the Company as defined in Section
8(b) above; or
(ii)
(iii) the acquisition of beneficial ownership directly or indirectly, by
any entity, person or group (other than the Company, Torchmark Corporation, a
subsidiary of Torchmark Corporation, or any Company employee benefit plan
(including its trustee)) of securities of the Company representing five percent
(5%) or more of the combined voting power of the Company's outstanding
securities and the adoption by the Board of Directors of a resolution to the
effect that a Potential Change of Control of the Company has occurred for
purposes of this Plan.
(iv)
(i) For purposes of this Section 8, "Change of Control Price" means the
highest price per share paid in any transaction reported on the New York Stock
Exchange, or paid or offered in any transaction related to a potential or actual
Change of Control of the Company at any time during the preceding sixty (60) day
period as determined by the Committee, except that, in the case of Options, such
price shall be based only on transactions reported for the date on which the
Committee decides to cash out such Options.
(j)
(k) Section 9. Termination of Directorship.
---------------------------
(l)
<PAGE>
(m) Termination by Reason of Disability or Death. Upon the termination of a
--------------------------------------------
Non-Employee Director by reason of Disability or death, (i) any Restricted Stock
held by such Non-Employee Director shall immediately vest and all restrictions
applicable to such shares shall lapse, or, in the case of death, the Restricted
Stock granted to such Non-Employee Director shall immediately vest in the Non-
Employee Director's beneficiary or estate and all restrictions applicable to
such shares shall lapse, and (ii) any Options held by such optionee may
thereafter be immediately exercised, notwithstanding the provisions of Section 6
hereof, by the optionee or, in the case of death, by the legal representative of
the estate or by the legatee of the optionee under the will of the optionee,
until the expiration of the stated term of such Options.
(n)
(o) Termination by Reason of Normal Retirement. If an optionee's status as a
------------------------------------------
Non-Employee Director with the Company terminates by reason of Normal
Retirement, any Options held by such optionee shall become immediately
exercisable and may thereafter be exercised until the expiration of the stated
term of the Options. If the retired optionee dies while any Options are still
outstanding, such Options may be exercised by the legal representative of the
estate or by the legatee of the optionee under the will of the optionee, until
the expiration of the stated term of the Options.
(p)
(q) Other Termination. Upon the termination of a Non-Employee Director with
-----------------
the Company for any reason other than Disability or death, (i) any Restricted
Stock held by such Non-Employee Director which is not fully vested as of the
date of termination shall be forfeited by the Non-Employee Director (provided
that in the event a Non-Employee Director's directorship is terminated as the
result of special hardship circumstances, the Board may, in its sole discretion,
waive in whole or in part any or all remaining restrictions with respect to such
Non-Employee Director's shares of Restricted Stock), and (ii) any Options held
by such optionee may thereafter be exercised, notwithstanding the provisions of
Section 6 hereof, until the expiration of the stated term of such Options.
(r)
(s) Section 10. Termination or Amendment of the Plan. The Board may suspend
------------------------------------
or terminate the Plan or any portion thereof at any time, and the Board may
amend the Plan from time to time as may be deemed to be in the best interests of
the Company; provided, however, that no such amendment, alteration or
discontinuation shall be made (a) that would impair the rights of a Non-Employee
Director with respect to Options and Restricted Stock theretofore awarded,
without such person's consent, or (b) without the approval of the stockholders
(i) if such approval is necessary to comply with any legal, tax or regulatory
requirement, including any approval requirement which is a prerequisite for
exemptive relief from Section 16(b) of the Exchange Act; or (ii) to increase the
maximum number of shares subject to this Plan, increase the maximum number of
shares issuable to any Non-Employee Director under this Plan, or change the
definition of persons eligible to receive awards under this Plan, or (c) if the
Plan has been amended within the preceding six (6) months, unless such amendment
is necessary to comply with changes in the Internal Revenue Code of 1986, as
amended, or the Employee Retirement Income Security Act of 1974, as amended, or
rules promulgated thereunder.
(t)
<PAGE>
(u) Section 11. Section 16. It is intended that the Plan and any grants made to
----------
a person subject to Section 16 of the Exchange Act meet all of the requirements
of Rule 16b-3. If any provision of the Plan or any award hereunder would
disqualify the Plan or such award, or would otherwise not comply with Rule 16b-
3, such provision or award shall be construed or deemed amended to conform to
Rule 16b-3.
(v)
(w) Section 12. General Provisions.
------------------
(x)
(y) No Right of Continued Service. Nothing in the Plan shall be deemed to
-----------------------------
create any obligation on the part of the Board to nominate any Non-Employee
Director for reelection by the Company's stockholders.
(z)
(aa) Payment of Taxes. The Company shall have the right to require, prior
----------------
to the issuance or delivery of any Restricted Stock or issuance and delivery of
Common Stock upon the exercise of Options, payment by the Non-Employee Director
of any taxes required by law with respect to the issuance or delivery of such
shares. Such amount may be paid in cash, in shares of Common Stock previously
owned by the Non-Employee Director, by withholding a portion of the shares of
Common Stock that otherwise would be distributed to such Non-Employee Director
upon delivery of the Restricted Stock or exercise of an Option or a combination
of cash and shares of Common Stock.
(bb)
(cc) Shares. The shares of Common Stock granted as Restricted Stock or
------
issued upon the exercise of Options under the Plan may be either authorized but
unissued shares or shares which have been or may be reacquired by the Company,
as determined from time to time by the Board.
(dd)
(ee) Governing Law. The Plan and all actions taken thereunder shall be
-------------
governed by and construed in accordance with the laws of the State of Delaware
(other than its law respecting choice of law). The Plan shall be construed to
comply with all applicable law, and to avoid liability to the Company or a Non-
Employee Director, including, without limitation, liability under Section 16(b)
of the Exchange Act.
(ff)
(gg) Headings. The headings contained in this Plan are for reference
--------
purposes only and shall not affect the meaning or interpretation of this Plan.
(hh)
(ii) Severability. If any provision of this Plan shall for any reason be
------------
held to be invalid or unenforceable, such invalidity or unenforceability shall
not affect any other provision hereby, and this Plan shall be construed as if
such invalid or unenforceable provision were omitted.
(jj) Successors and Assigns. This Plan shall inure to the benefit of and be
----------------------
binding upon each successor and assign of the Company. All obligations imposed
upon a Non-Employee Director, and all rights granted to the Company hereunder,
shall be binding upon the Non-Employee Director's heirs, legal representatives
and successors.
(kk)
<PAGE>
(ll)
(mm)
(nn)
<PAGE>
================================================================================
EXHIBIT 10.24
[Unsecured]
CREDIT AGREEMENT
by and between
As Borrower:
VESTA INSURANCE GROUP, INC.
and
As Lender:
FIRST COMMERCIAL BANK
$7,500,000 Revolving Credit Facility
Dated as of March 3, 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<C> <S> <C>
ARTICLE I
DEFINITIONS........................................................ -1-
1.1 Defined Terms................................................. -1-
1.2 Accounting Terms.............................................. -11-
1.3 Other Terms; Construction..................................... -12-
ARTICLE 11
AMOUNT AND TERMS OF THE LOANS...................................... -12-
2.1 Commitment; Loans............................................. -12-
2.2 Borrowings.................................................... -12-
2.3 Note.......................................................... -13-
2.4 [Intentionally Omitted]....................................... -13-
2.5 Termination and Reduction of Commitment....................... -13-
2.6 Mandatory and Voluntary Payments and Prepayments.............. -14-
2.7 Interest...................................................... -14-
2.8 Method of Payments; Computations.............................. -15-
2.9 Recovery of Payments.......................................... -15-
2.10 Use of Proceeds............................................... -16-
2.11 Increased Costs; Change in Circumstances; Illegality; etc..... -16-
2.12 Taxes......................................................... -17-
2.13 Non-Usage Fee................................................. -18-
ARTICLE III
CONDITIONS OF BORROWING............................................ -18-
3.1 Conditions to Effectiveness of this Agreement................. -18-
3.2 Conditions to All Loans....................................... -20-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES..................................... -21-
4.1 Corporate Organization and Power.............................. -21-
4.2 Authorization; Enforceability................................. -21-
4.3 No Violation.................................................. -21-
4.4 Governmental Authorization; Permits........................... -22-
4.5 Litigation.................................................... -22-
4.6 Taxes......................................................... -22-
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
4.7 Subsidiaries.................................................. -23-
4.8 Full Disclosure............................................... -23-
4.9 Margin Regulations............................................ -23-
4.10 No Material Adverse Change.................................... -23-
4.11 Financial Matters............................................. -24-
4.12 Ownership of Properties....................................... -25-
4.13 ERISA......................................................... -25-
4.14 Environmental Matters......................................... -25-
4.15 Compliance With Laws.......................................... -26-
4.16 Regulated Industries.......................................... -26-
4.17 Insurance..................................................... -26-
ARTICLE V
AFFIRMATIVE COVENANTS.............................................. -27-
5.1 GAAP Financial Statements..................................... -27-
5.2 Statutory Financial Statements................................ -28-
5.3 Other Business and Financial Information...................... -29-
5.4 Corporate Existence; Franchises; Maintenance of Properties.... -31-
5.5 Compliance with Laws.......................................... -31-
5.6 Payment of Obligations ....................................... -32-
5.7 Insurance..................................................... -32-
5.8 Maintenance of Books and Records; Inspection.................. -32-
5.9 Subsidiary Dividends.......................................... -32-
5.10 Further Assurances............................................ -33-
ARTICLE VI
FINANCIAL COVENANTS................................................ -33-
6.1 Statutory Consolidated Net Income............................. -33-
6.2 Consolidated Net Income....................................... -33-
6.3 Statutory Surplus............................................. -34-
6.4 Risk-Based Capital............................................ -34-
ARTICLE VII
NEGATIVE COVENANTS................................................. -34-
7.1 Merger; Consolidation......................................... -34-
7.2 Indebtedness.................................................. -34-
7.3 Liens......................................................... -35-
7.4 Disposition of Assets......................................... -37-
7.5 Transactions with Affiliates.................................. -38-
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
7.6 Lines of Business............................................. -39-
7.7 Fiscal Year................................................... -39-
7.8 Accounting Changes............................................ -39-
7.9 Dividends..................................................... -39-
ARTICLE VIII
EVENTS OF DEFAULT.................................................. -39-
8.1 Events of Default............................................. -39-
8.2 Remedies; Termination of Commitment, Acceleration, etc........ -42-
8.3 Remedies; Set-Off............................................. -42-
ARTICLE IX
MISCELLANEOUS...................................................... -43-
9.1 Fees and Expenses............................................. -43-
9.2 Indemnification............................................... -43-
9.3 Governing Law; Consent to Jurisdiction........................ -44-
9.4 Arbitration; Preservation and Limitation of Remedies.......... -44-
9.5 Notices....................................................... -45-
9.6 Amendments, Waivers, etc...................................... -46-
9.7 Participations................................................ -46-
9.8 No Waiver..................................................... -47-
9.9 Successors and Assigns........................................ -47-
9.10 Survival...................................................... -47-
9.11 Severability.................................................. -47-
9.12 Construction.................................................. -47-
9.13 Confidentiality............................................... -48-
9.14 Reliance by Lender............................................ -48-
9.15 Counterparts.................................................. -48-
9.16 Entire Agreement.............................................. -48-
</TABLE>
(iii)
<PAGE>
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Notice of Borrowing
Exhibit C-1 Form of Compliance Certificate (for Section 5.1)
Exhibit C-2 Form of Compliance Certificate (for Section 5.2)
SCHEDULES
Schedule 4.3 Subsidiaries Subject to Restrictions or Encumbrance
Schedule 4.4(a) Approval or Consent for Credit Agreement
Schedule 4.4(b) Governmental Approvals, Etc.
Schedule 4.5 Litigation Against Borrower
Schedule 4.6 Taxes
Schedule 4.7 Subsidiaries
Schedule 4.11 (a) Financial Statements Exceptions
Schedule 4.11 (b) Exceptions Regarding Historical Statutory Statements
Section 4.15 Compliance with Law Exceptions
Schedule 7.3 Existing Liens
[others]
(iv)
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of the 3rd day of March, 2000 (this
"Agreement"), is made by and among VESTA INSURANCE GROUP, INC., a Delaware
corporation with its principal offices in Birmingham, Alabama (the "Borrower")
and FIRST COMMERCIAL BANK, an Alabama banking corporation (the "Lender").
R E C I T A L S:
The Borrower has requested that the Lender make available to the Borrower a
revolving credit facility of up to $7,500,000, the proceeds of which are to be
used for general corporate purposes, including ongoing working capital for the
Borrower, all on the terms and subject to the conditions hereinafter set forth.
Lender is willing to make the credit facility available to Borrower for
said purposes upon the terms and subject to the conditions hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants and
agreements herein contained, the parties DO HEREBY AGREE as follows:
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 Borrower to the
Lender, duly completed and signed by an Authorized Officer of Borrower and in
form and substance satisfactory to the Lender, listing any one or more accounts
to which Borrower may from time to time request the Lender to forward the
proceeds of any Loans made hereunder.
"Actual/360 Basis" shall mean a method of computing interest or other
charges hereunder on the basis of an assumed year of 360 days for the actual
number of days elapsed, meaning that interest or other charges accrued for each
day will be computed by multiplying the rate applicable on
-1-
<PAGE>
that day by the unpaid principal balance (or other relevant sum) on that day and
dividing the result by 360.
"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 25% 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.
"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 annual financial statements of such Insurance Subsidiary as
required to be filed with the Insurance Regulatory Authority of its jurisdiction
of domicile and in accordance with the laws of such jurisdiction, together with
all exhibits, schedules, certificates and actuarial opinions required to be
filed or delivered therewith.
"Applicable Percentage" shall mean one-quarter of one percent (.25%).
"Authorized Officer" shall mean any officer of the Borrower authorized by
resolution of the board of directors of the Borrower to take the action
specified herein with respect to such officer and whose signature and incumbency
shall have been certified to the Lender by the secretary or an assistant
secretary of the Borrower.
"Bankruptcy Code" shall mean 11 U.S.C. (s)(s) 101 et seq., as amended from
time to time, and any successor statute.
"Base Rate" shall mean the rate announced from time to time by Lender as
its prime or base rate (which may not necessarily be its best lending rate).
"Birmingham Investment Group" shall mean that certain limited liability
company organized under the laws of Delaware under the name "Birmingham
Investment Group, L.L.C."
"Borrower Margin Stock" shall mean shares of capital stock of Borrower that
are held by Borrower or any of its Subsidiaries and that constitute Margin
Stock.
"Borrowing" shall mean the incurrence by the Borrower on a single date of a
Loan.
-2-
<PAGE>
"Borrowing Date" shall mean, with respect to any Borrowing, the date upon
which such Borrowing is made.
"Business Day" shall mean any day other than a Saturday or Sunday, a legal
holiday or a day on which commercial banks in Birmingham, Alabama, are required
by law to be closed.
"Commitment" shall have the meaning given to such term in Section 2.1.
"Compliance Certificate" shall mean a fully completed and duly executed
certificate in the form of Exhibit D-l or D-2 in such form and detail as will
----------- ---
demonstrate compliance with the provisions of Article VI.
"Consolidated Group" shall have the meaning given to such term in the
Consolidated Tax Allocation Agreement.
"Consolidated Net Income" shall mean, for any period, net income (or loss)
for Borrower and its Subsidiaries for such period, determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles.
"Consolidated Tax Allocation Agreement" shall mean that certain
Consolidated Tax Allocation Agreement dated June 28, 1995, among Borrower and
the Subsidiaries listed on Exhibit A thereto, without giving effect to any
amendments thereto after the date thereof.
"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 (the "primary obligation") of another Person (the "primary
obligor"), whether or not contingent, (i) to purchase, repurchase or otherwise
acquire such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or provide funds (A) for the payment or
discharge of any such primary obligation or (B) 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, (iii) 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 (iv) 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 Borrower and its
Subsidiaries, the term Contingent Obligation shall not include (y) endorsements
for collection or deposit in the ordinary course of business or (z) obligations
entered into by an Insurance Subsidiary in the ordinary course of its business
under 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).
-3-
<PAGE>
"Covenant Compliance Worksheet" shall mean a fully completed worksheet in
the form of Attachment A to Exhibit D-l or Exhibit D-2, as applicable, in such
----------- -----------
form and detail as will demonstrate compliance with the provisions of Article
VI.
"Credit Documents" shall mean this Agreement, the Note, the Secured Credit
Facility, and all other agreements, instruments, documents and certificates now
or hereafter executed and delivered to the Lender by or on behalf of Borrower or
any of its Subsidiaries with respect to this Agreement and the transactions
contemplated hereby, 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.
"Dollars" or "$" shall mean dollars of the United States of America.
"Effective Date" shall mean the date and year first above written.
"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, 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 Borrower or
any ERISA Affiliate from a Multiemployer Plan that results in liability under
Section 4201 or 4204 of ERISA, or the receipt by 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 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 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 Borrower or any ERISA Affiliate to enforce Section
515 of ERISA, which is not dismissed within thirty (30) days, (vi) the
imposition upon 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 Borrower or any ERISA Affiliate as a result of any alleged failure to comply
with
-4-
<PAGE>
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 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 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 Borrower or an ERISA
Affiliate fails to timely provide security to such Plan in accordance with the
provisions of such sections.
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, 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 Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (collectively, "Claims"), including, without limitation,
(i) any and all Claims by Governmental Authorities 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,
interpretations, rules of common law and orders of courts or Governmental
Authorities, 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 Reserve Board" shall mean the Board of Governors of the Federal
Reserve System or any successor thereto.
"Floating Rate" shall mean the Base Rate plus one quarter of one percent
(.25%).
"Generally Accepted Accounting Principles" shall mean generally accepted
accounting principles, as set forth in the statements, opinions and
pronouncements of the Accounting Principles
-5-
<PAGE>
Board, the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board (or, to the extent not so set forth in such
statements, opinions and pronouncements, as generally followed by entities
similar in size to Borrower and engaged in generally similar lines of business),
consistently applied and maintained and in conformity with those used in the
preparation of the most recent financial statements of the Borrower referred to
in Section 4.11(a).
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any central bank thereof, any municipal,
local, city or county government, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"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
constitute a nuisance, trespass or health or safety hazard to Persons or
neighboring properties, (v) that consist of underground or aboveground storage
tanks, whether empty, filled or partially filled with any hazardous substance or
(vi) 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.
"Historical Statutory Statements" shall have the meaning given to such term
in Section 4.11(b).
"Income Tax Benefits" shall mean an amount equal to 100% of the portion of
the federal or state income tax benefits received on a quarterly basis by
Borrower that, pursuant to the Consolidated Tax Allocation Agreement, may be
retained by Borrower and not paid over to any other member of the Consolidated
Group.
"Indebtedness" shall mean, with respect to any Person (without
duplication), (i) all indebtedness of such Person for borrowed money or in
respect of loans or advances, (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, letters of credit and
bankers' acceptances (in each case, whether or not drawn or matured and in the
stated amount thereof), (iv) all obligations of such Person to pay the deferred
purchase price of property or services, (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 should be, in accordance with Generally Accepted
Accounting Principles, recorded as capital leases, to the extent such
obligations are required to be so recorded, (vii) all obligations of such Person
to purchase, redeem, retire, defease or otherwise make any payment in respect of
any capital stock or other equity securities that, by their stated terms (or by
the terms of any equity
-6-
<PAGE>
securities issuable upon conversion thereof or in exchange therefor), or upon
the occurrence of any event, mature or are mandatorily redeemable, or are
redeemable at the option of the holder thereof, in whole or in part, at any time
prior to the Maturity Date, (viii) all Contingent Obligations of such Person 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, and with respect to Borrower and
its Subsidiaries shall include, without limitation (but without duplication),
the Junior Subordinated Debentures, the beneficial interests of the Trust in the
Junior Subordinated Debentures, and Borrower's guarantee to the holders of the
Trust Securities of all of the Trust's obligations under the Trust Securities.
