EXHIBIT 10.21
THIRD AMENDMENT TO LOAN AGREEMENT
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This Third Amendment to Loan Agreement (the "Amendment") is dated
and effective as of July 23, 1998, by, between and among COMMONWEALTH
PREMIUM FINANCE CORPORATION, a Kentucky corporation (referred to herein
as "Borrower"); 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. Borrower, Guarantors and Bank are parties to that certain
Loan Agreement dated as of October 18, 1996, as amended by that certain
First Amendment to Loan Agreement dated as of December 17, 1996 and that
certain Second Amendment to Loan Agreement dated as of August 4, 1997
(as amended, the "Loan Agreement").
2. Borrower, Guarantors and Bank have agreed to a renewal of
the Revolving Credit Note (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 2.02. Section 2.02 of the Loan Agreement is
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hereby deleted and replaced with the following:
Section 2.02 Note
The Revolving Credit Loan and Advances thereunder shall be
evidenced by, and repaid with interest in accordance with, a single
renewed promissory note of Borrower, in the original principal amount of
Two Million Dollars (U.S. $2,000,000.00), which Note shall be payable to
Bank, and shall mature and shall be due and payable in full on the
Maturity Date, which is June 18, 1999 (the "Note").
2. Amendment of Section 5.08 Reporting Requirements. Section 5.08 of
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the Loan Agreement is hereby deleted and replaced with the following:
Section 5.08 Reporting Requirements
Borrower shall furnish to Bank:
a. Quarterly Reporting.
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(i) Within sixty (60) days after the end of each fiscal
quarter, Borrower shall provide Bank with a Covenant Compliance
Certificate in such form as provided in Exhibit "A" attached hereto,
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 Borrower's chief financial officer.
Provided, however, Borrower shall not be obligated to deliver the
Borrower's internally prepared balance sheet and income statement for
the last month of Borrower's fiscal year.
(ii) Within sixty (60) days after the end of each fiscal
quarter, Borrower shall provide to Bank the following company prepared
quarterly reports, Balance Sheet and Income Statement, Summary of Cash
Receivables from Contracts, Company Activity Summary, and Summary of
Accounts Past Due.
b. Annual Financial Statements. Within one hundred twenty
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(120) days after the end of Borrower's 1997 fiscal year, and for all
fiscal years thereafter so long as any Indebtedness remains unpaid, a
complete, unqualified, annual audit report of Borrower. 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. 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 Borrower's 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 Borrower or either
Guarantor which, if determined adversely, could have a material, adverse
effect on Borrower's 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. Borrowing Base Certificate. Within fifteen (15) days after
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the end of each month, Borrower shall provide Bank with a Borrowing Base
Certificate in such form as provided in Exhibit "B" attached hereto.
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. Annual Reporting on Equity Insurance Managers, Inc. ("EIM").
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As soon as available and in any event within one hundred twenty (120)
days after EIM's 1997 fiscal year, a complete, unqualified, annual audit
report of EIM in such detail as required under Section 5.08(b).
h. Quarterly Reporting on EIM. No later than sixty (60) days
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after the end of the calendar quarter, balance sheets and statements of
income and retained earnings in such detail as required under
Section 5.08(a)(i).
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i. General Information. Such other information respecting the
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condition or operations, financial or otherwise, of Borrower or any
Guarantor, as Bank may from time to time reasonably request.
3. Amendment of Article VIII of the Loan Agreement. Article VIII of
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the Loan Agreement is amended as follows:
8.19 Arbitration
Borrower, Guarantors and Bank agree that upon the written demand
of either party, whether made before or after the institution of any
legal proceedings, but prior to the rendering of any judgment in that
proceeding, all disputes, claims and controversies between them, whether
individual, joint, or class in nature, arising from the Note, any Loan
Documents or otherwise, including without limitation contract disputes
and tort claims, shall be resolved by binding arbitration pursuant to
the Commercial Rules of the American Arbitration Association ("AAA").
