EXHIBIT 10.4
SECOND AMENDMENT TO LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT (the "Amendment") is
made and entered into as of the 15 day of May, 2003, by and between XXXXXX AND
SONS, LLC, a Florida limited liability company (the "Borrower") and OHIO
SAVINGS BANK, a federal savings bank (the "Bank").
RECITALS
A. Borrower and Bank have previously entered into that
certain Amended and Restated Loan Agreement (the "Loan Agreement") dated as
of March 22, 2002.
B. Borrower and Bank thereafter amended the Loan
Agreement pursuant to that certain First Amendment to Loan Agreement (the
"First Amendment") dated as of December 12, 2002.
C. Borrower has requested that Bank make further
modifications to the Loan Agreement (as amended by the First Amendment,
the "Amended Loan Agreement"), and Bank is willing to do so provided that
Borrower gives Bank the representations, assurances and other agreements
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter set forth, the parties hereto do
hereby agree as follows:
1. The Recitals hereinabove contained are true and
correct and are made a part hereof.
2. The definition of "Debt", contained in Article 1.1
of the Amended Loan Agreement is hereby restated in its entirety, as
follows:
Debt - shall mean the sum of (i) indebtedness for
borrowed money or for the deferred purchase price of
property or services, (ii) capitalized lease
obligations, (iii) all other items which in
accordance with GAAP would be included in
determining total liabilities as shown on a balance
sheet of a Person as at the date as of which Debt is
to be determined less (i) all amounts due Affiliates
of Guarantor subordinated to the Loan and (ii) the
sum of xxxxxxx money deposits received from (and not
returned to) vendees under residential real estate
sales contracts which have not closed or been
terminated.
3. Section 6.17(b) of the Amended Loan Agreement is
deleted in its entirety and the following is inserted in lieu thereof:
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"(b) a ratio of total Debt to Tangible Net Worth, as
tested annually and quarter-annually, as of the
last day of each March, June, September and
December of each year (in arrears), of not more than
3.00 to 1;"
4. Article 7.16 as set forth in the Amended Loan
Agreement, is hereby deleted in its entirety, arid the following is inserted in
lieu thereof:
"Notwithstanding the foregoing, unless and until there occurs
an Event of Default (which shall not have been waived, in writing, by Bank),
the Borrower may pay dividends in such amounts as it may reasonably deem
prudent."
5. Borrower acknowledges, represents and confirms to
Bank that (i) the Amended Loan Agreement is valid and binding upon Borrower
and enforceable in accordance with the respective terms thereof; (ii) after
giving effect to the modifications contained herein, there are no
defenses, setoffs, counterclaims, cross-actions or equities in favor of
Borrower to or against the enforecement of the Amended Loan Agreement,
and (iii) Bank is under no obligation to further amend or modify the
Amended Loan Agreement.
6. The Amended Loan Agreement, as further amended
hereby, is hereby ratified, confirmed and approved in all respects
including, but not limited to, the representations and warranties contained
therein, and Borrower does hereby represent and warrant that no Event of
Default now exists as defined in the Amended Loan Agreement.
7. Except as amended by this Amendment, no term or
condition of the Amended Loan Agreement shall be modified and the same
shall remain in full force and effect; provided, however, if any provision
of this Amendment is in conflict with, or inconsistent with, any provision in
the Amended Loan Agreement, then the provision contained in this
Amendment shall govern and control.
8. This Amendment shall be binding upon, and shall
inure to the benefit of, the respective successors and assigns of the parties
hereto.
9. AS A MATERIAL INDUCEMENT FOR BANK TO EXECUTE THIS
AMENDMENT, BORROWER DOES HEREBY RELEASE, WAIVE, DISCHARGE, COVENANT NOT TO XXX,
ACQUIT, SATISFY AND FOREVER DISCHARGE BANK, ITS OFFICERS, DIRECTORS, EMPLOYEES,
AND AGENTS AND ITS AFFILIATES AND ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS,
COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES,
AGREEMENTS, PROMISES AND DEMANDS WIHATSOEVER IN LAW OR IN EQUITY WHICH THE
BORROWER EVER HAD, NOW HAS, OR WHICH ANY PERSONAL REPRESENTATIVE, SUCCESSOR,
HEIR OR ASSIGN OF BORROWER HEREAFTER CAN, SHALL OR MAY HAVE AGAINST BANK, ITS
OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, AND ITS AFFILIATES AND ASSIGNS,
FOR, UPON OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER THROUGH THE
DATE HEREOF. BORROWER FURTHER EXPRESSLY
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AGREES THAT THE FOREGOING RELEASE AND WAIVER AGREEMENT IS INTENDED TO BE AS
BROAD AND INCLUSIVE AS PERMITTED BY THE LAWS OF THE STATE OF FLORIDA. IN
ADDITION TO, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND IN
CONSIDERATION OF BANK'S EXECUTION OF THIS AMENDMENT, BORROWER COVENANTS WITH
AND WARRANTS UNTO BANK, AND ITS AFFILIATES AND ASSIGNS, THAT THERE EXIST NO
CLAIMS, COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSETS
AGAINST BANK OR THE OBLIGATION OF BORROWER TO PAY ITS OBLIGATIONS UNDER THE
AMENDED LOAN AGREEMENT TO BANK WHEN AND AS THE SAME BECOMES DUE AND PAYABLE.
10. BORROWER AND BANK HEREBY KNOWINGLY, IRREVOCABLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN RESPECT
OF ANY ACTION, PROCEEDING, DEFENSE OR COUNTERCLAIM BASED ON THIS AMENDMENT, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AMENDMENT, THE AMENDED LOAN
AGREEMENT, OR ANY DOCUMENT EXECUTED IN CONNECTION THEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BORROWER AND
BANK ENTERING INTO THIS AMENDMENT.
IN WITNESS WHEREOF the parties hereto have executed this
Amendment as of the day and year first above written.
BORROWER:
XXXXXX AND SONS, LLC, a Florida limited
liability company
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
BANK:
OHIO SAVING BANK, a federal savings
bank
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
STATE OF FLORIDA )
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) SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 15th day of
May, 2003 by Xxxxxxx Xxxxx, as Senior Vice President of XXXXXX AND SONS, LLC, a
Florida limited liability company, on behalf of the company.
Personally Known [X] OR Produced Identification [ ]
Type of Identification Produced
/s/ Xxxxx X. Xxxxx
---------------------------------------
Print or Stamp Name:
Notary Public, State of Florida at
Large
Commission No.:
My Commission Expires:
(NOTARY SEAL)
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 17th day of
May, 2003 by Xxxxx X. Xxxxx, as Vice President of OHIO SAVINGS BANK, a federal
savings bank, on behalf of the Bank.
Personally Known [X] OR Produced Identification [ ]
Type of Identification Produced [NA]
/s/ Xxxxx Xxxxxx, Xx.
---------------------------------------
Print or Stamp Name: XXXXX XXXXXX, XX.
Notary Public, State of Florida at
Large
Commission No.:
My Commission Expires:
(NOTARY SEAL)
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