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Exhibit 10.18
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
the 9th day of February, 2001, between ATLANTIC AMERICAN CORPORATION, a Georgia
corporation (the "Borrower") and WACHOVIA BANK, N.A. (the "Bank").
Background:
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The Borrower and the Bank have entered into a Credit Agreement dated as
of July 1, 1999 (as amended on March 24, 2000, 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. The Credit Agreement is amended as set forth in this Section
2.
2.1. Amendment to Section 1.01. The definition of "Effective Date" in
Section 1.01 of the Credit Agreement is hereby amended and restated in its
entirety and the definitions of "Bonds", "Dividend Ability", "Holding Company
Expense", "Intercompany Billing", "Interest Coverage", "Interest Payment on
Surplus Notes", "Material Investment Asset", "Quarterly Payment Date", "Tax
Sharing Agreement" and "Tax Sharing Payments" are hereby added to Section 1.01
of the Credit Agreement to read in their entirety as follows:
"Bonds" shall have the meaning given to it in the
Reimbursement and Security Agreement between the Borrower and the Bank
dated as of June 1, 1999, as amended from time to time.
"Dividend Ability" means, at any time and for any Insurance
Subsidiary, the greater of (i) 10% of Statutory Surplus or (ii) (a) if
such Insurance Subsidiary is a life insurer, the "Net Gain from
Operations" of such Insurance Subsidiary as set forth on the most
recent Annual Statement or Quarterly Statement of such Insurance
Subsidiary, prepared in accordance with statutory accounting principles
or (b) if such Insurance Subsidiary is not a life insurer, the "Net
Income" of such Insurance Subsidiary as set forth on the most recent
Annual Statement or Quarterly Statement of such Insurance Subsidiary,
prepared in accordance with statutory accounting principles; provided,
however, that (i) realized capital gains shall not be included in such
calculations; and (ii) any extraordinary dividend approved by the
appropriate regulatory authorities shall be included in such
calculation.
"Effective Date" means December 30, 2000.
"Holding Company Expense" means, as applied to the Borrower
for any period, the aggregate amount of intercompany expenses incurred
by the Borrower and/or payments made by the Borrower on behalf of the
Borrower's Subsidiaries in connection with services provided by the
Borrower to its Subsidiaries.
"Intercompany Billing" means amounts received by the Borrower
from Subsidiaries and/or payments made by the Borrower on behalf of the
Borrower's Subsidiaries as payment for services provided by the
Borrower to such Subsidiaries.
"Interest Coverage" for any period means (a) the sum of
Dividend Ability, Interest Payment on Surplus Notes, Intercompany
Billing and Tax Sharing Payments minus (b) Holding Company Expense, all
determined with respect to the Borrower and its Consolidated
Subsidiaries on a consolidated basis for such period. In determining
Interest Coverage for any period, (i) any Consolidated Subsidiary
acquired during such period by the Borrower or any other Consolidated
Subsidiary shall be included on a pro forma, historical basis as if it
had been a Consolidated Subsidiary during such entire period and (ii)
any amounts which would be included in a determination of Interest
Coverage for such period with respect to assets acquired during such
period by the Borrower or any Consolidated Subsidiary shall be included
in the determination of
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Interest Coverage for such period and the amount thereof shall be
calculated on a pro forma, historical basis as if such assets had been
acquired by the Borrower or such Consolidated Subsidiary prior to the
first day of such period.
"Interest Payment on Surplus Notes" means those payments
received as interest on the notes issued by Association Casualty
Insurance Company to the Borrower in an aggregate principal amount of
$11,375,000 pursuant to that letter agreement dated July 1, 1999.
"Material Investment Asset" means any asset consisting of
shares of stock which the Bank determines in the Bank's sole and
absolute discretion to be material to the Investments of the Borrower
or any Insurance Subsidiary of the Borrower.
"Quarterly Payment Date" means the last day of March, June,
September and December of each year, the first of which shall be March
31, 2003, or if any such day is not a Domestic Business Day, the next
succeeding Domestic Business Day.
"Tax Sharing Agreement" means, that Tax Allocation Agreement
among the Borrower and certain Subsidiaries of the Borrower, including,
among others, the following: (i) American Southern Insurance Company,
effective January 1, 1996; (ii) American Safety Insurance Company,
effective January 1, 1996; (iii) Banker's Fidelity Life Insurance
Company, effective January 28, 1994; (iv) Georgia Casualty and Surety
Company, effective January 28, 1994; and (v) Association Casualty
Insurance Company, effective July 1, 1999.
"Tax Sharing Payments" means those payments received by the
Borrower from its Subsidiaries as a result of the Tax Sharing
Agreement.
2.2. Amendment to Section 2.10. Section 2.10 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 2.10. Mandatory Prepayments and Reduction of
Commitments.
(a) On each date on which the Commitment is reduced or
terminated pursuant to Section 2.07 or Section 2.08, the Borrower shall
repay or prepay such principal amount of the outstanding Loans, if any
(together with interest accrued thereon and any amounts due under
Section 7.05(a)), as may be necessary so that after such payment the
aggregate unpaid principal amount of the Loans does not exceed the
amount of the Commitment as then reduced.
