Exhibit 4.3(f)(ii)
FIFTH AMENDMENT TO CREDIT AGREEMENT
This Fifth Amendment to Credit Agreement (the "Amendment") is made as of
this 21st day of March, 2002 by and among AMERICAN MEDICAL SECURITY GROUP, INC.
("AMS"), the Lenders who are a party to the Credit Agreement from time to time
(the "Lenders") and LASALLE BANK NATIONAL ASSOCIATION, as Agent and Swing Line
Lender (the "Agent").
W I T N E S S E T H
WHEREAS, AMS, the Agent and the Lenders, including First Union National
Bank, N.A. ("First Union") are parties to that certain Credit Agreement, dated
as of March 24, 2000, as amended pursuant to that certain First Amendment to
Credit Agreement, dated as of July 18, 2000, as further amended pursuant to that
certain Second Amendment to Credit Agreement, dated as of November 10, 2000, as
further amended pursuant to that certain Third Amendment to Credit Agreement,
dated as of January 29, 2001, and as further amended pursuant to that certain
Fourth Amendment to Credit Agreement, dated as of April 27, 2001 (collectively,
the "Credit Agreement");
WHEREAS, immediately prior to the execution hereof and as a condition
precedent hereto, First Union and Bank of America, N.A. ("Bank of America") have
entered into that certain Assignment Agreement, pursuant to which First Union
has agreed to sell, assign and transfer to Bank of America, and Bank of America
has agreed to purchase, accept and assume from First Union, all of First Union's
percentage interest and outstanding rights and obligations under the Credit
Agreement, as more particularly set forth therein (the "Assignment Agreement");
WHEREAS, as a result of the Assignment Agreement, Bank of America shall
have the rights and obligations of a Lender under the Loan Documents to the
extent of the rights and obligations assigned to Bank of America under the
Assignment Agreement, and First Union shall contemporaneously therewith
relinquish its rights and be released from its corresponding obligations as a
Lender under the Loan Documents and thereafter shall cease to be a Lender under
the Credit Agreement; and
WHEREAS, the parties desire to amend the Credit Agreement, as more fully
set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the adequacy of which is hereby
acknowledged, and subject to the terms and conditions hereof, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms
shall have the meaning given to them in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT.
2.1 Article I of the Credit Agreement is hereby amended by inserting the
following definitions in their appropriate alphabetical order:
""Debtor Relief Laws" means the Bankruptcy Code of the United States
of America, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or
similar debtor relief laws of the United States of America (including any
Federal, state or local equivalents) or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally."
""Purchase Agreement" means that certain Stock Purchase Agreement
dated as of March 19, 2002 among Seller, Cobalt Corporation and AMS."
""Repurchase" means that certain repurchase by AMS of approximately
one million four hundred thousand (1,400,000) shares of its capital stock
from Blue Cross & Blue Shield United of Wisconsin, a Wholly-Owned
Subsidiary of Cobalt Corporation, for an aggregate purchase price not in
excess of $18,200,000, after receipt of all necessary and required consents
and approvals."
""Seller Group" means collectively, Blue Cross & Blue Shield United of
Wisconsin and Cobalt Corporation."
""Special Dividend" means that certain special dividend of up to
$20,000,000 which Holdings shall cause UWLIC to declare and pay directly to
AMS, after receipt of all necessary and required consents and approvals,
including, without limitation, the consent of the Wisconsin Department of
Insurance, which funds shall be applied by AMS to effect the Repurchase and
cover any costs related thereto."
2.2 Article I of the Credit Agreement is hereby amended by deleting the
definition of "Applicable Margin" in its entirety and inserting the following in
its stead:
""Applicable Margin" means, with respect to Eurodollar Advances at any
time, 3.00% per annum (unless a Default or an Unmatured Default has
occurred that is continuing)."