"Insurance Regulatory Authority" shall mean, with respect to any Insurance
Subsidiary, the insurance department or similar Governmental Authority charged
with regulating insurance companies or insurance holding companies, in its state
of 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.
"Insurance Subsidiary" shall mean any Subsidiary of 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 state of domicile.
"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
"Junior Subordinated Debentures" shall mean Borrower's 8.525% Junior
Subordinated Deferrable Interest Debentures due January 15, 2027, issued
pursuant to the Indenture, dated as of January 31, 1997, between Borrower and
The National Bank of North Carolina, as Debenture Trustee, as amended, modified
or supplemented from time to time.
"Lender" shall mean First Commercial Bank and its successors and assigns.
"Licenses" shall have the meaning given to such term in Section 4.4(c).
"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.
-7-
<PAGE>
"Material Adverse Change" shall mean a material adverse change in the
condition (financial or otherwise), operations, business, properties or
financial prospects of Borrower or 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, business, properties or
financial prospects of Borrower or Borrower and its Subsidiaries, taken as a
whole, (ii) the ability of the Borrower to perform its obligations under this
Agreement or any of the other Credit Documents or (iii) the legality, validity
or enforceability of this Agreement or any of the other Credit Documents or the
rights and remedies of the Lender hereunder and thereunder.
"Maturity Date" shall mean January 31, 2002.
"Moody's" shall mean Moody's Investors Service, Inc., its successors and
assigns.
"Multiemployer Plan" shall mean any "multiemployer plan" within the meaning
of Section 4001(a)(3) of ERlSA 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.
"Non-Usage Fee" shall have the meaning given to such term in Section 2.13.
"Note" shall mean the promissory note of the Borrower in substantially the
form of Exhibit A, together with any amendments, modifications and supplements
---------
thereto, substitutions therefore and restatements thereof.
"Notice of Borrowing" shall have the meaning given to such term in Section
2.2(a).
"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 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 9.7(a).
"Permitted Liens" shall have the meaning given to such term in Section 7.3.
-8-
<PAGE>
"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 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.
"Quarterly Statement" shall mean, with respect to any Insurance Subsidiary
for any fiscal quarter, the quarterly financial statements of such Insurance
Subsidiary as required to be filed with the Insurance Regulatory Authority of
its jurisdiction of domicile, together with all exhibits, schedules,
certificates and actuarial opinions required to be filed or delivered therewith.
"Readily Marketable" shall mean cash or cash equivalent instruments or
other collateral having a readily available market value for which there is a
ready sale in the open market.
"Regulations D, G, T, U and X" shall mean Regulations D, G, T, U and X,
respectively, of the Federal Reserve Board, and any successor regulations.
"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.
"Requirement of Law" shall mean, with respect to any Person, the charter,
articles or certificate of organization or incorporation and bylaws or other
organizational or governing documents of such Person, and any statute, law,
treaty, rule, regulation, order, decree, writ, injunction or determination of
any arbitrator or court or other Governmental Authority, 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 or otherwise pertaining to any or all of the
transactions contemplated by this Agreement and the other Credit Documents.
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"Secured Credit Facility" shall mean the Credit Agreement of even date
herewith among Borrower, J. Gordon Gaines, Inc., and Lender pursuant to which
Lender has or shall make available to Borrower a secured revolving credit
facility up to $7,500,000.
"Significant Subsidiary" shall mean, at the relevant time of determination,
any Subsidiary of Borrower having (after the elimination of intercompany
accounts) (i) assets constituting at least 10% of the total assets of Borrower
and its Subsidiaries on a consolidated basis, (ii) revenues constituting at
least 10% of the total revenues of Borrower and its Subsidiaries on a
consolidated basis, or (iii) net earnings constituting at least 10% of the total
net earnings of Borrower and its Subsidiaries on a consolidated basis, in each
case as determined as of the date of the financial statements of Borrower and
its Subsidiaries most recently delivered under Section 5.1 prior to such time
(or, with regard to determinations at any time prior to the initial delivery of
financial statements under Section 5.1, as of the date of the most recent
financial statements referred to in Section 4.11(a)).
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, its successors and assigns.
"Statutory Accounting Principles" shall mean, with respect to any Insurance
Subsidiary, the statutory accounting practices prescribed or permitted by the
relevant Insurance Regulatory Authority of its state of domicile, consistently
applied and maintained and in conformity with those used in the preparation of
the most recent Historical Financial Statements.
"Statutory Consolidated Net Income" shall mean, for any period, net income
(or loss) for the VFIC and the other Insurance Subsidiaries for such period,
determined on a consolidated basis in accordance with Statutory Accounting
Principles.
"Statutory Surplus" shall mean the total amount reported on line 27, page
3, column 1 of the Annual Statement, or an amount determined in a consistent
manner in accordance with Statutory Accounting Principles for any date other
than one as of which an Annual Statement is prepared. Notwithstanding the
foregoing, if the format of the Annual Statement is changed in future years so
that different information is contained in such line or such line no longer
exists, it is understood that the foregoing shall refer to information
consistent with that reported on the referenced line in the 1998 Annual
Statement.
"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, in the case of a corporation, or of the ownership or beneficial
interests, in the case of a Person not a corporation, 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
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contingency). When used without reference to a parent entity, the term
"Subsidiary" shall be deemed to refer to a Subsidiary of Borrower.
"Termination Date" shall mean the Maturity Date or such earlier date of
termination of the Commitment pursuant to Section 2.5 or Section 8.2.
"Transaction Expenses" shall mean all costs and expenses of, and fees
payable to, the Lender that are required to be reimbursed or paid by the
Borrower pursuant to Section 9.1 of the Credit Agreement.
"Trust" shall mean Vesta Capital Trust I, a Delaware statutory business
trust.
"Trust Securities" shall mean the 8.525% Capital Securities issued by the
Trust and representing preferred beneficial interests in the Trust.
"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, at any time, (i) the Commitment at such
time less (ii) the aggregate principal amount of Loans outstanding at such time.
"VFIC" shall mean Vesta Fire Insurance Corporation, an Alabama corporation.
"Wholly Owned" shall mean, with respect to any Subsidiary of any Person,
that 100% of the outstanding capital stock or other ownership interests of such
Subsidiary is owned, directly or indirectly, by such Person.
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 Generally Accepted Accounting
Principles (or, to the extent that such terms apply solely to any Insurance
Subsidiary or if otherwise expressly required, Statutory Accounting Principles).
Notwithstanding the foregoing, in the event that any changes in Generally
Accepted Accounting Principles or Statutory Accounting Principles after the date
hereof are required to be applied to the transactions described herein and would
affect the computation of the financial covenants contained in Sections 6.1
through 6.4, as applicable, 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 an Annual Statement or Quarterly Statement are based on the
format promulgated by the NAIC for the 1995 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
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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
1995 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.
ARTICLE 11
AMOUNT AND TERMS OF THE LOANS
2.1 Commitment; Loans. The Lender 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 Effective Date to but not including
the Termination Date, in an aggregate principal amount at any time outstanding
not exceeding $7,500,000 (as such amount may be permanently reduced in
accordance with Section 2.5(b) the "Commitment"), 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 Commitment.
Subject to and on the terms and conditions of this Agreement, the Borrower may
borrow, repay and reborrow Loans.
2.2 Borrowings.
(a) In order to make a Borrowing, Borrower will give the Lender
written notice not later than 10:00 a.m., Birmingham time, one (1) Business Day
prior to each Borrowing; provided, however, that a request for a Borrowing to be
made on the Effective Date may, at the discretion of the Lender, be given later
than the time specified therefor as set forth hereinabove. Each such notice
(each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form
of Exhibit B and shall specify (i) the aggregate principal amount of the Loans
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to be made pursuant to such Borrowing, and (ii) the requested Borrowing Date,
which shall be a Business Day. Notwithstanding anything to the contrary
contained herein, the aggregate principal amount of each Borrowing 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 Unutilized Commitment).
(b) Not later than noon, Birmingham time, on the requested Borrowing
Date, the Lender will make the requested amount available to the Borrower
subject to the provisions of subsection (a) hereof and Section 2.1.
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(c) The Borrower hereby authorizes the Lender to disburse the proceeds
of each Borrowing in accordance with the terms of any written instructions from
any of the Authorized Officers of Borrower, provided that the Lender shall not
be obligated under any circumstances to forward amounts to any account not
listed in an Account Designation Letter. Borrower may at any time deliver to the
Lender an Account Designation Letter listing any additional accounts or deleting
any accounts listed in a previous Account Designation Letter.
2.3 Note.
(a) The Loan shall be evidenced by a Note appropriately completed in
substantially the form of Exhibit A.
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(b) The Note shall (i) be executed by the Borrower, (ii) be payable to
the order of the Lender, (iii) be dated as of the Effective Date, (iv) be in a
stated principal amount equal to the Commitment, (v) bear interest in accordance
with the provisions of Section 2.7, as the same may be applicable to the Loans
made by the Lender from time to time, 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, it being expressly understood that the Note is
unsecured.
(c) The Lender will record on its internal records the amount of each
Loan made by it and each payment received by it in respect thereof and will, in
the event of any transfer of the Note, either endorse on the reverse side
thereof or on a schedule attached thereto (or any continuation thereof) the
outstanding principal amount of the Loans evidenced thereby as of the date of
transfer or provide such information on a schedule to the documents relating to
such transfer; provided, however, that the failure of the 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.
2.4 [Intentionally Omitted]
2.5 Termination and Reduction of Commitment.
(a) The Commitment shall be automatically and permanently terminated
on the Maturity Date unless sooner terminated pursuant to subsection (b) below
or Section 8.2.
(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 Lender, the
Borrower, without premium or penalty, may terminate in whole or reduce in part
the Unutilized Commitment, provided that any such partial reduction shall be in
an aggregate amount of not less than $1,000,000 or, if greater, an integral
multiple thereof. The amount of any termination or reduction made under this
subsection (b) may not thereafter be reinstated.
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2.6 Mandatory and Voluntary Payments and Prepayments.
(a) Except to the extent due or made sooner pursuant to the provisions
of this Agreement, the Borrower will repay the aggregate outstanding principal
amount of the Loans 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 Commitment 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) 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 for the Non-Usage Fee), upon written notice to the Lender given not
later than noon, Birmingham time, one (1) Business Day prior to each intended
prepayment of Loans, provided that 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. Each such notice shall specify
the proposed date of such prepayment and the aggregate principal amount of the
Loan to be prepaid and shall be irrevocable and shall bind the Borrower to make
such prepayment on the terms specified therein. Amounts prepaid pursuant to
this subsection (c) may be reborrowed, subject to the terms and conditions of
this Agreement.
2.7 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, at the Floating Rate.
(b) Any principal amounts of the Loans not paid when due and, to the
greatest extent permitted by law, all interest accrued on the Loans and all
other fees and amounts hereunder not paid within five (5) days of its due date
(whether at maturity, pursuant to acceleration or otherwise), shall bear
interest at a rate per annum equal to the Floating Rate plus 3% per annum and
such default interest shall be payable on demand. In addition, if payment of
principal or interest (other than payments due upon maturity) on the Loans is
not paid within five (5) days of when due, Borrower shall pay on demand a late
charge equal to five percent (5%) of the amount of the payment which is late,
subject to a minimum late charge of $25.00 and a maximum late charge of $500.00.
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 arrears on the last Business Day of each quarter of each
calendar year; provided, that in the event the Loan is repaid or
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prepaid in full and the Commitment has been terminated, then accrued
interest in respect of the Loan shall be payable together with such
repayment or prepayment on the date thereof; and
(ii) at maturity (whether pursuant to acceleration or otherwise)
and, after maturity, on demand.
(d) Nothing contained in this Agreement or in any other Credit
Document shall be deemed to establish or require the payment of interest to the
Lender at a rate in excess of the maximum rate permitted by applicable law. If
the amount of interest payable on any interest payment date would exceed the
maximum amount permitted by applicable law to be charged by the Lender, the
amount of interest payable on such interest payment date shall be automatically
reduced to such maximum permissible amount. In the event of any such reduction
affecting the Lender, if from time to time thereafter the amount of interest
payable for the account of the Lender on any interest payment date would be less
than the maximum amount permitted by applicable law to be charged by the 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 the 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.
2.8 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 Lender at its office referred to in Section 9.5, prior to 11:00
a.m., Birmingham time, on the date payment is due. Any payment made as required
hereinabove, but after 11:00 a.m., Birmingham 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, and such extension of time shall then be included in
the computation of payment of interest, fees or other applicable amounts.
(b) The Lender may, but shall not be obligated to, debit the amount of
any such payment not made as and when required hereunder to any ordinary deposit
account of the Borrower with the Lender (with prompt notice to the Lender and
the Borrower); provided, however, that the failure to give such notice shall not
affect the validity of such debit by the Lender.
(c) All computations of interest and fees hereunder shall be made on
an Actual/360 Basis.
2.9 Recovery of Payments. The Borrower agrees that to the extent the
Borrower makes a payment or payments to or for the account of the Lender, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required
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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.
2.10 Use of Proceeds. The proceeds of the Loans shall be used to
provide a source of ongoing working capital for the Borrower.
2.11 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 Governmental Authority charged with the
interpretation or administration thereof, or compliance by the Lender with any
guideline or request from any such Governmental Authority (whether or not having
the force of law), shall (i) subject the Lender to any tax or other charge, or
change the basis of taxation of payments to the Lender, (ii) impose, modify or
deem applicable any reserve, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, the
Lender, or (iii) impose on the Lender any other condition affecting its Loans,
and the result of any of the foregoing shall be to increase the cost to the
Lender of making or maintaining any Loans or to reduce the amount of any sum
received or receivable by the Lender hereunder, the Borrower will, promptly upon
demand therefor by the Lender, pay to the Lender such additional amounts,
excluding amounts in respect of income, franchise and excise taxes as shall
compensate the Lender for such increase in costs or reduction in return.
(b) If, at any time after the date hereof and from time to time, the
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 Governmental Authority charged
with the interpretation or administration thereof, or compliance by the Lender
with any guideline or request from any such Governmental Authority (whether or
not having the force of law), has or would have the effect, as a consequence of
the Lender's Commitment or Loans hereunder, of reducing the rate of return on
the capital of the Lender or any Person controlling the Lender to a level below
that which the Lender or controlling Person could have achieved but for such
introduction, change or compliance (taking into account the Lender's or
controlling Person's policies with respect to capital adequacy), the Borrower
will, promptly upon demand therefor by the Lender therefor, pay to the Lender
such additional amounts, excluding amounts in respect of income, franchise and
excise taxes, as will compensate the Lender or controlling Person for such
reduction in return.
(c) Determinations by the Lender for purposes of this Section 2.11 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 Lender at any time to
demand payment of any amounts payable under this Section 2.11 shall constitute a
waiver of its right to demand payment of any additional amounts arising at any
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subsequent time. Nothing in this Section 2.11 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.
2.12 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, other than net income, excise and franchise taxes imposed on the Lender
by the United States or by the jurisdiction under the laws of which the Lender,
as the case may be, is organized or in which its principal office is located, or
any political subdivision or taxing authority thereof (all such non-excluded
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 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 2.12), the 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 Lender evidence of such payment.
(b) The Borrower will indemnify the Lender for the full amount of
Taxes (including, without limitation, any Taxes imposed by any jurisdiction on
amounts payable under this Section 2.12) paid by the Lender and any liability
(including penalties, interest and expenses) 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 Lender, makes
written demand therefor.
(c) The Lender 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 Lender 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 2.12 with respect to the Taxes giving rise to
such recovery or tax benefit); provided, however, that the Borrower, upon the
request of the Lender, agrees to repay to the Lender the amount paid over to the
Borrower (together with any penalties, interest or other charges), in the event
the Lender is required to repay such amount to the relevant taxing authority or
other Governmental Authority. The determination by the 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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2.13 Non-Usage Fee. From and after the Effective Date until the
Termination Date (or such later date that the Loans are repaid), the Borrower
agrees to pay Lender a non-usage fee for each calendar quarter, prorated for
partial quarters, in an amount equal to the Applicable Percentage multiplied by
the average daily Unutilized Commitment (the "Non-Usage Fee") multiplied by the
number of days in such quarter or portion thereof and divided by 360. The Non-
Usage Fee shall be payable quarterly in arrears on the last day of each calendar
quarter commencing with the period ending March 31, 2000, and shall be prorated
for partial calendar quarters.
ARTICLE III
CONDITIONS OF BORROWING
3.1 Conditions to Effectiveness of this Agreement. The effectiveness of
this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) The Lender shall have received the following, each dated the
Effective Date (unless otherwise specified):
(i) the Note in the amount of the Commitment and duly completed
and executed by the Borrower;
(ii) payment of a one-time fee of three-eighths of one percent of
the Commitment;
(iii) a certificate, signed by the chief executive officer, vice
president-finance or treasurer of the Borrower, in form and substance
satisfactory to the Lender, certifying that (A) all representations
and warranties of the Borrower contained in this Agreement and the
other Credit Documents are true and correct as of the Effective Date,
both immediately before and after giving effect to the consummation of
the transactions contemplated by this Agreement, the making of any
Loans hereunder on the Effective Date and the application of the
proceeds thereof, (B) 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 by this Agreement, the
making of any Loans hereunder on the Effective Date and the
application of the proceeds thereof, (C) there are no insurance
regulatory proceedings pending or, to such individual's knowledge,
threatened against any of the Insurance Subsidiaries in any
jurisdiction that, if adversely determined, would be reasonably likely
to have a Material Adverse Effect, and (D) except as disclosed in such
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certificate, both immediately before and after giving effect to the
consummation of the transactions contemplated by this Agreement, no
Material Adverse Change has occurred since December 31, 1998, and
there exists no event, condition or state of facts that could
reasonably be expected to result in a Material Adverse Change;
(iv) a certificate of the secretary or an assistant secretary of
the Borrower, in form and substance satisfactory to the Lender,
certifying (A) to the effect that attached thereto is a true and
complete copy of the Borrower's certificate of incorporation,
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, and attaching such copy, (B) to the effect that
attached thereto is a true and complete copy of the Borrower's bylaws,
as then in effect and as in effect at all times from the date on which
the resolutions referred to in clause (C) below were adopted to and
including the date of such certificate, and attaching such copy), and
(C) that attached thereto is a true and complete copy of resolutions
adopted by the Borrower's board of directors or a committee of such
board authorizing the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party, and
attaching such copy; and
(v) a favorable opinion of an attorney or firm of attorneys duly
licensed to practice law in the jurisdiction the laws of which are
applicable to the legal matters in question and who is not an employee
of the Borrower or an Affiliate of the Borrower and addressed to the
Lender, and addressing such other matters as the Lender may reasonably
request.
(b) The Lender shall have received (i) a certificate as of a recent
date of the good standing of the Borrower under the laws of the State of
Delaware, from the Secretary of State of Delaware, (ii) a certificate as of a
recent date of the qualification of the Borrower to conduct business as a
foreign corporation, from the Secretary of State of Alabama, and (iii) a
certificate as of a recent date of the good standing of the Borrower, from the
Department of Revenue of the State of Alabama.
(c) All legal matters, documentation and corporate or other
proceedings incident to the transactions contemplated hereby shall be reasonably
acceptable to the Lender; all approvals, permits and consents of any
Governmental Authorities (including, without limitation, all relevant Insurance
Regulatory Authorities) or other Persons required in connection with the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby shall have been obtained (without the
imposition of conditions that are not reasonably acceptable to the Lender), 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 Lender
shall have received such copies thereof as it shall
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have reasonably requested; all applicable waiting periods shall have expired
without any adverse action being taken by any Governmental Authority 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 Authority, 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 or the consummation of the transactions contemplated hereby,
or that, in the reasonable opinion of the Lender, would otherwise be reasonably
likely to have a Material Adverse Effect.
(d) Since December 31, 1998, 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, except as disclose in the certificate referenced in
subsection (a) above.
(e) The Borrower shall have paid all fees and expenses of the Lender
required hereunder or under any other Credit Document to be paid on or prior to
the Effective Date (including reasonable fees and expenses of the Lender's
counsel) in connection with this Agreement and the transactions contemplated
hereby.