(b) The Borrower shall make mandatory prepayments of the Bonds
in an amount equal to (i) 75% of any Gain received by Bankers Fidelity
Life Insurance Company from any sale or other disposition of a Material
Investment Asset; and (ii) 50% of any Gain received by Georgia Casualty
and Surety Company from any sale or other disposition of a Material
Investment Asset. Such mandatory prepayments will (A) be due upon the
consummation of any such sale or other disposition of a Material
Investment Asset, (B) permanently reduce the Bonds by the amount of
such prepayment, and (C) be accompanied by interest on the principal
amount prepaid through the date of prepayment. As used in this Section
2.10(b), "Gain" means the amount by which the Gross Proceeds of any
sale or other disposition of a Material Investment Asset exceed the
Book Value of such Material Investment Asset.
(c) The Commitment shall be permanently reduced on each
Quarterly Payment Date in an amount equal to $1,000,000. Each such
reduction shall be accompanied by prepayment of the Loans to the extent
that the Loans exceed the amount of the Commitment after giving effect
thereto.
2.3. Amendment to Section 5.03. Section 5.03 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 5.03. Ratio of Funded Debt to Consolidated Total
Capitalization. The ratio of Funded Debt to Consolidated Total
Capitalization will not at any time exceed (i) for the period from and
including the Effective
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Date to and including June 30, 2001, 50%, for the period from and
including July 1, 2001 to and including December 31, 2001, 45% and (ii)
for any period on or after January 1, 2002, 40%.
2.4. Amendment to Section 5.05. Section 5.05 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 5.05. Ratio of Funded Debt to EBITDA. As of the end of
each Fiscal Quarter, the ratio of Funded Debt as of the end of such
Fiscal Quarter to EBITDA for the period of 4 consecutive Fiscal
Quarters then ended shall be less than (a) 4.35 to 1.0 for each Fiscal
Quarter ending on or before June 30, 2001, (b) 4.25 to 1.0 for each
Fiscal Quarter ending after June 30, 2001, and on or before December
31, 2001, (c) 4.00 to 1.0 for each Fiscal Quarter ending after December
31, 2001, and on or before Xxxxx 00, 0000, (x) 3.75 to 1.0 for each
Fiscal Quarter ending after March 30, 2002, and on or before June 30,
2002, (e) 3.50 to 1.0 for each Fiscal Quarter ending after June 30,
2002, and on or before December 31, 2002, and (c) 3.00 to 1.0 for each
Fiscal Quarter thereafter.
2.5. Amendment to Section 5.06. Section 5.06 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 5.06. Ratio of Interest Coverage to Consolidated
Interest Expense. At the end of each Fiscal Quarter, the ratio of
Interest Coverage for the period of 4 consecutive Fiscal Quarters then
ended to Consolidated Interest Expense for the period of 4 consecutive
Fiscal Quarters then ended shall be no less than 2.0 to 1.0.
2.6. Amendment to Section 5.25. Section 5.25 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 5.25. Maintenance of Authorized Control Level
Risk-Based Capital. The Borrower shall maintain, or cause to be
maintained, at all times the Authorized Control Level Risk-Based
Capital for each Insurance Subsidiary in an amount equal to or greater
than 250% of the Authorized Control Level Risk-Based Capital for such
Insurance Subsidiary.
2.7. Amendment to Section 5.29. Section 5.29 of the Credit Agreement is
hereby added to read as follows:
SECTION 5.29. Regulatory Approvals. Any approvals by
government or regulatory agencies which are required under Section 2.10
shall be obtained and remain in effect until the Termination Date.
2.8. Amendment to Section 5.30. Section 5.30 of the Credit Agreement is
hereby added to read as follows:
SECTION 5.30. Interest Rate Protection. On or before March 31,
2001, the Borrower shall enter into and maintain at all times
thereafter, interest rate protection agreements with respect to at
least 30% of the aggregate principal amount of the total Debt of the
Borrower and its Subsidiaries that bears interest at a variable rate on
terms and conditions (including rate and tenor) mutually acceptable to
the Bank and the Borrower.
2.9. Amendment to Section 6.01(b). Section 6.01(b) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.02(ii), 5.03 to 5.14, inclusive, Section 5.17,
Section 5.22 or Sections 5.25 to 5.30, inclusive; or
2.10. Amendment to Section 6.01(r). Section 6.01(r) of the Credit
Agreement is hereby added to read as follows:
(r) within thirty (30) days of the sale or other disposition
of a Material Investment Asset, the Borrower shall fail to execute and
deliver to the Bank an amendment to this Agreement with respect to
Sections 5.03, 5.05, 5.06 and 5.25 that is mutually acceptable to the
Bank and the Borrower;
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SECTION 3. 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 4. 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 on and as of the date hereof;
(b) Upon the effectiveness of 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 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 5. 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 6. Governing Law. This Amendment shall be construed in
accordance with and governed by the laws of the State of Georgia.
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/ Xxxxxx X. Xxxxxx (SEAL)
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Its: Corporate Secretary Its: Vice President & CFO
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[CORPORATE SEAL]
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. XxXxxxx
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Title: Vice President
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