EXHIBIT 10.19
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
as of the 21st day of November, 2002, between ATLANTIC AMERICAN CORPORATION, a
Georgia corporation (the "Borrower") and WACHOVIA BANK, NATIONAL ASSOCIATION
(the "Bank").
Background:
The Borrower and the Bank have entered into a Credit Agreement dated
as of July 1, 1999 (as amended on March 24, 2000, February 9, 2001, and
December 31, 2001, the "Credit Agreement"). The Borrower and the Bank wish to
amend the Credit Agreement in certain respects, as hereinafter provided.
NOW, THEREFORE, the Borrower and the Bank agree as follows:
SECTION 1. Definitions. Capitalized terms used herein which are
not otherwise defined herein shall have the respective meanings assigned to
them in the Credit Agreement.
SECTION 2. Acknowledgement and Consent.
(a) The Borrower has requested that the Bank consent to, and
subject to the conditions stated in this Section 2 and in the Credit Agreement
(as amended by this Amendment), the Bank does hereby consent to, the Borrower's
participation in the "Trust Preferred Transaction" (as defined in the Credit
Agreement as amended by this Amendment).
(b) The Borrower has requested that the Bank acknowledge and
consent to, and subject to the conditions stated in this Section 2, the Bank
does hereby acknowledge and consent to, the payment of dividends that are made
by the Borrower on or before the date of this Amendment on its Series C
Preferred Stock (as such term is defined by the Credit Agreement as amended by
this Amendment). The consent to such payments is effective only for the payment
of dividends by the Borrower made on or before the date hereof and limited only
to the payments described in this Section 2(b).
(c) The Bank expressly reserves all of its rights and remedies
with respect to any present or future Default arising under the Credit
Agreement.
SECTION 3. Amendments. The Credit Agreement is amended as set
forth in this Section 3.
3.1. Amendment to Section 1.01. The definitions of "Capital
Expenditures" and "Funded Debt" are amended and restated in their entirety and
the definitions of "Debentures", "Indenture", "Series C Preferred Stock",
"Statutory Trust", "Subordinated Debt" and "Trust Preferred Transaction" are
hereby added in their appropriate alphabetical order to Section 1.01 of the
Credit Agreement to read in their entirety as follows:
"Capital Expenditures" means for any period the sum of all
capital expenditures, excluding capital expenditures related to the
Borrower's imaging system incurred during the Fiscal Year ending
December 31, 2003 in an amount not to exceed $750,000 in the
aggregate, incurred during such period by the Borrower and its
Consolidated Subsidiaries, as determined in accordance with GAAP.
"Debentures" has the meaning given to the term in the
Indenture.
"Funded Debt" means, at any date, the total Debt of the
Borrower and its Subsidiaries determined on a consolidated basis,
provided however, that for the purposes of determining the Applicable
Margin pursuant to Section 2.05 and the Applicable Commitment Fee Rate
pursuant to Section 2.06 only, Funded Debt shall exclude the
Subordinated Debt.
"Indenture" means that certain indenture to be delivered in
connection with the Trust Preferred Transaction to be dated on or
about December 4, 2002 by and between the Borrower and State Street
Bank and Trust Company of Connecticut, National Association, as
Trustee.
"Series C Preferred Stock" means the Borrower's Series C
Preferred Stock.
"Statutory Trust" means ATLANTIC AMERICAN STATUTORY TRUST I,
a Connecticut statutory trust.
"Subordinated Debt" means Debt of the Borrower and its
Subsidiaries incurred in connection with the Trust Preferred
Transaction.
"Trust Preferred Transaction" means a transaction in which:
(a) the Borrower establishes the Statutory Trust and acquires all of
the Statutory Trust's common securities; (b) the Statutory Trust
acquires up to $18,042,000 of the Borrower's subordinated debentures
with proceeds received from the issuance of its own trust preferred
securities; and (c) the Borrower provides a limited-recourse guaranty
to pay the Statutory Trust's obligations on the trust preferred
securities, but only to the extent the Statutory Trust has funds
available for the payment of such obligations.
