EXHIBIT 10.1
LIMITED CONSENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This LIMITED CONSENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 11, 2026 (this “Consent”), is by and among SOUTH BAY ACCEPTANCE CORPORATION, a corporation incorporated under the laws of the State of California (“SBAC”) and SOUTH BAY FUNDING LLC, a limited liability company organized under the laws of the State of Delaware (“SBF”, and together with SBAC, each, a “Borrower” and collectively, the “Borrowers”), each of the Lenders party hereto and FIFTH THIRD BANK, NATIONAL ASSOCIATION, as administrative agent (in such capacity, the “Agent”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement.
W I T N E S S E T H
WHEREAS, the Borrowers, the Guarantors, each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and the Agent are parties to that certain Amended and Restated Credit Agreement, dated as of October 6, 2023 (as amended, restated, amended and restated, supplemented, extended, or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrowers have informed the Agent that a subsidiary (“Merger Sub”) of DB Insurance Co., Ltd. (“DB”) will merge with and into The Fortegra Group, Inc., a corporation incorporated under the laws of the State of Delaware (“Fortegra Group”) with Fortegra Group being the surviving corporation, which merger will result in DB acquiring (such acquisition, the “2026 Consent Closing Date Acquisition”) 100% of the issued and outstanding Capital Stock of Fortegra Group pursuant to that certain Agreement and Plan of Merger (as amended (and including all such amendments) prior to the 2026 Consent Effective Date and any future amendment, waiver, supplement or other modification not prohibited by this Consent (the “Merger Agreement”)), by and among DB, Merger Sub, Fortegra Group and Tiptree Inc., including all schedules, exhibits and annexes thereto (collectively, the “2026 Consent Closing Date Acquisition Documents”);
WHEREAS, the Borrowers have requested that the Required Lenders (x) consent to the Change of Control that will occur solely as a result of the consummation of the 2026 Consent Closing Date Acquisition (the “Change of Control Transaction Consent”) and (y) consent to, or waive any Default or Event of Default arising from, as applicable, the Loan Parties’ delivery pursuant to Section 6.3(a) of the Credit Agreement of an audit opinion from the Accountants that contains a “going concern” or like qualification, explanation or exception solely with respect to SBAC’s consolidated financial statements for the Fiscal Year ended December 31, 2025 as a result of the impending maturity of the Obligations under the Credit Agreement (the “Going Concern Override”); and
WHEREAS, the Agent and the Lenders party hereto, which Lenders constitute the Required Lenders, agree to the Change of Control Transaction Consent and the Going Concern Override, in each case on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Article 1
CONSENT
On the 2026 Consent Closing Date, effective immediately prior to, the consummation of the 2026 Consent Closing Date Acquisition, the Lenders party to this Consent hereby agree to (a) the Change of Control Transaction Consent and (b) the Going Concern Override.
Article 2
CONDITIONS TO EFFECTIVENESS
2.1This Consent shall be effective as of the date first above written (the “2026 Consent Effective Date”) upon:
(a)Executed Loan Documents. The receipt by the Agent of a copy of this Consent, duly executed by the Borrowers and each of the Required Lenders.
(b)Fees to Lenders. The Agent’s receipt from the Borrowers or the Borrowers shall have otherwise caused to be paid for the account of each Lender that executes and delivers a signature page hereto to the Agent on or prior to March 11, 2026, a consent fee in an amount equal to 0.10% of such Lender’s Commitment.
2.2The date on which each of the following is satisfied shall be the “2026 Consent Closing Date”:
(a)Default. Prior to and after giving effect to this Consent, no Default or Event of Default shall exist.
(b)2026 Consent Closing Date Acquisition. Receipt of the final 2026 Consent Closing Date Acquisition Documents. The 2026 Consent Closing Date Acquisition shall have been consummated in accordance, in all material respects, with the terms thereof, but without giving effect to any amendments, waivers or consents by Fortegra Group that are materially adverse to the interests of the Lenders in their capacities as such without the consent of the Required Lenders, such consent not to be unreasonably withheld, delayed or conditioned (provided that the Required Lenders shall be deemed to have consented to any such amendment or waiver unless they shall object thereto within five Business Days after receipt of notice of such amendment or waiver), it being understood that (a) any decrease in the purchase price shall not be materially adverse to the interests of the Lenders, (b) any increase in the purchase price shall not be materially adverse to the Lenders so long as such increase is not funded by proceeds of borrowings at Fortegra Group or any of its Subsidiaries and (c) the granting of any consent under the Merger Agreement that is not materially adverse to the interests of the Lenders shall not otherwise constitute an amendment or waiver.
(c)Fees, Costs and Expenses. The Agent’s receipt from Borrower (or Borrower shall have caused to be paid) of the fees, costs and expenses that are payable under this Consent in connection with the consummation of the transactions contemplated hereby and Holland & Knight LLP shall have received from the Borrower payment of all outstanding fees and expenses previously incurred and all fees and expenses incurred in connection with this Consent (in each case, to the extent invoiced with reasonable detail at least three (3) Business Days prior to the 2026 Consent Closing Date).
