EXHIBIT 10.26
LOAN AGREEMENT
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Dated as of January 20, 1998
by and among
EQUITY UNDERWRITING GROUP, INC. ("EUGI")
EQUITY INSURANCE MANAGERS, INC. ("EIMI")
21ST CENTURY CLAIM SERVICE, INC. ("21st Century")
(collectively the "Borrowers")
and
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and D. ▇▇▇▇▇▇▇ ▇▇▇▇▇
(collectively the "Guarantors")
and
BANK ONE, KENTUCKY, NA
LOAN AGREEMENT
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THIS LOAN AGREEMENT (the "Agreement") dated as of January 20, 1998
between EQUITY UNDERWRITING GROUP, INC., EQUITY INSURANCE MANAGERS, INC.
and 21ST CENTURY CLAIM SERVICE, INC. (referred to herein as the
"Borrowers"); ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and D. ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 the
"Bank").
R E C I T A L S:
1. The Borrowers have applied to the Bank for a Term Loan as
defined herein in the amount of $1,250,000.00, which shall be secured by
assets of the Borrowers and guaranteed by the Guarantors.
2. EIMI borrowed from the Bank the sum of $400,000.00, as
evidenced by a Revolving Credit Note dated December 30, 1997, which is
secured by assets of EIMI and guaranteed by the Guarantors.
3. EIMI has guaranteed the loan from the Bank to 21st
Century, which loan is evidenced by a Term Note dated December 30, 1997,
in the amount of $200,000.00, pursuant to a Guaranty dated December 30,
1997.
4. One of the conditions to the Bank making the loans as
described herein is that the Borrowers and the Guarantors must enter
into this Agreement setting forth the terms and conditions of the Loans.
NOW, THEREFORE, in consideration of their mutual covenants, the
financial accommodations extended to the Borrowers and the Guarantors
herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do
hereby agree to and affirm the foregoing recitals and further agree as
follows:
ARTICLE I
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DEFINITIONS
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Section 1.01 Defined Terms
As used in this Agreement the following terms have the following
meanings (terms defined in the singular to have the same meaning when
used in the plural and vice versa):
"Advance" means any disbursement of funds to the Borrowers under
the Notes.
"Agreement" means this Loan Agreement, as amended, supplemented or
modified from time to time.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in Lexington, Kentucky, are
authorized or required to close under the laws of the Commonwealth of
Kentucky or of the United States.
"Collateral" means all property which is subject to, becomes
subject to, or is to be subject to the Liens granted by the Security
Agreements or which otherwise becomes security for the Loan as described
in Section 2.06.
"Corporate Guaranty" means the guaranty by EIMI of the obligations
of 21st Century to the Bank dated December 30, 1997.
"Debt" means any and all (i) indebtedness or liability for
borrowed money, or for the deferred purchase price of property or
services (excluding trade obligations incurred in the ordinary course of
business); (ii) obligations under letters of credit issued for the
account of any Person; (iii) guarantees, endorsements (other than for
collection or deposit in the ordinary course of business), and other
contingent obligations to purchase, to provide funds for payment, to
supply funds to invest in any Person, or otherwise to assure a creditor
against loss.
"Debt Service Coverage Ratio" means the earnings before interest,
expenses, taxes, depreciation and amortization divided by current
maturities of long term debt.
"Event of Default" means any of the events specified in Section
7.01, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"GAAP" means generally accepted accounting principles in the
United States.
"Guaranty" means each of the personal guaranties of the Notes
executed by each of the Guarantors.
"Interest Coverage Ratio" means the earnings before interest
expenses and taxes divided by interest expense.
"Lexington Office" means the office of the Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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"Lien" means any pledge, security interest, hypothecation,
conditional assignment, deposit arrangement, encumbrance, lien
(statutory or other), or other security agreement, or encumbrance of any
kind or nature whatsoever (including, without limitation, any lien on
unearned premiums and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction to
evidence any of the foregoing).
"Loans" means the Revolving Credit Loan, the Term Loan and the
21st Century Loan.
"Loan Documents" means this Agreement, the Notes, the Security
Agreements, the UCC-1's, the Guaranties, and any additional documents
required to be delivered by the Borrowers, the Guarantors, or any of
them, under this Agreement, or otherwise evidencing, securing and/or
relating to the Loan.
"Notes" means the Revolving Credit Note, the Term Note and the
21st Century Note.
"Obligations" means the obligations of the Borrowers, 21st Century
and the Guarantors to the Bank under the Loan Documents.
"Others" shall mean any Person as defined herein other than Bank
or its affiliates.
"Person" means any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority, or other entity of whatever nature.
"Prime Rate" means a variable rate of interest announced from time
to time by the Bank as its prime rate whether or not such rate is
otherwise published, which rate may not be the Bank's lowest or best
rate.
"Revolving Credit Loan" or "Revolving Credit Note" shall have the
meaning assigned to such terms in Section 2.01(a).
"Security Agreements" mean the Security Agreements to be delivered
by the Borrowers under the terms of this Agreement granting Bank a first
priority security interest in all assets of the Borrowers; the Stock
Pledge and Security Agreements to be delivered by the Guarantors to the
Bank; and the Security Agreement dated December 30, 1997 from 21st
Century to the Bank.
"Term Loan" or "Term Note" shall have the same meaning assigned to
such terms in Section 2.01(b).
"21st Century Loan" or "21st Century Note" means the note from
21st Century to the Bank dated December 30, 1997, in the principal
amount of $200,000.00 which was guaranteed by EIMI.
"UCC-1's" means all filings under the Uniform Commercial Code as
adopted in the various states in which filings may be made by Bank now
or at any time in the future for purposes of perfecting any security
interest granted by the Security Agreements.
Section 1.02 Accounting Terms
All accounting terms not specifically defined herein shall be
construed in accordance with GAAP consistent with that applied in the
preparation of the financial statements referred to in Section 5.08, and
all financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles.
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ARTICLE II
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AMOUNT AND TERMS OF THE LOAN
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Section 2.01 The Loans
a. Revolving Credit Loan. The Bank has entered into the
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Revolving Credit Loan as evidenced by the Revolving Credit Note dated
December 30, 1997, in the amount of $400,000.00. Interest shall be at
the Bank's Prime Rate which shall be payable monthly.
b. Term Loan. The Term Loan from the Borrowers to the
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Bank is evidenced by the Term Note in the amount of $1,250,000.00 and is
dated January 20, 1998. The interest rate is the Bank's Prime Rate and
is payable monthly for one (1) year at which time the Borrowers shall
begin to pay monthly payments of principal and interest as provided
therein.
c. 21st Century Loan. The Bank has loaned $200,000.00 to
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21st Century as evidenced by the Term Note dated December 30, 1997, in
the amount of $200,000.00 with payments of principal and interest as
provided therein.