3.2. Amendment to Section 2.04. Section 2.04 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
SECTION 2.04. Repayment and Mandatory of Loans.
(a) The Borrower agrees to repay the principal of the Term Loan
in the amount equal to $12,000,000 within three Business Days of its receipt of
proceeds from the issuance of the Debentures.
(b) Unless due sooner pursuant to the provisions of Article VI,
the Borrower agrees to repay the principal of the Term Loan in the amount of
$2,000,000 after January 1, 2003 but on or before December 31, 2003, together
with one final installment on the Termination Date in an amount equal to the
unpaid principal balance of, and accrued but unpaid interest on, the Loans.
3.3. Amendment to Section 4.08. Section 4.08(a) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
SECTION 4.08. Subsidiaries. (a) Each of the Borrower's
Subsidiaries is a corporation or other business entity or other business entity
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, if the failure to be so qualified, or to have such
powers, licenses, authorizations, consents or approvals could reasonably be
expected, alone or in the aggregate, to have or cause a Material Adverse
Effect.
3.4. Amendment to Section 4.16. Section 4.16 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
SECTION 4.16. Capital Stock. All Capital Stock, debentures,
bonds, notes and all other securities of the Borrower and its Subsidiaries
presently issued and outstanding are validly and properly issued in accordance
with all applicable laws, including, but not limited to, the "Blue Sky" laws of
all applicable states and the federal securities laws. The issued shares of
Capital Stock of the Borrower's Wholly Owned Subsidiaries are directly or
indirectly owned by the Borrower free and clear of any Lien or adverse claim.
At least a majority of the issued shares of voting capital stock of each of the
Borrower's other Subsidiaries (other than Wholly Owned Subsidiaries) is owned
by the Borrower free and clear of any Lien or adverse claim.
3.5. Amendment to Section 5.04. Section 5.04 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
SECTION 5.04. Restricted Payments. The Borrower will not
declare or make any Restricted Payment during any Fiscal Year; provided that:
(1) the Borrower may redeem shares of the Borrower's capital stock for the
purpose of satisfying the Borrower's obligations under its 401K plan and stock
options provided by the Borrower to its executive officers, in the ordinary
course of business and consistently with practices existing on the Closing
Date; (2) the total number of shares of the Borrower's capital stock redeemed
pursuant to the preceding subsection (1) shall not exceed five hundred thousand
in the aggregate in any Fiscal Year; and (3) the aggregate amount expended by
the Borrower in connection with the redemptions made pursuant to the preceding
subsection (1) shall not exceed $2,000,000 in the aggregate in any Fiscal Year;
and provided further that the Borrower may pay dividends on the Series C
Preferred Stock, so long as, (a) the dividend rate payable on such Series C
Preferred Stock shall not exceed nine percent (9%) per annum, (b) the
redemption value of the Series C Preferred Stock shall not be greater than
$2,500,000 and (c) no Event of Default shall be in existence or shall result
from the making of such Restricted Payment.
3.6. Amendment to Section 5.08. Section 5.08 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
SECTION 5.08. Loans or Advances. Neither the Borrower nor any
of its Subsidiaries shall make loans or advances to any Person except: (i)
advances made to insurance agents of the Borrower's Subsidiaries, with respect
to such agent's commissions, made in the ordinary course of business and
consistently with practices existing on the Closing Date; (ii) deposits
required by government agencies or public utilities; and (iii) loans and
advances made by the Statutory Trust to the Borrower in connection with the
Trust Preferred Transaction and Investments made by the Borrower in the
Statutory Trust to the extent allowed in Section 5.09; provided that after
giving effect to the making of any loans, advances or deposits permitted by
clause (i), (ii) or (iii) of this Section, no
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Default shall have occurred and be continuing.
