THIRD AMENDMENT TO LOAN AGREEMENT
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This Third Amendment to Loan Agreement (the "Amendment") is dated
and effective as of February 27, 2001, by, between and among BANK ONE,
KENTUCKY, NA, a national banking association and its successors and assigns,
whose address is 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000
(referred to herein as "Bank"), COMMONWEALTH PREMIUM FINANCE CORPORATION, a
Kentucky corporation, whose address is 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxx 00000 ("Commonwealth"), UNIFIED FINANCIAL SERVICES,
INC., a Delaware corporation, whose address is 0000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000 ("Unified")(Commonwealth and Unified are herein
sometimes collectively referred to as "Borrowers"), EQUITY INSURANCE
MANAGERS, INC., 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000 ("EIM"), EQUITY INSURANCE ADMINISTRATORS, INC., 000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 ("EIA"), and 21ST CENTURY
CLAIMS SERVICE, INC., 000 Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000 ("21st Century").
RECITALS
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1. Borrowers, EIM, EIA, 21st Century and Bank are parties to that
certain Loan Agreement dated as of December 28, 1999, as amended by that
First Amendment to Loan Agreement dated as of June 28, 2000 and that Second
Amendment to Loan Agreement dated as of December 11, 2000 (as amended, the
"Loan Agreement"), under which Commonwealth and Unified are obligated to
Bank for payment of the Notes, as defined therein, which are guaranteed
pursuant to the Guaranties made and executed by Commonwealth, Unified, EIM,
EIA and 21st Century;
2. One of the Notes is that Renewal Term Note dated June 28, 2000,
made by Unified payable to the Bank in the face principal amount of
$1,893,750.00 (the "Unified Note"); and
3. The parties hereto desire for the Bank to renew the Unified Note
in the face principal amount of $1,893,750.00 pursuant to the terms of that
certain renewal term note dated as of the date hereof in such amount payable
by Unified to Bank (the "Unified Renewal Note"); and
4. Bank is willing to renew the obligations evidenced by the
Unified Renewal Note provided that the Borrowers, EIM, EIA and 21st Century
enter into this Third Amendment to the Loan Agreement for the purpose of
modifying the Loan Documents, and provided further that each of Commonwealth,
Unified, EIM, EIA and 21st Century execute guaranties in which each guaranties
the Notes and all other obligations of each of Borrowers to Bank, all upon the
terms and conditions of this Third Amendment;
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. CERTAIN DEFINITIONS
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All capitalized words herein not otherwise defined shall have the
same meaning given to such words in the Loan Agreement, except as the
definition of such capitalized words is amended herein.
The following definitions in Article 1 of the Loan Agreement are
hereby deleted and replaced with the following definitions:
1.08. Guaranties mean collectively (i) the Guaranty dated February
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27, 2001, of the Renewal Revolving Credit Note and all of Commonwealth's
obligations under the Loan Documents, made and executed by Unified, and (ii)
the Guaranty dated February 27, 2001, of the Unified Renewal Note and all of
Unified's obligations under the Loan Documents, made and executed by
Commonwealth, and (iii) the Guaranties dated February 27, 2001, of the
Unified Renewal Note, the Renewal Revolving Credit Note and all of Unified's
and Commonwealth's obligations under the Loan Documents, made and executed
by each of EIM, EIA and 21st Century.
1.12. Loan Documents means the Loan Agreement, as amended, the
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Notes, the Guaranties, the Security Agreements, the UCC-1's, and any other
instruments, certificates or documents previously, concurrently or hereafter
delivered or to be delivered by Unified, Commonwealth, EIM, EIA, and 21st
Century under this Agreement, or otherwise, evidencing, securing or relating
to the Loans.
1.15. Notes means the Unified Renewal Note and the Renewal Revolving
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Credit Note.
1.23. Unified Renewal Note means the Note dated February 27, 2001,
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in the principal amount of One Million Eight Hundred Ninety Three Thousand
Seven Hundred Fifty and 00/100 Dollars ($1,893,750.00), executed by Unified
and payable to the order of Bank.
2. THE UNIFIED RENEWAL NOTE. Simultaneously with the execution of this
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Amendment, Unified shall execute and deliver to Bank the Unified Renewal
Note in the original principal sum of One Million Eight Hundred Ninety Three
Thousand Seven Hundred Fifty and 00/100 Dollars ($1,893,750.00). The
outstanding principal balance of the Unified Renewal Note shall bear
interest and be repayable in accordance with the terms thereof.
3. SECURITY FOR UNIFIED RENEWAL NOTE AND GUARANTIES. Each and all of the
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Borrowers' obligations under this Amendment, the Notes and all other sums
that are recoverable by Bank under the Loan Documents shall be and hereby
are secured by the security interests granted to Bank under the Security
Agreements (as defined in the Loan Agreement, as hereby amended), and it is
agreed that all references to Renewal Term Note in each of the Loan
Documents shall hereafter mean the Unified Renewal Note, which shall
hereafter be secured by all of the collateral that secured the Renewal Term
Note. Simultaneously with the execution of this Amendment, Commonwealth,
EIM, Unified, EIA and 21st Century shall each enter into a guaranty of the
Notes of which it is not the maker in form and substance satisfactory to
Bank. The Security Agreements and the other Loan Documents are hereby
amended to incorporate therein the Unified Renewal Note as part of the
indebtedness secured by, and entitled to the other benefits of, the Loan
Documents.