Section 2.02 No Prepayment Premium
The Borrowers may prepay the Notes, in whole or in part, at any
time without incurring any premium or penalty. Any partial prepayment
shall not change the amount or dates of payments due from the Borrowers
under the Notes.
Section 2.03 Method of Payment
Borrowers shall make each payment under this Agreement and under
the Notes in lawful money of the United States, to the Bank at the
Lexington Office, in immediately available funds. Whenever any payment
to be made under this Agreement or under the Notes shall be stated to be
due on a Saturday, Sunday or a public holiday or banking holiday, such
payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of
the payment of interest.
Section 2.04 Fees
a. Revolving Credit Loan. The Borrowers shall pay this
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fee in the amount of $2,640.00 at Closing.
b. Term Loan. The Borrower shall pay a fee of
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$12,500.00, of which $12,000.00 shall be paid at Closing and $500.00
paid on the anniversary date of the Loan.
c. 21st Century Loan. A fee of $1,320.00 shall be paid
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by 21st Century at Closing.
Section 2.05 Guaranty by Guarantors
a. Revolving Credit Loan. The Guarantors have guaranteed
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this Loan as evidenced by the Guaranties dated December 30, 1997.
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b. Term Loan. The Guarantors have guaranteed this Loan
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as evidenced by their Guaranties dated January 20, 1998.
c. 21st Century Loan. EIMI has guaranteed this Loan
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evidenced by its Guaranty dated December 30, 1997.
Section 2.06 Collateral
The Borrowers and the Guarantors shall or have pledged (as the
case may be) the following assets to the Bank to secure the Obligations
to the Bank:
a. Blanket Liens on Assets of the Borrowers. All of the
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Borrowers shall execute and deliver to the Bank Security Agreements and
UCC-1 financing statements whereby each of the Borrowers pledge and
grant to the Bank a valid and enforceable security interest in all of
their assets as described in Exhibit "A" attached to each of the
Security Agreements which shall be duly perfected upon the recording of
the UCC-1 financing statements in the Fayette County Clerk's office.
b. Pledge of Stock by ▇▇▇▇▇ and ▇▇▇▇▇. ▇▇▇▇▇ and ▇▇▇▇▇
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shall each execute and deliver to the Bank their Stock Pledge and
Security Agreements whereby each of them pledge and assign to the Bank
all of their interest in their EUGI common stock as shown on Schedule
"A" attached to each of the Stock Pledge and Security Agreements. All
of said common stock shall be held in escrow by Vimont & ▇▇▇▇▇, PLLC,
who shall act as Escrow Agent pursuant to the Intercreditor Agreement
and Escrow Agreement dated January 20, 1998 (the "Escrow Agreement").
Further, the Escrow Agreement shall provide that the Escrow Agent shall
hold the common stock owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. ("▇▇▇▇▇") and
▇▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇") in escrow pursuant to the terms of the Escrow
Agreement and the Purchase and Sale Agreement dated January 20, 1998
(the "Purchase Agreement"). Upon payment by the purchasers under the
Purchase Agreement to ▇▇▇▇▇ and ▇▇▇▇ on January 20, 1999, ▇▇▇▇▇,
individually and as Trustee for ▇▇▇▇, shall subordinate thirty-nine (39)
of their shares in favor of the Bank who shall then have a first and
prior lien upon the shares owned by ▇▇▇▇▇ and ▇▇▇▇▇ and also a first and
prior lien on thirty-nine (39) of the shares owned by ▇▇▇▇▇ and ▇▇▇▇.
Further, upon payment of the balance due ▇▇▇▇▇ and ▇▇▇▇ under the
Purchase Agreement, ▇▇▇▇▇, individually and as Trustee for ▇▇▇▇, shall
release all of their interest in and to their remaining shares held by
the Escrow Agent and shall further direct and authorize the Escrow Agent
to release and transfer all of their shares to the Bank who shall then
hold all of the then outstanding shares of EUGI as collateral.
ARTICLE III
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CONDITIONS PRECEDENT
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Section 3.01 Conditions Precedent to the Term Loan
The obligation of the Bank to make the Term Loan 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 and its counsel:
a. Loan Documents. The Loan Documents duly executed and
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delivered by the Borrowers and the Guarantors.
b. Insurance. Certificates of insurance coverage
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satisfying all requirements as provided in Section 5.05.
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▇. ▇▇▇▇ Report. A lien report from the Borrowers'
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counsel acceptable to the Bank identifying all of the financing
statements and other Liens on file with respect to the Borrowers, which
report shall reflect no prior filings against any of the Collateral
except for such Liens as are to be paid in full and released prior to or
in connection with the Loans or those Liens which have previously been
disclosed to and approved by the Bank.
d. Articles and By-Laws; Evidence of Existence and Good
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Standing of the Borrowers. Certified copies of the Borrowers' Articles
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and By-Laws, Certificate of Existence of the Borrowers issued by the
Secretary of State of Kentucky and certificates of authority from each
state in which qualification of the Borrowers is necessary or
appropriate.
e. Evidence of all Corporate Action by the Borrowers.
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Certified (as of the date of this Agreement) copies of all corporate
action taken by the Borrowers, including resolutions of the Borrowers'
Board of Directors, authorizing the execution, delivery, and performance
of the Loan Documents. A certificate (dated as of the date of the
closing) of the Secretary of each of the Borrowers certifying the names
and true signatures of the officers of each of the Borrowers authorized
to sign the Loan Documents to which it is a party and the other
documents to be delivered by the Borrowers under this Agreement.
f. Delivery of Intercreditor and Escrow Agreement.
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Executed copy of the Intercreditor and Escrow Agreement dated January
20, 1998.
g. Other Documents. Such other approvals, opinions, or
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documents as the Bank may reasonably request.
