EXHIBIT 10.23
FOURTH AMENDMENT TO LOAN AGREEMENT
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This Fourth Amendment to Loan Agreement (the "Amendment") is dated
and effective as of February 25, 1999, by, between and among
COMMONWEALTH PREMIUM FINANCE CORPORATION, a Kentucky corporation
(referred to herein as "Borrower"); UNIFIED FINANCIAL SERVICES, INC., a
Delaware corporation (referred to herein as the "Guarantor"); and BANK
ONE, KENTUCKY, NA, a national banking association (referred to herein as
"Bank").
RECITALS
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1. The Borrower, the Guarantor and the Bank desire to further
amend Loan Agreement dated as of October 18, 1996, as amended by that
certain First Amendment to Loan Agreement dated as of December 17, 1996,
the Second Amendment to Loan Agreement dated as of August 4, 1997, and
the Third Amendment to Loan Agreement dated July 23, 1998 (as amended,
the "Loan Agreement").
2. Borrower, Guarantor and Bank have agreed to enter into this
Amendment to further amend the terms of the Loan Agreement, including
the substitution of the Guarantor.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants and agreements contained herein, covenant and agree as
follows:
1. Substitution of Guaranties. The Bank hereby agrees to
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accept the Guaranty of the Guarantor as evidenced by the Guaranty dated
February 18, 1999 (the "Guaranty"), in substitution of the Guaranties of
Xxxx Xxxxxx Xxxxx and D. Xxxxxxx Xxxxx, and the Bank further agrees that
Xxxx Xxxxxx Xxxxx and D. Xxxxxxx Xxxxx are hereby deemed to be released
of their obligations as Guarantors of the obligations of Borrower under
the Renewed Revolving Credit Note dated June 18, 1998, in the principal
amount of $2,000,000.00 (the "Note") upon execution and delivery of all
documents required herein.
2. Collateral. The Indebtedness shall continue to be secured
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by the Collateral described in the Loan Agreement dated October 18,
1996, as amended. Further, the Guarantor shall execute and deliver to
the Bank its Stock Pledge and Security Agreement whereby the Guarantor
pledges and assigns to the Bank all of its interest in the Common Stock
of Equity Underwriting Group, Inc. and Commonwealth Finance Premium
Corporation (the "Stock") as shown on Schedule A attached to the Stock
Pledge and Security Agreement dated February 25, 1999.
3. Conditions Precedent. The obligation of the Bank to enter
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into this Agreement and the other Loan Documents is subject to the
condition precedent that the Bank shall have received and approved on or
before the closing each of the following, in form and substance
reasonably satisfactory to the Bank:
a. This Agreement, the Guaranty and the Stock Pledge and
Security Agreement shall be duly executed and delivered by the Borrower
and the Guarantor to the Bank.
x. Xxxx Report. A lien report from the counsel for the
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Guarantor, which states that the Bank has first and prior lien on the
Stock.
c. Articles and By-Laws; Evidence of Existence/Good
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Standing of the Guarantor. Certified copies of the Guarantor's
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Articles and By-Laws and the Certificate of Existence/Good Standing of
the Guarantor issued by the Secretary of State of Delaware.
d. Evidence of Corporate Action by the Borrower and the
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Guarantor. Certified copies of all corporate action taken by the
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Borrower and the Guarantor, including resolutions of the Borrower and
the Guarantor authorizing the execution, delivery and performance of the
Loan Documents. A certificate of the Secretary of the Guarantor
certifying the names and true signatures of officers of the Guarantor
authorized to sign the aforementioned documents to which it is a party.
e. Opinion of Counsel. The Borrower and the Guarantor
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shall provide the Bank with an opinion of counsel satisfactory to the
Bank regarding such matters as the validity and enforceability of the
Loan Documents.