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4. LIMITED WAIVER BY BANK OF BREACH OF COVENANT; AMENDMENT OF COVENANT.
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The negative covenant of Commonwealth contained in section 6.03 of the Loan
Agreement is hereby waived by Bank with respect to debt of $113,000 advanced
to Commonwealth prior to this date by an affiliate, but shall otherwise
continue in effect and be binding on Commonwealth.
5. ADDITIONAL COVENANTS BINDING ON UNIFIED.
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a. The following section 6.05 is hereby added to the Loan Agreement:
6.05. No Dividends by Unified. Unified shall not declare or pay any
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dividends, payable in cash, property, stock or otherwise, with
respect to its outstanding common stock without the prior written
consent of Bank.
b. The following section 6.06 is hereby added to the Loan Agreement:
6.06. Debt Limitations of Unified and Subsidiaries. Neither Unified
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nor any of its subsidiaries shall create, incur, assume or suffer
to exist any additional indebtedness in excess of $100,000, without
the prior written consent of Bank, except:
a. Bank Debt. Debt payable to Bank under this Agreement and
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the Notes.
b. Accounts Payable, Bank Deposit Liabilities, etc. Accounts
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payable to trade creditors in accordance with prior practice
including, without limitation, amounts payable under service
contracts and for goods and services incurred in the ordinary
course of business that are paid within the specified time,
unless contested in good faith and by appropriate proceedings
diligently conducted, and liabilities of Unified Banking
Company to its depositors for the money deposited with Unified
Banking Company.
C. The following section 5.05 is hereby added to the Loan Agreement:
5.05. Profitability of Unified. Unified shall earn a profit
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(computed in accordance with GAAP) on a cumulative basis for each
of its fiscal years to date from and after the date of this Third
Amendment, which year to date profit shall be determined quarterly
beginning as of the end of the first fiscal quarter of Unified
ending after the date of this Third Amendment.
6. REPRESENTATIONS AND WARRANTIES. Borrowers, EIM, EIA and 21st Century
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jointly and severally reiterate as of this date all representations and
warranties contained in the Loan Agreement (each of which shall be deemed to
be continuing warranties and representations until such time as all
indebtedness evidenced by the Loan Agreement, as hereby amended, shall have
been paid in full and neither of Borrowers nor EIM, EIA and 21st Century
have any further liability to Bank).
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7. COVENANTS. Borrowers, EIM, EIA and 21st Century agree that all
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covenants contained in the Loan Agreement, as hereby amended, are and
hereafter shall be binding upon Borrowers, EIM, EIA and 21st Century until
payment in full of all obligations to Bank under the Loan Documents, unless
otherwise consented to in writing by Bank.
8. NO DEFENSES OR SETOFFS. There are no defenses, credits, or setoffs to
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the payment of the indebtedness evidenced by the Notes or the enforceability
of the Notes or the Loan Agreement or any of the Loan Documents against
Borrowers, EIM, EIA and 21st Century, nor are there any claims, actions or
causes of action which could be asserted against the Bank relating to the
transactions evidenced by the Notes, the Loan Agreement, this Amendment or
the transactions relating thereto. The obligations described herein and in
the Notes are absolute and non-contingent.
9. LIMITED EFFECT OF AMENDMENT. Except as specifically amended herein,
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the terms and conditions of the Notes, the Loan Agreement and all other existing
agreements between the parties are unaffected by this Amendment, are valid
and enforceable in accordance with their terms and shall continue to remain
in full force and effect.
10. GOVERNING LAW. This Amendment shall be governed by and construed and
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enforced in accordance with the substantive law of the Commonwealth of Kentucky.
11. ENTIRE AGREEMENT; MODIFICATIONS. This Amendment and the other Loan
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Documents contain the entire agreement and understanding of the parties
herein. The terms of this Amendment may not be changed, modified, waived,
discharged or terminated orally, but only by an instrument or instruments in
writing, signed by the party against whom the enforcement of the change,
modification, waiver, discharge or termination is asserted.
12. COUNTERPART EXECUTION. This Amendment may be signed by each party upon
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a separate copy, and in such case one counterpart of this Amendment shall
consist of enough of such copies to reflect the signature of each party.
This Amendment may be executed in two or more counterparts, each of which
shall be deemed an original.
BANK ONE, KENTUCKY, NA
BY: /s/ Xxxx Xxxxxx
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TITLE: First Vice President
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UNIFIED FINANCIAL SERVICES, INC.
BY: /s/ Xxxx X. Xxxx
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TITLE: President
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COMMONWEALTH PREMIUM FINANCE
CORPORATION
BY: /s/ Xxxx X. Xxxxx
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TITLE: Vice President
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EQUITY INSURANCE MANAGERS, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: President
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EQUITY INSURANCE ADMINISTRATORS, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: President
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21ST CENTURY CLAIMS SERVICE, INC.
BY: /s/ Xxxx X. Xxxxx
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TITLE: Vice President
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