(f) Each of the representations and warranties contained in Article IV
and in the other Credit Documents shall be true and correct on and as of the
Effective Date with the same effect as if made on and as of 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 as of such date).
(g) No Default or Event of Default shall have occurred and be
continuing.
(h) The Lender shall have received such other documents, certificates,
opinions and instruments as it shall have reasonably requested.
3.2 Conditions to All Loans. The obligation of the Lender to make any
Loans hereunder is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date:
(a) The Lender shall have received a Notice of Borrowing in accordance
with Section 2.2;
(b) Each of the representations and warranties contained in Article IV
and in the other Credit Documents shall be true and correct on and as of the
relevant Borrowing Date 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 as of such date); and
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(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 on such date.
Each giving of a Notice of Borrowing, and the consummation of each
Borrowing, shall be deemed to constitute a representation 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 Lender to enter into this Agreement and to induce the Lender
to extend the credit contemplated hereby, the Borrower represents and warrants
to the Lender as follows:
4.1 Corporate Organization and Power. Each of 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.
4.2 Authorization; Enforceability. The Borrower has 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 Effective 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
by the Borrower 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 or by
general equitable principles.
4.3 No Violation. Except as set forth in Schedule 4.3 attached hereto,
the execution, delivery and performance by the Borrower of this Agreement and
each of the other Credit Documents, 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 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
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Schedule 4.3 attached hereto, no Subsidiary is subject to any restriction or
encumbrance on its ability to make dividend payments or other distributions in
respect of its capital stock, to make loans or advances to Borrower or any other
Subsidiary, or to transfer any of its assets or properties to 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 Authorization; Permits.
(a) Except as set forth on Schedule 4.4(a) attached hereto, no
consent, approval, authorization or other action by, notice to, or registration
or filing with, any Governmental Authority or other Person is or will be
required as a condition to or otherwise in connection with the due execution,
delivery and performance by Borrower of this Agreement or any of the other
Credit Documents or the legality, validity or enforceability hereof or thereof.
(b) Except as set forth in Schedule 4.4(b) attached hereto, each of
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 (collectively, the "Licenses") 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. To the knowledge of the Borrower, except as
set forth on Schedule 4.4(b), (i) no 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, that, in each instance under (i), (ii) and (iii)
above, would be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect.
(c) Upon written request, Borrower will provide with respect to each
Insurance Subsidiary a list of 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"), indicating the line or lines of insurance in
which each such Insurance Subsidiary is permitted to be engaged with respect to
each License therein listed, and attaching copies of all Licenses in the States
of Alabama, Hawaii, Indiana, Ohio and Texas.
4.5 Litigation. Except as set forth on Schedule 4.5, 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 Authority or other Person, (i) against or affecting 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.
4.6 Taxes. Except as set forth in Schedule 4.6 attached hereto, each of
Borrower and its Subsidiaries has timely filed all federal, state and local tax
returns and reports required to be filed by
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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
that are being contested in good faith and by proper proceedings and for which
adequate reserves have been established in accordance with Generally Accepted
Accounting Principles. Such returns accurately reflect in all material respects
all liability for taxes of Borrower and its Subsidiaries for the periods covered
thereby. Except as set forth in Schedule 4.6 attached hereto, there is no
ongoing material audit or examination or, to the knowledge of the Borrower,
other investigation by any Governmental Authority of the tax liability of
Borrower or any of its Subsidiaries, and there is no unresolved claim by any
Governmental Authority concerning or any material tax liability of 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 Generally Accepted Accounting Principles.
Except as set forth in Schedule 4.6 attached hereto, neither 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 material taxes.
4.7 Subsidiaries. Schedule 4.7 sets forth a list, as of the Effective
Date, of all of the Subsidiaries of Borrower and, as to each such Subsidiary,
the percentage ownership (direct and indirect) of Borrower in each class of its
capital stock and each direct owner thereof. All of the issued and outstanding
shares of capital stock of VFIC are directly owned and held by Borrower.
4.8 Full Disclosure. All factual information heretofore or
contemporaneously furnished to the Lender in writing by or on behalf of 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 Lender in writing by or on behalf of
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 materially
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 materially misleading.
4.9 Margin Regulations. Neither 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 (except for purchases by Borrower of outstanding shares of its
capital stock made in compliance with the applicable provisions of Regulations
G, T, U and X), to extend credit for such purpose or for any other purpose that
would violate or be inconsistent with Regulations G, T, U or X or any provision
of the Exchange Act.
4.10 No Material Adverse Change. Except as set forth in the Borrower's
filings with the Securities and Exchange Commission prior to the date of this
Agreement, there has been no Material Adverse Change since December 31, 1998,
and there exists no event, condition or state of facts that could reasonably be
expected to result in a Material Adverse Change.
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<PAGE>
4.11 Financial Matters.
(a) Borrower has heretofore furnished to the Lender copies of (i) the
audited consolidated balance sheets of Borrower and its Subsidiaries as of
December 31, 1998, 1997, and 1996, and the related statements of income,
stockholders' equity and cash flows for the fiscal years then ended, together
with the opinion of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and
(ii) the unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of September 30, 1999, and the related statements of income,
stockholders' equity and cash flows for the nine-month period then ended. Except
as set forth in Schedule 4.11(a) attached hereto, such financial statements have
been prepared in accordance with Generally Accepted Accounting Principles
(subject, with respect to the unaudited financial statements, to the absence of
notes required by Generally Accepted Accounting Principles and to normal year-
end audit adjustments) and present fairly the financial condition of Borrower
and its Subsidiaries on a consolidated basis as of the respective dates thereof
and the consolidated results of operations of 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 Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise
and whether or not due).
(b) Borrower has heretofore furnished to the Lender copies of the
Annual Statements of each of the Insurance Subsidiaries as of December 31, 1998,
1997, 1996 and l995, and for the fiscal years then ended, each as filed with the
relevant Insurance Regulatory Authority (collectively, the "Historical Statutory
Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the
Historical Statutory 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
Statutory Accounting Principles (except as may be reflected in the notes thereto
and subject, with respect to the Quarterly Statements, to the absence of notes
required by Statutory Accounting Principles and to normal year-end adjustments),
were in compliance with applicable Requirements of Law when filed and present
fairly the financial condition of the respective 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 Insurance
Subsidiaries covered thereby for the respective periods then ended. Except for
liabilities and obligations disclosed or provided for in the Historical
Statutory Statements (including, without limitation, reserves, policy and
contract claims and statutory liabilities), no Insurance Subsidiary had, as of
the date of its respective Historical Statutory Statements, any material
liabilities or obligations of any nature whatsoever (whether absolute,
contingent or otherwise and whether or not due) that, in accordance with
Statutory Accounting Principles, would have been required to have been disclosed
or provided for in such Historical Statutory Statements. 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) Each of Borrower and its Subsidiaries, after giving effect to the
consummation of the transactions contemplated hereby, (i) will have capital
sufficient to carry on its businesses as
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conducted and as proposed to be conducted, (ii) will have assets with a fair
saleable value, determined on a going concern basis, (A) not less than the
amount required to pay the probable liability on its existing debts as they
become absolute and matured and (B) 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) will
not intend to, and will 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 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, and (iii) has good title to all of its other material 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) and (iii) above free
and clear of all Liens other than Permitted Liens.
4.13 ERISA. 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. No
ERISA Event has occurred and is continuing or, to the knowledge of the Borrower,
is reasonably expected to occur with respect to any Plan, in either case that
would be reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect. No Plan has any Unfunded Pension Liability, and neither
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA, in either instance where the same
would be reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect. Neither Borrower nor any ERISA Affiliate is required to
contribute to or has, or has at any time had, any liability to a Multiemployer
Plan.
4.14 Environmental Matters.
(a) No Hazardous Substances are or have been generated, used,
located, released, treated, disposed of or stored by Borrower or any of its
Subsidiaries or, to the knowledge of the Borrower, by any other Person or
otherwise, in, on or under any portion of any real property, leased or owned, of
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 Borrower or any of its Subsidiaries, has been contaminated by any
Hazardous Substance; and no portion of any real property, leased or owned, of
Borrower or any of its Subsidiaries has been or, to the knowledge of the
Borrower, is presently the subject of an environmental audit, assessment or
remedial action.
(b) To the knowledge of the Borrower, (i) no portion of any real
property, leased or owned, of Borrower or any of its Subsidiaries has been used
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, (ii) no portion of
such real property or any other real property at any time leased, owned or
operated by Borrower or any of its
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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 (iii) there
are not and have never been any underground storage tanks situated on any real
property, leased or owned, by Borrower or any of its Subsidiaries.
(c) All activities and operations of 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. Neither
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 Authority 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.
4.15 Compliance With Laws. Except as set forth in Schedule 4.15 attached
hereto, each of Borrower and its Subsidiaries has timely filed all material
reports, documents and other materials required to be filed by it under all
applicable Requirements of Law with any Governmental Authority, 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 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 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. No notice of any pending or threatened cancellation or material
premium increase has been received by the Borrower or any of its Subsidiaries
with respect to any such policies, and the Borrower and each of its Subsidiaries
are in substantial compliance with all conditions contained therein.
ARTICLE V
AFFIRMATIVE COVENANTS
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The Borrower covenants and agrees that, until the termination of the
Commitment 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 GAAP Financial Statements. The Borrower will deliver to the 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 ended March 31, 2000, unaudited consolidated
and consolidating balance sheets of Borrower and its Subsidiaries as of the end
of such fiscal quarter and unaudited consolidated and consolidating statements
of income, stockholders' equity and cash flows for 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 prepared
in accordance with Generally Accepted Accounting Principles (subject to the
absence of notes required by Generally Accepted Accounting Principles and
subject to normal year-end audit 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 120 days after the
end of each fiscal year, beginning with the fiscal year ended December 31, 1999,
(i) an audited consolidated balance sheet of Borrower and its Subsidiaries as of
the end of such fiscal year and audited consolidated statements of income,
stockholders' equity and cash flows for Borrower and its Subsidiaries for the
fiscal year then ended, including the applicable notes, in each case setting
forth comparative figures as of the end of and for the preceding fiscal year,
certified by the independent certified public accounting firm regularly retained
by Borrower or another independent certified public accounting firm of
recognized national standing reasonably acceptable to the Lender, 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
Borrower and its Subsidiaries as of the dates and for the periods indicated in
accordance with generally accepted accounting principles applied on a basis
consistent with that of the preceding year or containing disclosure of the
effect on the financial position 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 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, and (ii) an unaudited consolidating balance
sheet of Borrower and its Subsidiaries as of the end of such fiscal year and
unaudited
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consolidating statements of income, stockholders' equity and cash flows for
Borrower and its Subsidiaries for the fiscal year then ended, all in reasonable
detail.
5.2 Statutory Financial Statements. Borrower will deliver to the Lender:
(a) As soon as available and in any event within fifty (50) days after
the end of each of the first three fiscal quarters of each fiscal year,
beginning with the fiscal quarter ending March 31, 2000, a Quarterly Statement
of each 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 relevant
Insurance Regulatory Authority, prepared in accordance with Statutory Accounting
Principles 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 sixty-five (65) days
after the end of each fiscal year, beginning with the fiscal year ending
December 31, 1999, an Annual Statement of each Insurance Subsidiary as of the
end of such fiscal year and for the fiscal year then ended, in the form filed
with the relevant Insurance Regulatory Authority, prepared in accordance with
Statutory Accounting Principles 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 available and in any event within 135 days after the
end of each fiscal year, beginning with the fiscal year ended December 31, 1999,
an unaudited consolidated balance sheet of Borrower and its Insurance
Subsidiaries as of the end of such fiscal year and unaudited consolidated
statements of income, stockholders' equity and cash flows for Borrower and its
Insurance Subsidiaries for the fiscal year then ended, in each case setting
forth comparative consolidated figures as of the end of and for the preceding
fiscal year, all prepared in accordance with Statutory Accounting Principles
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
(d) As soon as available and in any event within 155 days after the
end of each fiscal year, beginning with the fiscal year ended December 31, 1999
(but only if and to the extent required by the applicable Insurance Regulatory
Authority with regard to any Insurance Subsidiary), a certification by the
independent certified public accounting firm referred to in Section 5. l(b) as
to the Annual Statement of each such Insurance Subsidiary as of the end of such
fiscal year and for the fiscal year then ended, together with 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 such Insurance Subsidiary as of
the date and for the period indicated in accordance with statutory accounting
principles applied on a basis consistent with that of the preceding year or
containing disclosure of the effect on the financial
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position or results of operations of any change in the application of accounting
principles and practices during such year.
5.3 Other Business and Financial Information. Borrower will deliver to
the Lender:
(a) Concurrently with each delivery of the financial statements
described in Sections 5.1 and 5.2, 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 Section
-----------
5.2) with respect to the period covered by the financial statements then being
delivered, executed by the chief financial officer, vice president-finance or
treasurer of 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 covenants set forth in Sections 6.1, 6.2 and 6.3 as
of the last day of the period covered by such financial statements, and in the
case of the financial statements described in Section 5.2, with a Covenant
Compliance Worksheet reflecting the computation of the financial covenants set
forth in Section 6.4 as of the last day of the period covered by such financial
statements;
(b) Promptly upon filing with the relevant Insurance Regulatory
Authority and in any event within ninety (90) days after the end of each fiscal
year, beginning with the fiscal year ended December 31, 1999, a copy of each
Insurance Subsidiary's "Statement of Actuarial Opinion" (or equivalent
information should the relevant Insurance Regulatory Authority not require such
a statement) as to the adequacy of such Insurance Subsidiary's loss reserves for
such fiscal year, together with a copy of its management discussion and analysis
in connection therewith, each in the format prescribed by the applicable
insurance laws of such Insurance Subsidiary's jurisdiction of domicile;
(c) Promptly upon the sending, filing or receipt thereof, copies of
(i) all financial statements, reports, notices and proxy statements that
Borrower or any of its Subsidiaries shall send or make available generally to
its shareholders, (ii) all reports (other than earnings press releases) on Form
10-Q, Form 10-K or Form 8-K (or their successor forms) or registration
statements and prospectuses (other than on Form S-8 or its successor form) that
Borrower or any of its Subsidiaries shall render to or file with the Securities
and Exchange Commission, the National Association of Securities Dealers, Inc. or
any national securities exchange, (iii) all reports on Form A or Form B (or
their successor forms) that any Insurance Subsidiary shall file with any
Insurance Regulatory Authority, (iv) all significant reports on examination or
similar significant reports, financial examination reports or market conduct
examination reports by the NAIC or any Insurance Regulatory Authority or other
Governmental Authority with respect to any Insurance Subsidiary's insurance
business, and (v) all significant filings made under applicable state insurance
holding company acts by Borrower or any of its Subsidiaries, including, without
limitation, filings seeking approval of transactions with Affiliates;
(d) Promptly upon (and in any event within five (5) Business Days
after) obtaining knowledge thereof, written notice of any of the following:
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(i) the occurrence of any Default or Event of Default, together
with a written statement of the chief executive officer, chief
financial officer or vice president finance of Borrower specifying the
nature of such Default or Event of Default, the period of existence
thereof and the action that Borrower has taken and proposes to take
with respect thereto,
(ii) the institution or written threatened institution of any
action, suit, investigation or proceeding against or affecting
Borrower or any of its Subsidiaries, including any such investigation
or proceeding by any Insurance Regulatory Authority or other
Governmental Authority (other than routine 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 Section 5.3(d)(ii);
(iii) the receipt by Borrower or any of its Subsidiaries from
any Insurance Regulatory Authority or other Governmental Authority of
(i) any written notice asserting any failure by Borrower or any of its
Subsidiaries to be in compliance with applicable Requirements of Law
or that threatens the taking of any action against 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 (ii) 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 of Borrower or any
of its Subsidiaries, where such action would be reasonably likely to
have a Material Adverse Effect; (iv) the occurrence of any ERISA
Event, together with (i) a written statement of the chief executive
officer, chief financial officer or vice presidentBfinance of Borrower
specifying the details of such ERISA Event and the action that
Borrower has taken and proposes to take with respect thereto, (ii) a
copy of any notice with respect to such ERISA Event that may be
required to be filed with the PBGC and (iii) a copy of any notice
delivered by the PBGC to Borrower or such ERISA Affiliate with respect
to such ERISA Event:
(iv) the occurrence of any decrease in (y) the rating given by
either Standard & Poor's or Moody's with respect to Borrower's
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senior publicly traded Indebtedness or (z) the rating given to any
Insurance Subsidiary by A.M. Best & Company; and
(v) any other matter or event that has, or would be reasonably
likely to have, a Material Adverse Effect, together with a written
statement of the chief executive officer, chief financial officer or
vice presidentBfinance of Borrower setting forth the nature and period
of existence thereof and the action that Borrower has taken and
proposes to take with respect thereto,
(e) Within five (5) Business Days after request therefor by the
Lender, if theretofore prepared and delivered to Borrower, or within ninety (90)
days after request therefor by the Lender from time to time (but not more than
once per year), if not theretofore prepared and delivered to Borrower, in either
case at Borrower's expense, an actuarial review and valuation statement of, and
opinion as to the adequacy of, each Insurance Subsidiary's loss and loss
adjustment expense reserve positions as of the end of such year with respect to
the insurance business then in force, and covering such other subjects as are
customary in actuarial reviews, prepared by PricewaterhouseCoopers or another
independent actuarial firm reasonably acceptable to the Lender, together with a
favorable review letter thereon by Borrower's regularly retained independent
certified public accountants, all in form and substance satisfactory to the
Lender; and
(f) As promptly as reasonably possible, such other information about
the business, condition (financial or otherwise), operations or properties of
Borrower or any of its Subsidiaries as the Lender may from time to time
reasonably request.
5.4 Corporate Existence; Franchises; Maintenance of Properties.
Borrower will, and will cause each of its Subsidiaries to, (i) maintain and
preserve in full force and effect its corporate existence, except as expressly
permitted otherwise by Section 7.1, (ii) obtain, maintain and preserve in full
force and effect all other rights, franchises, licenses, permits,
certifications, approvals and authorizations required by Governmental
Authorities 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.
5.5 Compliance with Laws. 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. Borrower will, and will cause each of its
Subsidiaries to, (i) pay all liabilities and obligations as and when due
(subject to any applicable subordination
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provisions), except to the extent failure to do so would not be reasonably
likely to have a Material Adverse Effect, 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
upon any of the properties of Borrower or any of its Subsidiaries; provided,
however, that neither 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 Borrower or such Subsidiary
is maintaining adequate reserves with respect thereto in accordance with
Generally Accepted Accounting Principles.
5.7 Insurance. 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; provided that
Borrower and its Subsidiaries may self-insure against risks consistent with
customary industry practices for companies in the same or similar businesses, of
similar size and with similar risk parameters.
5.8 Maintenance of Books and Records; Inspection. 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 Generally Accepted Accounting Principles or Statutory Accounting
Principles, as applicable, and in compliance with the requirements of any
Governmental Authority having jurisdiction over it, and (ii) permit employees or
agents of the 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 Borrower, the independent public accountants of Borrower and
its Subsidiaries (and by this provision 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.
5.9 Subsidiary Dividends. Borrower will take all action necessary to
cause its Subsidiaries to make such dividends, distributions or other payments
to the Borrower as shall be necessary for Borrower to make payments of the
principal of and interest on the Loans in accordance with the terms of this
Agreement. In the event the approval of any Governmental Authority or other
Person is required in order for any such Subsidiary to make any such dividends,
distributions or other payments to Borrower, or for Borrower to make any such
principal or interest payments, Borrower will forthwith exercise its best
efforts and take all reasonable actions permitted by law and necessary to obtain
such approval.
