AMENDMENT NO. 1 TO REVOLVING LINE OF CREDIT AGREEMENT AND OTHER LOAN
DOCUMENTS
Dated as of March 10, 1998
This AMENDMENT NO. 1 TO REVOLVING LINE OF CREDIT AGREEMENT AND
OTHER LOAN DOCUMENTS between STANDARD MANAGEMENT CORPORATION, an Indiana
corporation (the "Borrower"), and FLEET NATIONAL BANK, a national banking
association (formerly known as Shawmut Bank Connecticut, National Association)
(the "Bank").
PRELIMINARY STATEMENT.
A. The Borrower and the Bank have entered into an Amended and
Restated Revolving Line of Credit Agreement dated as of November 8, 1996 (the
"Existing Credit Agreement"; the terms defined therein being used herein as
therein defined unless otherwise defined herein).
B. The Borrower and the Bank have agreed to amend the Existing
Credit Agreement, the Note and the other Loan Documents to increase the
principal amount available thereunder from $16,000,000 to $20,000,000.
SECTION
1 AMENDMENTS TO EXISTING CREDIT AGREEMENT AND NOTE.
I. EXISTING CREDIT AGREEMENT. The Existing Credit
Agreement and the Note are, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2 hereof, hereby
amended as follows:
(i) COMMITMENT. The term "Commitment" contained in
Section 2.1 is hereby modified to read as follows:
"Commitment" means the obligation of the Bank to make
the Loans to the Borrower under this Agreement up to the
aggregate principal amount not to exceed at any time
outstanding Twenty Million Dollars ($20,000,000), as such
amount may be reduced or otherwise modified from time to
time.
(ii) REDUCTION OF COMMITMENT. Section 2.2 is hereby
deleted in its entirety and the following is substituted in
lieu thereof:
The Commitment shall be reduced to (i) $16,666,667 on
March 10, 2000 so that, for the period beginning March 10,
2000 through March 9, 2001, the Revolving Credit Loans made
by the Bank to the Borrower shall not in the aggregate
exceed $16,666,667; (ii) $13,333,334 on March 10, 2001 so
that, for the period beginning March 10, 2001 through March
9, 2002, the Revolving Credit Loans made by the Bank to the
Borrower shall not in the aggregate exceed $13,333,334;
(iii) $10,000,001 on March 10, 2002 so that, for the period
beginning March 10, 2002 through March 9, 2003, the
Revolving Credit Loans made by the Bank to the Borrower
shall not in the aggregate exceed $10,000,001; (iv)
$6,666,668 on March 10, 2003 so that, for the period
beginning March 10, 2003 through March 9, 2004, the
Revolving Credit Loans made by the Bank to the Borrower
shall not in the aggregate exceed $6,666,668; (v) $3,333,335
on March 10, 2004 so that, for the period beginning March
10, 2004 through March 10, 2005, the Revolving Credit Loans
made by the Bank to the Borrower shall not in the aggregate
exceed $3,333,335.
(iii) TERMINATION DATE. The term "Termination Date"
set forth in Section 1.1 is hereby modified to read as
follows:
"Termination Date" means the earlier to occur of (a)
March 10, 2005, (b)(i) the final date on which all the
indebtedness due under the Subordinated Instruments (as
defined below) is paid in full, or (ii) the occurrence of a
default or event of default under the Subordinated
Instruments, whichever comes first, and (c) such earlier
date as payment of the Loans shall be due (whether by
acceleration or otherwise). For purposes herein, the term
"Subordinated Instruments" means, collectively, the Note
Agreement dated as of June 30, 1997 by and between the
Borrower and each of Capitol American Life Insurance Company
("Capital American") and Transport Life Insurance Company
("Transport"), the Senior Subordinated Convertible Note
dated June 30, 1997 in the principal amount of $3,628,427
made by the Borrower in favor of Capitol American, the
Senior Subordinated Convertible Note dated June 30, 1997 in
the principal amount of $2,000,000 made by the Borrower in
favor of Transport, the Amended and Restated Note Agreement
dated as of November 8, 1996, as amended and restated on
June 30, 1997, by and between the Borrower and Great
American Rese,rve Insurance Company
1
("GARCO"), the Amended and Restated Senior
Subordinated Convertible Note dated November 8, 1996, as
amended and restated as of June 30, 1997 in the principal
amount of $4,371,573 made by the Borrower in favor of GARCO,
and any and all documents executed in connection therewith,
and including any amendments of any of the foregoing.
