Exhibit 10.11(a)
SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT
------------------------
THIS SECOND AMENDMENT TO LINE OF CREDIT AGREEMENT (the "Second
Amendment") is made and entered into as of May 29, 2000, by and among XXXXXX
SUPPLY, INC. ("Borrower"), a Florida corporation, SUNTRUST BANK, a Georgia
banking corporation and successor by merger to SunTrust Bank, Central Florida,
National Association, FIRST UNION NATIONAL BANK, a national banking association,
BANK OF AMERICA, N.A., formerly known as NATIONSBANK, N.A., a national banking
association, SOUTHTRUST BANK, NATIONAL ASSOCIATION, a national banking
association, ABN AMRO BANK, N.V., a banking corporation organized under the laws
of the Netherlands, PNC BANK, N.A., a national banking association, WACHOVIA
BANK, N.A., a national banking association, THE FIFTH THIRD BANK, a national
banking association and such other financial institutions becoming a party
hereto from time to time, (individually, a "Lender" and collectively, the
"Lenders"), SUNTRUST BANK, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), FIRST UNION NATIONAL BANK, as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), BANK OF AMERICA, N.A., formerly known as NATIONSBANK, N.A., as
syndication agent for the Lenders (in such capacity, the "Syndication Agent")
and SOUTHTRUST BANK, NATIONAL ASSOCIATION, as Co-Agent for the Lenders (in such
capacity, the "Co-Agent").
W I T N E S S E T H:
--------------------
WHEREAS, the Lenders, the Administrative Agent, the Documentation
Agent, the Syndication Agent, the Co-Agent and the Borrower are party to that
certain Line of Credit Agreement dated as of January 26, 1999, as amended by
that certain First Amendment to Line of Credit Agreement dated as of September
29, 1999 (as so amended, the "Line of Credit Agreement"), pursuant to which the
Lenders made available to Borrower credit facilities subject to the terms and
conditions set forth therein; and
WHEREAS, the Lenders, the Administrative Agent, the Documentation
Agent, the Syndication Agent, the Co-Agent and the Borrower, at the request of
the Borrower, desire to extend the Line of Credit Termination Date to January
19, 2001.
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, the parties hereto, intending to be legally bound, hereby
amend the Line of Credit Agreement and agree as follows:
1. The Line of Credit Agreement is hereby amended by replacing the
definition of "Line of Credit Termination Date" in Section 1.01 in its entirety
with the following:
"Line of Credit Termination Date" shall mean the earlier of
(i) January 19, 2001 and (ii) the date on which the Line of Credit
Commitments are terminated in accordance with Article VIII.
2. The effectiveness of this Second Amendment is conditioned upon the
Administrative Agent's receipt of the following, each dated as of the date
hereof, in form and substance reasonably satisfactory in all respects to the
Administrative Agent:
(a) The duly executed original counterparts of this Second Amendment;
(b) The duly executed Consent and Ratification of Guaranty (Line of
Credit Agreement), dated as of the date hereof, by and among each of the
Subsidiaries of Borrower, listed on the signature pages thereof and the
Administrative Agent; and
(c) Certificates of the Secretary or Assistant Secretary of each of the
Credit Parties certifying (i) the name, title and true signature of each officer
of such entities executing this Second Amendment and the other Credit Documents,
(ii) that there have been no changes to the bylaws or comparable governing
documents of such entities since the delivery thereof to the Lenders in
connection with the Line of Credit Agreement and that such bylaws or comparable
governing documents remain in full force and effect as of the date hereof, (iii)
that there have been no changes to the certificates or articles of incorporation
of each Credit Party since the delivery thereof to the Lenders in connection
with the Line of Credit Agreement and that such certificates or articles of
incorporation remain in full force and effect as of the date hereof; and (iv)
the resolutions of the board of directors of such entities authorizing the
transactions contemplated under the Second Amendment and the other Credit
Documents.
3. Borrower represents and warrants that, as of the date hereof and
after giving effect to the transactions contemplated by the Second Amendment and
the Credit Documents, (i) the assets of Borrower, at fair valuation and based on
their present fair saleable value, will exceed Borrower's debts, including
contingent liabilities, (ii) the remaining capital of Borrower will not be
unreasonably small to conduct Borrower's business, and (iii) Borrower will not
have incurred debts, or have intended to incur debts, beyond its ability to pay
such debts as they mature. For purposes of this paragraph, "debt" means any
liability on a claim, and "claim" means (a) the right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (b) the right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured.
4. Except as expressly provided herein, the Line of Credit Agreement
shall continue in full force and effect, and the unamended terms and conditions
of the Line of Credit Agreement are expressly incorporated herein and ratified
and confirmed in all respects. This Second Amendment is not intended to be or to
create, nor shall it be construed as, a novation or an accord and satisfaction.
5. From and after the date hereof, references to the Line of Credit
Agreement shall be references to the Line of Credit Agreement as amended hereby.
2
6. This Second Amendment constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof. Neither this Second
Amendment nor any provision hereof may be changed, waived, discharged, modified
or terminated orally, but only by an instrument in writing signed by the parties
required to be a party thereto pursuant to Section 10.02 of the Line of Credit
Agreement.
