EXHIBIT 10.31
FIRST AMENDMENT TO LOAN AGREEMENT
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This First Amendment to Loan Agreement (the "Amendment") is dated
and effective as of July 23, 1998, by, between and among EQUITY
UNDERWRITING GROUP, INC., EQUITY INSURANCE MANAGERS, INC. and 21ST
CENTURY CLAIM SERVICES, all Kentucky corporations (collectively referred
to herein as "Borrowers"); XXXX XXXXXX XXXXX and D. XXXXXXX XXXXX,
individuals, (referred to herein as the "Guarantors" or individually as
a "Guarantor"); and BANK ONE, KENTUCKY, NA, a national banking
association (referred to herein as "Bank").
RECITALS
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1. Borrowers, Guarantors and Bank are parties to that certain
Loan Agreement dated as of January 20, 1998 (the "Loan Agreement").
2. Borrowers, Guarantors and Bank have agreed to an extension
of the maturity date of the Revolving Credit Note dated December 30,
1997, in the principal amount of $400,000.00 (as defined in the Loan
Agreement), and further desire to enter into this Amendment to document
other amendments in the terms of the Loan Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and agreements contained herein and in the Loan Agreement, and
intending to be legally bound hereby, covenant and agree as follows:
1. Amendment of Section 5.08 Reporting Requirements. Section
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5.08 of the Loan Agreement is hereby deleted and replaced with the
following:
Section 5.08 Reporting Requirements
Borrowers shall furnish to Bank:
a. Quarterly Reporting. Within sixty (60) days after the end
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of each fiscal quarter, Borrowers shall provide Bank with balance
sheets as of the end of each quarter, statements of income and retained
earnings as of the end of such fiscal quarter, and properly completed
calculations necessary to test compliance with all of the financial
covenants set forth herein, in form and content reasonably acceptable to
Bank, and all in reasonable detail, and all such financial statements
shall be prepared in accordance with GAAP consistently applied and
certified as correct by Borrowers' chief financial officer. Provided,
however, Borrowers shall not be obligated to deliver the Borrowers'
internally prepared balance sheet and income statement for the last
month of Borrowers' fiscal year.
b. Annual Financial Statements. Within one hundred twenty
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(120) days after the end of their fiscal year, and for all fiscal years
thereafter so long as any Obligations remain unpaid, a complete,
unqualified, annual audit report of EIMI and 21st Century. The audited
report shall consist of balance sheet, statement of profit and loss,
application of funds, change in financial position and the like,
prepared and certified by a firm of independent public accountants of
recognized standing acceptable to the Bank. EUGI shall also provide an
internally prepared annual financial statement which shall be on a
consolidated basis. All of the foregoing shall be in reasonable detail
and stating in comparative form the respective figures for the
corresponding date and period in the prior fiscal year and all such
financial statements shall be prepared in accordance with GAAP
consistently applied and certified as correct by Borrowers' chief
financial officer.
c. Notice of Litigation. Promptly after the commencement
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thereof, notice of all actions, suits, and proceedings before any court
or governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, affecting Borrowers or either
Guarantor which, if determined adversely, could have a material, adverse
effect on Borrowers or a Guarantor's financial condition, properties, or
operations.
d. Notice of Defaults and Events of Default. As soon as
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possible and in any event within ten (10) days after the occurrence of
each Default or Event of Default, a written notice setting forth the
details of such Default or Event of Default and the action which is
proposed to be taken with respect thereto.
e. Compliance Base Certificates. EIMI shall provide Bank with
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a Compliance Certificate in the same form as attached hereto as Exhibit
"A" within sixty (60) days after the end of the first three calendar
quarters of each year which are internally prepared and then provide a
Covenant Compliance Certificate within one hundred twenty (120) days
after the end of the fiscal year based on the audited consolidated
financial statement.
f. Guarantors' Financial Statements and Tax Returns. Within
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thirty (30) days after filing, copies of each Guarantor's federal and
state income tax returns, amendments and schedules. Within ninety (90)
days after the anniversary date of receipt of the last financial
statement, Guarantors shall provide a financial statement of assets,
liabilities and net worth for each Guarantor, in form and content
reasonably acceptable to Bank, and all in reasonable detail.
g. Fiscal Year Projections. EIMI shall provide the Bank with
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its fiscal year projections within one hundred twenty (120) days of
fiscal year end.
h. General Information. Such other information respecting
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the condition or operations, financial or otherwise, of Borrowers or any
Guarantor, as Bank may from time to time reasonably request.
2. Amendment of Article VIII of the Loan Agreement. Article
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VIII of the Loan Agreement is amended as follows:
8.19 Year 2000 Provisions
(a) Representation and Warranties. Borrowers represent
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and warrant as follows to Bank that: (i) as of the date of any request
for an advance under the Loan Documents, (ii) as of the date of any
renewal, extension or modification of the Loan Documents, and (iii) at
all times the Loan Documents or Bank's commitment to make advances under
the Loan Documents is outstanding:
i. Borrowers will use good faith efforts to ensure
that by December 31, 1998, all devices, systems, machinery,
information technology, computer software and hardware, and other
date sensitive technology (jointly and severally the "Systems")
necessary for Borrowers to carry on its business as presently
conducted and as contemplated to be conducted in the future are
Year 2000 Compliant or will be Year 2000 Compliant with a period
of time calculated to result in no material disruption of any of
Borrowers' business operations. For purposes of these provisions,
"Year 2000 Compliant" means that such Systems are designed to be
used prior to, during and after the Gregorian calendar year 2000
A.D. and will operate during such time period without error
relating to date data, specifically including any error relating
to, or the product of, date data which represents or referenced
different centuries or more than on century.