5.10 Further Assurances. 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
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such other actions, as may from time to time be reasonably requested by the
Lender to effect, confirm or further assure or protect and preserve the
interests, rights and remedies of the Lender under this Agreement and the other
Credit Documents.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that, until the termination of the
Commitment 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 Statutory Consolidated Net Income. Borrower will not permit
cumulative Statutory Consolidated Net Income for any fiscal quarter then ending
to be less than the following amounts for the cumulative period corresponding
thereto, with dollars expressed in millions (calculated cumulatively for the
period commencing on October 1, 1999, and ending September 30, 2001, and for
each four fiscal quarter period ending thereafter):
<TABLE>
<CAPTION>
Fiscal First Second Third Fourth
Year Quarter Quarter Quarter Quarter
- ---------------- ------- ------- ------- -------
<S> <C> <C> <C> <C>
1999 $ N/A $ N/A $ N/A $ 4.0
2000 11.0 18.0 25.0 28.0
2001 26.5 25.0 23.5 22.0
</TABLE>
6.2 Consolidated Net Income. Borrower will not permit cumulative
Consolidated Net Income for any fiscal quarter then ending to be less than the
following amounts for the cumulative period corresponding thereto, with dollars
expressed in millions (calculated cumulatively for the period commencing on
October 1, l999, and ending on September 30, 2001, and for each four fiscal
quarter period ending thereafter):
<TABLE>
<CAPTION>
Fiscal First Second Third Fourth
Year Quarter Quarter Quarter Quarter
- --------------------------- ------------------ -------------------------- -------------------------- ---------------------------
<S> <C> <C> <C> <C>
1999 $ N/A $ N/A $ N/A $ 1.0
2000 3.7 6.4 9.1 10.8
2001 10.6 10.3 10.1 9.8
</TABLE>
6.3 Statutory Surplus. Borrower will not permit Consolidated Statutory
Surplus for any fiscal quarter then ending to be less than the following amounts
for the period corresponding thereto,
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with dollars expressed in millions (it being understood that any adjustments to
Consolidated Statutory Surplus required to be made by any Department of
Insurance in an aggregate amount not in excess of $25,000,000 shall not be taken
into account in determining Borrower's compliance with this section and that the
amount by which any such adjustments for such fiscal year exceed $25,000,000
shall be so taken into account):
<TABLE>
<CAPTION>
Fiscal First Second Third Fourth
Year Quarter Quarter Quarter Quarter
------------ ------------ -------------- ------------ -------------
<S> <C> <C> <C> <C>
1999 $ N/A $ N/A $ N/A $ 239
2000 246 253 260 267
2001 272 278 283 289
</TABLE>
6.4 Risk-Based Capital. Borrower will not permit "total adjusted
capital" (within the meaning of the Risk-Based Capital for Insurers Model Act as
promulgated by the NAIC as of the date hereof (the "Model Act")) of VFIC at any
time from and after the Effective Date to be less than 150% of the applicable
"Authorized Control Level" (within the meaning of the Model Act) for VFIC at
such time.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Commitment 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. 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 Borrower or any Significant Subsidiary
may merge into or consolidate with any other Person so long as (i) the surviving
corporation is Borrower or a Wholly Owned Subsidiary (and in any event, if
Borrower is a party to such merger or consolidation, the surviving corporation
shall be Borrower) and (ii) immediately after giving effect thereto, no Default
or Event of Default would exist.
7.2 Indebtedness. Except for the Secured Credit Facility, Borrower will
not create, incur, assume or suffer to exist, and will not permit or cause any
of its Subsidiaries to create, incur, or knowingly assume or suffer to exist,
any Indebtedness that ranks senior, other than Indebtedness secured by a
Permitted Lien, in any respect to the Indebtedness under this Agreement (or any
portion thereof) as to payment or performance or as to dividends or
distributions upon bankruptcy, insolvency, liquidation or winding-up.
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7.3 Liens. 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, or enter into or suffer to exist any agreement or restriction that
prohibits or conditions the creation, incurrence or assumption of, any Lien upon
or with respect to any part of its property or assets, whether now owned or
hereafter acquired, or agree to do any of the foregoing, other than the
following (collectively, "Permitted Liens"):
(i) Liens in favor of the Lender:
(ii) Liens in existence on the Effective Date and set forth on
Schedule 7.3 and all renewals and replacements thereof;
(iii) 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 Generally Accepted Accounting
Principles;
(iv) 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(i)) 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;
(v) 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 Generally Accepted Accounting
Principles;
(vi) Liens in connection with pledges and deposits made pursuant
to statutory and regulatory requirements of Insurance Regulatory
Authorities by an Insurance Subsidiary in the ordinary course of its
business, for the purpose of securing regulatory capital or satisfying
other financial responsibility requirements;
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<PAGE>
(vii) Liens upon cash and United States government and agency
securities of 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 Borrower in size and
lines of business and that are entered into by Borrower and its
Subsidiaries in the ordinary course of business;
(viii) Purchase money Liens upon real or personal property used
by Borrower or any of its Subsidiaries in the ordinary course of its
business, securing Indebtedness incurred solely to pay all or a
portion of the purchase price thereof (including in connection with
capital leases, and including mortgages or deeds of trust upon real
property and improvements thereon), provided that the aggregate
principal amount at any time outstanding of all Indebtedness secured
by such Liens does not exceed an amount equal to 5% of the value of
the total assets of Borrower and its Subsidiaries at such time,
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles as of the date of the financial
statements of Borrower and its Subsidiaries most recently delivered
under Section 5.1 prior to such time (or, with regard to
determinations at any time prior to the initial delivery of financial
statements under Section 5.1, as of the date of the most recent
financial statements referred to in Section 4.11(a)), and provided
further that any such Lien (i) shall attach to such property
concurrently with or within ten (10) days after the acquisition
thereof by Borrower or such Subsidiary, (ii) shall not exceed the
lesser of (y) the fair market value of such property or (z) the cost
thereof to Borrower or such Subsidiary and (iii) shall not encumber
any other property of Borrower or any of its Subsidiaries;
(ix) Liens on Borrower Margin Stock, to the extent the fair
market value thereof exceeds 25% of the fair market value of the
assets of Borrower and its Subsidiaries (including Borrower Margin
Stock);
(x) Any attachment or judgment Lien not constituting an Event of
Default under Section 8.1(h) that is being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established in accordance with Generally Accepted Accounting
Principles;
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<PAGE>
(xi) With respect to any real property occupied by 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
(xii) Liens in favor of the trustee or agent under any agreement
or indenture relating to Indebtedness of Borrower and its Subsidiaries
permitted under this Agreement, covering sums required to be deposited
with such trustee or agent thereunder.
7.4 Disposition of Assets. Borrower will not, and will not permit or
cause any of its Subsidiaries to, sell, assign, lease, convey, transfer or
otherwise dispose of (whether in one or a series of transactions) all or any
portion of its assets, business or properties, or enter into any arrangement
with any Person providing for the lease by Borrower or any Subsidiary as lessee
of any asset that has been sold or transferred by Borrower or such Subsidiary to
such Person, or agree to do any of the foregoing, except for:
(i) sales of Investments by the Insurance Subsidiaries in the
ordinary course of business;
(ii) the sale or exchange of used or obsolete equipment to the
extent (A) the proceeds of such sale are applied towards, or such
equipment is exchanged for, similar replacement equipment or (B) such
equipment is no longer necessary for the operations of Borrower or its
applicable Subsidiary in the ordinary course of business;
(iii) the sale, lease or other disposition of assets by a
Subsidiary of Borrower to Borrower or to another Wholly Owned
Subsidiary, to the extent permitted by applicable Requirements of Law
and each relevant Insurance Regulatory Authority, provided that (A)
immediately after giving effect thereto, no Default or Event of
Default would exist, (B) in no event shall Borrower contribute, sell
or otherwise transfer, or permit VFIC to issue or sell, any of the
capital stock of VFIC to any other Subsidiary, and (C) such sale or
disposition would not adversely affect the ability of any Insurance
Subsidiary party thereto to pay dividends or otherwise make
distributions to its parent;
(iv) the sale or other disposition of any Borrower Margin Stock
to the extent the fair market value thereof exceeds 25% of the fair
market value of the assets of Borrower and its Subsidiaries (including
Borrower Margin Stock), provided that fair value is received in
exchange therefor; and
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<PAGE>
(v) the sale or disposition of assets outside the ordinary course
of business, provided that (A) the net proceeds from any such sale or
disposition do not exceed an amount equal to the least of the
following: (1) 10% of the total assets of Borrower and its
Subsidiaries on a consolidated basis, (2) 10% of the total revenues of
Borrower and its Subsidiaries on a consolidated basis, and (3) 10% of
the total net earnings of Borrower and its Subsidiaries on a
consolidated basis, in each case as determined as of the date of the
financial statements of Borrower and its Subsidiaries most recently
delivered under Section 5.1 prior to such time (or, with regard to
determinations at any time prior to the initial delivery of financial
statements under Section 5.1, as of the date of the most recent
financial statements referred to in Section 4.11(a)), (B) immediately
after giving effect thereto, Borrower would be in compliance with the
provisions of Section 6.2, such compliance determined on a pro forma
basis in accordance with Generally Accepted Accounting Principles as
if such sale or disposition had been consummated on the last day of
the then most recently ended fiscal quarter, (C) immediately after
giving effect thereto, no Default or Event of Default would exist, and
(D) in no event shall Borrower or any of its Subsidiaries sell or
otherwise dispose of any of the capital stock or other ownership
interests of VFIC or any other Significant Subsidiary.
7.5 Transactions with Affiliates. Borrower will not, and will not
permit or cause any of its Subsidiaries to, enter into any transaction with any
officer, director, stockholder or other Affiliate of Borrower or any Subsidiary,
except in the ordinary course of its business and upon fair and reasonable terms
that are no less favorable to it than would obtain in a comparable arm's length
transaction with a Person other than an Affiliate of Borrower or such
Subsidiary; provided, however, that nothing contained in this Section shall
prohibit:
(i) transactions between and among Borrower and its Wholly Owned
Subsidiaries;
(ii) transactions under incentive compensation plans, stock
option plans and other employee benefit plans, and loans and advances
from Borrower or any of its Subsidiaries to its officers, in each case
that have been approved by the board of directors of Borrower or any
of its Subsidiaries; and
(iii) the payment by Borrower of reasonable and customary fees
to members of its board of directors.
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<PAGE>
7.6 Lines of Business. Borrower will not, and will not permit or cause
any of its Subsidiaries to, engage to any substantial degree in any business
other than the lines of property and casualty insurance business and other
businesses engaged in by Borrower and its Subsidiaries on the date hereof or a
business reasonably related thereto.
7.7 Fiscal Year. 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) Borrower shall have given the Lender written notice
of its intention to change such ending date 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 Lender, to reflect the new fiscal year ending date.
7.8 Accounting Changes. 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
Generally Accepted Accounting Principles or Statutory Accounting Principles, as
applicable.
7.9 Dividends. Borrower will not pay any dividends on account of its
equity securities while a Default or an Event of Default has occurred and is
continuing both immediately before and after giving effect to the payment of
such dividends.
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 (i) any principal payable under the
terms of the Note, or (ii) not later than five Business Days of the date when
due any interest or any fee or any other Obligation due under the Note or this
Agreement;
(b) An "Event of Default" (as defined therein) shall occur under the
Secured Credit Facility;
(c) The Borrower shall fail to observe, perform or comply with any
condition, covenant or agreement contained in any of Sections 2.11, 5.3(d)(i) or
5.4(i), Article VI, or Sections 7.1 through 7.4, inclusive, or Section 7.9;
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<PAGE>
(d) 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 Borrower acquires knowledge
thereof;
(e) Any material representation or warranty made or deemed 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, deemed made or
furnished;
(f) 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)
having an aggregate principal amount of at least $500,000; 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) 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 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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<PAGE>
(i) 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
$1,000,000 shall be entered or filed against Borrower or any of its Subsidiaries
or any of their respective properties, and (i) the same is not dismissed, stayed
or discharged within sixty (60) days or is not otherwise being appropriately
contested in good faith and in a manner reasonably satisfactory to the Lender,
or (ii) the same is not dismissed, stayed or discharged within five (5) days
prior to any proposed sale of assets of Borrower or any Subsidiary pursuant
thereto, or (iii) any action shall be legally taken by a judgment creditor to
levy upon assets of Borrower or any Subsidiary to enforce the same;
(j) Any ERISA Event shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result thereof, together with all other ERISA
Events then existing, there shall exist a reasonable likelihood of liability to
any one or more Plans or Multiemployer Plans or to the PBGC (or to any
combination thereof) in excess of $500,000 with respect to Borrower or any ERISA
Affiliate;
(k) Any Insurance Regulatory Authority or other Governmental Authority
having jurisdiction shall issue any order of conservation, supervision,
rehabilitation or liquidation or any other order of similar effect in respect of
any Insurance Subsidiary, and such action, individually or in the aggregate,
would be reasonably likely to have a Material Adverse Effect;
(l) Any one or more licenses, permits, accreditations or
authorizations of 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 Authority in response to any alleged failure by
Borrower or any of its Subsidiaries to be in compliance with applicable
Requirements of Law, and such action, individually or in the aggregate, would be
reasonably likely to have a Material Adverse Effect;
(m) Any of the following shall occur: (i) any Person or group of
Persons acting in concert as a partnership or other group (other than the
Birmingham Investment 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 Borrower representing
30% or more of the combined voting power of the then outstanding securities of
Borrower ordinarily (and apart from rights accruing under special circumstances)
having the right to vote on matters, other than the election of directors,
submitted to holders of Borrower's common stock; (ii) the Board of Directors of
Borrower shall cease to consist of a majority of the individuals who constituted
the Board of Directors of Borrower 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 Borrower as of the date
hereof (or their replacements approved as herein required); or (iii) Borrower
shall cease to own directly 100% of the issued and outstanding capital stock of
VFIC or its successor by merger or consolidation as
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permitted hereunder (including, without limitation, as a result of the
contribution, sale or transfer by Borrower, or the issuance or sale by VFIC, of
any capital stock of VFIC to any one or more other Subsidiaries of Borrower); or
8.2 Remedies; Termination of Commitment, Acceleration, etc. Upon and at
any time after the occurrence and during the continuance of any Event of
Default, the Lender may take any or all of the following actions at the same or
different times:
(a) Declare the Commitment to be terminated, whereupon the same shall
terminate provided that, upon the occurrence of an Event of Default pursuant to
Section 8.1(a), 8.1(b), 8.1 (c), 8.1 (g) or Section 8.1(h), the Commitment shall
automatically be terminated);
(b) Declare the Secured Credit Facility to be terminated and exercise
any and all remedies provided for thereunder.
(c) 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 Note 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(c), 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); 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, the Lender may, and 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
the Lender to or for the credit or the account of the Borrower against any or
all of the Obligations to the 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. The Lender agrees to notify
the
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<PAGE>
Borrower promptly 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.
ARTICLE IX
MISCELLANEOUS
9.1 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 Lender (including,
without limitation, the reasonable fees and expenses of counsel to the Lender)
in connection with the preparation, negotiation, execution and delivery 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 Lender
(including, without limitation, the reasonable fees and expenses of counsel to
the Lender) in connection with (A) 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 (B) 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
harmless the Lender 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 Lender), that may be payable in connection with the transactions
contemplated by this Agreement and the other Credit Documents.
9.2 Indemnification. The Borrower agrees, whether or not the
transactions contemplated by this Agreement shall be consummated, to indemnify
and hold harmless the Lender and each of their respective directors, officers,
employees, agents and Affiliates (each, an "Indemnified Person") 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
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<PAGE>
the foregoing Indemnified Costs of any Indemnified Person shall be paid or
reimbursed by the Borrower, as and when incurred and upon demand.
9.3 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, ALABAMA AND SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA (WITHOUT REGARD
TO THE CONFLICTS OF LAW PROVISIONS THEREOF). THE BORROWER HEREBY CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF ANY STATE COURT WITHIN JEFFERSON COUNTY, ALABAMA OR
ANY FEDERAL COURT LOCATED WITHIN THE NORTHERN DISTRICT OF THE STATE OF ALABAMA
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 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 LENDER OR THE BORROWER. THE BORROWER IRREVOCABLY
AGREES TO BE BOUND (SUBJECT TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY JUDGMENT
RENDERED OR RELIEF GRANTED THEREBY AND FURTHER 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. NOTHING IN THIS SECTION SHALL AFFECT THE
RIGHT OF ANY PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY IN
THE COURTS OF ANY OTHER JURISDICTION.
9.4 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 the Borrower and the Lender, shall be resolved by
binding arbitration as provided herein. Institution of a judicial proceeding by
a party does not waive the right of that 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,
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 Title 9 of the U.S. Code, as amended. All
arbitration hearings shall be conducted in Birmingham, Alabama. 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 include only licensed attorneys. The single arbitrator selected
for expedited
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<PAGE>
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.
(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. 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 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.
9.5 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 either Borrower, to Vesta Insurance Group, Inc., 3760 River
Run Drive, Birmingham, Alabama 35243, Attention: Norman W. Gayle, III, Telecopy
No. (205) 970-7007, with a copy to Vesta Insurance Group, Inc., 3760 River Run
Drive, Birmingham, Alabama 35243, Attention: Donald W. Thornton, Telecopy No.
(205) 970-7007;
(b) if to First Commercial Bank, 800 Shades Creek Parkway, P. O. Box
11746, Birmingham, Alabama 35202-1746, Attention: James W. Brunstad, Telecopy
No. (205) 868-4898; and
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 deemed to have been given (i) if mailed as provided above by any method
other than overnight delivery service, on the third Business Day after deposit
in the mails, (ii) if mailed by overnight delivery service, telegraphed,
telexed, telecopied or cabled, when delivered for overnight delivery, delivered
to the telegraph company, confirmed by telex answer back transmitted by
telecopier or delivered to the cable company, respectively, or (iii) if
delivered by hand, upon delivery; provided that notices and communications to
the Lender shall not be effective until received by the Lender.
9.6 Amendments, Waivers, etc. No amendment, modification, waiver or
discharge of termination of, or consent to any departure by the Borrower from,
any provision of this Agreement
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<PAGE>
or any other Credit Document, shall be effective unless in a writing signed by
the Lender and then the same shall be effective only in the specific instance
and for the specific purpose for which given.
9.7 Participations.
(a) The Lender may, without the consent of the Borrower, sell to one
or more other Persons with its principal place of business in the United States
(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) the Lender's
obligations under this Agreement shall remain unchanged and the Lender shall
remain solely responsible for the performance of such obligations, (ii) any such
participation shall be in an amount of not less than $1,000,000, but the Lender
shall not sell any participation that, when taken together with all other
participations, if any, sold by the Lender, covers all of the Lender's rights
and obligations under this Agreement, (iii) the Borrower shall continue to deal
solely and directly with the Lender in connection with the Lender's rights and
obligations under this Agreement, and the Lender shall not permit any
Participant to have any voting rights or any right to control the vote of the
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 (A) reduce or forgive the principal amount of, or rate of interest on, any
Loan, or reduce or forgive any fees or other Obligations, (B) extend any date
(including the Maturity Date) fixed for the payment of any principal of or
interest on any Loan, any fees or any other Obligations, or (C) increase any
Commitment of the 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 the Lender had not granted such
participation.
(b) Nothing in this Agreement shall be construed to prohibit the
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 the Lender from any of its obligations hereunder.
(c) The Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section, disclose to
the Participant or proposed Participant any information relating to Borrower and
its Subsidiaries furnished to it by or on behalf of any other party hereto,
provided that such Participant or proposed Participant agrees in writing to keep
such information confidential to the same extent required of the Lender under
Section 9.13.
9.8 No Waiver. The rights and remedies of the Lender 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 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 any other or further
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<PAGE>
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 Lender or its 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 Lender to exercise any
right or remedy or take any other or further action in any circumstances without
notice or demand.
9.9 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 the Borrower shall
not sell, assign or transfer any of its rights, interests, duties or obligations
under this Agreement or any other Credit Document without the prior written
consent of the Lender.
9.10 Survival. 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 shall survive the payment in full of the Loans, the
termination of the Commitment and any termination of this Agreement or any of
the other Credit Documents.