2.3 Article I of the Credit Agreement is hereby amended by deleting the
definition "Change in Control" in its entirety and inserting the following in
its stead:
""Change in Control" means (a) the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) or voting
control, directly or indirectly, of 25% or more of the outstanding
shares of voting stock of AMS; (b) AMS shall cease to own, free and
clear of all Liens other than Permitted Liens, 100% of the
outstanding shares of voting stock of Holdings on a fully diluted
basis (other than pursuant to a merger of Holdings with and into
AMS in accordance with SECTION 6.12; (c) Holdings shall cease to
own, free and clear of all Liens other than Permitted Liens, 100%
of the outstanding shares of voting stock of UWLIC on a fully
diluted basis; or (d) during any period of 25 consecutive calendar
months, commencing on the date of this Agreement, the ceasing of
those individuals (the "Continuing Directors") who (i) were
directors of AMS on the first day of each such period or (ii)
subsequently became directors of AMS and whose initial election or
initial nomination for election subsequent to that date was
approved by a majority of the
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Continuing Directors then on the board of directors of AMS to
constitute a majority of the board of directors of AMS."
2.4 Article I of the Credit Agreement is hereby amended by deleting the
definition of "Non-Use Fee Rate" in its entirety and inserting the following in
its stead:
""Non-Use Fee Rate" means, at any time, 0.50% per annum on the unused
amount of the Aggregate Commitment."
2.5 Section 2.8(a) of the Credit Agreement is hereby deleted in its
entirety and amended by inserting the following in its stead:
"2.8. MANDATORY COMMITMENT REDUCTIONS. (a) The Aggregate Commitment
shall be automatically and permanently reduced to the following amounts on
the following dates:
DATE AVAILABILITY REDUCTION AGGREGATE COMMITMENT
-------------- ---------------------- --------------------
March 24, 2003 $10,000,000 $20,157,772
March 24, 2004 $10,000,000 $10,157,772
March 24, 2005 $10,157,772 $0"
2.6 Section 2.11 of the Credit Agreement is hereby amended by deleting the
reference to "$10,000,000" and inserting "$5,000,000" in its stead.
2.7 Section 2.14 of the Credit Agreement is hereby deleted in its entirety
and amended by inserting the following in its stead:
"2.14. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in SECTION 2.9 or 2.10, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to AMS (which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of SECTION 8.2 requiring unanimous
consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Eurodollar
Advance. During the continuance of a Default the Required Lenders may, at
their option, by notice to AMS (which notice may be revoked at the option
of the Required Lenders notwithstanding any provision of SECTION 8.2
requiring unanimous consent of the Lenders to changes in interest rates),
declare that each Loan shall bear interest at the higher of the Eurodollar
Rate or the Floating Rate then in effect, plus the applicable margin then
in effect from time to time, plus 2.00% per annum; PROVIDED, that during
the continuance of a Default under SECTION 7.6 or 7.7, the interest rate
set forth above shall be applicable to all Loans without any election or
action on the part of the Agent or any Lender."
2.8 Section 3.1 of the Credit Agreement is hereby deleted in its entirety
and amended by inserting the following in its stead:
"3.1. YIELD PROTECTION. If, on or after the Initial Closing Date, any
Lender determines that the adoption of or change in any law or any
governmental or quasi-governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law), or any change in the
interpretation or administration thereof by any governmental or
quasi-governmental
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authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or
not having the force of law) of any such authority, central bank or
comparable agency:
(a) subjects any Lender or any applicable Lending Installation
to any Taxes, or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender in
respect of its Eurodollar Loans, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation (other than reserves and
assessments taken into account in determining the interest
rate applicable to Eurodollar Advances), or
(c) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of agreeing to make or making, funding or
maintaining its Eurodollar Loans or reduces any amount
receivable by any Lender or any applicable Lending
Installation in connection with its Eurodollar Loans, or
requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of
Eurodollar Loans held or interest received by it, by an
amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such
Lender or applicable Lending Installation of making, funding or maintaining
its Eurodollar Loans or Commitment or to reduce the return received by such
Lender or applicable Lending Installation in connection with such
Eurodollar Loans or Commitment, then, within 15 days of demand by such
Lender, AMS shall pay such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction in amount
received."