3.7. Amendment to Section 5.09. Section 5.09 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
SECTION 5.09. Investments. Neither the Borrower nor any of
its Subsidiaries shall make Investments in any Person except as permitted by
Section 5.08 and except Investments (i) in direct obligations of the United
States Government maturing within one year, (ii) in certificates of deposit
issued by a commercial bank whose credit is satisfactory to the Bank, (iii) in
commercial paper rated A-1 or the equivalent thereof by Standard & Poor's
Corporation or P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc.
and in either case maturing within 6 months after the date of acquisition, (iv)
in tender bonds the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof by
Standard & Poor's Corporation and AA or the equivalent thereof by Xxxxx'x
Investors Service, Inc., (v) contemplated by Section 5.14(b), (vi) with respect
to the Trust Preferred Transaction, Investments by the Borrower in the
Statutory Trust, Investments by the Statutory Trust in the Borrower, the
Borrower's guaranty of the Statutory Trust's obligations, and other Investments
made by the Borrower and the Statutory Trust, (vii) constituting Permitted
Acquisitions in an aggregate amount not exceeding $3,000,000; provided,
however, that this Section 5.09 shall not prohibit Investments made in the
ordinary course of business involving the investment portfolio of any Insurance
Subsidiary.
3.8. Amendment to Section 5.11. Section 5.11 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
SECTION 5.11. Maintenance of Existence The Borrower shall,
and shall cause each Subsidiary to (a) maintain its corporate existence and
carry on its business in substantially the same manner and in substantially the
same fields as such business is now carried on and maintained; and (b)
preserve, renew and keep in full force and effect their respective rights,
privileges, licenses (including, without limitation, insurance licenses) and
franchises necessary or desirable in the normal conduct of business; provided
that the Borrower may dissolve or cause the dissolution of the Statutory Trust
after the redemption of all of the Statutory Trust's Capital Stock.
3.9. Amendment to Section 5.27. Section 5.27 of the Credit Agreement
is hereby amended and restated in its entirety to read as follows:
SECTION 5.27. Limitation on Debt. The Borrower shall not, nor
shall it permit any Subsidiary to, create, incur or permit to exist at any time
any Debt (other than Debt arising under this Agreement) without the prior
written consent of the Bank, except:
(a) Debt in existence on the Closing Date and more
particularly described on Schedule 5.27 attached hereto, together with any
extension or renewal of such Debt, if the payment terms and interest applicable
to such Debt as extended or renewed are at least as favorable to the Borrower
or such Subsidiary, as the case may be, as the payment terms and interest rate
applicable to such Debt on the date of extension or renewal thereof;
(b) Trade indebtedness incurred in the ordinary course of
business;
(c) The Borrower may enter into a transaction or series of
transactions pursuant to which the Borrower sells and leases back computer
equipment provided that the total aggregate Debt incurred by the Borrower in
such transaction or transactions shall not exceed $2,000,000; and
(d) The Borrower and the Statutory Trust may incur Debt in
connection with the Trust Preferred Transaction; and
(e) Debt not otherwise permitted by the foregoing clauses of
this Section in an aggregate principal amount at any time outstanding not to
exceed $1,000,000.
3.10. Addition of Section 5.31. Section 5.31 is hereby added to the
Credit Agreement to read in its entirety as follows:
SECTION 5.31. Senior Indebtedness under Indenture. The Borrower hereby
covenants that the obligations of the Borrower to the Bank under this Credit
Agreement shall at all times constitute "Senior Indebtedness" as that term is
defined in the Indenture.
3.11. Addition of Section 5.32. Section 5.32 is hereby added to the
Credit Agreement to read in its entirety as
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follows:
SECTION 5.32. Other Obligations of Borrower. The Borrower hereby
agrees that the Borrower shall be and at all times shall remain the obligated
party under the Debentures and shall be the party responsible for the payment
of all obligations under the Debentures.
3.12. Amendment to Schedule 4.08B. Schedule 4.08B of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
SCHEDULE 4.08B
EXISTING SUBSIDIARIES WHICH
ARE NOT INSURANCE SUBSIDIARIES
Name of Subsidiary Jurisdiction of Incorporation or Organization
------------------ ---------------------------------------------
Self-Insurance Administrators Georgia
Atlantic American Statutory Trust I Connecticut
SECTION 4. Interest Rate. Notwithstanding anything in the Credit
Agreement to the contrary, for the period from and including November 29, 2002
to but excluding the Rate Determination Date next following November 29, 2002,
the Applicable Margin shall be 0% for Base Rate Loans and 2.75% for Euro-Dollar
Loans.