Section 3.02 Authorized Representative
The Borrowers do hereby authorize and empower ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
and D. ▇▇▇▇▇▇▇ ▇▇▇▇▇ or either of them acting alone, or such other
individuals who are designated in writing by the Borrowers, to request
Advances, direct or authorize the Bank as to such account(s) or such
parties into which or to whom Advances are to be made (including the
accounts of or to such authorized representatives), sign such
instruments or documents as may be required from or on behalf of the
Borrowers in connection with any such Advances, and any Advances made by
the Bank to, at the request of, or at the direction of either such
authorized representative(s) shall be deemed to have been received by
the Borrowers and used for the benefit of the Borrowers, evidenced by
the Notes, and entitled to the benefit and security of the Loan
Documents, irrespective of the ultimate use of such funds. Such
designation shall remain in full force and effect and the Bank may rely
thereon until written notice of any change in the individuals designated
has been provided to Bank accompanied by resolutions of the Borrowers
effecting any such change and a current incumbency certificate.
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
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Each Borrower and Guarantor (where applicable) represent and
warrant to the Bank as of the date hereof, which representations and
warranties shall be deemed remade by each Borrower and Guarantor (where
applicable) as of the date of this Closing and thereafter, that:
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Section 4.01 Incorporation, Good Standing and Due Qualification of the
Borrowers
Each Borrower is a corporation duly incorporated, validly
existing, and in good standing under the laws of the State of Kentucky;
has the corporate power and authority to own its assets and to transact
the business in which it is now engaged or proposed to be engaged; and
is duly qualified as a foreign corporation and in good standing under
the laws of each other jurisdiction in which such qualification is
required by law or under this Agreement.
Section 4.02 Corporate Power and Authority of the Borrowers
The execution, delivery, and performance by the Borrowers of the
Loan Documents have been duly authorized by all necessary corporate
action and do not and will not (i) require any consent or approval of
the stockholders of the Borrowers; (ii) contravene any provision of any
of the Borrowers' Articles or By-Laws; (iii) violate any provision of
any law, regulation, writ, judgment, injunction, decree or determination
presently in effect having applicability to any of the Borrowers, other
than the Liens to be granted in favor of Bank; (iv) result in a breach
of or constitute a default under (whether with the giving of notice,
passage of time, or both) any indenture or loan or credit agreement or
any other agreement, lease, or instrument to which any Borrower is a
party or by which it or its properties may be bound or affected; (v)
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
any Borrower; or (vi) cause any Borrower to be in default under any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination, or award or any such indenture, agreement, lease, or
instrument.
Section 4.3 Legally Enforceable Agreement
This Agreement is, and each of the other Loan Documents executed
and/or delivered in connection with this Agreement are, legal, valid and
binding obligations of each Borrower and Guarantor, as applicable,
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.
Section 4.04 Other Agreements
None of the Borrowers are a party to any indenture, loan, or
credit agreement, or to any lease or other agreement or instrument, or
subject to any charter or corporate restriction or partnership
restriction, which could have a material adverse effect on the business,
properties, assets, operations or conditions, financial or otherwise, of
any Borrower or the ability of any Borrower to carry out its respective
obligations under the Loan Documents to which it is a party. None of
the Borrowers are in default in any respect in the performance,
observance, or fulfillment of any of the obligations, covenants, or
conditions contained in any agreement or instrument material to its
business to which it is a party.
Section 4.05 Litigation
There is no pending or threatened action or proceeding against or
affecting any of the Borrowers or the Guarantors before any court,
governmental agency or arbitrator, which may, in any one case or in the
aggregate, materially and adversely affect the respective financial
condition, operation, properties, or business of any of the Borrowers or
the Guarantors or the ability of any of the Borrowers or the Guarantors
to perform their respective obligations under the Loan Documents to
which they are a party.
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Section 4.06 No Liens Upon Collateral
There are no liens on any of the Collateral (other than which
shall be released at Closing or have been previously disclosed to the
Bank) nor have either of the Borrowers previously assigned any of their
rights to any of the Collateral.
Section 4.07 Operation of Business
Except as may have been disclosed in writing to and approved by
the Bank, all of the Borrowers have made application for or otherwise
possesses all licenses, permits, franchises, patents, copyrights,
trademarks and trade names, or rights thereto, to conduct their
businesses substantially as now conducted and as presently proposed to
be conducted, and none of the Borrowers are in violation of any of the
foregoing or any valid rights of others with respect to any of the
foregoing.
Section 4.08 Taxes and Reports
All of the Borrowers have filed, in a timely fashion and will in
the future file in a timely fashion, all tax returns or reports
(federal, state and local) required to be filed and has paid, and will
pay in the future, all taxes, assessments, fees and governmental charges
and levies shown or required to be shown thereon to be due, including
interest and penalties, and has paid, and will pay in the future, all
real estate and personal property taxes, license fees and/or assessments
due with respect to their assets.
Section 4.09 Accuracy of Information
All factual information heretofore or contemporaneously furnished
by each Borrower and Guarantor in writing to the Bank for purposes of,
or in connection with, this Agreement or any transaction contemplated
hereby is, and all other such factual information hereafter furnished by
them to the Bank will be, true and accurate in every material respect on
the date as of which such information is certified and as of the date of
execution and delivery of this Agreement by the Bank, and such
information is not, or shall not be, as the case may be, incomplete or
omit to state any material fact necessary to make such information not
misleading.
Section 4.10 No Adverse Change
No material adverse change has occurred in any of the Borrowers'
businesses, or any of the Borrowers' or Guarantors' financial condition
since the date of the most current financial statements provided by each
Borrower and Guarantor to the Bank.
Section 4.11 Registered Agent
The registered agent for EUGI and EIMI is ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who
is located at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
The registered agent for 21st Century is ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., who is
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Each Borrower shall give written notice within thirty (30) days of any
change in the name or location of its registered agent.
ARTICLE V
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AFFIRMATIVE COVENANTS
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So long as any portion of the Notes shall remain unpaid or the
Bank shall have any obligation under this Agreement, the Borrowers and
the Guarantors (where applicable) each covenant as follows:
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Section 5.01 Maintenance of Existence
Each Borrower will preserve and maintain its corporate existence
and good standing in the jurisdiction of its incorporation, shall
qualify and remain qualified as a foreign corporation in each
jurisdiction in which such qualification is required, and shall not
enter into any merger, consolidation or other arrangement whereby either
Borrower, or a controlling interest in either Borrower, shall be
acquired by any other Person unless, as a part thereof, the Loan is to
be paid in full and this Agreement and the Loans shall be terminated.