2.9 Section 3.2 of the Credit Agreement is hereby amended by deleting the
second sentence thereof and inserting the following in its stead:
""CHANGE" means (a) any change after the Initial Closing Date in or
change in the interpretation of the Risk-Based Capital Guidelines or (b)
any adoption of or change in or change in the interpretation of any other
law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of
law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending
Installation or any corporation controlling any Lender."
2.10 Section 3.5 of the Credit Agreement is hereby amended by deleting
subsection (c) thereof and inserting the following in its stead:
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"(c) AMS hereby agrees to indemnify the Agent and each Lender for the
full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this SECTION 3.5)
paid by the Agent or such Lender and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, in each
case whether or not such Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. Payments due
under this indemnification shall be made within 30 days of the date the
Agent or such Lender makes demand therefor pursuant to SECTION 3.6."
2.11 Section 4.2 of the Credit Agreement is hereby deleted in its entirety
and amended by inserting the following in its stead:
"4.2. EACH ADVANCE AND SWING LINE LOAN. The Lenders shall not be
required to make any Advance (other than an Advance that, after giving
effect thereto and to the application of the proceeds thereof, does not
increase the aggregate amount of outstanding Advances) and the Swing Line
Lender shall not be required to make any Swing Line Loan, unless on the
applicable Borrowing Date:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in the Loan
Documents are true and correct as of such Borrowing Date
except to the extent any such representation or warranty is
stated to relate solely to an earlier date, in which case
such representation or warranty shall have been true and
correct on and as of such earlier date.
(c) All legal matters incident to the making of such Advance or
Swing Line Loan shall be satisfactory to the Lenders and
their counsel.
Each Borrowing Notice and/or Conversion/Continuation Notice with
respect to each such Advance and each request for a Swing Line Loan shall
constitute a representation and warranty by AMS that the conditions
contained in SECTION 4.2(a) and (b) have been satisfied. Any Lender may
require a duly completed compliance certificate in substantially the form
of EXHIBIT A as a condition to making an Advance."
2.12 Section 6.10 of the Credit Agreement is hereby deleted in its entirety
and amended by inserting the following in its stead:
"6.10 DIVIDENDS. AMS will not, nor will it permit any Subsidiary to,
declare or pay any dividends or make any distributions on its capital stock
(other than dividends payable in its own capital stock) or redeem,
repurchase or otherwise acquire or retire any of its capital stock at any
time outstanding, except that (i) any Subsidiary may declare and pay
dividends to a Wholly-Owned Subsidiary or to AMS, and (ii) AMS may
repurchase its outstanding stock, provided that any such repurchases shall
not exceed $28,400,000 in the aggregate; and provided further, that such
$28,400,000 includes up to $18,200,000 that shall be used solely to
consummate the Repurchase."
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2.13 Section 6.19.5 of the Credit Agreement is hereby deleted in its
entirety and amended by inserting the following in its stead:
"6.19.5 STATUTORY CAPITAL AND SURPLUS. AMS will at all times cause
UWLIC to maintain a Statutory Capital and Surplus of not less than the sum
of (a) $128,000,000, plus (b) 50% of the positive Statutory Net Income
earned by UWLIC in each Fiscal Quarter ending after December 31, 2001 and
on or prior to the date of determination (excluding changes in unrealized
gain/loss)."
2.14 Article VI of the Credit Agreement is amended by inserting new
Sections 6.29 and 6.30 after Section 6.28 as follows:
"6.29 REPURCHASE. Prior to effecting the Repurchase, AMS shall obtain,
or cause to be obtained, all necessary and required consents, approvals,
resolutions and documentation in connection with the Repurchase (including,
without limitation, the consent of the Wisconsin Department of Insurance to
the Special Dividend), and, AMS shall provide evidence of such consents and
approvals to the Agent, together with copies of all required resolutions
and documents with respect thereto, all of which shall be reasonably
acceptable to the Agent and its counsel. Immediately upon receipt of such
necessary and required consents, approvals, resolutions and documentation,
AMS shall cause the Special Dividend to be declared and paid, and,
immediately upon receipt of the proceeds of the Special Dividend, AMS shall
apply such proceeds to effect the Repurchase and any costs related thereto.
