Exhibit 10.13
WAIVER AND SECOND AMENDMENT
TO
AMENDED AND RESTATED CREDIT
AGREEMENT
THIS WAIVER AND SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT (this “Waiver and
Amendment” ) is entered into as of December 30,
2005, among UNIVERSAL AMERICAN FINANCIAL CORP. , a New York
corporation (the “Borrower” ), the Banks
party to the Credit Agreement (hereinafter defined) and BANK OF
AMERICA, N.A. , as the Administrative Agent for the
Banks.
The Borrower, the Banks and the
Administrative Agent are party to the Amended and Restated Credit
Agreement dated as of May 28, 2004, as amended by the First
Amendment to Amended and Restated Credit Agreement dated as of
June 2, 2005 (the “ Credit Agreement
” ). The Borrower has advised the Banks and the
Administrative Agent that the Borrower has purchased shares of its
capital stock during its fiscal year ending December 31, 2005
in an amount equal to $10.9 million (such purchase in such amount
being herein called the “ Subject Purchase
”), which amount is in excess of that permitted by
Clause (B) of Section 7.08(a)(ii) of
the Credit Agreement and has requested that the Banks waive the
Event of Default that has occurred as a result thereof and that the
Administrative Agent acknowledge such waiver. The Borrower has also
requested that the Banks agree to amend Clause (B) of
Section 7.08(a)(ii) of the Credit Agreement and that
the Administrative Agent acknowledge such amendment. Accordingly,
for valuable and acknowledged consideration, the Borrower, the
Banks and the Administrative Agent agree and acknowledge as
follows:
1.
Terms and References . Unless otherwise stated in
this Waiver and Amendment, (a) terms defined in the Credit
Agreement have the same meanings when used in this Waiver and
Amendment and (b) references to “ Sections
” are to the Credit Agreement’s sections.
2.
Waiver . The Banks hereby waive the Event of Default
that has occurred as the result of the Subject Purchase and agree
that such Event of Default is no longer continuing.
3.
Amendment . Clause (B) of
Section 7.08(a)(ii) is amended and restated to read
in its entirety as follows:
“(B) other than with the cash
proceeds of capital stock issued by the Borrower or any of its
Subsidiaries after the Initial Borrowing Date, in an amount not
exceeding (1) $1,000,000 in the aggregate during the fiscal year
ending December 31, 2004, (2) $11,000,000 in the aggregate
during the fiscal year ending December 31, 2005, or (3)
$30,000,000 in the aggregate after January 1,
2006.”
4.
Conditions Precedent to Effectiveness of Waiver and
Amendment . This Waiver and Amendment shall not be
effective until the Administrative Agent receives: (a) counterparts
of this Waiver and Amendment executed by the Borrower, the
Subsidiary Guarantors, the Required Banks and the Administrative
Agent; (b) payment of all reasonable expenses, including reasonable
legal fees and expenses of counsel to the Administrative Agent,
incurred by the Administrative Agent in connection with this Waiver
and Amendment, to the extent invoiced to the Borrower on or prior
to the date hereof; and (c) such other agreements, documents,
instruments and items as the Administrative Agent may reasonably
request, including, without limitation, documents evidencing the
due authorization of the execution, delivery and performance by the
Borrower and each of the Subsidiary Guarantors of this Waiver and
Amendment, the incumbency of the officer of the Borrower and each
of the Subsidiary Guarantors executing this Waiver and Amendment,
and any other matters relevant thereto.
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