Exhibit 10.19
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
effective as of 31st day of December, 2001, between ATLANTIC AMERICAN
CORPORATION, a Georgia corporation (the "Borrower") and WACHOVIA BANK, N.A. (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 and on February 9, 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. The Credit Agreement is amended as set forth in this Section
2.
2.1. Amendment to Section 1.01. The definitions of "Capital
Expenditures", "Commitment" and "Loans" in Section 1.01 of the Credit Agreement
are hereby amended and restated in their entirety and the definitions of "Draw
One", "Draw One Commitment", "Draw One Date", "Draw Two", "Draw Two Commitment",
"Draw Two Date", "Notice of Continuation and Conversion" and "Term Loan", 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, 2002 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.
"Commitment" means the aggregate amount of the Draw One
Commitment then in effect plus the Draw Two Commitment then in effect,
as the amount may be reduced from time to time in accordance with the
Credit Agreement.
"Draw One" means a conversion of the outstanding amount of the
Euro-Dollar Loans and Base Rate Loans as of the Draw One Date into a
term loan made initially as a Euro-Dollar Loan to be repaid in
accordance with the Credit Agreement.
"Draw One Commitment" means $19,000,000.
"Draw One Date" means April 2, 2002.
"Draw Two" means a Base Rate Loan or a Euro-Dollar Loan in an
amount not to exceed the Draw Two Commitment, the proceeds of which are
to be used solely to repay the Tender Advance (as such term is defined
in the Reimbursement Agreement).
"Draw Two Commitment" means $25,000,000.
"Draw Two Date" means the date specified in the Notice of
Borrowing as the date on which the Borrower desires Draw Two to be
advanced.
"Notice of Continuation or Conversion" has the meaning as
specified in Section 2.02.
"Loans" means the Term Loan.
"Term Loan" means the term loan advanced to the Borrower in
accordance with Sections 2.01(a) and 2.01(b).
2.2. Amendment to Section 2.01. Section 2.01 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 2.01. Commitments to Make Loans.
(a) The Bank hereby agrees, on the terms and conditions set
forth herein, to establish a term loan facility by making Draw One to
the Borrower on the Draw One Date in an aggregate principal amount not
to exceed the Draw One Commitment. The Bank and the Borrower agree that
on the Draw One Date the aggregate amount of the Base Rate Loans and
Euro-Dollar Loans outstanding shall automatically convert into Draw
One. The Draw One Commitment shall terminate on the earlier of (i) the
Draw One Date and (ii) May 1, 2002.
(b) The Bank hereby agrees, on the terms and conditions set
forth herein, to make Draw Two to the Borrower on the Draw Two Date in
an aggregate principal amount not to exceed the Draw Two Commitment.
Draw Two shall be advanced to the Borrower on the date specified in the
Notice of Borrowing. The Draw Two Commitment shall terminate on the
earlier of (i) the Draw Two Date and (ii) May 1, 2002.
(c) The Bank shall have no obligation to advance any moneys to
the Borrower other than pursuant to clauses (a) and (b) above.
2.3. Amendment to Section 2.02. Section 2.02 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 2.02. Method of Borrowing Loans and Conversion and
Continuation of Loans.
(a) The Borrower shall give the Bank notice in the form
attached hereto as Exhibit G (a "Notice of Borrowing") prior to 11:00
A.M. (Atlanta, Georgia time) on or before the Draw Two Date in the case
of a Base Rate Borrowing, or at least 3 Euro-Dollar Business Days
before the Draw Two Date in the case of a Euro-Dollar Borrowing,
specifying:
(i) the Draw Two Date, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing and a
Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing;
(ii) whether Draw Two is a Base Rate Loan or a
Euro-Dollar Loan; and
(iii) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period.
(b) In the event that the Notice of Borrowing fails to specify
whether Draw Two is to be a Base Rate Loan or a Euro-Dollar Loan, Draw
Two shall be made as a Base Rate Loan.
(c) Draw One shall initially be a Euro-Dollar Loan in the
amount of the Draw One Commitment with an Interest Period of three
months. Thereafter, on the terms and subject to the conditions of this
Agreement, the Borrower may elect (A) at the end of any Interest Period
with respect to Euro-Dollar Loans to convert such Euro-Dollar Loans
into Base Rate Loans or to continue such Euro-Dollar Loans for an
additional Interest Period, or (B) at any time to convert Base Rate
Loans to Euro-Dollar Loans. The Loans may be continued as, or converted
to, (i) Base Rate Loans in an aggregate principal amount of $1,000,000
or any larger multiple of $500,000 or (ii) Euro-Dollar Loans in an
aggregate principal amount of $5,000,000 or any larger multiple of
$1,000,000. The Borrower shall make each such election by delivering to
the Bank a notice in the form of Exhibit H (a "Notice of Continuation
or Conversion") prior to 11:00 a.m. (Atlanta, Georgia time) at least 3
Euro-Dollar Business Days prior to the effective date of any conversion
to or continuation of Euro-Dollar Loans, and prior to 10:00 a.m.
(Atlanta, Georgia time) on the same Domestic Business Day as the
effective date of any conversion to Base Rate Loans, specifying (x) in
the case of a conversion to or continuation of Euro-Dollar Loans, the
Interest Period; (y) the date of conversion or continuation (which
shall be a Euro-Dollar Business Day, in the case of a conversion to or
continuation of Euro-Dollar Loans and a Domestic Business Day in the
case of a conversion to Base Rate Loans); and (z) the amount and type
of conversion or continuation. Upon timely receipt of a Notice of
Continuation or Conversion, the Bank shall promptly notify the Borrower
of the applicable interest rate for the Interest Period selected in
such Notice of Continuation or
Conversion; provided that the failure by the Bank to provide any such
notice shall not, in any way, affect or diminish the Borrower's
obligations to the Bank or the Bank's rights under this Agreement, the
Notes or any of the other Loan Documents. If, within the time period
required under this Section, the Bank shall not have received a Notice
of Continuation or Conversion with respect to Euro-Dollar Loans from
the Borrower of an election to continue such loans for an additional
Interest Period, then, upon the expiration of the Interest Period
therefor, such Loans shall be converted automatically into Base Rate
Loans.
(d) No more than two Interest Periods shall be applicable to
the Term Loan on any day.
(e) Notwithstanding anything to the contrary contained in this
Agreement, the Term Loan may not be continued as, or converted to,
Euro-Dollar Loans if at the time of continuation or conversion there
shall have occurred an Event of Default, which Event of Default shall
not have been cured or waived in writing.
2.4. 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 Maturity of Loans. Unless due
sooner pursuant to the provisions of Article VI, the Borrower agrees to
repay the principal of the Term Loan in annual installments in the
amount of $2,000,000 on or before December 31, 2002, and $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.
2.5. Amendment to Section 2.07. Section 2.07 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 2.07. Intentionally Omitted.
2.6. Amendment to Section 2.08. Section 2.08 of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
SECTION 2.08. Intentionally Omitted.
2.7. 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. Intentionally Omitted.
2.8. 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. Intentionally Omitted.
2.9. 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 through the Fiscal
Quarter ending June 30, 2002, 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; thereafter, 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 2.25 to 1.0
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.
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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/ Hilton X. Xxxxxx
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Its: /s/ Secretary Its: /s/ President & CEO
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[CORPORATE SEAL]
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. XxXxxxx
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Title: /s/ Senior Vice President
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