9.11 Severability. 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.
9.12 Construction. 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.
9.13 Confidentiality. The Lender agrees to keep confidential, pursuant
to its customary procedures for handling confidential information of a similar
nature and in accordance with safe and sound banking practices all nonpublic
information provided to it by or on behalf of Borrower or any of its
Subsidiaries in connection with this Agreement or any other Credit Document;
provided, however, that the Lender may disclose such information (i) to its
directors, employees and agents and to its auditors, counsel and other
professional advisors, (ii) at the demand or request of any bank regulatory
authority, court or other Governmental Authority having or asserting
jurisdiction over the
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<PAGE>
Lender, as may be required pursuant to subpoena or other legal process, or
otherwise in order to comply with any applicable Requirement of Law, (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 or to
which it is a party, (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 of Section 9.7.
9.14 Reliance by Lender. The Lender 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.
9.15 Counterparts. 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 Lender and the Borrower of written or
telephonic notification of such execution and authorization of delivery thereof.
9.16 Entire 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, AND (B) MAY NOT BE AMENDED, SUPPLEMENTED,
CONTRADICTED OR OTHERWISE MODIFIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
[SIGNATURES ON FOLLOWING PAGE]
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<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
BORROWER:
VESTA INSURANCE GROUP, INC.,
a Delaware corporation
By: _________________________________
Its: _________________________________
LENDER:
FIRST COMMERCIAL BANK,
an Alabama banking corporation
By: _________________________________
Its: _________________________________
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<PAGE>
================================================================================
EXHIBIT 10.25
CREDIT AGREEMENT
by and among
As Borrowers:
VESTA INSURANCE GROUP, INC.
and
J. GORDON GAINES, INC.
and
As Lender and Secured Party:
FIRST COMMERCIAL BANK
$7,500,000 Revolving Credit Facility
Dated as of March 3, 2000
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS........................................................ -1-
1.1 Defined Terms................................................. -1-
1.2 Accounting Terms.............................................. -12-
1.3 Other Terms; Construction..................................... -13-
ARTICLE 11
AMOUNT AND TERMS OF THE LOANS...................................... -13-
2.1 Commitment; Loans............................................. -13-
2.2 Borrowings.................................................... -13-
2.3 Note.......................................................... -14-
2.4 Security...................................................... -14-
2.5 Termination and Reduction of Commitment....................... -14-
2.6 Mandatory and Voluntary Payments and Prepayments.............. -15-
2.7 Interest...................................................... -15-
2.8 Method of Payments; Computations.............................. -16-
2.9 Recovery of Payments.......................................... -17-
2.10 Use of Proceeds............................................... -17-
2.11 Increased Costs; Change in Circumstances; Illegality; etc..... -17-
2.12 Taxes......................................................... -18-
2.13 Non-Usage Fee................................................. -19-
ARTICLE III
CONDITIONS OF BORROWING............................................ -19-
3.1 Conditions to Effectiveness of this Agreement................. -19-
3.2 Conditions to All Loans....................................... -22-
ARTICLE IV
REPRESENTATIONS AND WARRANTIES..................................... -23-
4.1 Corporate Organization and Power.............................. -23-
4.2 Authorization; Enforceability................................. -23-
4.3 No Violation.................................................. -23-
4.4 Governmental Authorization; Permits........................... -24-
4.5 Litigation.................................................... -24-
4.6 Taxes......................................................... -25-
4.7 Subsidiaries.................................................. -25-
(i)
<PAGE>
4.8 Full Disclosure............................................... -25-
4.9 Margin Regulations............................................ -25-
4.10 No Material Adverse Change.................................... -26-
4.11 Financial Matters............................................. -26-
4.12 Ownership of Properties....................................... -27-
4.13 ERISA......................................................... -27-
4.14 Environmental Matters......................................... -27-
4.15 Compliance With Laws.......................................... -28-
4.16 Regulated Industries.......................................... -28-
4.17 Insurance..................................................... -29-
ARTICLE V
AFFIRMATIVE COVENANTS.............................................. -29-
5.1 GAAP Financial Statements..................................... -29-
5.2 Statutory Financial Statements................................ -30-
5.3 Other Business and Financial Information...................... -31-
5.4 Corporate Existence; Franchises; Maintenance of Properties.... -34-
5.5 Compliance with Laws.......................................... -34-
5.6 Payment of Obligations........................................ -34-
5.7 Insurance..................................................... -34-
5.8 Maintenance of Books and Records; Inspection.................. -35-
5.9 Subsidiary Dividends.......................................... -35-
5.10 Further Assurances............................................ -35-
ARTICLE VI
FINANCIAL COVENANTS................................................ -35-
6.1 Statutory Consolidated Net Income............................. -35-
6.2 Consolidated Net Income....................................... -36-
6.3 Statutory Surplus............................................. -36-
6.4 Risk-Based Capital............................................ -36-
ARTICLE VII
NEGATIVE COVENANTS................................................. -37-
7.1 Merger; Consolidation......................................... -37-
7.2 Indebtedness.................................................. -37-
7.3 Liens......................................................... -37-
7.4 Disposition of Assets......................................... -40-
7.5 Transactions with Affiliates.................................. -41-
7.6 Lines of Business............................................. -41-
7.7 Fiscal Year................................................... -41-
(ii)
<PAGE>
7.8 Accounting Changes............................................ -42-
7.9 Dividends..................................................... -42-
ARTICLE VIII
EVENTS OF DEFAULT.................................................. -42-
8.1 Events of Default............................................. -42-
8.2 Remedies; Termination of Commitment, Acceleration, etc........ -45-
8.3 Remedies; Set-Off............................................. -45-
ARTICLE IX
MISCELLANEOUS...................................................... -46-
9.1 Fees and Expenses............................................. -46-
9.2 Indemnification............................................... -46-
9.3 Governing Law; Consent to Jurisdiction........................ -47-
9.4 Arbitration; Preservation and Limitation of Remedies.......... -47-
9.5 Notices....................................................... -48-
9.6 Amendments, Waivers, etc...................................... -49-
9.7 Participations................................................ -49-
9.8 No Waiver..................................................... -50-
9.9 Successors and Assigns........................................ -50-
9.10 Survival...................................................... -50-
9.11 Severability.................................................. -50-
9.12 Construction.................................................. -50-
9.13 Confidentiality............................................... -51-
9.14 Reliance by Lender............................................ -51-
9.15 Counterparts.................................................. -51-
9.16 Entire Agreement.............................................. -51-
(iii)
<PAGE>
EXHIBITS
Exhibit A Form of Note
Exhibit B-1 Form of Assignment
Exhibit B-2 Form of Assignment of Dividends
Exhibit C Form of Notice of Borrowing
Exhibit D-1 Form of Compliance Certificate (for Section 5.1)
Exhibit D-2 Form of Compliance Certificate (for Section 5.2)
SCHEDULES
Schedule 4.3 Subsidiaries Subject to Restrictions or Encumbrance
Schedule 4.4(a) Approval or Consent for Credit Agreement
Schedule 4.4(b) Governmental Approvals, Etc.
Schedule 4.5 Litigation Against Borrower
Schedule 4.6 Taxes
Schedule 4.7 Subsidiaries
Schedule 4.11 (a) Financial Statements Exceptions
Schedule 4.11 (b) Exceptions Regarding Historical Statutory Statements
Section 4.15 Compliance with Law Exceptions
Schedule 7.3 Existing Liens
[others]
(iv)
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of the 3rd day of March, 2000 (this
"Agreement"), is made by and among VESTA INSURANCE GROUP, INC., a Delaware
corporation with its principal offices in Birmingham, Alabama ("Vesta"), and J.
GORDON GAINES, INC., a Delaware corporation with its principal offices in
______________________________ ("Gaines"; Vesta and Gaines may sometimes be
referred to singularly and collectively as "Borrower") and FIRST COMMERCIAL
BANK, an Alabama banking corporation (the "Lender").
R E C I T A L S:
The Borrower has requested that the Lender make available to the Borrower a
revolving credit facility of up to $7,500,000, the proceeds of which are to be
used for general corporate purposes, including ongoing working capital for the
Borrower, all on the terms and subject to the conditions hereinafter set forth.
Lender is willing to make the credit facility available to Borrower on the
security of the Collateral (as hereafter defined) for said purposes upon the
terms and subject to the conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual provisions, covenants and
agreements herein contained, the parties DO HEREBY AGREE as follows:
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 Vesta to the Lender,
duly completed and signed by an Authorized Officer of Vesta and in form and
substance satisfactory to the Lender, listing any one or more accounts to which
Vesta may from time to time request the Lender to forward the proceeds of any
Loans made hereunder.
-1-
<PAGE>
"Actual/360 Basis" shall mean a method of computing interest or other
charges hereunder on the basis of an assumed year of 360 days for the actual
number of days elapsed, meaning that interest or other charges accrued for each
day will be computed by multiplying the rate applicable on that day by the
unpaid principal balance (or other relevant sum) on that day and dividing the
result by 360.
"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 25% 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.
"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 annual financial statements of such Insurance Subsidiary as
required to be filed with the Insurance Regulatory Authority of its jurisdiction
of domicile and in accordance with the laws of such jurisdiction, together with
all exhibits, schedules, certificates and actuarial opinions required to be
filed or delivered therewith.
"Applicable Percentage" shall mean one-quarter of one percent (.25%).
"Assignment" shall mean the Collateral Assignment of Certain Contract
Proceeds in the form attached hereto and marked Exhibit B-l, as amended and
-----------
supplemented from time to time, to be executed by Gaines.
"Assignment of Dividends" shall mean the Assignment of Dividends received
from Gaines, in the form attached hereto as Exhibit B-2, as amended and
-----------
supplemented from time to time, to be executed by Vesta.
"Authorized Officer" shall mean any officer of the Borrower authorized by
resolution of the board of directors of the Borrower to take the action
specified herein with respect to such officer and whose signature and incumbency
shall have been certified to the Lender by the secretary or an assistant
secretary of the Borrower.
"Bankruptcy Code" shall mean 11 U.S.C. (S)(S) 101 et seq., as amended from
time to time, and any successor statute.
-2-
<PAGE>
"Base Rate" shall mean the rate announced from time to time by Lender as
its prime or base rate (which may not necessarily be its best lending rate).
"Birmingham Investment Group" shall mean that certain limited liability
company organized under the laws of Delaware under the name "Birmingham
Investment Group, L.L.C."
"Vesta Margin Stock" shall mean shares of capital stock of Vesta that are
held by Vesta or any of its Subsidiaries and that constitute Margin Stock.
"Borrowing" shall mean the incurrence by the Borrower on a single date of a
Loan.
"Borrowing Date" shall mean, with respect to any Borrowing, the date upon
which such Borrowing is made.
"Business Day" shall mean any day other than a Saturday or Sunday, a legal
holiday or a day on which commercial banks in Birmingham, Alabama, are required
by law to be closed.
"Collateral" shall mean the assets of the Borrower, now owned or
hereinafter acquired, upon which a Lien or security interest is purported to be
created by the Assignment or the Assignment of Dividends.
"Commitment" shall have the meaning given to such term in Section 2.1.
"Compliance Certificate" shall mean a fully completed and duly executed
certificate in the form of Exhibit D-l or D-2 in such form and detail as will
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demonstrate compliance with the provisions of Article VI.
"Consolidated Group" shall have the meaning given to such term in the
Consolidated Tax Allocation Agreement.
"Consolidated Net Income" shall mean, for any period, net income (or loss)
for Vesta and its Subsidiaries for such period, determined on a consolidated
basis in accordance with Generally Accepted Accounting Principles.
"Consolidated Tax Allocation Agreement" shall mean that certain
Consolidated Tax Allocation Agreement dated June 28, 1995, among Vesta and the
Subsidiaries listed on Exhibit A thereto, without giving effect to any
amendments thereto after the date thereof.
"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 (the "primary obligation") of another Person (the "primary
obligor"), whether or not contingent, (i) to purchase, repurchase or otherwise
acquire such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or provide funds (A) for the payment or
discharge of any
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such primary obligation or (B) 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, (iii) 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 (iv) 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 Vesta and its Subsidiaries,
the term Contingent Obligation shall not include (y) endorsements for collection
or deposit in the ordinary course of business or (z) obligations entered into by
an Insurance Subsidiary in the ordinary course of its business under 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).
"Contract" shall mean that certain Amended and Restated Management
Agreement, effective as of January 1, 1999, by and among Gaines and Vesta Fire
Insurance Corporation, Sheffield Insurance Corporation, and Vesta Insurance
Corporation (Alabama corporations), Vesta Lloyds Insurance Company, a Texas
Lloyds Company, The Hawaiian Insurance and Guaranty Company, Limited (a Hawaiian
corporation), The Shelby Insurance Company, Affirmative Insurance Company,
Insura Property and Casualty Insurance Company (Ohio corporations), and Shelby
Casualty Insurance Company (an Indiana corporation).
"Covenant Compliance Worksheet" shall mean a fully completed worksheet in
the form of Attachment A to Exhibit D-l or Exhibit D-2, as applicable, in such
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form and detail as will demonstrate compliance with the provisions of Article
VI.
"Credit Documents" shall mean this Agreement, the Note, the Assignment, the
Assignment of Dividends, the Unsecured Credit Facility, and all other
agreements, instruments, documents and certificates now or hereafter executed
and delivered to the Lender by or on behalf of Vesta or any of its Subsidiaries
with respect to this Agreement and the transactions contemplated hereby, 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.
"Dollars" or "$" shall mean dollars of the United States of America.
"Effective Date" shall mean the date and year first above written.
"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.
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<PAGE>
"ERlSA 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, Vesta 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.
"ERlSA 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 Vesta or any
ERISA Affiliate from a Multiemployer Plan that results in liability under
Section 4201 or 4204 of ERISA, or the receipt by Vesta 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 Vesta 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 Vesta 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 Vesta or any ERISA Affiliate to enforce Section 515 of ERISA, which
is not dismissed within thirty (30) days, (vi) the imposition upon Vesta 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 Vesta 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 Vesta 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 Vesta 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 Vesta or an ERISA Affiliate
fails to timely provide security to such Plan in accordance with the provisions
of such sections.
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, 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 Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (collectively, "Claims"), including, without limitation,
(i) any and all Claims by Governmental Authorities 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:
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<PAGE>
"Environmental Laws" shall mean any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations, rules of common law and orders of courts or Governmental
Authorities, 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 Reserve Board" shall mean the Board of Governors of the Federal
Reserve System or any successor thereto.
"Generally Accepted Accounting Principles" 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 (or,
to the extent not so set forth in such statements, opinions and pronouncements,
as generally followed by entities similar in size to Vesta and engaged in
generally similar lines of business), consistently applied and maintained and in
conformity with those used in the preparation of the most recent financial
statements of the Borrower referred to in Section 4.11(a).
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any central bank thereof, any municipal,
local, city or county government, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"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
constitute a nuisance, trespass or health or safety hazard to Persons or
neighboring properties, (v) that consist of underground or aboveground storage
tanks, whether empty, filled or partially filled with any hazardous substance or
(vi) 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.
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<PAGE>
"Historical Statutory Statements" shall have the meaning given to such term
in Section 4.11(b).
"Income Tax Benefits" shall mean an amount equal to 100% of the portion of
the federal or state income tax benefits received on a quarterly basis by Vesta
that, pursuant to the Consolidated Tax Allocation Agreement, may be retained by
Vesta and not paid over to any other member of the Consolidated Group.
"Indebtedness" shall mean, with respect to any Person (without
duplication), (i) all indebtedness of such Person for borrowed money or in
respect of loans or advances, (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, letters of credit and
bankers' acceptances (in each case, whether or not drawn or matured and in the
stated amount thereof), (iv) all obligations of such Person to pay the deferred
purchase price of property or services, (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 should be, in accordance with Generally Accepted
Accounting Principles, recorded as capital leases, to the extent such
obligations are required to be so recorded, (vii) all obligations of such Person
to purchase, redeem, retire, defease or otherwise make any payment in respect of
any capital stock or other equity securities that, by their stated terms (or by
the terms of any equity securities issuable upon conversion thereof or in
exchange therefor), or upon the occurrence of any event, mature or are
mandatorily redeemable, or are redeemable at the option of the holder thereof,
in whole or in part, at any time prior to the Maturity Date, (viii) all
Contingent Obligations of such Person 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, and with respect to Vesta and its Subsidiaries shall include,
without limitation (but without duplication), the Junior Subordinated
Debentures, the beneficial interests of the Trust in the Junior Subordinated
Debentures, and Vesta's guarantee to the holders of the Trust Securities of all
of the Trust's obligations under the Trust Securities.
"Insurance Regulatory Authority" shall mean, with respect to any Insurance
Subsidiary, the insurance department or similar Governmental Authority charged
with regulating insurance companies or insurance holding companies, in its state
of 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.
"Insurance Subsidiary" shall mean any Subsidiary of Vesta 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 state of domicile.
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<PAGE>
"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.
"Junior Subordinated Debentures" shall mean Vesta's 8.525% Junior
Subordinated Deferrable Interest Debentures due January 15, 2027, issued
pursuant to the Indenture, dated as of January 31, 1997, between Vesta and The
National Bank of North Carolina, as Debenture Trustee, as amended, modified or
supplemented from time to time.
"Lender" shall mean First Commercial Bank and its successors and assigns.
"Licenses" shall have the meaning given to such term in Section 4.4(c).
"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, business, properties or
financial prospects of Vesta or Vesta and its Subsidiaries, taken as a whole.
"Material Adverse Effect" shall mean a material adverse effect upon (i) the
condition (financial or otherwise), operations, business, properties or
financial prospects of Vesta or Vesta and its Subsidiaries, taken as a whole,
(ii) the ability of the Borrower to perform its obligations under this Agreement
or any of the other Credit Documents or (iii) the legality, validity or
enforceability of this Agreement or any of the other Credit Documents or the
rights and remedies of the Lender hereunder and thereunder.
"Maturity Date" shall mean January 31, 2002.
"Moody's" shall mean Moody's Investors Service, Inc., its successors and
assigns.
"Multiemployer Plan" shall mean any "multiemployer plan" within the meaning
of Section 4001(a)(3) of ERlSA 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.
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<PAGE>
"NAIC" shall mean the National Association of Insurance Commissioners and
any successor thereto.
"Non-Usage Fee" shall have the meaning given to such term in Section 2.13.
"Note" shall mean the promissory note of the Borrower in substantially the
form of Exhibit A, together with any amendments, modifications and supplements
---------
thereto, substitutions therefore and restatements thereof.
"Notice of Borrowing" shall have the meaning given to such term in Section
2.2(a).
"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 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 9.7(a).
"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 Vesta 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.
"Quarterly Statement" shall mean, with respect to any Insurance Subsidiary
for any fiscal quarter, the quarterly financial statements of such Insurance
Subsidiary as required to be filed with the Insurance Regulatory Authority of
its jurisdiction of domicile, together with all exhibits, schedules,
certificates and actuarial opinions required to be filed or delivered therewith.
"Readily Marketable" shall mean cash or cash equivalent instruments or
other collateral having a readily available market value for which there is a
ready sale in the open market.
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<PAGE>
"Regulations D, G, T, U and X" shall mean Regulations D, G, T, U and X,
respectively, of the Federal Reserve Board, and any successor regulations.
"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.
"Requirement of Law" shall mean, with respect to any Person, the charter,
articles or certificate of organization or incorporation and bylaws or other
organizational or governing documents of such Person, and any statute, law,
treaty, rule, regulation, order, decree, writ, injunction or determination of
any arbitrator or court or other Governmental Authority, 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 or otherwise pertaining to any or all of the
transactions contemplated by this Agreement and the other Credit Documents.
"Significant Subsidiary" shall mean, at the relevant time of determination,
any Subsidiary of Vesta having (after the elimination of intercompany accounts)
(i) assets constituting at least 10% of the total assets of Vesta and its
Subsidiaries on a consolidated basis, (ii) revenues constituting at least 10% of
the total revenues of Vesta and its Subsidiaries on a consolidated basis, or
(iii) net earnings constituting at least 10% of the total net earnings of Vesta
and its Subsidiaries on a consolidated basis, in each case as determined as of
the date of the financial statements of Vesta and its Subsidiaries most recently
delivered under Section 5.1 prior to such time (or, with regard to
determinations at any time prior to the initial delivery of financial statements
under Section 5.1, as of the date of the most recent financial statements
referred to in Section 4.11(a)).