Section 5.02 Maintenance of Records
Each Borrower will keep adequate, consolidated records and books
of account in which complete entries will be made in accordance with
GAAP consistently applied, reflecting all financial transactions.
Section 5.03 Maintenance of Properties
Each Borrower will maintain, keep, and preserve all of its
properties necessary or useful in the proper conduct of its business in
good working order and condition, ordinary wear and tear and insured
casualty damage or taking through the power of eminent domain excepted.
Section 5.04 Conduct of Business
Each Borrower will continue to engage in an efficient and
economical manner in a business of substantially the same general type
as conducted by each of them on the date of this Agreement.
Section 5.05 Maintenance of Insurance
Each Borrower will maintain insurance with financially sound and
reputable insurance companies or associations, reasonably acceptable to
the Bank, in such amounts and covering such risks as are usually carried
by companies engaged in the same or a similar business and similarly
situated. Specifically, each Borrower will maintain, with respect to
each of their respective properties:
a. Casualty. Insurance against loss or damage to all the
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improvements to the Premises by fire and any of the risks covered by
insurance of the type now known as "fire and extended coverage".
b. Liability. Comprehensive public liability insurance
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on an "occurrence basis" against claims for "personal injury,"
including, without limitation, bodily injury, death or property damage
occurring on the Borrowers' properties; such insurance to afford
immediate minimum protection to a limit of not less than that reasonably
required by the Bank with respect to personal injury or death to any one
or more persons or damages to property.
All policies of insurance shall be issued by companies and in
amounts in each company reasonably satisfactory to the Bank. Each
Borrower shall furnish the Bank with an original certificate of
insurance and a copy of all policies of required insurance. Prior to
the expiration of each such policy, each Borrower shall furnish the Bank
with evidence satisfactory to Bank of the payment of premium and the
reissuance of a policy continuing insurance in force as required by this
Agreement. The Borrowers shall give the Bank notice of any
cancellations or material amendments or alterations of said policies.
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Section 5.06 Compliance with Laws
Each Borrower has at all times heretofore and will hereafter
comply in all material respects with all applicable laws, rules,
regulations and orders, including, without limitation, all applicable
covenants and restrictions of record and all valid laws, statutes,
codes, acts, ordinances, orders, judgments, decrees, injunctions, rules,
regulations, certificates, franchises, permits, licenses,
authorizations, directions and requirements, including, without
limitation, the Americans With Disabilities Act and regulations
thereunder and all laws, ordinances, rules and regulations of all
federal, state, county, municipal and other governments, departments,
commissions, boards, courts, authorities, officials and officers.
Section 5.07 Right of Inspection & Audit by Bank
At any reasonable time and from time to time, each Borrower will
permit the Bank or any agent or representative thereof to examine and
make copies of and abstracts from the Borrower's records and books of
account, and visit their properties and to discuss its affairs,
finances, and accounts with any of their respective officers and their
independent accountants. Without limiting the foregoing rights of the
Bank, each Borrower agrees that without any prior notice to the
Borrowers and not more frequently than two (2) times per calendar year,
the Bank and its agents and employees may conduct an audit of each
Borrower's records and books to determine each Borrower's compliance
with this Agreement and the other Loan Documents.
Section 5.08 Reporting Requirements
The Borrowers shall furnish to Bank:
a. Quarterly Reporting. As soon as available and in any
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event within thirty (30) days after the end of each quarter, balance
sheets as of the end of each quarter, statements of income and retained
earnings as of the end of such 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
the 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 the Borrowers' chief financial
officer. Provided, however, the Borrowers shall not be obligated to
deliver the Borrowers' internally prepared balance sheet and income
statement for the last quarter of Borrowers' fiscal year.
b. Annual Financial Statements. As soon as available and
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in any event within one hundred twenty (120) days after the end of their
fiscal year 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 each of the 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 any of the Borrowers or
Guarantors which, if determined adversely, could have a material,
adverse effect on any of their financial conditions, properties, or
operations.
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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 Event of Default, a written notice setting forth the details of
such Event of Default and the action which is proposed to be taken with
respect thereto.
e. Tax Returns. Copies of each of the Borrowers'
-----------
federal and state income tax returns, and any amendments and extensions
no later than the earlier of the date filed or one hundred twenty (120)
days after the end of their fiscal year for so long as any portion of
the Loans remains unpaid or the Bank has any obligations hereunder. In
the event any Borrower files for an extension with the Internal Revenue
Service, such Borrower shall provide to the Bank copies of the federal
income tax return prior to the expiration of such extension period.
f. Guarantors' Financial Statements and Tax Returns. On
------------------------------------------------
or before April 30 of each year, or no later than October 30 if an
extension is filed, copies of each Guarantor's federal and state income
tax returns, amendments and schedules, and a financial statement of
assets, liabilities and net worth for each Guarantor by January 31, of
each year, in form and content reasonably acceptable to the Bank, and
all in reasonable detail.
g. Fiscal Year Projections. EIMI shall provide the Bank
-----------------------
with its fiscal year projections by January 31, of each year for so long
as any portion of the Loans remains unpaid.
h. Compliance Certificates. EIMI shall provide the Bank
-----------------------
with a Compliance Certificate in the same form as attached hereto as
Exhibit "A" within thirty (30) 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 thirty (30) days after
the end of the fiscal year based on the audited consolidated financial
statement.
i. General Information. Such other information
-------------------
respecting the condition or operations, financial or otherwise, of any
of the Borrowers or Guarantors, as the Bank may from time to time
reasonably request.
Section 5.09 Financial Covenants to Be Maintained by EIMI
a. Net Worth. EIMI shall maintain a net worth, as
---------
defined by GAAP, of not less than $300,000.00 based on the 1997 year end
audited financial reports, which shall increase annually by the greater
of fifty percent (50%) of net income or $200,000.00 over the previous
year end audit reports.
b. Interest Coverage Ratio. EIMI shall not permit the
-----------------------
ratio of (i) its calendar quarterly earnings before interest expenses
and taxes to (ii) calendar quarterly interest expenses to be less than
3.00 to 1.00, which shall be reported on a calendar quarterly basis.
c. Debt Service Coverage Ratio. EIMI shall not permit
---------------------------
the debt service ratio to be less than 1.5 to 1.0, which shall be
reported on a calendar quarter basis.