"6.30 PURCHASE AGREEMENT REMEDIES. In the event of any breach of the
representations and warranties of the Seller Group contained in the
Purchase Agreement with respect to the shares of stock of AMS which are the
subject of the Repurchase, which breach could reasonably be expected to
give rise to a Material Adverse Effect, AMS covenants and agrees to
diligently pursue all of the rights and remedies available to it under the
Purchase Agreement or otherwise with respect to such breach."
2.15 Section 7.3 of the Credit Agreement is hereby deleted in its entirety
and amended by inserting the following in its stead:
"7.3. The breach by AMS of any of the terms or provisions of SECTION
6.1, SECTION 6.2, SECTION 6.4 or SECTIONS 6.10 through 6.27."
2.16 Section 7.4 of the Credit Agreement is hereby deleted in its entirety
and amended by inserting the following in its stead:
"7.4. The breach by AMS (other than a breach which constitutes a
Default under another Section of this ARTICLE VII) of any of the terms or
provisions of any Loan Document which is not remedied within twenty (20)
days after the earlier of (i) the receipt by AMS of notice thereof from
Agent or any Lender or (ii) having obtained knowledge thereof."
2.17 Section 7.5 of the Credit Agreement is hereby deleted in its entirety
and amended by inserting the following in its stead:
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"7.5. Failure of AMS or any of its Subsidiaries to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) in respect of any Indebtedness aggregating in excess
of $1,500,000 ("MATERIAL INDEBTEDNESS"); or the default by AMS or any of
its Subsidiaries in the performance (beyond the applicable grace period
with respect thereto, if any) of any term, provision or condition contained
in any agreement under which any such Material Indebtedness was created or
is governed, or any other event shall occur or condition exist, the effect
of which default or event is to cause, or to permit the holder or holders
of such Material Indebtedness to cause, such Material Indebtedness to
become due prior to its stated maturity; or any Material Indebtedness of
AMS or any of its Subsidiaries shall be declared to be due and payable or
required to be prepaid or repurchased (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or AMS or any of its
Subsidiaries becomes unable, or admits in writing its inability or fails
generally to pay its debts as they become due."
2.18 Section 7.6 of the Credit Agreement is hereby deleted in its entirety
and amended by inserting the following in its stead:
"7.6. AMS or any of its Subsidiaries shall (a) have an order for
relief entered with respect to it under any Debtor Relief Laws as now or
hereafter in effect, (b) make an assignment for the benefit of creditors,
(c) apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (d) institute (or consent to
the institution of) any proceeding seeking an order for relief under any
Debtor Relief Laws as now or hereafter in effect or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up,
liquidation, reorganization, arrangement, adjustment or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (e) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this SECTION 7.6 or (f)
fail to contest in good faith any appointment or proceeding described in
SECTION 7.7."
2.19 Section 12.2.1 of the Credit Agreement is hereby amended by deleting
the first sentence thereof and inserting the following in its stead:
"Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or
other entities ("PARTICIPANTS") participating interests in any Loan owing
to such Lender, any Note held by such Lender, any Commitment of such Lender
or any other interest, right and/or obligation of such Lender under the
Loan Documents."
SECTION 3. WAIVER OF CERTAIN COVENANT DEFAULTS. The Agent, on behalf of itself
and the Lenders, waives any Default which may occur due solely to a breach by
AMS of Section 6.16 of the Credit Agreement solely in connection with the
Repurchase; PROVIDED, HOWEVER, that such waiver shall not constitute a future
waiver of any Default under such Section or of any other provision of the Credit
Agreement which, in any case, is not in connection with the Repurchase.
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SECTION 4. RELEASE OF COLLATERAL ASSIGNMENT. Contemporaneously with the
effectiveness of this Amendment, the Agent, at the direction and with the
consent of the Lenders hereby terminates that certain Collateral Assignment and
Security Agreement dated as of November 10, 2000 (the "Assignment") made by AMS
in favor of the Agent for the benefit of the Lenders, with respect to Account
No. 00-0000000 and all funds contained therein.
