THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING AND TERM LOAN AGREEMENT
Exhibit
10.17
THIRD
AMENDMENT TO AMENDED AND RESTATED
THIS
THIRD AMENDMENT TO REVOLVING LOAN AGREEMENT,
dated
and effective as of January 30, 2007 (the "Third
Amendment"),
is
made and entered into by and between XXXXX
& XXXXX, INC.,
a
Florida corporation (the "Borrower"),
and
SUNTRUST
BANK,
a
Georgia corporation (the "Lender").
WITNESSETH:
WHEREAS,
on or
about January 3, 2001, the Borrower and the Lender entered into that certain
Amended and Restated Revolving and Term Loan Agreement (the "Initial
Term Loan Agreement")
providing for a term loan all as provided in the Initial Term Loan Agreement;
and
WHEREAS,
the
Borrower and the Lender amended the Initial Term Loan Agreement by virtue of
that certain First Amendment To Amended And Restated Revolving And Term Loan
Agreement (the “First
Amendment”)
dated
July 15, 2004 and that certain Second Amendment to Amended and Restated
Revolving And Term Loan Agreement (the "Second
Amendment")
dated
December 22, 2006. Hereafter, the term “Initial
Term Loan Agreement”
includes the First Amendment and the Second Amendment; and
WHEREAS,
the
Borrower has requested the Lender to release from liability for the Facility
all
Guarantors and to delete from the Initial Term Loan Agreement, the provisions
thereof referring to or requiring Guarantors, and the Lender is prepared to
do
so pursuant to the terms of this Third Amendment.
NOW,
THEREFORE,
in
consideration of the mutual covenants made herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Definitions.
Unless
defined in this Third Amendment, capitalized terms contained herein shall have
the meaning set forth in the Initial Term Loan Agreement.
2. Deletion
of Existing Definitions.
The
following existing definitions contained in Article I of the Initial Term
Loan Agreement are hereby deleted:
"Contribution
Agreement"
means
that certain Amended and Restated Contribution Agreement dated the date hereof
by and among the Guarantors, in form acceptable to the Lender.
“Guarantors”
shall
mean, collectively, all present and future Material Subsidiaries, and their
respective successors and permitted assigns.
“Guaranty”
shall
mean any contractual obligation, contingent or otherwise, of a Person with
respect to any Indebtedness or other obligation or liability of another Person,
including without limitation, any such Indebtedness, obligation or liability
directly or indirectly guaranteed, endorsed, co-made or discounted or sold
with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including contractual obligations (contingent
or
otherwise) arising through any agreement to purchase, repurchase, or otherwise
acquire such Indebtedness, obligation or liability or any security therefor,
or
any agreement to provide funds for the payment or discharge thereof (whether
in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make any payment other than for value received. The amount
of
any Guaranty shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect to which said Guaranty is made
or,
if not so stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder)
as
determined by such Person in good faith.
“Guaranty
Agreements”
shall
mean, collectively, the Amended and Restated Guaranty Agreement dated the date
hereof executed by each of the Guarantors from time to time in favor of the
Lender in the form reasonably acceptable to Lender as the same may be amended,
restated or supplemented from time to time.
“Material
Subsidiary”
shall
mean (a) each Subsidiary designated as such in Schedule 6.1 hereto,
and (b) each other Wholly Owned Subsidiary of Borrower, now existing or
hereinafter established or acquired, that at any time prior to the Maturity
Date, has at an annualized basis, net income which generates one and one-half
percent (1.5%) or more of the Consolidated Net Income; provided
however,
if the
aggregate net income of the Borrower and its Material Subsidiaries is at any
time less than eighty percent (80%) of Consolidated Net Income, then the five
percent (1.5%) trigger set forth herein will be reduced to such a figure so
that
the aggregate net income of the Borrower and its Material Subsidiaries (based
on
said reduced trigger amount) is not less than eighty percent (80%) of the
Consolidated Net Income of the Borrower.
3. Amendment
of Existing Definitions.
The
following existing definitions contained in Article I of the Initial Term Loan
Agreement are hereby amended as follows:
“Credit
Documents”
shall
mean, collectively, this Agreement and the Notes.