Section 5.10 Employment Considerations, Assignment of Life Insurance,
Etc.
The EIMI and EUGI shall maintain ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ as the
President and CEO of each of the Borrowers and he shall also remain the
majority shareholder of each of them. The Borrowers agree that the
total compensation for ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ for any one (1) year shall be
no greater than $300,000.00. Further, the Borrowers shall provide key
man life insurance on the life of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ of which $500,000.00
of said insurance shall be assigned to the Bank as collateral. The
Borrowers shall have four
- 11 -
(4) weeks from the date of Closing in which to complete the assignment
of the key man life insurance policy to the Bank.
Section 5.11 Further Assurances
The Borrowers and the Guarantors shall, upon request by the Bank,
promptly cure any defects in the creation, issuance and delivery of the
Notes and the execution and delivery of the other Loan Documents,
including this Agreement. The Borrowers and the Guarantors, at their
expense, promptly will execute and deliver to the Bank, upon request,
all such other and further documents, agreements and instruments
reasonably required to ensure compliance with or the accomplishment of
the covenants and agreements of the Borrowers and the Guarantors in the
Loan Documents, including this Agreement, or to evidence further and to
describe more fully any Collateral or other property intended as
security for the Loan or to correct any omissions in the Loan Documents,
or to state more fully the obligations set out in this Agreement or in
any of the other Loan Documents, or to perfect, protect or preserve any
Liens created pursuant to any of the Loan Documents, or to make any
recordings, to file any notices or to obtain any consents, all as may be
necessary or determined by the Bank in good faith to be reasonably
appropriate in connection therewith.
Section 5.12 Taxes and Other Payment Obligations.
The Borrowers shall pay and discharge, or cause to be paid and
discharged, before any of them becomes in arrears:
a. all taxes, assessments, governmental charges, levies,
and claims for labor, materials or supplies which if unpaid might become
a lien or charge upon any of Borrowers' property; and
b. all of the Borrowers' other debts, obligations and
liabilities as and when same become due.
Provided, however, the Borrowers may refrain from paying any
amount they would be required to pay pursuant to this section only if
the validity or amount thereof is being contested in good faith by
appropriate proceedings timely instituted which shall operate to prevent
the collection or enforcement of the obligation contested, and provided
that the Borrowers shall have set aside on their books appropriate
reserves with respect thereto.
ARTICLE VI
----------
NEGATIVE COVENANTS
------------------
So long as any portion of the Notes shall remain unpaid or the
Bank shall have any obligation under this Agreement, the Borrowers and
the Guarantors (where applicable) shall comply with the following
negative covenants:
Section 6.01 Liens on or Assignments of Collateral
The Borrowers will not create, incur, assume or suffer to exist
any Lien upon or with respect to any of the Collateral now owned or
hereafter acquired, except:
a. Liens in favor of the Bank;
- 12 -
b. Liens for taxes or assessments or other government
charges or levies if not yet due and payable or, if due and payable, if
they are being contested in good faith by appropriate proceedings and
for which appropriate reserves are maintained;
c. Liens imposed by law, such as mechanics, materialmen,
landlords, warehousemen and carrier Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which
are not past due or which are being contested in good faith by
appropriate proceedings and for which appropriate reserves have been
established;
d. Liens under worker's compensation, unemployment
insurance, social security, or similar legislation for sums which are
not past due;
e. Liens, deposits, or pledges to secure the performance
of public or statutory obligations, surety, stay, appeal, indemnity,
performance or other similar bonds, or other similar obligations arising
in the ordinary course of business; or
f. Liens in favor of third parties which do not exceed
$75,000.00 in the aggregate.
Section 6.02 Mergers, Etc.
The Borrowers will not merge, engage in a share exchange, or
consolidate with any other entity, or sell, assign, lease, or otherwise
dispose of (whether in one transaction or in a series of transactions)
all or substantially all of their assets at any time hereafter owned by
the Borrowers to any Person, or acquire all or substantially all of the
assets or the business of any Person, without the prior written consent
of the Bank which shall not be unreasonably withheld.
Section 6.03 Advances or Loans to Insiders
The Borrowers will not either lend funds or make other advances to
shareholders or related entities, which in the aggregate would exceed
$250,000.00, without the prior written consent of the Bank.
Section 6.04 Additional Debt
The Borrowers will not borrow from third party lenders nor shall
they guarantee any additional indebtedness which in the aggregate
exceeds $150,000.00, without the prior written consent of the Bank.
ARTICLE VII
-----------
EVENTS OF DEFAULT AND REMEDIES OF BANK
--------------------------------------
Section 7.01 Events of Default
Each of the following shall be an Event of Default under this
Agreement:
a. Payment Default. The Borrowers fail to pay any
---------------
installment of principal or interest on the Notes when due without
notice from the Bank.
b. Other Defaults with Bank. The occurrence of a default
------------------------
under any other obligation or agreement of the Borrowers or the
Guarantors to or with the Bank, whether now or hereafter arising and
such default shall continue for a period of thirty (30) days after
notice to the Borrowers or Guarantors from the Bank describing the
nature of the default.
- 13 -
c. Breach of Warranty, Etc. Any representation or
------------------------
warranty made or deemed made by any of the Borrowers or the Guarantors
in this Agreement, the Loan Documents, or in any other certificate,
document, opinion, or financial or other statement furnished at any time
under or in connection with any Loan Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made.
d. Breach of Covenant. Any of the Borrowers or the
------------------
Guarantors fail to perform or observe any term, covenant or agreement on
their part to be performed or observed contained in any Loan Document
(other than a failure to pay any sum to the Bank when due) to which any
of them is a party and such failure shall continue for a period of
thirty (30) days after notice to either Borrowers or the Guarantors from
the Bank describing the nature of the failure.
e. Bankruptcy/Insolvency. Any of the Borrowers or the
---------------------
Guarantors (i) are unable to, or admit in writing their inability to,
pay their debts as such debts become due; or (ii) make an assignment for
the benefit of creditors, petition or apply to any tribunal for the
appointment of a custodian, receiver or trustee for them or a
substantial part of their assets; or (iii) commence any proceeding under
any bankruptcy; or (iv) have any such petition or application filed or
any such proceeding commenced against them in which an order for relief
is entered or adjudication or appointment is made and which remains
undismissed for a period of sixty (60) days or more; or (v) by any act
or omission indicate their consent to, approval of, or acquiescence in
any such petition, application, or proceeding, or order for relief, or
the appointment of a custodian, receiver, or trustee for all or any
substantial part of their properties; or (vi) suffer any such
custodianship, receivership, or trusteeship to continue undischarged for
a period of sixty (60) days or more.
f. Defaults with Other Parties. The occurrence of a
---------------------------
default under any other obligation or agreement of the Borrowers with
other third parties, including without limitation, agreements with
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., individually and as Trustee for ▇▇▇▇▇▇ ▇. ▇▇▇▇,
which default would have a material adverse effect upon the financial
condition of the Borrowers in the opinion of the Bank.
g. Termination of the Borrowers. Any of the Borrowers
----------------------------
(or any Person affiliated with any of them) take any action that is
intended to result in the termination, dissolution or liquidation of
either of the Borrowers.