"Standard & Poor's" shall mean Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, its successors and assigns.
"Statutory Accounting Principles" shall mean, with respect to any Insurance
Subsidiary, the statutory accounting practices prescribed or permitted by the
relevant Insurance Regulatory Authority of its state of domicile, consistently
applied and maintained and in conformity with those used in the preparation of
the most recent Historical Financial Statements.
"Statutory Consolidated Net Income" shall mean, for any period, net income
(or loss) for the VFIC and the other Insurance Subsidiaries for such period,
determined on a consolidated basis in accordance with Statutory Accounting
Principles.
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"Statutory Surplus" shall mean the total amount reported on line 27, page
3, column 1 of the Annual Statement, or an amount determined in a consistent
manner in accordance with Statutory Accounting Principles for any date other
than one as of which an Annual Statement is prepared. Notwithstanding the
foregoing, if the format of the Annual Statement is changed in future years so
that different information is contained in such line or such line no longer
exists, it is understood that the foregoing shall refer to information
consistent with that reported on the referenced line in the 1998 Annual
Statement.
"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, in the case of a corporation, or of the ownership or beneficial
interests, in the case of a Person not a corporation, 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 Vesta.
"Termination Date" shall mean the Maturity Date or such earlier date of
termination of the Commitment pursuant to Section 2.5 or Section 8.2.
"Transaction Expenses" shall mean all costs and expenses of, and fees
payable to, the Lender that are required to be reimbursed or paid by the
Borrower pursuant to Section 9.1 of the Credit Agreement.
"Trust" shall mean Vesta Capital Trust I, a Delaware statutory business
trust.
"Trust Securities" shall mean the 8.525% Capital Securities issued by the
Trust and representing preferred beneficial interests in the Trust.
"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.
"Unsecured Credit Facility" shall mean the Credit Agreement of even date
herewith between Vesta and Lender pursuant to which Lender has or shall make
available to Vesta an unsecured revolving credit facility up to $7,500,000.
"Unutilized Commitment" shall mean, at any time, (i) the Commitment at such
time less (ii) the aggregate principal amount of Loans outstanding at such time.
"VFIC" shall mean Vesta Fire Insurance Corporation, an Alabama corporation.
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"Wholly Owned" shall mean, with respect to any Subsidiary of any Person,
that 100% of the outstanding capital stock or other ownership interests of such
Subsidiary is owned, directly or indirectly, by such Person.
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 Generally Accepted Accounting
Principles (or, to the extent that such terms apply solely to any Insurance
Subsidiary or if otherwise expressly required, Statutory Accounting Principles).
Notwithstanding the foregoing, in the event that any changes in Generally
Accepted Accounting Principles or Statutory Accounting Principles after the date
hereof are required to be applied to the transactions described herein and would
affect the computation of the financial covenants contained in Sections 6.1
through 6.4, as applicable, 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 an Annual Statement or Quarterly Statement are based on the
format promulgated by the NAIC for the 1995 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 1995 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.
ARTICLE 11
AMOUNT AND TERMS OF THE LOANS
2.1 Commitment; Loans. The Lender 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 Effective Date to but not including the
Termination Date, in an aggregate principal amount at any time outstanding not
exceeding $7,500,000 (as such amount may be permanently reduced in accordance
with Section 2.5(b) the "Commitment"), 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 Commitment. Subject to
and on the terms and conditions of this Agreement, the Borrower may borrow,
repay and reborrow Loans.
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2.2 Borrowings.
(a) In order to make a Borrowing, Vesta will give the Lender written
notice not later than 10:00 a.m., Birmingham time, one (1) Business Day prior to
each Borrowing; provided, however, that a request for a Borrowing to be made on
the Effective Date may, at the discretion of the Lender, be given later than the
time specified therefor as set forth hereinabove. Each such notice (each, a
"Notice of Borrowing") shall be irrevocable, shall be given in the form of
Exhibit C and shall specify (i) the aggregate principal amount of the Loans to
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be made pursuant to such Borrowing, and (ii) the requested Borrowing Date, which
shall be a Business Day. Notwithstanding anything to the contrary contained
herein, the aggregate principal amount of each Borrowing 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 Unutilized Commitment).
(b) Not later than noon, Birmingham time, on the requested Borrowing
Date, the Lender will make the requested amount available to the Borrower
subject to the provisions of subsection (a) hereof and Section 2.1.
(c) The Borrower hereby authorizes the Lender to disburse the proceeds
of each Borrowing in accordance with the terms of any written instructions from
any of the Authorized Officers of Vesta, provided that the Lender shall not be
obligated under any circumstances to forward amounts to any account not listed
in an Account Designation Letter. Vesta may at any time deliver to the Lender
an Account Designation Letter listing any additional accounts or deleting any
accounts listed in a previous Account Designation Letter.
2.3 Note.
(a) The Loan shall be evidenced by a Note appropriately completed in
substantially the form of Exhibit A.
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(b) The Note shall (i) be executed by the Borrower, (ii) be payable to
the order of the Lender, (iii) be dated as of the Effective Date, (iv) be in a
stated principal amount equal to the Commitment, (v) bear interest in accordance
with the provisions of Section 2.7, as the same may be applicable to the Loans
made by the Lender from time to time, 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) The Lender will record on its internal records the amount of each
Loan made by it and each payment received by it in respect thereof and will, in
the event of any transfer of the Note, either endorse on the reverse side
thereof or on a schedule attached thereto (or any continuation thereof) the
outstanding principal amount of the Loans evidenced thereby as of the date of
transfer or provide such information on a schedule to the documents relating to
such transfer; provided, however, that the failure of the Lender to make any
such recordation or provide any such
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<PAGE>
information, or any error therein, shall not affect the Borrower's obligations
under this Agreement or the Notes.
2.4 Security. The Loans shall be secured by an assignment by Gaines of
the proceeds under the Contract and the assignment of dividends and
distributions paid by Gaines to Vesta with respect to stock or any other
ownership interest in Gaines. At Lender's request, each of Vesta and Gaines
will from time to time execute any and all financing statements, continuation
statements and other instruments and documents necessary to perfect Lender's
first priority security interest in the Collateral.
2.5 Termination and Reduction of Commitment.
(a) The Commitment shall be automatically and permanently terminated
on the Maturity Date unless sooner terminated pursuant to subsection (b) below
or Section 8.2.
(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 Lender, the
Borrower, without premium or penalty, may terminate in whole or reduce in part
the Unutilized Commitment, provided that any such partial reduction shall be in
an aggregate amount of not less than $1,000,000 or, if greater, an integral
multiple thereof. The amount of any termination or reduction made under this
subsection (b) may not thereafter be reinstated.
(c) If at any time the market value of the Collateral declines or the
Collateral is determined to be insufficient by a Governmental Authority having
jurisdiction over the Lender, the Commitment shall be reduced, or at the
Borrower's option, the Borrower may provide additional collateral, so that at
all times the Loans are secured to the extent required by Ala. Code (S) 5-5A-22
and regulations promulgated thereunder and 12 U.S.C. (S) 84 and regulations
promulgated thereunder as the same relate to lending restrictions on loans to
one borrower.
2.6 Mandatory and Voluntary Payments and Prepayments.
(a) Except to the extent due or made sooner pursuant to the provisions
of this Agreement, the Borrower will repay the aggregate outstanding principal
amount of the Loans 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 Commitment 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) 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 for the Non-Usage Fee), upon written notice to the Lender given not
later than noon, Birmingham time, one (1) Business Day prior
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to each intended prepayment of Loans, provided that 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. Each such notice
shall specify the proposed date of such prepayment and the aggregate principal
amount of the Loan to be prepaid and shall be irrevocable and shall bind the
Borrower to make such prepayment on the terms specified therein. Amounts prepaid
pursuant to this subsection (c) may be reborrowed, subject to the terms and
conditions of this Agreement.
2.7 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, at the Base Rate.
(b) Any principal amounts of the Loans not paid when due and, to the
greatest extent permitted by law, all interest accrued on the Loans and all
other fees and amounts hereunder not paid within five (5) days of its due date
(whether at maturity, pursuant to acceleration or otherwise), shall bear
interest at a rate per annum equal to the Base Rate plus 3% per annum and such
default interest shall be payable on demand. In addition, if payment of
principal or interest (other than payments due upon maturity) on the Loans is
not paid within five (5) days of when due, Borrower shall pay on demand a late
charge equal to five percent (5%) of the amount of the payment which is late,
subject to a minimum late charge of $25.00 and a maximum late charge of $500.00.
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 arrears on the last Business Day of each quarter of each
calendar year; provided, that in the event the Loan is repaid or prepaid in
full and the Commitment has been terminated, then accrued interest in
respect of the Loan shall be payable together with such repayment or
prepayment on the date thereof; and
(ii) at maturity (whether pursuant to acceleration or otherwise)
and, after maturity, on demand.
(d) Nothing contained in this Agreement or in any other Credit
Document shall be deemed to establish or require the payment of interest to the
Lender at a rate in excess of the maximum rate permitted by applicable law. If
the amount of interest payable on any interest payment date would exceed the
maximum amount permitted by applicable law to be charged by the Lender, the
amount of interest payable on such interest payment date shall be automatically
reduced to such maximum permissible amount. In the event of any such reduction
affecting the Lender, if from time to time thereafter the amount of interest
payable for the account of the Lender on any interest
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payment date would be less than the maximum amount permitted by applicable law
to be charged by the 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 the 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.
2.8 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 Lender at its office referred to in Section 9.5, prior to 11:00
a.m., Birmingham time, on the date payment is due. Any payment made as required
hereinabove, but after 11:00 a.m., Birmingham 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, and such extension of time shall then be included in
the computation of payment of interest, fees or other applicable amounts.
(b) The Lender may, but shall not be obligated to, debit the amount of
any such payment not made as and when required hereunder to any ordinary deposit
account of the Borrower with the Lender (with prompt notice to the Lender and
the Borrower); provided, however, that the failure to give such notice shall not
affect the validity of such debit by the Lender.
(c) All computations of interest and fees hereunder shall be made on
an Actual/360 Basis.
2.9 Recovery of Payments. The Borrower agrees that to the extent the
Borrower makes a payment or payments to or for the account of the 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.
2.10 Use of Proceeds. The proceeds of the Loans shall be used to provide a
source of ongoing working capital for the Borrower.
2.11 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 Governmental Authority charged with the
interpretation or administration thereof, or compliance by the Lender with any
guideline or request from any such Governmental Authority (whether or not having
the force of law), shall (i) subject the Lender to any tax or other charge, or
change the basis of taxation of payments
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to the Lender, (ii) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, the Lender, or (iii) impose on the Lender any
other condition affecting its Loans, and the result of any of the foregoing
shall be to increase the cost to the Lender of making or maintaining any Loans
or to reduce the amount of any sum received or receivable by the Lender
hereunder, the Borrower will, promptly upon demand therefor by the Lender, pay
to the Lender such additional amounts, excluding amounts in respect of income,
franchise and excise taxes as shall compensate the Lender for such increase in
costs or reduction in return.
(b) If, at any time after the date hereof and from time to time, the
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 Governmental Authority charged
with the interpretation or administration thereof, or compliance by the Lender
with any guideline or request from any such Governmental Authority (whether or
not having the force of law), has or would have the effect, as a consequence of
the Lender's Commitment or Loans hereunder, of reducing the rate of return on
the capital of the Lender or any Person controlling the Lender to a level below
that which the Lender or controlling Person could have achieved but for such
introduction, change or compliance (taking into account the Lender's or
controlling Person's policies with respect to capital adequacy), the Borrower
will, promptly upon demand therefor by the Lender therefor, pay to the Lender
such additional amounts, excluding amounts in respect of income, franchise and
excise taxes, as will compensate the Lender or controlling Person for such
reduction in return.
(c) Determinations by the Lender for purposes of this Section 2.11 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 Lender at any time to
demand payment of any amounts payable under this Section 2.11 shall constitute a
waiver of its right to demand payment of any additional amounts arising at any
subsequent time. Nothing in this Section 2.11 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.
2.12 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, other than net income, excise and franchise taxes imposed on the Lender
by the United States or by the jurisdiction under the laws of which the Lender,
as the case may be, is organized or in which its principal office is located, or
any political subdivision or taxing authority thereof (all such non-excluded
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 Lender, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions
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(including deductions applicable to additional sums payable under this Section
2.12), the 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 Lender evidence of such payment.
(b) The Borrower will indemnify the Lender for the full amount of
Taxes (including, without limitation, any Taxes imposed by any jurisdiction on
amounts payable under this Section 2.12) paid by the Lender and any liability
(including penalties, interest and expenses) 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 Lender, makes
written demand therefor.
(c) The Lender 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 Lender 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 2.12 with respect to the Taxes giving rise to
such recovery or tax benefit); provided, however, that the Borrower, upon the
request of the Lender, agrees to repay to the Lender the amount paid over to the
Borrower (together with any penalties, interest or other charges), in the event
the Lender is required to repay such amount to the relevant taxing authority or
other Governmental Authority. The determination by the Lender of the amount of
any such recovery or permanent net tax benefit shall, in the absence of manifest
error, be conclusive and binding.
2.13 Non-Usage Fee. From and after the Effective Date until the
Termination Date (or such later date that the Loans are repaid), the Borrower
agrees to pay Lender a non-usage fee for each calendar quarter, prorated for
partial quarters, in an amount equal to the Applicable Percentage multiplied by
the average daily Unutilized Commitment (the "Non-Usage Fee") multiplied by the
number of days in such quarter or portion thereof and divided by 360. The Non-
Usage Fee shall be payable quarterly in arrears on the last day of each calendar
quarter commencing with the period ending March 31, 2000, and shall be prorated
for partial calendar quarters.
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ARTICLE III
CONDITIONS OF BORROWING
3.1 Conditions to Effectiveness of this Agreement. The effectiveness of
this Agreement is subject to the satisfaction of the following conditions
precedent:
(a) The Lender shall have received the following, each dated the
Effective Date (unless otherwise specified):
(i) the Note in the amount of the Commitment and duly completed
and executed by the Borrower;
(ii) the Assignment executed by Gaines;
(iii) the Assignment of Dividends executed by Vesta;
(iv) payment of a one-time fee of three-eighths of one percent
of the Commitment;
(v) a certificate, signed by the chief executive officer, vice
president-finance or treasurer of the Borrower, in form and substance
satisfactory to the Lender, certifying that (A) all representations
and warranties of the Borrower contained in this Agreement and the
other Credit Documents are true and correct as of the Effective Date,
both immediately before and after giving effect to the consummation of
the transactions contemplated by this Agreement, the making of any
Loans hereunder on the Effective Date and the application of the
proceeds thereof, (B) 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 by this Agreement, the
making of any Loans hereunder on the Effective Date and the
application of the proceeds thereof, (C) there are no insurance
regulatory proceedings pending or, to such individual's knowledge,
threatened against any of the Insurance Subsidiaries in any
jurisdiction that, if adversely determined, would be reasonably likely
to have a Material Adverse Effect, and (D) except as disclosed in such
certificate, both immediately before and after giving effect to the
consummation of the transactions contemplated by this Agreement, no
Material Adverse Change has occurred since December 31, 1998, and
there exists no event, condition or state of facts that could
reasonably be expected to result in a Material Adverse Change;
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(vi) a certificate of the secretary or an assistant secretary of
the Borrower, in form and substance satisfactory to the Lender,
certifying (A) to the effect that attached thereto is a true and
complete copy of the Borrower's certificate of incorporation,
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, and attaching such copy, (B) to the effect that
attached thereto is a true and complete copy of the Borrower's bylaws,
as then in effect and as in effect at all times from the date on which
the resolutions referred to in clause (C) below were adopted to and
including the date of such certificate, and attaching such copy), and
(C) that attached thereto is a true and complete copy of resolutions
adopted by the Borrower's board of directors or a committee of such
board authorizing the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party, and
attaching such copy; and
(vii) a favorable opinion of an attorney or firm of attorneys
duly licensed to practice law in the jurisdiction the laws of which
are applicable to the legal matters in question and who is not an
employee of the Borrower or an Affiliate of the Borrower and addressed
to the Lender, and addressing such other matters as the Lender may
reasonably request.
(b) The Lender shall have received (i) a certificate as of a recent
date of the good standing of the Borrower under the laws of the State of
Delaware, from the Secretary of State of Delaware, (ii) a certificate as of a
recent date of the qualification of the Borrower to conduct business as a
foreign corporation, from the Secretary of State of Alabama, and (iii) a
certificate as of a recent date of the good standing of the Borrower, from the
Department of Revenue of the State of Alabama.
(c) All legal matters, documentation and corporate or other
proceedings incident to the transactions contemplated hereby shall be reasonably
acceptable to the Lender; all approvals, permits and consents of any
Governmental Authorities (including, without limitation, all relevant Insurance
Regulatory Authorities) or other Persons required in connection with the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby shall have been obtained (without the
imposition of conditions that are not reasonably acceptable to the Lender), 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 Lender
shall have received such copies thereof as it shall have reasonably requested;
all applicable waiting periods shall have expired without any adverse action
being taken by any Governmental Authority 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 Authority, in each case to
enjoin, restrain or prohibit, to obtain substantial damages in respect of, or
that is
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otherwise related to or arises out of, this Agreement or the consummation of the
transactions contemplated hereby, or that, in the reasonable opinion of the
Lender, would otherwise be reasonably likely to have a Material Adverse Effect.
(d) Since December 31, 1998, 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, except as disclose in the certificate referenced in
subsection (a) above.
(e) The Borrower shall have paid all fees and expenses of the Lender
required hereunder or under any other Credit Document to be paid on or prior to
the Effective Date (including reasonable fees and expenses of the Lender's
counsel) in connection with this Agreement and the transactions contemplated
hereby.
(f) Each of the representations and warranties contained in Article IV
and in the other Credit Documents shall be true and correct on and as of the
Effective Date with the same effect as if made on and as of 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 as of such date).
(g) No Default or Event of Default shall have occurred and be
continuing.
(h) To the extent required under Ala. Code (S) 5-5A-22 (1996) and
regulations promulgated thereunder and 12 U.S.C. (S) 84 and regulations
promulgated thereunder as such relate to lending restrictions on loans to one
borrower, the Lender shall have received such appraisals or other documentation
as it shall deem necessary to (i) establish the Collateral as "Readily
Marketable" and (ii) establish a readily established market value in the
Collateral sufficient to satisfy the foregoing regulations.
(i) The Lender shall have received such other documents, certificates,
opinions and instruments as it shall have reasonably requested.
3.2 Conditions to All Loans. The obligation of the Lender to make any
Loans hereunder is subject to the satisfaction of the following conditions
precedent on the relevant Borrowing Date:
(a) The Lender shall have received a Notice of Borrowing in accordance
with Section 2.2;
(b) Each of the representations and warranties contained in Article IV
and in the other Credit Documents shall be true and correct on and as of the
relevant Borrowing Date 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
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stated to have been made as of a specific date, in which case such
representation or warranty shall be true and correct 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 on such date.
Each giving of a Notice of Borrowing, and the consummation of each
Borrowing, shall be deemed to constitute a representation 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 Lender to enter into this Agreement and to induce the Lender
to extend the credit contemplated hereby, the Borrower represents and warrants
to the Lender as follows:
4.1 Corporate Organization and Power. Each of Vesta 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.
4.2 Authorization; Enforceability. The Borrower has 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 Effective 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
by the Borrower 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 or by
general equitable principles.
4.3 No Violation. Except as set forth in Schedule 4.3 attached hereto,
the execution, delivery and performance by the Borrower of this Agreement and
each of the other Credit Documents, 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 Requirement of Law applicable to
it, (ii) conflict with, result in a breach of or constitute (with notice, lapse
of time
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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 attached hereto, no Subsidiary is subject to any restriction or encumbrance
on its ability to make dividend payments or other distributions in respect of
its capital stock, to make loans or advances to Vesta or any other Subsidiary,
or to transfer any of its assets or properties to Vesta 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 Authorization; Permits.