(iv) CLOSING FEE. In order to induce the Bank to
enter into this Amendment, the Borrower agrees to pay to the
Bank a closing fee in an amount equal to $40,000 on the date
of this Agreement.
(v) COMMITMENT FEE. In order to induce the Bank to
enter into this Amendment, the Borrower agrees to pay to the
Bank a commitment fee on $4,000,000 at the rate of one-
quarter of one percent (1/4 of 1%) per annum, based on a
year of 360 days for the actual days elapsed, payable for
the period beginning on April 18, 1997 and ending on March
9, 1998.
(vi) USE OF PROCEEDS. The $4,000,000 increase in the
Commitment afforded to the Borrower pursuant to this
Amendment shall be used by the Borrower to finance the
transactions contemplated under the Amended and Restated
Agreement and Plan of Merger dated as of December 9, 1997
among the Borrower, Standard Acquisition Corporation and
Savers Life Insurance Company, a North Carolina domestic
stock insurance company (the "Plan of Merger").
(vii) WARRANTS. In order to induce the Bank to enter
into this Amendment, the Borrower shall deliver to the Bank
on or prior to the date hereof, a Warrant, in the form
attached hereto as EXHIBIT C, entitling the Bank to
subscribe for and purchase 12,000 additional shares of
common stock of the Borrower (said Warrant being referred to
herein as the "Fourth Warrant"). The Bank has the immediate
right under the Fourth Warrant to purchase 12,000 shares of
common stock of the Borrower. The Bank acknowledges that
the maximum number of shares of common stock of the Borrower
which the Bank shall be entitled to purchase under the
Fourth Warrant is 12,000 and that such shares must be
purchased on or before April 15, 2004 pursuant to the terms
of the Fourth Warrant.
(viii) ACCOUNTING TERMS. The section reference
preceding the heading "Accounting Terms" on page 9 of the
Existing Credit Agreement shall be corrected to refer to
Section 1.2.
(ix) DEBT. Section 8.2 of the Existing Credit
Agreement shall be modified to allow the Borrower to enter
into the transactions contemplated under the Subordinated
Instruments, provided, however, that the Borrower
acknowledges that any and all amendments to the Subordinated
Instruments shall be conditioned upon the written consent of
the Bank.
II. NOTE. The Note is, effective as of the date hereof
and subject to the satisfaction of the conditions precedent set forth in
Section 2 hereof, hereby amended and restated in its entirety in the form of
EXHIBIT A hereto.
SECTION 1
CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective when, and only when, the Bank shall have received counterparts
of this Amendment executed by the Borrower and the Bank, and Section 1
hereof shall become effective when, and only when, the Bank shall have
additionally received all of the following documents, each document
(unless otherwise indicated) being dated the date of receipt thereof by
the Bank (which date shall be the same for all such documents), in form
and substance satisfactory to the Bank:
I. The executed Amended and Restated Note in the form of
EXHIBIT A hereto.
II. The executed Amended and Restated Pledge Agreement in
the form of EXHIBIT B hereto, together with certificates representing the
Pledged Shares referred to therein, accompanied by undated stock powers
executed in blank.
III. The Fourth Warrant.
IV. The executed Amended and Restated Registration Rights
Agreement in the form of EXHIBIT D hereto.
V. Evidence with respect to the consummation of the
merger described in the Plan of Merger.
VI. Evidence of all applicable insurance regulatory
approvals, if any, which are necessary or required in connection with the
Borrower's execution, delivery and performance of the Loan Documents.
VII. A schedule of insurance then in effect pursuant to
Section 7.5 of the Existing Credit Agreement.
VIII. Certified copies of (i) the resolutions of the
Borrower approving this Amendment and the matters contemplated hereby and
thereby and (ii) all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Amendment and the matters
contemplated hereby.
IX. A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures of the
officers of the Borrower, authorized to sign this Amendment and the other
documents to be delivered hereunder.
X. A certificate of existence for each of the Borrower,
Standard Life, Standard Marketing, Xxxxx National and Savers Life Insurance
Company.
XI. A favorable opinion of counsel for the Borrower (which
may be delivered by in-house counsel) to the effect that this Amendment, and
the Amended and Restated Note have been duly authorized, executed and delivered
by the Borrower, and such instruments constitute the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms, with references therein to the Credit Agreement to mean
the Existing Credit Agreement as amended by this Amendment.