SECTION 5. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
expressly conditioned upon satisfaction of the following conditions precedent:
5.1 The Agent shall have received copies of this Amendment duly executed
and delivered by AMS and each of the Lenders.
5.2 The Agent shall have received a duly executed copy of the Stock
Purchase Agreement dated as of March 19, 2002, by and among Blue Cross & Blue
Shield United of Wisconsin, Cobalt Corporation and AMS, executed and delivered
in connection with the Repurchase, together with any and all agreements,
instruments and other documents executed and/or delivered in connection
therewith.
5.3 The Agent shall have received, for the benefit of the Agent and the
Lenders, an amendment fee of $226,183 due and payable and deemed fully earned on
the date hereof.
5.4 The Agent shall have received a $3,500 processing assignment fee due
and payable by AMS to the Agent pursuant to Section 12.3.2 of the Credit
Agreement.
5.5 The Agent and the Lenders shall have received copies of the Assignment
Agreement duly executed by Bank of America, N.A. and First Union, including
evidence that, contemporaneously with the execution of the Assignment Agreement,
(i) First Union shall have returned the Revolving Note in favor of First Union
to AMS and (ii) Bank of America, N.A. shall have received a Revolving Note in
favor of Bank of America, N.A. duly executed by AMS.
5.6 The Agent and the Lenders shall have received such other documents,
certificates and assurances as they shall reasonably request.
SECTION 6. REAFFIRMATION OF AMS. AMS hereby represents and warrants to the Agent
and the Lenders that (i) the representations and warranties set forth in the
Loan Documents are true and correct on and as of the date hereof, except to the
extent (a) that any such representations and warranties relate to a specific
date, or (b) changes thereto are a result of transactions for which the Agent
and the Lenders have granted their consent; (ii) each of Holdings and AMS is on
the date hereof in compliance with all of the terms and provisions set forth in
the Loan Documents to which it is a party, in each case (and to the extent
applicable), as hereby amended; and (iii) both before and after giving effect to
this Amendment, there exists no Default or Unmatured Default.
SECTION 7. FULL FORCE AND EFFECT. Except as herein amended, the Credit Agreement
and all other Loan Documents shall remain in full force and effect.
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SECTION 8. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
SECTION 9. GOVERNING LAW. This Amendment shall be construed in accordance with
the internal laws (and not the law of conflicts) of the State of
Illinois, but
giving effect to federal laws applicable to national banks.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the day and year specified above.
AMERICAN MEDICAL SECURITY GROUP,
INC.
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Chief Financial Officer
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx Xxxxx
------------------------------------------
Name: Xxxxxx Xxxxx
Title: Principal
ASSOCIATED BANK GREEN BAY, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
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ACKNOWLEDGMENT AND AGREEMENT OF HOLDINGS
The undersigned, AMERICAN MEDICAL SECURITY HOLDINGS, INC., hereby ratifies
and reaffirms (a) that certain Guaranty dated March 24, 2000 (the "Guaranty")
made by the undersigned in favor of the Agent and the Lenders and (b) that
certain Stock Pledge Agreement dated March 24, 2000 (the "Pledge Agreement")
between the undersigned and the Agent and each of the terms and provisions
(including, without limitation, the representations and warranties) contained
therein, and agrees that each of the Guaranty and the Pledge Agreement continues
in full force and effect following the execution and delivery of the foregoing
Amendment. The undersigned represents and warrants to the Agent and the Lenders
that each of the Guaranty and the Pledge Agreement was, on the date of the
execution and delivery thereof, and continues to be, the valid and binding
obligation of the undersigned enforceable in accordance with its terms and that
the undersigned has no claims or defenses to the enforcement of the rights and
remedies of the Agent and the Lenders under the Guaranty or the Pledge
Agreement, and further that it is in compliance with all of the terms and
provisions set forth in each of the Loan Documents to which it is a party.
IN WITNESS WHEREOF, this Acknowledgment and Agreement of Holdings
has been duly authorized as of this 21st day of March, 2002.
AMERICAN MEDICAL SECURITY HOLDINGS,
INC.
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: Chief Financial Officer
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