“Credit
Parties”
shall
mean, collectively, each of Borrower, and every other Person who from time
to
time executes a Credit Document with respect to all or any portion of the
Obligations.
“Executive
Officer”
shall
mean with respect to any Person, the Chief Executive Officer, the President,
any
Vice President, Chief Financial Officer, Treasurer, Secretary and any Person
holding comparable offices or duties.
4. Amendments
to Initial Term Loan Agreement. The
Initial Term Loan Agreement is hereby amended as follows:
(a) Section 4.17
captioned “Benefits
to Guarantors”
is
hereby deleted in its entirety.
(b) Section
6.25 captioned “Guarantors
- Income Requirement”
is
hereby deleted in its entirety.
(c) Section 7.7(12)
captioned “New
Material Subsidiaries”
is
hereby deleted in its entirety.
(d) Section 7.7(m)
captioned “Intercompany
Asset Transfers”
is
hereby deleted in its entirety.
(e) Section
7.10 captioned “Additional
Guarantors”
is
hereby deleted in its entirety.
(f) Section 7.11
of the Initial Term Loan Agreement captioned “Ownership
of Guarantors”
is
hereby deleted in its entirety.
(g) Section 8.1(5),
containing an exception to the prohibition of Indebtedness, is hereby replaced
with “(c) The Intercompany Loans described on Schedule 6.22
and any
other loans between any of the Consolidated Companies, not exceeding
individually at any time the amount of $500,000 and in the aggregate at any
time
the amount of $1,000,000 (excluding Intercompany Loans listed on Schedule 6.22).”
(h) Section 8.3(b),
containing an exception to the prohibition on sale or lease of assets, is hereby
replaced with “(b) other asset sales (including sales of the Capital Stock
of Subsidiaries) between any of the Consolidated Companies.”
(i) Section 8.5(3),
containing an exception to the prohibition on Investments relating to
Guarantors, is hereby deleted in its entirety and Section 8.5(2), also
containing an exception to the prohibition on Investments, is hereby replaced
with “(2) Investments in Subsidiaries, provided
however,
nothing
in this Section 8.5(2)
shall be
deemed to authorize an investment in any entity that is not a Subsidiary prior
to such investment.”
2
(j) Section
8.17 of the Initial Term Loan Agreement captioned “Guaranties”
is
hereby deleted in its entirety.
(k) Section 9.10
captioned “Ownership
of Credit Parties and Pledged Entities”
is
hereby deleted in its entirety.
5. Ratification.
Except
as modified by this Third Amendment, the parties do hereby confirm and ratify
the Initial Term Loan Agreement. Hereafter, the term “Term Loan
Agreement” means and includes this Third Amendment.
Signature
Page Follows
3
SIGNATURE
PAGE TO THIRD AMENDMENT TO REVOLVING AND TERM LOAN
AGREEMENT
IN
WITNESS WHEREOF,
the
parties hereto have caused this Third Amendment to Revolving and Term Loan
Agreement to be duly executed and delivered by their duly authorized officers
as
of the day and year first above written.
|
Address
for Notices:
000
Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention:
Xxxx X. Xxxxxx
Telephone
No.: (000) 000-0000
Telecopy
No.: (000) 000-0000
|
BORROWER:
XXXXX
& XXXXX, INC.
By:
/s/ Xxxx X.
Xxxxxx
Xxxx
X. Xxxxxx, Senior Vice President, Treasurer
and Chief Financial Officer |
|
|
With
a copy to:
Xxxxxx
X. Xxxxxxx
General
Counsel
XXXXX
& XXXXX, INC.
0000
Xxxx Xxxxxx Xxxxxx Xxxx Xx. Xxxxxxxxx
Xxxxx
000
Xxxxx,
Xxxxxxx 00000
Telephone
No.: (000) 000-0000
Telecopy
No.: (000) 000-0000
|
||
|
Address
for Notices:
SunTrust
Bank
Mail
Code FL-Orlando-1106
000
Xxxxx Xxxxxx Xxxxxx
Xxxxx
00
Xxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
|
LENDER:
SUNTRUST
BANK
By:
/s/ Xxxxx Xxxxxx Xxxxxxxx
Xxxxx
Xxxxxx Xxxxxxxx, Vice President
|
|
4