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ii. Borrowers will: (1) undertake a detailed
inventory, review and assessment of all areas within their
businesses and operations that could be adversely affected by the
failure of Borrowers to be Year 2000 Compliant on a timely basis;
(2) develop a detailed plan and time line for becoming Year 2000
Compliant on a timely basis; and (3) implement that plan in
accordance with that timetable in all material respects.
iii. By December 31, 1998, Borrowers will make
written inquiry of each of their key suppliers, vendors, and
customers, and will obtain in writing confirmations from all such
persons, as to whether such persons have initiated programs to
become Year 2000 Compliant and on the basis of such confirmations,
Borrowers will make a good faith effort to ensure that all such
persons will be or become so compliant. For purposes hereof, "key
suppliers, vendors and customers" refers to those suppliers,
vendors, and customers of Borrowers whose business failure would,
with reasonable probability, result in a material adverse change
in the business, properties, condition (financial or otherwise),
or prospects of Borrowers. For purposes of this paragraph, Bank,
as lender of funds under the terms of the Loan Documents, confirms
to Borrowers that Bank has initiated its own corporate-wide Year
2000 program with respect to its lending activities.
iv. Borrowers will make a good faith effort to
ensure that the fair market value of all real and personal
property, if any, pledged to Bank as Collateral to secure the Loan
Documents is not and shall not be less than currently anticipated
or subject to substantial deterioration in value because of the
failure of such Collateral to be Year 2000 Compliant.
(b) Affirmative Covenants. Borrowers covenant and agree
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with Bank that, while any Loan Documents is in effect, Borrowers will:
i Furnish such additional information, statements
and other reports with respect to Borrowers' activities, course of
action and progress towards becoming Year 2000 Compliant as Bank
may request from time to time.
ii. In the event of any change in circumstances that
causes or will likely cause any of Borrowers' representations and
warranties with respect to its being or becoming Year 2000
Compliant to no longer be true (hereinafter referred to as a
"Change in Circumstances") then Borrowers shall promptly, and in
any event within ten (10) days of receipt of information regarding
a Change in Circumstances, provide Bank with written notice (the
"Notice") that describes in reasonable detail the Change in
Circumstances and how such Change in Circumstances caused or will
likely cause Borrowers' representations and warranties with
respect to being or becoming Year 2000 Compliant to no longer be
true. Borrowers shall, within ten (10) days of a request, also
provide Bank with any additional information Bank requests of
Borrowers in connection with the Notice and/or Change of
Circumstances.
iii. Give any representative of Bank access during
all business hours to, and permit such representative to examine,
copy or make excerpts from, any and all books, records and
documents in the possession of Borrowers and relating to its
affairs, and to inspect any of the properties and Systems of
Borrowers, and to project test the Systems to determine if they
are Year 2000 Compliant in an integrated environment, all at the
sole cost and expense of Bank.
3. Continuing Security. The Indebtedness as evidenced by the
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Note shall continue to be secured by all of the Loan Documents and
collateral described in the Loan Agreement.
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4. No Defenses or Setoffs. As of the date hereof, neither
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Borrowers nor Guarantors are aware of any defenses, credits or setoffs
to the payment of the Indebtedness evidenced by the Note, or to the
enforceability of the Note, the Loan Agreement, or the Loan Documents
against the Borrowers or Guarantors, nor are there any claims, actions
or causes of action which could be asserted against the Bank relating to
the transactions evidenced by the Note, the Loan Agreement, this
Amendment or any of the transactions relating thereto.
5. Limited Effect of Amendment. Except as specifically
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amended herein, the terms and conditions of the Note, the Loan
Agreement, the Guaranties, the Loan Documents, and all other existing
agreements between the parties are unaffected by this Amendment and
shall continue to be binding upon Borrowers, Guarantors and the Bank.
Further, the term "Note" shall include the Revolving Credit Note dated
effective as of July 23, 1998, with a maturity date of June 30, 1999, in
the amount of $400,000.00 between the Bank and Borrowers.
6. Full Force and Effect of Loan Documents. The Loan
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Documents as defined in the Loan Agreement, including the Amended and
Restated Revolving Credit Note dated effective as of July 23, 1998, in
the amount of $400,000.00, between the Bank and Borrowers, are valid and
enforceable in accordance with their terms and shall continue to remain
in full force and effect.
BANK ONE, KENTUCKY, NA
BY: /s/ Xxxxxx Xxxxxx
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TITLE: Officer
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EQUITY INSURANCE MANAGERS, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: President
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EQUITY UNDERWRITING GROUP, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: President
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21ST CENTURY CLAIM SERVICES, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: President
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/s/ Xxxx X. Xxxxx
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XXXX XXXXXX XXXXX
/s/ D. Xxxxxxx Xxxxx
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D. XXXXXXX XXXXX
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