7. THIS SECOND AMENDMENT SHALL BE GOVERNED IN ALL RESPECTS BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
8. This Second Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same document, and shall be
effective as of the date first above written.
9. Borrower shall reimburse the Administrative Agent for the
reasonable fees and expenses of counsel for the Administrative Agent in
connection with this Second Amendment.
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IN WITNESS WHEREOF, Borrower, the Administrative Agent, the
Documentation Agent, the Syndication Agent, the Co-Agent and the Required
Lenders have caused this Second Amendment to be executed as of the date first
above written.
Address for Notices: BORROWER:
------- --- -------
00 X. Xxxxxx Xxxxxx XXXXXX SUPPLY, INC.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxxx Xxxx By:_______________________________
J. Xxxxxxx Xxxx
Treasurer
By:________________________________
Xxx Xxxxxxxxxxx
Secretary
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
Address for Notices: SUNTRUST BANK, formerly known as
------- --- ------- SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, individually and as
000 X. Xxxxxx Xxxxxx Administrative Agent
MC 2064
Xxxxxxx, Xxxxxxx 00000
By: ______________________________
Attn: Xx. Xxxxxxx X. Xxxx Xxxxxxx X. Xxxx, III
Vice President
Telecopy No. 407/237-4076
Payment Office:
------- ------
200 S. Orange Avenue
MC 2064
Xxxxxxx, Xxxxxxx 00000
--------------------------------
Line of Credit Commitment: $13,750,000.00
Pro Rata Share of Line of Credit Commitment: 18.33%
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
Address for Notices: FIRST UNION NATIONAL BANK, individually
------- --- ------- and as Documentation Agent
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxx XX0000
Xxxxxxxxxxxx, Xxxxxxx 00000 By:_______________________________
Attn: Xx. Xxxx Xxxxxx Name:
Title:
Telecopy No. 904/361-3560
Payment Office:
------- ------
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Mail Code FL4009
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
-------------------------------
Line of Credit Commitment: $12,500,000.00
Pro Rata Share of Line of Credit Commitment: 16.67%
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
Address for Notices:
------- --- -------
BANK OF AMERICA, N.A., formerly known as
NATIONSBANK, N.A., individually and as
000 XX 0xx Xxxxxx, 00xx Xxxxx Syndication Agent
Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
By:_______________________________
Telecopy No. Name:
Title:
Payment Office:
------- ------
Bank of America, N.A.
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxx
-------------------------------
Line of Credit Commitment: $12,500,000.00
Pro Rata Share of Line of Credit Commitment: 16.67%
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
Address for Notices: SOUTHTRUST BANK, NATIONAL ASSOCIATION,
------- --- ------- individually and as Co-Agent
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Florida Corporate Banking (Orlando) By:_______________________________
Name:
Telecopy No. 727/898-5319 Title:
Payment Office:
------- ------
X.X. Xxx 000000
Xxxxxxxxxx, XX 35283-0716
Attn: Xx. Xxxxxx Xxxxxxxx (727/825-2733)
Telecopy No. 727/898-5419
--------------------------------
Line of Credit Commitment: $10,000,000.00
Pro Rata Share of Line of Credit Commitment: 13.33%
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
Address for Notices: ABN AMRO BANK, N.V.
------- --- -------
Southwest Financial Center
000 X. Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attn: Ms. Xxxxxxx Xxx Xxxxxx
By:_______________________________
Name:
Title:
Telecopy No. (000)000-0000
Payment Office:
------- ------
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10017
Attn: Trade Services Department
-------------------------------
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 8.33%
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
Address for Notices: PNC BANK, N.A.
------- --- -------
000 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Mr. Xxxx Xxxx
By:_______________________________
Telecopy No. 412/762-6484 Name:
Title:
Payment Office:
------- ------
Two PNC Xxxxx/ Xxxxxxx Xxxxxx.
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Ms. Xxxxx Truchman
--------------------------------
Line of Credit Commitment: $6,250,000.00
Pro Rata Share of Line of Credit Commitment: 8.33%
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
Address for Notices: WACHOVIA BANK, N.A.
------- --- -------
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx XxXxxxx
By:_______________________________
Name:
Title:
Telecopy No. (000)000-0000
Payment Office:
------- ------
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxxxxxxxxx
--------------------------------
Line of Credit Commitment: $10,000,000.00
Pro Rata Share of Line of Credit Commitment: 13.33%
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
Address for Notices: THE FIFTH THIRD BANK
------- --- -------
XX 000000
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxxx Xxxx
By:_______________________________
Telecopy No. 513/579-5226 Name: Xxxxxx Xxxx
Title:
Payment Office:
------- ------
XX 000000
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xx. Xxx Xxxxx
--------------------------------
Line of Credit Commitment: $3,750,000.00
Pro Rata Share of Line of Credit Commitment: 5.00%
[SIGNATURE PAGE TO SECOND AMENDMENT TO
LINE OF CREDIT AGREEMENT]