XII. A certificate signed by a duly authorized officer of
each Borrower stating that:
XIII. The representations and warranties contained in
herein, in Article 6 of the Existing Credit Agreement and in each other Loan
Document are true and correct on and as of the date of such certificate as
though made on and as of such date;
XIV. No event has occurred and is continuing which
constitutes a Default or Event of Default; and
XV. There has been no material adverse change in the
business, management, operations, properties, prospects or condition (financial
or otherwise) of the Borrower or any of its respective Affiliates or
Subsidiaries since November 8, 1996.
XVI. Acknowledgment agreements executed by Capitol
American, Transport and GARCO with respect to the subordination of the
indebtedness owed under the Subordinated Instruments to the indebtedness owed
to the Bank under the Note.
XVII. Any other closing items reasonably required by the
Bank.
SECTION
1 REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. Each Borrower
represents and warrants as follows:
I. The execution, delivery and performance by the
Borrower of this Amendment, the Amended and Restated Note and the Loan
Documents, as amended hereby, to which it is a party have been duly authorized
by all necessary action and do not and will not: (a) require any consent or
approval of its shareholders; (b) contravene its certificate of incorporation
and bylaws; (c) violate any provision of, or require any filing, registration,
consent or approval under, any law, rule, regulation (including, without
limitation, Regulation U), order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the Borrower
or any of its Subsidiaries or Affiliates; (d) result in a breach of or
constitute a default or require any consent under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which such
Borrower is a party or by which it or its properties may be bound or affected;
(e) result in, or require, the creation or imposition of any Lien, upon or with
respect to any of the properties now owned or hereafter acquired by such
Borrower; or (f) cause the Borrower (or any Subsidiary or Affiliate, as the
case may be) to be in default under any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or any such
indenture, agreement, lease or instrument.
II. This Amendment, the Amended and Restated Note and each
other Loan Document, as amended hereby, to which the Borrower is a party is, or
when delivered under this Amendment will be, a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting creditors'
rights generally.
III. There are no actions, suits or proceedings pending or,
to the knowledge of the Borrower, threatened, against or affecting the Borrower
or any of its Subsidiaries before any court, governmental agency or arbitrator,
which may, in any one case or in the aggregate, materially adversely affect the
ability of the Borrower to perform its obligation under this Amendment, the
Amended and Restated Promissory Note or any of the other Loan Documents, as
amended hereby.
SECTION
1 REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
I. Upon the effectiveness of Section 1 hereof, on and
after the date hereof each reference in the Existing Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import, and each
reference in the other Loan Documents to the Credit Agreement and Note, shall
mean and be a reference to the Existing Credit Agreement and Note, as amended
hereby. In addition, each reference in the other Loan Documents to the "Loan
Documents" shall mean and be a reference to the Existing Credit Agreement and
Note, as amended hereby, together with each of the other documents to be
delivered pursuant to Section 2 of this Amendment.
II. Except as specifically amended above and except to the
extent that any of the Loan Documents are substituted for and replaced by the
documents to be delivered pursuant to Section 2 of this Amendment, the Existing
Credit Agreement and the Note, and all other Loan Documents, shall remain in
full force and effect and are hereby ratified and confirmed.
III. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of the Bank under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION
1 COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on
demand all costs and expenses, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Amendment, the Amended and Restated Note and the other instruments and
documents to be delivered hereunder, including, without limitation,
reasonable counsel fees and expenses in connection with the enforcement
of rights under this Section 5. In addition, the Borrower shall pay any
and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment, the Amended
and Restated Note and the other instruments and documents to be delivered
hereunder, and agree to save the Bank harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes.
SECTION 1.11837.11838.63.0 EXECUTION IN COUNTERPARTS. This
Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same instrument.
SECTION 2.11837.11838.63.0 GOVERNING LAW. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of
Connecticut.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
STANDARD MANAGEMENT CORPORATION
BySTEPHEN X. XXXXX
Name: Xxxxxxx X. Xxxxx, Esq.
Title: Executive Vice President and General
Counsel
FLEET NATIONAL BANK
By XXXXXXX XXXXXXXXX XXXXX
Name: Xxxxxxx Xxxxxxxxx Xxxxx
Title: Vice President