Section 7.02 Remedies of Bank in the Event of Default
a. Acceleration, etc. Upon the occurrence of any Event
------------------
of Default set forth in section 7.01 hereof, the Bank may, by notice to
the Borrowers: (i) declare its obligation to make Advances under this
Agreement and the Notes terminated, whereupon the same shall forthwith
terminate; (ii) declare the outstanding principal balance owing under
the Notes, all interest thereon, and all other amounts payable under
this Agreement or any Loan Document, or otherwise to be forthwith due
and payable, whereupon the Notes, all such interest, and all such
amounts shall become and be forthwith due and payable, without
presentment, demand, protest, or further notice of any kind, all of
which are hereby expressly waived by the Borrowers, without any action
on the part of the Bank; (iii) avail itself of any and all remedies
available to it in any of the Loan Documents, including, without
limitation, appointment of receivers for the Collateral; and (iv) avail
itself of any and all other or additional remedies available by law or
in equity.
b. File Action. Upon the occurrence of any Event of
-----------
Default, the Bank shall have the right to proceed to protect and enforce
its rights by suit in equity, action at law and/or other appropriate
proceedings either for specific performance of any covenant or condition
contained in this
- 14 -
Agreement or in any of the other Loan Documents, or in aid of the
exercise of any power granted in this Agreement or any of the other Loan
Documents.
c. Use of Collateral. Upon the occurrence of any Event
-----------------
of Default, the Borrowers' rights to use, sell, substitute, exchange or
exercise any other rights relating to the Collateral and all proceeds
thereof and income therefrom shall automatically terminate without
notice and the Bank shall thereafter be entitled to take possession of,
receive, sell, and collect same.
d. Waiver of Marshaling of Assets. The Borrowers waive
------------------------------
any requirement of marshaling of assets and all other legal or equitable
doctrines which might otherwise require the Bank to proceed against any
Persons or any Collateral or any other property or with respect to any
other rights in any particular order.
e. Sale of Collateral. Upon the occurrence of any Event
------------------
of Default, the Bank shall have the right to sell the Collateral at
public or private sale, and shall have the right to bid upon and
purchase the Collateral at any sale. The Bank shall have the right to
deliver the Collateral to the buyer at any public or private sale. This
includes the right to sell all of the common stock held by the Escrow
Agent which is owned by Davis, Emig, ▇▇▇▇▇ or ▇▇▇▇▇ provided that ▇▇▇▇▇,
both individually and as Trustee for ▇▇▇▇, and the Bank agree to
mutually acceptable terms for the sale of stock. In such event the Bank
and ▇▇▇▇▇ may direct the Escrow Agent to release said stock to either
▇▇▇▇▇ or the Bank for the sole purpose of selling same.
f. No Waiver. Upon the occurrence of any Event of
---------
Default, the Bank may choose to exercise and enforce any of its rights
or remedies, or decline to exercise and enforce any of its rights or
remedies, at the Bank's sole discretion. The failure of the Bank to
exercise and enforce any rights or remedies shall not prevent the Bank
from thereafter exercising or enforcing any such rights or remedies, nor
shall such failure release any Person or property with respect to which
the Bank has any rights or remedies, or in any way limit or diminish
Bank's rights with respect to any such property or Person.
g. Cumulative Rights. All of the Bank's rights and
-----------------
remedies shall be cumulative to the greatest extent permitted by law,
may be exercised successively or concurrently, from time to time, and
shall be in addition to all of those rights and remedies afforded the
Bank at law, or in equity, or in bankruptcy. Any exercise of any right
or remedy shall not be deemed to be an election of that right or remedy
to the exclusion of any other right or remedy.
h. Recovery. The Bank shall be entitled to recover from
--------
the cumulative exercise of all remedies the sum of:
(i) the outstanding principal amount of the Loan;
(ii) all accrued but unpaid interest with respect to
the principal amount of the Loan;
(iii) any other amounts that either the Borrowers or
Guarantors are required by this Agreement or the Loan Documents to
pay to the Bank (for example, and without limitation, the
reimbursement of reasonable expenses and legal fees, and late
charges); and
(iv) any costs, expenses or damages which the Bank is
otherwise permitted to recover by the terms of this Agreement, the
other Loan Documents, or at law or equity.
- 15 -
i. Application of Payments. All payments from the
-----------------------
Borrowers to the Bank under the Note or any of the other Loan Documents,
and payments to the Bank from the sale or other disposition of
Collateral, shall all be applied by the Bank as follows:
(i) to the payment of the costs and expenses of the
Bank and the reasonable fees and expenses of its counsel in
connection with the administration or enforcement of the Bank's
rights and remedies against any of the Borrowers or the
Guarantors, and the Collateral and sale or collection thereof;
(ii) to the payment in full of all indebtedness
referred to hereunder and under the Loan Documents, applying such
amounts first to accrued interest and then to principal; and
(iii) the balance, if any, to the Borrowers or to any
third party entitled thereto.
j. Appointment of the Bank as Attorney-In-Fact. The
-------------------------------------------
Borrowers hereby appoint the Bank as the Borrowers' attorney-in-fact
upon the occurrence of any Event of Default for the purpose of dealing
with the Collateral, including the collection and disposition of same.
The powers vested in said attorney are, and shall be deemed to be,
coupled with an interest and cannot be revoked.
ARTICLE VIII
------------
MISCELLANEOUS
-------------
Section 8.01 Amendments, Etc.
No amendment, modification, termination, or waiver of any
provision of any Loan Document, nor consent to any departure by any of
the Borrowers or the Guarantors from any Loan Document to which any of
them is a party, shall in any event be effective unless the same shall
be in writing and signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the specific
purpose for which given.