SECTION 5. Notification of Covenant Restriction. Pursuant to the
requirements of Section 5.22 of the Credit Agreement, the Borrower hereby
provides notice to the Bank that Section 3.8 of the Indenture contains a
restrictive covenant with terms that are more favorable to the Trustee under
the Indenture than similar terms of a restrictive covenant for the benefit of
the Bank contained in Section 5.04 of the Credit Agreement.
SECTION 6. No Other Amendment. Except for the amendments set forth
above, the text of the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment is not intended to effect, nor shall it be
construed as, a novation. The Credit Agreement and this Amendment shall be
construed together as a single instrument and any reference to the "Agreement"
or any other defined term for the Credit Agreement in the Credit Agreement, the
Loan Documents or any certificate, instrument or other document delivered
pursuant thereto shall mean the Credit Agreement as amended hereby and as it
may be amended, supplemented or otherwise modified hereafter. Nothing herein
contained shall waive, annul, vary or affect any provision, condition, covenant
or agreement contained in the Credit Agreement, except as herein amended, or
any of the other Loan Documents nor affect nor impair any rights, powers or
remedies under the Credit Agreement, as hereby amended or any of the other Loan
Documents. The Bank does hereby reserve all of its rights and remedies against
all parties who may be or may hereafter become secondarily liable for the
repayment of the Notes. The Borrower promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Credit Agreement, as heretofore and hereby amended, and the other Loan
Documents, the Credit Agreement, as amended, and the other Loan Documents being
hereby ratified and affirmed. The Borrower hereby expressly agrees that the
Credit Agreement, as amended, and the other Loan Documents are in full force
and effect.
SECTION 7. Representations and Warranties. The Borrower hereby
represents and warrants in favor of the Bank as follows:
(a) The representations and warranties of the Borrower contained
in Article IV of the Credit Agreement are true in all material respects on and
as of the date hereof (except to the extent they are made specifically with
reference to some other date, in which case they are true and correct as of
such other date);
(b) After giving effect to this Amendment, no Default or Event of
Default under the Credit Agreement has occurred and is continuing on the date
hereof;
(c) The Borrower has the corporate power and authority to enter
into this Amendment and to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
(d) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower, and this
Amendment and the Credit Agreement, as amended hereby constitutes the legal,
valid and binding obligation of the
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Borrower enforceable against it in accordance with its terms; and
(e) The execution and delivery of this Amendment and the
Borrower's performance hereunder and under the Credit Agreement as amended
hereby do not and will not require the consent or approval of any regulatory
authority or governmental authority or agency having jurisdiction over the
Borrower other than those which have already been obtained or given, nor be in
contravention of or in conflict with the Articles of Incorporation or Bylaws of
the Borrower, or the provision of any statute, or any judgment, order or
indenture, instrument, agreement or undertaking, to which the Borrower is a
party or by which its assets or properties are or may become bound.
SECTION 8. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 9. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Georgia.
SECTION 10. Attorney's Fees and Expenses. The Borrower hereby agrees
that all attorney's fees and expenses incurred by the Bank in connection with
its review of the Trust Preferred Transaction and the preparation, negotiation
and execution of this Amendment shall be payable by the Borrower.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed under seal by their respective authorized officers as of the day and
year first above written.
Attest: ATLANTIC AMERICAN CORPORATION
/s/ Xxxxx X. Xxxx By: /s/ Xxxx X. Sample, Jr. (SEAL)
----------------------------------------- -----------------------------------------
Its: Corporate Secretary Its: Senior Vice President and Chief Financial Officer [CORPORATE SEAL]
-------------------------------- -------------------------------------------------
WACHOVIA BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------
Title: Managing Director
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