Any arbitration proceeding held pursuant to this arbitration provision
shall be conducted at the city nearest the Borrower's address having an
AAA regional office, or at any other place selected by mutual agreement
of the parties. No act to take or dispose of any Collateral shall
constitute a waiver of this arbitration agreement or be prohibited by
this arbitration agreement. This arbitration provision shall not limit
the right of either party during any dispute, claim or controversy to
seek, use and employ ancillary, or preliminary rights and/or remedies,
judicial or otherwise, for the purposes of realizing upon, preserving,
protecting, foreclosing upon or proceeding under forcible entry and
detainer for possession of, any real or personal property, and any such
action shall not be deemed an election of remedies. Such remedies
include, without limitation, obtaining injunctive relief or a temporary
restraining order, invoking power of sale under any deed of trust or
mortgage, obtaining a writ of attachment or imposition of a
receivership, or exercising any rights relating to personal property,
including exercising the right of set-off, or taking or disposing of
such property with or without judicial process pursuant to Uniform
Commercial Code. Any disputes, claims or controversies concerning the
lawfulness or reasonableness of an act, or exercise of any right or
remedy concerning any Collateral, including any claim to rescind, reform
or otherwise modify any agreement relating to the Collateral, shall also
be arbitrated; provided, however, that no arbitrator shall have the
right or the power to enjoin or restrain any act of either party.
Judgment upon any award rendered by any arbitrator may be entered in any
court having jurisdiction. The statute of limitations, estoppel,
waiver, laches and similar doctrines which would otherwise be applicable
in an action brought by a party shall be applicable in any arbitration
proceeding, and the commencement of an arbitration proceeding shall be
deemed the commencement of any action for these purposes. The Federal
Arbitration Act (Title 9 of the United States Code) shall apply to the
construction, interpretation, and enforcement of this arbitration
provision.
8.20 Year 2000 Provisions
(a) Representation and Warranties. Borrower represents and
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warrants 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. Borrower 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 Borrower
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 Borrower's business operations. For purposes of
these provisions, "Year 2000
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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.
ii. Borrower will: (1) undertake a detailed inventory,
review and assessment of all areas within its business and operations
that could be adversely affected by the failure of Borrower 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, Borrower will make written
inquiry of each of its 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, Borrower 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 Borrower whose business
failure would, with reasonable probability, result in a material adverse
change in the business, properties, condition (financial or otherwise),
or prospects of Borrower. For purposes of this paragraph, Bank, as
lender of funds under the terms of the Loan Documents, confirms to
Borrower that Bank has initiated its own corporate-wide Year 2000
program with respect to its lending activities.
iv. Borrower 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. Borrower covenants and agrees with
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Bank that, while any Loan Documents is in effect, Borrower will:
i. Furnish such additional information, statements and
other reports with respect to Borrower's 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 Borrower's 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 Borrower 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 Borrower's
representations and warranties with respect to being or becoming Year
2000 Compliant to no longer be true. Borrower shall, within ten (10)
days of a request, also provide Bank with any additional information
Bank requests of Borrower 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 Borrower and relating to its affairs, and to inspect any
of the properties and Systems of Borrower, 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.
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4. Continuing Security. The Indebtedness as evidenced by the Note
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shall continue to be secured by all of the Loan Documents and collateral
described in the Loan Agreement.
5. No Defenses or Setoffs. As of the date hereof, neither Borrower
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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 Borrower 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.
6. Limited Effect of Amendment. Except as specifically amended
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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 Borrower, Guarantors and the Bank. Further, the term
"Note" shall include the Renewed Revolving Credit Note dated effective
as of June 18, 1998, with a maturity date of June 18, 1999, in the
amount of $2,000,000.00 between the Bank and Borrower.
7. Full Force and Effect of Loan Documents. The Loan Documents as
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defined in the Loan Agreement, including the Renewed Revolving Credit
Note dated effective as of June 18, 1998, in the amount of
$2,000,000.00, between the Bank and Borrower, 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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COMMONWEALTH PREMIUM FINANCE
CORPORATION
BY: /s/ Xxxxxxx X. Xxxxxxx
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TITLE: V.P. Operations
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/s/ Xxxx Xxxxxx Xxxxx
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XXXX XXXXXX XXXXX
/s/ X.X. Xxxxx
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D. XXXXXXX XXXXX
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