(a) Except as set forth on Schedule 4.4(a) attached hereto, no
consent, approval, authorization or other action by, notice to, or registration
or filing with, any Governmental Authority or other Person is or will be
required as a condition to or otherwise in connection with the due execution,
delivery and performance by Vesta of this Agreement or any of the other Credit
Documents or the legality, validity or enforceability hereof or thereof.
(b) Except as set forth in Schedule 4.4(b) attached hereto, each of
Vesta 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 (collectively, the "Licenses") 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. To the knowledge of the Borrower, except as
set forth on Schedule 4.4(b), (i) no 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, that, in each instance under (i), (ii) and (iii)
above, would be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect.
(c) Upon written request, Vesta will provide with respect to each
Insurance Subsidiary a list of 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"), indicating the line or lines of insurance in
which each such Insurance Subsidiary is permitted to be engaged with respect to
each License therein listed, and attaching copies of all Licenses in the States
of Alabama, Hawaii, Indiana, Ohio and Texas.
4.5 Litigation. Except as set forth on Schedule 4.5, 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 Authority or other Person, (i) against or affecting Vesta,
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. Except as set forth in Schedule 4.6 attached hereto, each of
Vesta 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 that are being contested
in good faith and by proper proceedings and for which adequate reserves have
been established in accordance with Generally Accepted Accounting Principles.
Such returns accurately reflect in all material respects all liability for taxes
of Vesta and its Subsidiaries for the periods covered thereby. Except as set
forth in Schedule 4.6 attached hereto, there is no ongoing material audit or
examination or, to the knowledge of the Borrower, other investigation by any
Governmental Authority of the tax liability of Vesta or any of its Subsidiaries,
and there is no unresolved claim by any Governmental Authority concerning or any
material tax liability of Vesta 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
Generally Accepted Accounting Principles. Except as set forth in Schedule 4.6
attached hereto, neither Vesta 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 material taxes.
4.7 Subsidiaries. Schedule 4.7 sets forth a list, as of the Effective
Date, of all of the Subsidiaries of Vesta and, as to each such Subsidiary, the
percentage ownership (direct and indirect) of Vesta in each class of its capital
stock and each direct owner thereof. All of the issued and outstanding shares
of capital stock of VFIC are directly owned and held by Vesta.
4.8 Full Disclosure. All factual information heretofore or
contemporaneously furnished to the Lender in writing by or on behalf of Vesta 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 Lender in writing by or on behalf of Vesta 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 materially 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
materially misleading.
4.9 Margin Regulations. Neither Vesta 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 (except for purchases by Vesta of outstanding shares of its
capital stock made in compliance with the applicable provisions of Regulations
G, T, U and X), to extend credit for such purpose or for any other purpose that
would violate or be inconsistent with Regulations G, T, U or X or any provision
of the Exchange Act.
4.10 No Material Adverse Change. Except as set forth in the Vesta's
filings with the Securities and Exchange Commission prior to the date of this
Agreement, there has been no Material
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Adverse Change since December 31, 1998, 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) Vesta has heretofore furnished to the Lender copies of (i) the
audited consolidated balance sheets of Vesta and its Subsidiaries as of December
31, 1998, 1997, and 1996, and the related statements of income, stockholders'
equity and cash flows for the fiscal years then ended, together with the opinion
of KPMG Peat Marwick thereon or PricewaterhouseCoopers, and (ii) the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as of September
30, 1999, and the related statements of income, stockholders' equity and cash
flows for the nine-month period then ended. Except as set forth in Schedule
4.11(a) attached hereto, such financial statements have been prepared in
accordance with Generally Accepted Accounting Principles (subject, with respect
to the unaudited financial statements, to the absence of notes required by
Generally Accepted Accounting Principles and to normal year-end audit
adjustments) and present fairly the financial condition of Vesta and its
Subsidiaries on a consolidated basis as of the respective dates thereof and the
consolidated results of operations of Vesta 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 Vesta or any of its
Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise
and whether or not due).
(b) Vesta has heretofore furnished to the Lender copies of the Annual
Statements of each of the Insurance Subsidiaries as of December 31, 1998, 1997,
1996 and l995, and for the fiscal years then ended, each as filed with the
relevant Insurance Regulatory Authority (collectively, the "Historical Statutory
Statements"). Except as set forth in Schedule 4.11(b) attached hereto, the
Historical Statutory 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
Statutory Accounting Principles (except as may be reflected in the notes thereto
and subject, with respect to the Quarterly Statements, to the absence of notes
required by Statutory Accounting Principles and to normal year-end adjustments),
were in compliance with applicable Requirements of Law when filed and present
fairly the financial condition of the respective 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 Insurance
Subsidiaries covered thereby for the respective periods then ended. Except for
liabilities and obligations disclosed or provided for in the Historical
Statutory Statements (including, without limitation, reserves, policy and
contract claims and statutory liabilities), no Insurance Subsidiary had, as of
the date of its respective Historical Statutory Statements, any material
liabilities or obligations of any nature whatsoever (whether absolute,
contingent or otherwise and whether or not due) that, in accordance with
Statutory Accounting Principles, would have been required to have been disclosed
or provided for in such Historical Statutory Statements. 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.
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(c) Each of Vesta and its Subsidiaries, after giving effect to the
consummation of the transactions contemplated hereby, (i) will have capital
sufficient to carry on its businesses as conducted and as proposed to be
conducted, (ii) will have assets with a fair saleable value, determined on a
going concern basis, (A) not less than the amount required to pay the probable
liability on its existing debts as they become absolute and matured and (B)
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) will not intend to, and will 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 Vesta 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, and (iii) has good title to all of its other material 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) and (iii) above free
and clear of all Liens other than Permitted Liens.
4.13 ERISA. 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. No ERISA Event has occurred and is continuing or, to the knowledge of the
Borrower, is reasonably expected to occur with respect to any Plan, in either
case that would be reasonably likely, individually or in the aggregate, to have
a Material Adverse Effect. No Plan has any Unfunded Pension Liability, and
neither Vesta nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA, in either instance where the same
would be reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect. Neither Vesta nor any ERISA Affiliate is required to contribute
to or has, or has at any time had, any liability to a Multiemployer Plan.
4.14 Environmental Matters.
(a) No Hazardous Substances are or have been generated, used,
located, released, treated, disposed of or stored by Vesta or any of its
Subsidiaries or, to the knowledge of the Borrower, by any other Person or
otherwise, in, on or under any portion of any real property, leased or owned, of
Vesta 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 Vesta or any of its Subsidiaries, has been contaminated by any
Hazardous Substance; and no portion of any real property, leased or owned, of
Vesta or any of its Subsidiaries has been or, to the knowledge of the Borrower,
is presently the subject of an environmental audit, assessment or remedial
action.
(b) To the knowledge of the Borrower, (i) no portion of any real
property, leased or owned, of Vesta or any of its Subsidiaries has been used as
or for a mine, a landfill, a dump or
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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, (ii) no portion of such real property or any other
real property at any time leased, owned or operated by Vesta 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 (iii) there
are not and have never been any underground storage tanks situated on any real
property, leased or owned, by Vesta or any of its Subsidiaries.
(c) All activities and operations of Vesta 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. Neither Vesta 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
Authority 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.
4.15 Compliance With Laws. Except as set forth in Schedule 4.15 attached
hereto, each of Vesta and its Subsidiaries has timely filed all material
reports, documents and other materials required to be filed by it under all
applicable Requirements of Law with any Governmental Authority, 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 Vesta 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 Vesta 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. No notice of any pending or threatened cancellation or material
premium increase has been received by the Borrower or any of its Subsidiaries
with respect to any such policies, and the Borrower and each of its Subsidiaries
are in substantial compliance with all conditions contained therein.
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ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Commitment 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 GAAP Financial Statements. The Borrower will deliver to the 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 ended March 31, 2000, unaudited consolidated
and consolidating balance sheets of Vesta and its Subsidiaries as of the end of
such fiscal quarter and unaudited consolidated and consolidating statements of
income, stockholders' equity and cash flows for Vesta 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 prepared
in accordance with Generally Accepted Accounting Principles (subject to the
absence of notes required by Generally Accepted Accounting Principles and
subject to normal year-end audit 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 120 days after the
end of each fiscal year, beginning with the fiscal year ended December 31, 1999,
(i) an audited consolidated balance sheet of Vesta and its Subsidiaries as of
the end of such fiscal year and audited consolidated statements of income,
stockholders' equity and cash flows for Vesta and its Subsidiaries for the
fiscal year then ended, including the applicable notes, in each case setting
forth comparative figures as of the end of and for the preceding fiscal year,
certified by the independent certified public accounting firm regularly retained
by Vesta or another independent certified public accounting firm of recognized
national standing reasonably acceptable to the Lender, 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 Vesta and its
Subsidiaries as of the dates and for the periods indicated in accordance with
generally accepted accounting principles applied on a basis consistent with that
of the preceding year or containing disclosure of the effect on the financial
position 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 Vesta 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
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course of their audit examination, and (ii) an unaudited consolidating balance
sheet of Vesta and its Subsidiaries as of the end of such fiscal year and
unaudited consolidating statements of income, stockholders' equity and cash
flows for Vesta and its Subsidiaries for the fiscal year then ended, all in
reasonable detail.
5.2 Statutory Financial Statements. Vesta will deliver to the Lender:
(a) As soon as available and in any event within fifty (50) days after
the end of each of the first three fiscal quarters of each fiscal year,
beginning with the fiscal quarter ending March 31, 2000, a Quarterly Statement
of each 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 relevant
Insurance Regulatory Authority, prepared in accordance with Statutory Accounting
Principles 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 sixty-five (65) days
after the end of each fiscal year, beginning with the fiscal year ending
December 31, 1999, an Annual Statement of each Insurance Subsidiary as of the
end of such fiscal year and for the fiscal year then ended, in the form filed
with the relevant Insurance Regulatory Authority, prepared in accordance with
Statutory Accounting Principles 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 available and in any event within 135 days after the
end of each fiscal year, beginning with the fiscal year ended December 31, 1999,
an unaudited consolidated balance sheet of Vesta and its Insurance Subsidiaries
as of the end of such fiscal year and unaudited consolidated statements of
income, stockholders' equity and cash flows for Vesta and its Insurance
Subsidiaries for the fiscal year then ended, in each case setting forth
comparative consolidated figures as of the end of and for the preceding fiscal
year, all prepared in accordance with Statutory Accounting Principles 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
(d) As soon as available and in any event within 155 days after the
end of each fiscal year, beginning with the fiscal year ended December 31, 1999
(but only if and to the extent required by the applicable Insurance Regulatory
Authority with regard to any Insurance Subsidiary), a certification by the
independent certified public accounting firm referred to in Section 5. l(b) as
to the Annual Statement of each such Insurance Subsidiary as of the end of such
fiscal year and for the fiscal year then ended, together with 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 such Insurance Subsidiary as of
the date and for the period indicated in accordance with statutory accounting
principles applied on a basis
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consistent with that of the preceding year or containing disclosure of the
effect on the financial position or results of operations of any change in the
application of accounting principles and practices during such year.
5.3 Other Business and Financial Information. Vesta will deliver to the
Lender:
(a) Concurrently with each delivery of the financial statements
described in Sections 5.1 and 5.2, a Compliance Certificate in the form of
Exhibit D-1 (in the case of the financial statements described in Section 5.1)
- -----------
or Exhibit D-2 (in the case of the financial statements described in Section
-----------
5.2) with respect to the period covered by the financial statements then being
delivered, executed by the chief financial officer, vice president-finance or
treasurer of Vesta, together, in the case of the financial statements described
in Section 5.1, with a Covenant Compliance Worksheet reflecting the computation
of the financial covenants set forth in Sections 6.1, 6.2 and 6.3 as of the last
day of the period covered by such financial statements, and in the case of the
financial statements described in Section 5.2, with a Covenant Compliance
Worksheet reflecting the computation of the financial covenants set forth in
Section 6.4 as of the last day of the period covered by such financial
statements;
(b) Promptly upon filing with the relevant Insurance Regulatory
Authority and in any event within ninety (90) days after the end of each fiscal
year, beginning with the fiscal year ended December 31, 1999, a copy of each
Insurance Subsidiary's "Statement of Actuarial Opinion" (or equivalent
information should the relevant Insurance Regulatory Authority not require such
a statement) as to the adequacy of such Insurance Subsidiary's loss reserves for
such fiscal year, together with a copy of its management discussion and analysis
in connection therewith, each in the format prescribed by the applicable
insurance laws of such Insurance Subsidiary's jurisdiction of domicile;
(c) Promptly upon the sending, filing or receipt thereof, copies of
(i) all financial statements, reports, notices and proxy statements that Vesta
or any of its Subsidiaries shall send or make available generally to its
shareholders, (ii) all reports (other than earnings press releases) on Form 10-
Q, Form 10-K or Form 8-K (or their successor forms) or registration statements
and prospectuses (other than on Form S-8 or its successor form) that Vesta or
any of its Subsidiaries shall render to or file with the Securities and Exchange
Commission, the National Association of Securities Dealers, Inc. or any national
securities exchange, (iii) all reports on Form A or Form B (or their successor
forms) that any Insurance Subsidiary shall file with any Insurance Regulatory
Authority, (iv) all significant reports on examination or similar significant
reports, financial examination reports or market conduct examination reports by
the NAIC or any Insurance Regulatory Authority or other Governmental Authority
with respect to any Insurance Subsidiary's insurance business, and (v) all
significant filings made under applicable state insurance holding company acts
by Vesta or any of its Subsidiaries, including, without limitation, filings
seeking approval of transactions with Affiliates;
(d) Promptly upon (and in any event within five (5) Business Days
after) obtaining knowledge thereof, written notice of any of the following:
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(i) the occurrence of any Default or Event of Default, together
with a written statement of the chief executive officer, chief financial
officer or vice president-finance of Vesta specifying the nature of such
Default or Event of Default, the period of existence thereof and the
action that Vesta has taken and proposes to take with respect thereto,
(ii) the institution or written threatened institution of any
action, suit, investigation or proceeding against or affecting Vesta or
any of its Subsidiaries, including any such investigation or proceeding
by any Insurance Regulatory Authority or other Governmental Authority
(other than routine 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 Section 5.3(d)(ii);
(iii) the receipt by Vesta or any of its Subsidiaries from any
Insurance Regulatory Authority or other Governmental Authority of (i)
any written notice asserting any failure by Vesta or any of its
Subsidiaries to be in compliance with applicable Requirements of Law or
that threatens the taking of any action against Vesta or such Subsidiary
or sets forth circumstances that, if taken or adversely determined,
would be reasonably likely to have a Material Adverse Effect, or (ii)
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 of Vesta or any of its Subsidiaries,
where such action would be reasonably likely to have a Material Adverse
Effect; (iv) the occurrence of any ERISA Event, together with (i) a
written statement of the chief executive officer, chief financial
officer or vice president-finance of Vesta specifying the details of
such ERISA Event and the action that Vesta has taken and proposes to
take with respect thereto, (ii) a copy of any notice with respect to
such ERISA Event that may be required to be filed with the PBGC and
(iii) a copy of any notice delivered by the PBGC to Vesta or such ERISA
Affiliate with respect to such ERISA Event:
(v) the occurrence of any decrease in (y) the rating given by
either Standard & Poor's or Moody's with respect to Vesta's senior
publicly traded Indebtedness or (z) the rating given to any Insurance
Subsidiary by A.M. Best & Company; and
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(vi) any other matter or event that has, or would be reasonably
likely to have, a Material Adverse Effect, together with a written
statement of the chief executive officer, chief financial officer or
vice president-finance of Vesta setting forth the nature and period of
existence thereof and the action that Vesta has taken and proposes to
take with respect thereto,
(e) Within five (5) Business Days after request therefor by the
Lender, if theretofore prepared and delivered to Vesta, or within ninety (90)
days after request therefor by the Lender from time to time (but not more than
once per year), if not theretofore prepared and delivered to Vesta, in either
case at Vesta's expense, an actuarial review and valuation statement of, and
opinion as to the adequacy of, each Insurance Subsidiary's loss and loss
adjustment expense reserve positions as of the end of such year with respect to
the insurance business then in force, and covering such other subjects as are
customary in actuarial reviews, prepared by PricewaterhouseCoopers or another
independent actuarial firm reasonably acceptable to the Lender, together with a
favorable review letter thereon by Vesta's regularly retained independent
certified public accountants, all in form and substance satisfactory to the
Lender; and
(f) As promptly as reasonably possible, such other information about
the business, condition (financial or otherwise), operations or properties of
Vesta or any of its Subsidiaries as the Lender may from time to time reasonably
request.
5.4 Corporate Existence; Franchises; Maintenance of Properties. Vesta
will, and will cause each of its Subsidiaries to, (i) maintain and preserve in
full force and effect its corporate existence, except as expressly permitted
otherwise by Section 7.1, (ii) obtain, maintain and preserve in full force and
effect all other rights, franchises, licenses, permits, certifications,
approvals and authorizations required by Governmental Authorities 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.
5.5 Compliance with Laws. Vesta 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. Vesta will, and will cause each of its
Subsidiaries to, (i) pay all liabilities and obligations as and when due
(subject to any applicable subordination provisions), except to the extent
failure to do so would not be reasonably likely to have a Material Adverse
Effect, 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
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attach thereto, and all lawful claims that, if unpaid, might become a Lien upon
any of the properties of Vesta or any of its Subsidiaries; provided, however,
that neither Vesta 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 Vesta or such Subsidiary is maintaining
adequate reserves with respect thereto in accordance with Generally Accepted
Accounting Principles.
5.7 Insurance. Vesta 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; provided that
Vesta and its Subsidiaries may self-insure against risks consistent with
customary industry practices for companies in the same or similar businesses, of
similar size and with similar risk parameters.
5.8 Maintenance of Books and Records; Inspection. Vesta 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 Generally Accepted Accounting Principles or Statutory Accounting
Principles, as applicable, and in compliance with the requirements of any
Governmental Authority having jurisdiction over it, and (ii) permit employees or
agents of the 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 Vesta, the independent public accountants of Vesta and its
Subsidiaries (and by this provision Vesta 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.
5.9 Subsidiary Dividends. Vesta will take all action necessary to cause
its Subsidiaries to make such dividends, distributions or other payments to the
Borrower as shall be necessary for Vesta to make payments of the principal of
and interest on the Loans in accordance with the terms of this Agreement. In the
event the approval of any Governmental Authority or other Person is required in
order for any such Subsidiary to make any such dividends, distributions or other
payments to Vesta, or for Vesta to make any such principal or interest payments,
Vesta will forthwith exercise its best efforts and take all reasonable actions
permitted by law and necessary to obtain such approval.