Section 8.02 Notices, Etc.
All notices required or provided for in this Agreement or under
any of the other Loan Documents shall be made in writing and delivered
either (i) personally, (ii) via certified mail with return receipt
requested, (iii) by Federal Express or other nationally recognized,
overnight courier service, or (iv) by facsimile, with the original by
United States, first class, postage prepaid mail, to the party to whom
directed at the addresses and facsimile numbers set forth below, or to
such other addresses and numbers as may be designated by any party by
the giving of notice of a change in its address or facsimile number as
provided for herein. All notices given as provided for herein, other
than by way of certified mail, shall be deemed effective upon personal
delivery, the next business day after delivery to the overnight courier
service or upon being faxed, as applicable. Notice given by way of
certified mail shall be deemed effective upon receipt or refusal of
receipt thereof. The addresses and facsimile numbers for notice to the
parties hereto are as follows:
If to the Borrowers: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
- 16 -
If to D. ▇▇▇▇▇▇▇ ▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to the
Borrowers' and
Guarantors' counsel: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Vimont & ▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Bank: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bank One, Kentucky, NA
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the Bank's
counsel at: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ & Park, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 8.03 No Waiver; Remedies
No failure on the part of the Bank to exercise, and no delay in
exercising, any right, power, or remedy under any Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of
any right under any Loan Documents preclude any other or further
exercise thereof or the exercise of any other right. The remedies
provided in the Loan Documents are cumulative and not exclusive of any
remedies provided by law or in equity.
Section 8.04 Successor and Assigns
This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except
that neither the Borrowers nor the Guarantors may assign or transfer any
of their rights under any Loan Document to which they are a party
without the prior written consent of the Bank.
Section 8.05 Costs, Expenses and Taxes
The Borrowers agree to pay on demand all reasonable costs and
expenses in connection with the preparation, execution, delivery,
filing, recording and administration of any and all of the Loan
Documents, including, without limitation, the reasonable fees and out-
of-pocket expenses of counsel for the Bank, and all costs and expenses,
if any, in connection with the enforcement of any of the Loan Documents.
In addition, the Borrowers shall pay any and all fees payable or
determined to be payable in
- 17 -
connection with the execution, delivery, filing, and recording of any of
the Loan Documents and the other documents to be delivered under any
such Loan Documents. The Borrowers shall further pay all of the
foregoing reasonable costs, including reasonable attorney fees,
associated with modification of the Loan Documents, and preparation and
recording of additional Loan Documents.
Section 8.06 Right of Set Off
Upon the occurrence and during the continuance of any Event of
Default, the Bank is hereby authorized at any time and from time to
time, without notice to the Borrowers (any such notice being expressly
waived), to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Bank to or for the credit or the
account of the Borrowers against any and all of the obligations of the
Borrowers, now or hereafter existing under this Agreement or the Notes
or any other Loan Document, irrespective of whether or not the Bank
shall have made any demand under this Agreement or the Notes or such
other Loan Document and although such obligations may be unmatured. The
Bank agrees promptly to notify the Borrowers after any such set off and
application, provided that the failure to give such notice shall not
affect the validity of such set off and application. The rights of the
Bank under this Section 8.06 are in addition to other rights and
remedies (including, without limitation, other rights of set off) which
the Bank may have.
Section 8.07 Waiver of Jury Trial
THE BANK, THE BORROWERS AND THE GUARANTORS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF THE BANK, THE BORROWERS OR THE GUARANTORS. THE
BORROWERS AND THE GUARANTORS ACKNOWLEDGE AND AGREE THAT THEY HAVE
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
Section 8.08 Governing Law; Entire Agreement; Interpretation and
Counterparts
The substantive laws of the Commonwealth of Kentucky (without
regard to provisions governing conflicts of laws) shall govern the
construction of this Agreement, the Notes and each other Loan Document
and the rights and remedies of the parties thereto, except to the extent
that the laws of any applicable state shall govern the creation or
perfection of the lien or security interest in Collateral located in
such applicable state, the enforcement of the Bank's rights to such
property and/or the realization of Bank's rights in such property as
security for the Loan Obligations. Except as otherwise provided herein,
this Agreement, the Notes and the other Loan Documents constitute the
entire understanding among the parties hereto with respect to the
subject matter hereof and supersede any prior agreements, written or
oral, with respect thereto. This Agreement may be executed in one or
more counterparts, each of which shall be a duplicate original, but all
of which shall constitute the same agreement. In the event of any
conflict between any other Loan Document and the terms of this
Agreement, the terms of this Agreement shall be deemed to govern any
such conflict. To the extent any other Loan Document is not directly in
conflict with the provisions hereof or can be reasonably construed in
such a way as to be consistent with the terms of this Agreement, the
terms of such other instrument or document shall govern.
- 18 -
Section 8.09 Severability of Provisions
Any provision of any Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions of such Loan Document or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.10 Headings
Article and Section headings in the Loan Documents are included in
such Loan Documents for the convenience of reference only and shall not
constitute a part of the applicable Loan Documents for any other
purpose.
Section 8.11 Jurisdiction and Venue
The parties agree that the sole proper venue for the determination
of any litigation commenced by either the Borrowers or the Guarantors
against the Bank on any basis shall be in a court of competent
jurisdiction which is located in Fayette County, Kentucky, and the
parties hereby expressly declare that any other venue shall be improper
and the Borrowers and the Guarantors expressly waive any right to a
determination of any such litigation against the Bank by a court in any
other venue. The Borrowers and the Guarantors further agree that
service of process by any judicial officer or by registered or certified
U.S. mail, as specified in Section 8.02 on Notices, shall establish
personal jurisdiction over the Borrowers and the Guarantors, and the
Borrowers and the Guarantors waive any rights under the laws of any
state to object to jurisdiction within the Commonwealth of Kentucky.
The Borrowers and the Guarantors acknowledge that this Agreement was
negotiated, executed and delivered in the Commonwealth of Kentucky and
shall be governed and construed in accordance with the laws thereof.
Provided, however, nothing contained in this Section 8.11 shall prevent
the Bank from bringing any action or exercising any rights against any
security or against the Borrowers or the Guarantors personally, and any
of their property, within any other state. Initiating such proceedings
or taking such action in any other state shall in no event constitute a
waiver of the agreement contained herein that the laws of the
Commonwealth of Kentucky shall govern the rights and obligations of the
parties hereunder or of the submission herein made by each Borrower and
Guarantor to personal jurisdiction within the Commonwealth of Kentucky.
