EXHIBIT 10.5
THIRD AMENDMENT TO LOAN DOCUMENTS
This Third Amendment to Loan Documents (the "Amendment") is executed as
of July 31st, 2003 by and between XXXXXX AND SONS, LLC, a Florida limited
liability company ("Borrower"), and OHIO SAVINGS BANK, a federal savings bank
("Bank").
BACKGROUND
Borrower executed an Amended and Restated Promissory Note dated March
22, 2002 in the principal amount of $7,500,000.00 in favor of Bank (the "Prior
Note"). In connection therewith,
(i) Borrower executed and delivered the following documents in
favor of Bank, each dated March 22, 2002 (the "Borrower Documents"):
(a) Amended and Restated Loan Agreement ("Loan
Agreement")
(b) LOC Promissory Note ("LOC Note")
(ii} Xxxxxx Companies, LLC, a Florida limited liability company
("Guarantor") executed and delivered to Bank the following documents to secure
repayment of the Prior Note and the obligations under the Loan Documents
("Guarantor Documents"):
(a) Loan Agreement
(b) Amended and Restated Pledge Agreement
(c) Amended and Restated Limited Guaranty
On December 12, 2002, the Borrower and Bank executed a First Amendment
to Loan Agreement (the "First Amendment"), and on May 15, 2003, the Borrower and
Bank executed a Second Amendment to Loan Agreement (the "Second Amendment") (the
Borrower Documents, the Guarantor Documents, the First Amendment, and the Second
Amendment are collectively referred to herein as the "Loan Documents"). In
connection with the execution of this Amendment, Borrower has delivered a Second
Amended and Restated Promissory Note of even date herewith (the "Note") which
modifies and renews the Prior Note and does not constitute new indebtedness
except to the extent that the principal amount of the Note exceeds the principal
mount of the Prior Note.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated into this Agreement.
2. Conflict and Definitions. To the extent the terms and conditions of
this Amendment conflict with the terms and conditions of the Loan Documents, the
provisions hereof shall govern and control. Any capitalized term not defined in
this Amendment shall have the meaning contained in the Note or the Loan
Documents, as applicable.
3. Amendment to Terms. Pursuant to the terms of the Loan
Agreement, specifically including Section 2.10 thereof, Borrower has requested,
and Bank has approved, a renewal of the loans made pursuant to the Loan
Agreement. In connection therewith, the following modifications are hereby made
to the Loan Documents:
(a) The definition of "Maturity Date" contained in
Section 1.1 of the Loan Agreement is hereby deleted and the following is
substituted in its place:
"Maturity Date - September 15, 2005, as may be extended
pursuant to this Agreement."
(b) All references to the Maturity Date contained in the
Loan Agreement and the other Loan Documents, or any other document executed in
connection with the Loan Documents, shall be deemed to refer to a maturity date
of September 15, 2005.
(c) The definition of "Maximum Revolving Principal
Amount" contained in Section 1.1 of the Loan Agreement is hereby deleted and the
following is substituted in its place:
"Maximum Revolving Principal Amount - either (i) Ten Million
Dollars ($10,000,000.00), or, (ii) if Overadvances have been
made by the Bank to or on behalf of the Borrower which have
not yet been repaid, Ten Million Dollars ($10,000,000.00) plus
the amount of such Overadvances which have not yet been
repaid."
(d) The definition of "Revolving Loan" contained in
Section 1.1 of the Loan Agreement is hereby deleted and the following is
substituted in its place:
"Revolving Loan - the line of credit established for the
benefit of Borrower in a principal amount up to Ten Million
Dollars ($10,000,000.00) as described in Section
2.1(a)(i) of this Agreement."
(e) Section 2.1(a)(i) of the Loan Agreement is hereby
deleted and the following is substituted in its place:
"(i) to loan to Borrower, when requested by Borrower,
principal mounts with the outstanding principal balance not to
exceed Ten Million Dollars ($10,000,000.00) (the "Revolving
Loan"). Within the aforesaid limit, the Borrower may borrow,
make payments, and reborrow under this Agreement, subject to
the provisions hereof."
(f) All references to the Maximum Revolving Principal
Amount or the Revolving Loan contained in the Loan Agreement and the other Loan
Documents, or any other document executed in connection with the Loan Documents,
shall be deemed to refer to such terms as amended hereby.
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4. References. The Loan Documents are hereby modified to provide
that wherever the Loan Documents refer to any other of the Note, the Loan
Documents, or any other document executed in connection therewith, such
reference shall be deemed to refer to the applicable Note, Loan Document or
other document, each as modified by this Amendment or amended in connection
herewith.