4. Representations and Warranties of the Borrower. The
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Borrower represents and warrants to the Bank as follows:
a. Good Standing and Due Qualification. The Borrower
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is a corporation, duly incorporated, validly existing and is duly
qualified and in good standing under the laws of each jurisdiction in
which such qualification is required by law.
b. Corporate Power and Authority. The execution,
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delivery and performance by the Borrower of the Loan Documents have been
duly authorized by all necessary corporate action.
c. Legally Enforceable Loan Documents. The Loan
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Documents executed and/or delivered in connection with this Agreement
are legal, valid and binding obligations of the Borrower and enforceable
in accordance with their respective terms, except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency and
other similar laws affecting creditors rights generally.
d. No Adverse Change. No material adverse change has
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occurred in any of the businesses of the Borrower and no material
adverse change has occurred in the financial condition of the Borrower
since the date of the most current financial information provided to the
Bank.
e. No Defenses or Setoffs. As of the date hereof, the
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Borrower is not aware of any defenses, credits or setoffs to the payment
of the Indebtedness evidenced by the Note, or to the enforceability of
the Note, or the Loan Documents, nor are there any claims, actions or
causes of action which could be asserted against the Bank relating to
the transactions evidenced by any of the Loan Documents.
f. Limited Effect of Amendment. Except as specifically
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amended herein, the terms and conditions of the Note, the Loan Documents
and all other existing agreements between the parties are unaffected by
this Amendment and shall continue to be binding upon the Borrower and
the Bank and continue to remain in full force and effect.
5. Representations and Warranties of the Guarantor. The
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Guarantor represents and warrants to the Bank as follows:
a. Good Standing and Due Qualification. The Guarantor
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is a corporation, duly incorporated, validly existing and is duly
qualified and in good standing under the laws of Delaware.
b. Corporate Power and Authority. The execution,
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delivery and performance by the Guarantor of the Loan Documents to which
it is a party have been duly authorized by all necessary corporate
action.
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c. Legally Enforceable Loan Documents. The Loan
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Documents executed and/or delivered by the Guarantor are legal, valid
and binding obligations of the Guarantor and enforceable in accordance
with their respective terms, except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar
laws affecting creditors rights generally.
6. Additional Reporting Requirements. In addition to the
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reporting requirements contained in the Loan Agreement, as amended, the
Guarantor shall, within sixty (60) days after the end of each fiscal
quarter (and beginning with the March 31, 1999 quarter end), provide
Bank with balance sheets, 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
internally prepared in accordance with GAAP consistently applied and
certified as correct by Guarantor's chief financial officer. Provided,
however, the Guarantor shall not be obligated to deliver the Guarantor's
internally prepared balance sheet and income statement for the last
month of the Guarantor's fiscal year.
7. Affirmative Covenants. So long as any portion of the Note
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shall remain unpaid, the Borrower agrees to fully comply with all of the
affirmative convents contained in the Loan Agreement and the Amendments.
Further, the Borrower shall fully comply with the negative covenants
contained in the Loan Agreement and the Amendments.
8. No Defenses or Setoffs. As of the date hereof, the
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Borrower is not 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, 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.
9. Limited Effect of Amendment. Except as specifically
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amended herein, the terms and conditions of the Note, the Loan
Documents, and all other existing agreements between the parties are
unaffected by this Amendment and shall continue to be binding upon the
Borrower and the Bank and remain in full force and effect.
10. Notices. All notices and other communications given to or
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made upon any party hereto in connection with this Security Agreement,
the Notes or any other Loan Documents shall, except as herein or therein
otherwise expressly provided, be in writing, sent by certified or
registered mail return receipt requested, as follows:
If to Borrower: 000 Xxxxxxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxxx Xxxxx
with a copy to: Xxxxxx X. Xxxx, Xx.
Xxxxxx & Xxxxxxxx
0000 Xxxxxxxxx Financial Center
Xxxxxxxxx, Xxxxxxxx 00000
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If to Guarantor: Unified Financial Services, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: President and CEO
with a copy to: Xxxxxxx X. Xxxxxx
Xxxxxxxx Xxxxxx
One Mercantile Center, Xxxxx 00000
Xx. Xxxxx, Xxxxxxxx 00000
If to Bank: Bank One, Kentucky, NA
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxx Xxxxxx
Bank One, Kentucky, NA
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
11. Entire Agreement. This Amendment and the other Loan
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Documents constitute the entire understanding among the parties with
respect to the subject matter hereof and supersede any prior agreements,
written or oral, with respect thereto. This Agreement may not be
amended without the prior written consent of all parties herein.
COMMONWEALTH PREMIUM FINANCE
CORPORATION
BY: /s/ X. X. Xxxxx
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TITLE: President
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BANK ONE, KENTUCKY, NA
BY: /s/ Xxxxxx Xxxxxx
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TITLE: Officer
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UNIFIED FINANCIAL SERVICES, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx
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TITLE: Chairman, CEO, President
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