(d)Patriot Act, etc. No later than five days prior to the 2026 Consent Closing Date, each Borrower and each of the Subsidiary Loan Parties shall have provided to the Agent and the Lenders (i) a Beneficial Ownership Certification and (ii) all documentation and other information requested by the Agent at
least ten days prior to the 2026 Consent Closing Date and required by regulatory authorities in order to comply with requirements of applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
Article 3
NO OTHER WAIVER OR CONSENT
Other than as expressly set forth in this Consent, nothing contained in this Consent shall be a waiver of any past, present or future violation, Default or Event of Default of Borrowers or Guarantors under the Credit Agreement or any other Loan Document. Other than as expressly set forth in this Consent, Agent and each Lender hereby expressly reserve any rights, privileges and remedies under the Credit Agreement and each other Loan Document that Agent and each Lender may have with respect to any violation, Default or Event of Default, and any failure by Agent or any Lender to exercise any right, privilege or remedy as a result of any such violation, Default or Event of Default shall not directly or indirectly in any way whatsoever (i) impair, prejudice or otherwise adversely affect the rights of Agent or any Lender, except as set forth herein, at any time to exercise any right, privilege or remedy in connection with the Credit Agreement or any other Loan Document, (ii) amend or alter any provision of the Credit Agreement or any other Loan Document or any other contract or instrument, or (iii) constitute any course of dealing or other basis for altering any obligation of Borrowers or any Guarantor or any rights, privilege or remedy of Agent or any Lender under the Credit Agreement or any other Loan Document or any other contract or instrument. Other than as expressly set forth in this Consent, nothing in this Consent shall be construed to be a consent by Agent or any Lender to any prior, existing or future violations of the Credit Agreement or any other Loan Document.
Article 4
MISCELLANEOUS
4.1Amended Terms. On and after the 2026 Consent Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Credit Agreement as amended by this Consent.
4.2Representations and Warranties of Loan Parties. On each of the 2026 Consent Effective Date and the 2026 Consent Closing Date, each Loan Party represents and warrants as follows:
(a)It has taken all necessary corporate or organizational action to authorize the execution, delivery and performance of this Consent.
(b)This Consent has been duly executed and delivered by such Loan Party and constitutes such Loan Party’s legal, valid and binding obligation, enforceable in accordance with its terms, except as such enforceability may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
(c)No consent, approval, authorization or order of, or filing, registration or qualification with, any court or governmental authority or third party is required in connection with the execution, delivery or performance by such Person of this Consent.
(d)As of the 2026 Consent Effective Date and the 2026 Consent Closing Date, after giving effect to this Consent, no event has occurred and is continuing or would result herefrom which constitutes a Default or an Event of Default.
4.3Reaffirmation of Obligations. On each of the 2026 Consent Effective Date and the 2026 Consent Closing Date, each Loan Party hereby ratifies the Credit Agreement and each other Loan Document to which it is a party, and acknowledges and reaffirms (a) that it is bound by all terms of the Credit Agreement and each such Loan Document applicable to it (which, in each case, remain in full force and effect according to its terms), (b) that it is responsible for the observance and full performance of its respective Obligations and (c) agrees that this Consent and all documents executed in connection herewith do not operate to reduce or discharge such Loan Party’s obligations under the Loan Documents.
4.4Reaffirmation of Security Interests. On each of the 2026 Consent Effective Date and the 2026 Consent Closing Date, each Loan Party (a) affirms that each of the Liens granted in or pursuant to the Loan Documents are valid and subsisting, (b) agrees that this Consent is not intended to, and shall in no manner, impair or otherwise adversely affect, or constitute or establish a novation of, any of the Liens granted in or pursuant to the Loan Documents, (c) the Security Agreement shall continue in full force and effect and is hereby ratified and confirmed; (d) such Loan Party as of the date hereof has no defenses, off-sets or counterclaims to or against enforcement of the Security Agreement by the Agent in accordance with its terms; and (e) none of the agreements contained in the Credit Agreement or any other document or instrument executed in connection therewith will limit, impair or otherwise affect any of such Loan Party’s agreements, undertakings or obligations under the Security Agreement.
4.5Loan Document. This Consent shall constitute a Loan Document under the terms of the Credit Agreement.
4.6Expenses. The Borrowers agree to pay, in accordance with Section 11.3 of the Credit Agreement, all reasonable and documented costs and expenses of the Agent in connection with the preparation, execution and delivery of this Consent, including without limitation the reasonable and documented fees and expenses of the Agent’s legal counsel.
4.7Further Assurances. Each Borrower and each Loan Party agrees to promptly take such action, upon the request of the Agent, as is necessary to carry out the intent of this Consent.
4.8Entirety. This Consent and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior agreements and understandings, oral or written, if any, relating to the subject matter hereof.
4.9Counterparts; Delivery. This Consent may be in the form of an Electronic Record and may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. This Consent may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Consent. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Agent of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. Notwithstanding anything contained herein to the contrary, the Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved by it; provided that, without limiting the foregoing, (a) to the extent the Agent has agreed to accept such Electronic Signature, the Agent shall be entitled to rely on any such Electronic Signature without further verification and (b) upon the request of the Agent any Electronic Signature shall be promptly followed by a manually executed, original counterpart.
4.10GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING FOR SUCH PURPOSES SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
4.11Successors and Assigns. This Consent shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
4.12Consent to Jurisdiction; Service of Process; Waiver of Jury Trial. The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 11.5 and 11.6 of the Credit Agreement are hereby incorporated by reference, mutatis mutandis.
IN WITNESS WHEREOF the parties hereto have caused this Consent to be duly executed on the date first above written.
|
|
|
|
|
BORROWERS: |
|
|
SOUTH BAY ACCEPTANCE CORPORATION, a California corporation |
|
|
By: /s/ John Short Name: John Short Title: Secretary |
|
|
SOUTH BAY FUNDING LLC, a Delaware limited liability company |
|
|
By: /s/ John Short Name: John Short Title: Secretary |