5. Waiver. Borrower hereby acknowledges that, as of the date
hereof, it has no defense, claim, counterclaim or right of set off, legal or
equitable, arising out of or in connection with the Note or the Loan Documents,
as modified hereby, or the transactions contemplated thereby. Borrower waives
and releases, acquits, satisfies and forever discharges Bank and its affiliates,
assigns, officers, directors, agents and employees from any and all claims,
counterclaims, defenses, actions, causes of action, suits, controversies,
agreements, promises and demands whatsoever in law or in equity which it ever
had, now has or which any heir, personal representative, successor or permitted
assign hereafter can, shall or may have against Bank and its affiliates,
assigns, officers, directors, agents and employees for, upon or by reason of any
manner, cause or thing whatsoever through the date hereof.
6. Costs and Fees. Borrower agrees to pay all costs and expenses,
including documentary stamp taxes, intangible taxes, recording costs and
attorneys fees incurred by Bank in connection with this Amendment and the
transactions contemplated hereby.
7. Miscellaneous. This Amendment shall bind and benefit Borrower,
Bank and their respective successors and assigns.
8. WAIVER OF TRIAL BY JURY. BORROWER AND BANK HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM BASED ON
THIS AMENDMENT, THE NOTE AND THE LOAN DOCUMENTS OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AMENDMENT, THE NOTE, OR ANY OF THE OTHER LOAN DOCUMENTS, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF ANY PARTY HERETO, TO THE NOTE OR TO ANY LOAN DOCUMENT. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR BORROWER AND BANK EXECUTING THIS
AMENDMENT.
9. Ratification. Except as modified hereby, the terms of the Loan
Documents shall remain modified and in full force and effect, and are hereby
ratified and confirmed by Borrower.
10. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which,
together, shall constitute but one and the same instrument.
THIS AMENDMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the day and year first above written.
XXXXXX AND SONS, LLC, a Florida limited
liability company
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Senior Vice President
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OHIO SAVINGS BANK, a federal savings bank
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
------------------------------------
Title: Vice President
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REAFFIRMATION OF LOAN AGREEMENT
AND GUARANTOR DOCUMENTS
The undersigned, XXXXXX COMPANIES, LLC, a Florida limited liability
company, having executed the Loan Agreement and the Guarantor Documents in favor
of Bank to further secure Borrower's obligations under the prior Note and the
Loan Documents hereby (1) consent to and join in the execution of the Amendment,
(2) confirm that their obligations under the Loan Agreement and the Guarantor
Documents remain unimpaired, unaffected and in full force and effect and apply
to the Note and the Loan Documents, as amended by the Amendment, (3) acknowledge
that they have no defenses, claims, counterclaims or rights of set off, legal or
equitable, in connection with the Note or the Loan Documents or the transactions
contemplated by the Note and the Loan Documents, as mended by the Amendment, (4)
waive and release, acquit, satisfy and forever discharge Bank and its
affiliates, assigns, officers, agents and employees from any and all claims,
counterclaims, defenses, actions, causes of action, suits, controversies,
agreements, promises and demands whatsoever in law or in equity which it ever
had, now has or which any personal representative, successor, assign or heir
hereafter can, shall or may have against Bank and its affiliates, assigns,
officers, agents and employees for, upon or by reason of any manner or cause or
thing whatsoever with respect to the Note, the Loan Documents, or any other
document executed in connection therewith, from the beginning of the world
through the date hereof, and (5) confirm that they are solvent and will not be
rendered insolvent by the execution and delivery of this Reaffirmation of the
Loan Agreement and Guarantor Documents.
GUARANTOR:
XXXXXX CORPORATION, a Florida corporation
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Executive Vice President
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STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 14th day of
July, 2003 by Xxxxxxx Xxxxx, as Senior Vice President of Xxxxxx and Sons, LLC, a
Florida limited liability company, on behalf of the company. He (X) is
personally known to me or ( ) has produced his Florida driver's license as
identification.
/s/ Xxxxx X. Xxxxxx
--------------------------------
Notary Public
Name: Xxxxx X. Xxxxxx
--------------------------
[NOTARY STAMP]
My Commission Expires:
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 17th day of
July, 2003 by Xxxx X. Xxxxxxx, as Executive Vice President of Xxxxxx
Corporation, a Florida corporation, on behalf of the corporation, who [X] is
personally known to me or ( ) has produced his Florida driver's license as
identification.
My Commission EXPIRES:
/s/ Xxxxx X. Xxxxxx
--------------------------------
Notary Public
Name: Xxxxx X. Xxxxxx
--------------------------
[NOTARY STAMP]
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
The foregoing instrument was acknowledged before me this 31st day of July, 2003,
by Xxxxx Xxxxx as Vice President of Ohio Savings Bank, a federal savings bank,
on its behalf. He/she (__) is (personally known to me) or (__) has produced
his/her Ohio driver's license as identification.
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Notary Public
Name:
--------------------------
My Commission Expires:
XXXXXXX X. XXXXXX
Notary PubLic, State of Ohio, Cuy, Cty,
MY Commission Expires Aug 7, 2005
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