5.10 Further Assurances. Vesta 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 Lender to effect,
confirm or further assure or protect and preserve the interests, rights and
remedies of the Lender 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
Commitment 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 Statutory Consolidated Net Income. Vesta will not permit cumulative
Statutory Consolidated Net Income for any fiscal quarter then ending to be less
than the following amounts for the cumulative period corresponding thereto, with
dollars expressed in millions (calculated cumulatively for the period commencing
on October 1, 1999, and ending September 30, 2001, and for each four fiscal
quarter period ending thereafter):
Fiscal First Second Third Fourth
Year Quarter Quarter Quarter Quarter
------ ------- ------- ------- -------
1999 $ N/A $ N/A $ N/A $ 4.0
2000 11.0 18.0 25.0 28.0
2001 26.5 25.0 23.5 22.0
6.2 Consolidated Net Income. Vesta will not permit cumulative
Consolidated Net Income for any fiscal quarter then ending to be less than the
following amounts for the cumulative period corresponding thereto, with dollars
expressed in millions (calculated cumulatively for the period commencing on
October 1, l999, and ending on September 30, 2001, and for each four fiscal
quarter period ending thereafter):
Fiscal First Second Third Fourth
Year Quarter Quarter Quarter Quarter
------ ------- ------- ------- -------
1999 $ N/A $ N/A $ N/A $ 1.0
2000 3.7 6.4 9.1 10.8
2001 10.6 10.3 10.1 9.8
6.3 Statutory Surplus. Vesta will not permit Consolidated Statutory
Surplus for any fiscal quarter then ending to be less than the following amounts
for the period corresponding thereto, with dollars expressed in millions (it
being understood that any adjustments to Consolidated Statutory Surplus required
to be made by any Department of Insurance in an aggregate amount not in excess
of $25,000,000 shall not be taken into account in determining Vesta's compliance
with this section and that the amount by which any such adjustments for such
fiscal year exceed $25,000,000 shall be so taken into account):
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Fiscal First Second Third Fourth
Year Quarter Quarter Quarter Quarter
------ ------- ------- ------- -------
1999 $ N/A $ N/A $ N/A $239
2000 246 253 260 267
2001 272 278 283 289
6.4 Risk-Based Capital. Vesta will not permit "total adjusted capital"
(within the meaning of the Risk-Based Capital for Insurers Model Act as
promulgated by the NAIC as of the date hereof (the "Model Act")) of VFIC at any
time from and after the Effective Date to be less than 150% of the applicable
"Authorized Control Level" (within the meaning of the Model Act) for VFIC at
such time.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that, until the termination of the
Commitment 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. Vesta 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 Vesta or any Significant Subsidiary may merge
into or consolidate with any other Person so long as (i) the surviving
corporation is Vesta or a Wholly Owned Subsidiary (and in any event, if Vesta is
a party to such merger or consolidation, the surviving corporation shall be
Vesta) and (ii) immediately after giving effect thereto, no Default or Event of
Default would exist.
7.2 Indebtedness. Vesta will not create, incur, assume or suffer to
exist, and will not permit or cause any of its Subsidiaries to create, incur, or
knowingly assume or suffer to exist, any Indebtedness that ranks senior or pari
passu (with respect to the Collateral) in any respect to the Indebtedness under
this Agreement (or any portion thereof) as to payment or performance or as to
dividends or distributions upon bankruptcy, insolvency, liquidation or winding-
up.
7.3 Liens. Vesta will not, and will not permit or cause any of its
Subsidiaries to, directly or indirectly, make, create, incur, assume or suffer
to exist, or enter into or suffer to exist any agreement or restriction that
prohibits or conditions the creation, incurrence or assumption of, any Lien upon
or with respect to any part of its property or assets, whether now owned or
hereafter acquired, or agree to do any of the foregoing, other than the
following (collectively, "Permitted Liens"):
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(i) Liens in favor of the Lender:
(ii) Liens in existence on the Effective Date and set forth on
Schedule 7.3 and all renewals and replacements thereof;
(iii) 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 Generally Accepted Accounting Principles;
(iv) 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(i)) 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;
(v) 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 Generally Accepted Accounting Principles;
(vi) Liens in connection with pledges and deposits made pursuant
to statutory and regulatory requirements of Insurance Regulatory
Authorities by an Insurance Subsidiary in the ordinary course of its
business, for the purpose of securing regulatory capital or satisfying
other financial responsibility requirements;
(vii) Liens upon cash and United States government and agency
securities of Vesta 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 Vesta in size and
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lines of business and that are entered into by Vesta and its
Subsidiaries in the ordinary course of business;
(viii) Purchase money Liens upon real or personal property used
by Vesta or any of its Subsidiaries in the ordinary course of its
business, securing Indebtedness incurred solely to pay all or a portion
of the purchase price thereof (including in connection with capital
leases, and including mortgages or deeds of trust upon real property and
improvements thereon), provided that the aggregate principal amount at
any time outstanding of all Indebtedness secured by such Liens does not
exceed an amount equal to 5% of the value of the total assets of Vesta
and its Subsidiaries at such time, determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles as of the date
of the financial statements of Vesta and its Subsidiaries most recently
delivered under Section 5.1 prior to such time (or, with regard to
determinations at any time prior to the initial delivery of financial
statements under Section 5.1, as of the date of the most recent
financial statements referred to in Section 4.11(a)), and provided
further that any such Lien (i) shall attach to such property
concurrently with or within ten (10) days after the acquisition thereof
by Vesta or such Subsidiary, (ii) shall not exceed the lesser of (y) the
fair market value of such property or (z) the cost thereof to Vesta or
such Subsidiary and (iii) shall not encumber any other property of Vesta
or any of its Subsidiaries;
(ix) Liens on Vesta Margin Stock, to the extent the fair market
value thereof exceeds 25% of the fair market value of the assets of
Vesta and its Subsidiaries (including Vesta Margin Stock);
(x) Any attachment or judgment Lien not constituting an Event of
Default under Section 8.1(h) that is being contested in good faith by
appropriate proceedings and for which adequate reserves have been
established in accordance with Generally Accepted Accounting Principles;
(xi) With respect to any real property occupied by Vesta 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
(xii) Liens in favor of the trustee or agent under any agreement
or indenture relating to Indebtedness of Vesta and its
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Subsidiaries permitted under this Agreement, covering sums required to
be deposited with such trustee or agent thereunder.
7.4 Disposition of Assets. Vesta will not, and will not permit or cause
any of its Subsidiaries to, sell, assign, lease, convey, transfer or otherwise
dispose of (whether in one or a series of transactions) all or any portion of
its assets, business or properties, or enter into any arrangement with any
Person providing for the lease by Vesta or any Subsidiary as lessee of any asset
that has been sold or transferred by Vesta or such Subsidiary to such Person, or
agree to do any of the foregoing, except for:
(i) sales of Investments by the Insurance Subsidiaries in the
ordinary course of business;
(ii) the sale or exchange of used or obsolete equipment to the
extent (A) the proceeds of such sale are applied towards, or such
equipment is exchanged for, similar replacement equipment or (B) such
equipment is no longer necessary for the operations of Vesta or its
applicable Subsidiary in the ordinary course of business;
(iii) the sale, lease or other disposition of assets by a
Subsidiary of Vesta to Vesta or to another Wholly Owned Subsidiary, to
the extent permitted by applicable Requirements of Law and each relevant
Insurance Regulatory Authority, provided that (A) immediately after
giving effect thereto, no Default or Event of Default would exist, (B)
in no event shall Vesta contribute, sell or otherwise transfer, or
permit VFIC to issue or sell, any of the capital stock of VFIC to any
other Subsidiary, and (C) such sale or disposition would not adversely
affect the ability of any Insurance Subsidiary party thereto to pay
dividends or otherwise make distributions to its parent;
(iv) the sale or other disposition of any Vesta Margin Stock to
the extent the fair market value thereof exceeds 25% of the fair market
value of the assets of Vesta and its Subsidiaries (including Vesta
Margin Stock), provided that fair value is received in exchange
therefor; and
(v) the sale or disposition of assets outside the ordinary course
of business, provided that (A) the net proceeds from any such sale or
disposition do not exceed an amount equal to the least of the following:
(1) 10% of the total assets of Vesta and its Subsidiaries on a
consolidated basis, (2) 10% of the total revenues of Vesta and its
Subsidiaries on a consolidated basis, and (3) 10% of the total net
earnings of Vesta and its Subsidiaries on a consolidated basis, in each
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case as determined as of the date of the financial statements of Vesta
and its Subsidiaries most recently delivered under Section 5.1 prior to
such time (or, with regard to determinations at any time prior to the
initial delivery of financial statements under Section 5.1, as of the
date of the most recent financial statements referred to in Section
4.11(a)), (B) immediately after giving effect thereto, Vesta would be in
compliance with the provisions of Section 6.2, such compliance
determined on a pro forma basis in accordance with Generally Accepted
Accounting Principles as if such sale or disposition had been
consummated on the last day of the then most recently ended fiscal
quarter, (C) immediately after giving effect thereto, no Default or
Event of Default would exist, and (D) in no event shall Vesta or any of
its Subsidiaries sell or otherwise dispose of any of the capital stock
or other ownership interests of VFIC or any other Significant
Subsidiary.
7.5 Transactions with Affiliates. Vesta will not, and will not permit or
cause any of its Subsidiaries to, enter into any transaction with any officer,
director, stockholder or other Affiliate of Vesta or any Subsidiary, except in
the ordinary course of its business and upon fair and reasonable terms that are
no less favorable to it than would obtain in a comparable arm's length
transaction with a Person other than an Affiliate of Vesta or such Subsidiary;
provided, however, that nothing contained in this Section shall prohibit:
(i) transactions between and among Vesta and its Wholly Owned
Subsidiaries;
(ii) transactions under incentive compensation plans, stock
option plans and other employee benefit plans, and loans and advances
from Vesta or any of its Subsidiaries to its officers, in each case that
have been approved by the board of directors of Vesta or any of its
Subsidiaries; and
(iii) the payment by Vesta of reasonable and customary fees
to members of its board of directors.
7.6 Lines of Business. Vesta will not, and will not permit or cause any
of its Subsidiaries to, engage to any substantial degree in any business other
than the lines of property and casualty insurance business and other businesses
engaged in by Vesta and its Subsidiaries on the date hereof or a business
reasonably related thereto.
7.7 Fiscal Year. Vesta 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) Vesta shall have given the Lender written notice of its
intention to change such ending date at least sixty (60) days
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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 Lender, to reflect the new fiscal year ending date.
7.8 Accounting Changes. Vesta 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
Generally Accepted Accounting Principles or Statutory Accounting Principles, as
applicable.
7.9 Dividends. Vesta will not pay any dividends on account of its equity
securities while a Default or an Event of Default has occurred and is continuing
both immediately before and after giving effect to the payment of such
dividends.
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 (i) any principal payable under the
terms of the Note, or (ii) not later than five Business Days of the date when
due any interest or any fee or any other Obligation due under the Note or this
Agreement;
(b) An "Event of Default" (as defined therein) shall occur under the
Unsecured Credit Facility;
(c) The Borrower shall fail to observe, perform or comply with any
condition, covenant or agreement contained in any of Sections 2.11, 5.3(d)(i) or
5.4(i), Article VI, or Sections 7.1 through 7.4, inclusive, or Section 7.9;
(d) Vesta 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 Vesta acquires knowledge thereof;
(e) Any material representation or warranty made or deemed 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
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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, deemed made or furnished;
(f) Vesta 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)
having an aggregate principal amount of at least $500,000; 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) Vesta 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 Vesta 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;
(i) 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
$1,000,000 shall be entered or filed against Vesta or any of its Subsidiaries or
any of their respective properties, and (i) the same is not dismissed, stayed or
discharged within sixty (60) days or is not otherwise being appropriately
contested in good faith and in a manner reasonably satisfactory to the Lender,
or (ii) the same is not dismissed, stayed or discharged within five (5) days
prior to any proposed sale of assets of Vesta or any Subsidiary
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pursuant thereto, or (iii) any action shall be legally taken by a judgment
creditor to levy upon assets of Vesta or any Subsidiary to enforce the same;
(j) Any ERISA Event shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result thereof, together with all other ERISA
Events then existing, there shall exist a reasonable likelihood of liability to
any one or more Plans or Multiemployer Plans or to the PBGC (or to any
combination thereof) in excess of $500,000 with respect to Vesta or any ERISA
Affiliate;
(k) Any Insurance Regulatory Authority or other Governmental Authority
having jurisdiction shall issue any order of conservation, supervision,
rehabilitation or liquidation or any other order of similar effect in respect of
any Insurance Subsidiary, and such action, individually or in the aggregate,
would be reasonably likely to have a Material Adverse Effect;
(l) Any one or more licenses, permits, accreditations or
authorizations of Vesta 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 Authority in response to any alleged failure by Vesta or any of
its Subsidiaries to be in compliance with applicable Requirements of Law, and
such action, individually or in the aggregate, would be reasonably likely to
have a Material Adverse Effect;
(m) Any of the following shall occur: (i) any Person or group of
Persons acting in concert as a partnership or other group (other than the
Birmingham Investment 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 Vesta representing 30%
or more of the combined voting power of the then outstanding securities of Vesta
ordinarily (and apart from rights accruing under special circumstances) having
the right to vote on matters, other than the election of directors, submitted to
holders of Vesta's common stock; (ii) the Board of Directors of Vesta shall
cease to consist of a majority of the individuals who constituted the Board of
Directors of Vesta 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 Vesta as of the date hereof (or their replacements
approved as herein required); or (iii) Vesta shall cease to own directly 100% of
the issued and outstanding capital stock of VFIC or its successor by merger or
consolidation as permitted hereunder (including, without limitation, as a result
of the contribution, sale or transfer by Vesta, or the issuance or sale by VFIC,
of any capital stock of VFIC to any one or more other Subsidiaries of Vesta); or
(n) The Contract shall be terminated for any reason.
8.2 Remedies; Termination of Commitment, Acceleration, etc. Upon and at
any time after the occurrence and during the continuance of any Event of
Default, the Lender may take any or all of the following actions at the same or
different times:
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(a) Declare the Commitment to be terminated, whereupon the same shall
terminate provided that, upon the occurrence of an Event of Default pursuant to
Section 8.1(a), 8.1(b), 8.1 (c), 8.1 (g) or Section 8.1(h), the Commitment shall
automatically be terminated);
(b) Declare the Unsecured Credit Facility to be terminated and
exercise any and all remedies provided for thereunder.
(c) 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 Note 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(c), 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); 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, the Lender may, and 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
the Lender to or for the credit or the account of the Borrower against any or
all of the Obligations to the 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. The Lender agrees to notify
the Borrower promptly 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
MISCELLANEOUS
9.1 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 Lender (including,
without limitation, the reasonable fees and expenses of counsel to the Lender)
in connection with the preparation, negotiation, execution and delivery 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 Lender
(including, without limitation, the reasonable fees and expenses of counsel to
the Lender) in connection with (A) 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 (B) 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
harmless the Lender 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 Lender), that may be payable in connection with the transactions
contemplated by this Agreement and the other Credit Documents.
9.2 Indemnification. The Borrower agrees, whether or not the transactions
contemplated by this Agreement shall be consummated, to indemnify and hold
harmless the Lender and each of their respective directors, officers, employees,
agents and Affiliates (each, an "Indemnified Person") 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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9.3 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, ALABAMA AND SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ALABAMA (WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS THEREOF). THE BORROWER HEREBY CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF ANY STATE COURT WITHIN JEFFERSON COUNTY, ALABAMA OR
ANY FEDERAL COURT LOCATED WITHIN THE NORTHERN DISTRICT OF THE STATE OF ALABAMA
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 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 LENDER OR THE BORROWER. THE BORROWER IRREVOCABLY
AGREES TO BE BOUND (SUBJECT TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY JUDGMENT
RENDERED OR RELIEF GRANTED THEREBY AND FURTHER 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. NOTHING IN THIS SECTION SHALL AFFECT THE
RIGHT OF ANY PARTY TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY IN
THE COURTS OF ANY OTHER JURISDICTION.
9.4 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 the Borrower and the Lender, shall be resolved by
binding arbitration as provided herein. Institution of a judicial proceeding by
a party does not waive the right of that 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,
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 Title 9 of the U.S. Code, as amended. All
arbitration hearings shall be conducted in Birmingham, Alabama. 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 include only licensed attorneys. 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.
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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. 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 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.
9.5 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 either Borrower, to Vesta Insurance Group, Inc., 3760 River
Run Drive, Birmingham, Alabama 35243, Attention: Norman W. Gayle, III, Telecopy
No. (205) 970-7007, with a copy to Vesta Insurance Group, Inc., 3760 River Run
Drive, Birmingham, Alabama 35243, Attention: Donald W. Thornton, Telecopy No.
(205) 970-7007;
(b) if to First Commercial Bank, 800 Shades Creek Parkway, P.O. Box
11746, Birmingham, Alabama 35202-1746, Attention: James W. Brunstad, Telecopy
No. (205) 868-4898; and
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 deemed to have been given (i) if mailed as provided above by any method
other than overnight delivery service, on the third Business Day after deposit
in the mails, (ii) if mailed by overnight delivery service, telegraphed,
telexed, telecopied or cabled, when delivered for overnight delivery, delivered
to the telegraph company, confirmed by telex answer back transmitted by
telecopier or delivered to the cable company, respectively, or (iii) if
delivered by hand, upon delivery; provided that notices and communications to
the Lender shall not be effective until received by the Lender.
9.6 Amendments, Waivers, etc. No amendment, modification, waiver or
discharge of 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 Lender and then the same shall be effective
only in the specific instance and for the specific purpose for which given.
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9.7 Participations.
(a) The Lender may, without the consent of the Borrower, sell to one
or more other Persons with its principal place of business in the United States
(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) the Lender's
obligations under this Agreement shall remain unchanged and the Lender shall
remain solely responsible for the performance of such obligations, (ii) any such
participation shall be in an amount of not less than $1,000,000, but the Lender
shall not sell any participation that, when taken together with all other
participations, if any, sold by the Lender, covers all of the Lender's rights
and obligations under this Agreement, (iii) the Borrower shall continue to deal
solely and directly with the Lender in connection with the Lender's rights and
obligations under this Agreement, and the Lender shall not permit any
Participant to have any voting rights or any right to control the vote of the
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 (A) reduce or forgive the principal amount of, or rate of interest on, any
Loan, or reduce or forgive any fees or other Obligations, (B) extend any date
(including the Maturity Date) fixed for the payment of any principal of or
interest on any Loan, any fees or any other Obligations, or (C) increase any
Commitment of the 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 the Lender had not granted such
participation.
(b) Nothing in this Agreement shall be construed to prohibit the
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 the Lender from any of its obligations hereunder.
(c) The Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section, disclose to
the Participant or proposed Participant any information relating to Vesta and
its Subsidiaries furnished to it by or on behalf of any other party hereto,
provided that such Participant or proposed Participant agrees in writing to keep
such information confidential to the same extent required of the Lender under
Section 9.13.
9.8 No Waiver. The rights and remedies of the Lender 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 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 any
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 Lender or its agents or
employees shall be effective to amend, modify or discharge any provision of
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<PAGE>
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 Lender
to exercise any right or remedy or take any other or further action in any
circumstances without notice or demand.
9.9 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 the Borrower shall
not sell, assign or transfer any of its rights, interests, duties or obligations
under this Agreement or any other Credit Document without the prior written
consent of the Lender.
9.10 Survival. 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 shall survive the payment in full of the Loans, the
termination of the Commitment and any termination of this Agreement or any of
the other Credit Documents.
9.11 Severability. 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.
9.12 Construction. 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.
9.13 Confidentiality. The Lender agrees to keep confidential,
pursuant to its customary procedures for handling confidential information of a
similar nature and in accordance with safe and sound banking practices all
nonpublic information provided to it by or on behalf of Vesta or any of its
Subsidiaries in connection with this Agreement or any other Credit Document;
provided, however, that the Lender may disclose such information (i) to its
directors, employees and agents and to its auditors, counsel and other
professional advisors, (ii) at the demand or request of any bank regulatory
authority, court or other Governmental Authority having or asserting
jurisdiction over the Lender, as may be required pursuant to subpoena or other
legal process, or otherwise in order to comply with any applicable Requirement
of Law, (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
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<PAGE>
or to which it is a party, (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 of Section 9.7.
9.14 Reliance by Lender. The Lender 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.
9.15 Counterparts. 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 Lender and the Borrower of written or
telephonic notification of such execution and authorization of delivery thereof.
9.16 Entire 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, AND (B) MAY NOT BE AMENDED, SUPPLEMENTED,
CONTRADICTED OR OTHERWISE MODIFIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
[SIGNATURES ON FOLLOWING PAGE]
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<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
BORROWER:
VESTA INSURANCE GROUP, INC.,
a Delaware corporation
By: _________________________________
Its: _________________________________
J. GORDON GAINES, INC.,
a Delaware corporation
By: _________________________________
Its: _________________________________
LENDER:
FIRST COMMERCIAL BANK,
an Alabama banking corporation
By: _________________________________
Its: _________________________________
-50-
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