The aforesaid means of obtaining personal jurisdiction and perfecting
service of process are not intended to be exclusive, but are cumulative
and in addition to all other means of obtaining personal jurisdiction
and perfecting service of the laws of the Commonwealth of Kentucky or by
any other state in an action brought by Bank in such state.
Section 8.12 No Third Party Beneficiaries
All conditions on the obligations of any party hereunder,
including the obligation of the Bank to make Advances, are imposed
solely and exclusively for the benefit of the other parties thereto and
the Bank's successors and assigns and any permitted assigns of the
Borrowers. No other Person, including any shareholder, officer or
director of either Borrower, shall have standing to require satisfaction
of such conditions in accordance with their terms or be entitled to
assume that the Bank will refuse or decline to make Advances in the
absence of strict compliance with any or all thereof, and no other
Person shall, under any circumstances, be deemed to be a beneficiary of
such conditions, any and all of which may be freely waived in whole or
in part by the respective party to whom the performance of any such
condition shall run at any time if in the sole discretion of such party
it deems it desirable to do so, or if it fails to do so for any other
reason.
- 19 -
Section 8.13 No Agency
The Bank is not the agent or representative of any of the
Borrowers or the Guarantors, and neither the Borrowers nor the
Guarantors are the agents or representatives of the Bank, and nothing in
this Agreement shall be construed to make the Bank liable to anyone for
goods delivered to or services performed with respect to the Collateral
or for debts or claims accruing against either the Borrowers or the
Guarantors. Nothing herein, nor the acts of the parties hereto, shall
be construed to create a partnership or joint venture between the Bank
and the Borrowers or Guarantors or any other relationship except as
creditor, debtor, and guarantor.
Section 8.14 Bank's Performance of the Borrowers' Covenants and Duties
Should any of the Borrowers fail to perform any of their
covenants, duties and agreements in accordance with the terms hereof and
an Event of Default shall thereby result, the Bank may, at its election
and at the Borrowers' expense, perform or attempt to perform such
covenant, duty or agreement on behalf of the Borrowers, but in no event
shall the Bank have any obligation to do so. The Borrowers shall, at
the request of the Bank, promptly pay, upon demand, any reasonable
amount expended by the Bank in such performance or attempted performance
to the Bank at the Lexington Office, together with interest thereon at
the default rate under the Notes from the date such amount was requested
by the Bank to be paid until paid; provided that the Bank does not
assume and shall never have, except by a subsequent, express written
undertaking of the Bank, any liability for the performance of any duties
of the Borrower under or in connection with all or any part of the
Collateral. The Bank shall be subrogated to all rights, titles, Liens
and security interests securing the payment of any debt, claim, tax or
assessment for the payment of which the Bank may make an advance or that
the Bank may pay.
Section 8.15 Course of Dealing; Waiver
No course of dealing in respect of, or any omission or delay in
the exercise of, any right, power, remedy or privilege by the Bank shall
operate as a waiver thereof, nor shall any right, power, remedy or
privilege of the Bank be exclusive of any other right, power, remedy or
privilege referred to herein or in any related document or now or
hereafter available at law, in equity, in bankruptcy, by statute or
otherwise. Each such right, power, remedy or privilege may be exercised
by the Bank, either independently or concurrently with others, and as
often and in such order as the Bank may deem expedient. No waiver or
consent granted by the Bank with respect to this Agreement, the
indebtedness or any Loan Document or related writing shall be binding
upon the Bank, unless specifically granted in writing by a duly
authorized officer of the Bank, which writing shall be strictly
construed.
Section 8.16 Absence of Oral Representations
The Borrowers and the Guarantors each represent and warrant that
no promises, assurances or commitments have been made to them by the
Bank or have been relied on by them regarding any extension, renewal or
future financing, they understand and agree that the Bank is entitled to
enforce this Agreement, the Notes and all other Loan Documents strictly
in accordance with their terms, and any commitment or obligation to
extend or renew any financing or provide additional financing shall not
be binding on Bank, except to the extent contained in a writing signed
by every Person who is to be bound thereby. The Borrowers and the
Guarantors further acknowledge that (i) the Bank does not presently
anticipate renewing, extending or further modifying the financing
referenced in this Agreement, and (ii) the Bank anticipates the Notes
will be fully paid in accordance with their terms on or before maturity.
The Borrowers and the Guarantors each agree and represent to the Bank
(which representation the Borrowers and the Guarantors acknowledge the
Bank is relying on in executing this Agreement) that they will not rely
on any (i) commitment or future financing, including, but not limited
to, renewals,
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extensions and modifications, unless signed in writing by the Bank, and
(ii) waiver of any right existing at any time, and from time to time,
either now or in the future, except to the extent evidenced by a writing
signed by the person effecting such waiver.
Section 8.17 Indemnity
The Borrowers and the Guarantors shall indemnify the Bank from and
hold the Bank harmless against any loss suffered or liability incurred
by the Bank on account of any damage to the person or property of the
parties hereto or to third parties by reason of the operation of the
Borrowers' business, or otherwise arising out of or connected to the
conduct of the Borrowers or the Guarantors, their officers, directors,
employees or agents, in connection with any matters which are the
subject of this Agreement.
Section 8.18 Arbitration
The Borrowers, the Guarantors and the 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 Notes, 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. Any arbitration proceeding held pursuant to
this arbitration provision shall be conducted in 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 taking or disposing of such
property with or without judicial process pursuant to Article 9 of the
Uniform Commercial Code or when applicable, a judgment by confession of
judgment. 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. Nothing in this arbitration provision shall
preclude either party from seeking equitable relief from a court of
competent jurisdiction. The status 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first above written.
EQUITY INSURANCE MANAGERS, INC.
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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TITLE: President
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EQUITY UNDERWRITING GROUP, INC.
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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TITLE: President
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21ST CENTURY CLAIM SERVICE, INC.
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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TITLE: Secretary/Treasurer
-------------------------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
/s/ D. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
D. ▇▇▇▇▇▇▇ ▇▇▇▇▇
BANK ONE, KENTUCKY, NA
BY: /s/ ▇. ▇. ▇▇▇▇▇▇
----------------------------------------
TITLE: Executive Vice President
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