EXHIBIT 10.21 MODIFICATION OF TERM LOAN
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AGREEMENT is made as of the 30 day of May, 1996, by and between
SUNTRUST BANK, SOUTH FLORIDA, N.A., a national banking association (the
"Lender"), ABLE TELCOM HOLDING CORPORATION, a Florida corporation (the
"Borrower") and TRANSPORTATION SAFETY CONTRACTORS, INC., a Florida corporation,
TRANSPORTATION SAFETY CONTRACTORS OF VIRGINIA, INC., a Virginia corporation, BCD
COMMUNICATIONS, INC., a Florida corporation and TIPCO, INC., a Florida
corporation (singularly a "Guarantor" and collectively the "Guarantors").
WITNESSETH:
WHEREAS, Lender, Borrower and Guarantors entered into a Term Loan,
Revolving Credit and Security Agreement dated as of November 29, 1995 (the "Loan
Agreement") in connection with which Lender made available to Borrower certain
Loans as defined in the Loan Agreement, which are evidenced and secured by the
Loan Documents, as defined in the Loan Agreement; and
WHEREAS, Lender and Borrower have agreed to amend the Loan Agreement to
revise certain financial covenants; and
WHEREAS, the Guarantors have agreed to execute this Agreement to
evidence their consent to the amendments to the Loan Agreement contained herein
and to affirm the continuing validity of the Guaranty Agreements, after the
amendments contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants of
this agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lender, Borrower and Guarantors
agree as follows:
1. RECITALS/TERMS. All of the recitals set forth above are true and
correct and by this reference are made a material part of this Agreement. All
capitalized terms used herein which are defined in the Loan Agreement shall have
the same meaning when used herein unless the context herein shall require
otherwise.
2. DEFINITIONS.
(a) The definition of "Debt Service" is hereby amended to read
as follows:
"DEBT SERVICE" is defined as the current portion of all
long term debt, as calculated in accordance with generally
accepted accounting principles and reflected in the
consolidated financial statement of Borrower and the
Subsidiaries, excluding the promissory note(s) from
Borrowers to (i) X.X. Xxxxxxx in the original principal
amount of $1,869,049.00 dated December 7, 1995; (ii) Xxxx
Xxxxxxx in the original principal amount of $250,000.00
dated December 7, 1995; (iii) Xxxxxx Xxxxxx in the
original principal amount of $250,000.00 dated December 7,
1995; and (iv) the three promissory notes from the
Borrower to the prior principal shareholders of
Transportation Safety Contractors, Inc. in the original
aggregate principal amount of $1,307,967.00 dated June
1994, plus all interest payments due on Borrower's Debt
during the period in question.
(b) The definition of "Funded Debt" is hereby amended to read
as follows:
"FUNDED DEBT" is defined as total liabilities, as
calculated in accordance with generally accepted
accounting principles and reflected in the consolidated
financial statement of Borrower and the Subsidiaries, less
(i) accounts payable; (ii) income taxes payable; (iii)
accrued expenses; (iv) the promissory notes(s) from
Borrowers to (a) X.X. Xxxxxxx in the original principal
amount of $1,869,049.00 dated December 7, 1995; (b) Xxxx
Xxxxxxx in the original principal amount of $250,000.00
dated December 7, 1995; (c) Xxxxxx Xxxxxx in the original
principal amount of $250,000.00 dated December 7, 1995;
(v) the three promissory notes from the Borrower to the
prior principal shareholders of Transportation Safety
Contractors, Inc. in the original aggregate principal
amount of $1,307,967.00 dated June 1994; and (vi) the
equipment and revolving loan from SunTrust Bank,
Mid-Florida, N.A. in the principal amount of $340,000.00
and $200,000.00, respectively. Funded Debt shall also
include the redemption amount with respect to any stock of
the Borrower or the Subsidiaries required to be redeemed
within the next twelve months.
(c) The following definition is added to Article 1 of the Loan
Agreement:
"NONRECURRING WRITE OFF" means the loss from Latin
American operations ($3,308,149.00) charged to Borrower's
second quarter 1996 earnings taken in connection with the
restructuring of Borrower's Latin American operations.
3. REVISIONS TO FINANCIAL COVENANTS.
(a) Section 6.20 is hereby amended to read as follows:
6.20 SUBSIDIARIES. The Borrower and/or its Subsidiaries
will not be permitted to make acquisitions or enter into
joint venture agreements without the prior written consent
of the Lender until Borrower and Guarantors achieve
compliance with the financial covenant ratio(s) required
to be achieved by July 31, 1997, under Sections 6.21, 6.22
and 6.23 of the Loan Agreement, as modified by this
Agreement. Thereafter new Subsidiaries may be acquired
without the prior written consent of the Bank provided
Borrower provides prior written notice to the Bank
containing a certification that the terms of this
Agreement and the special terms outlined below will be
complied with after said acquisition. The special terms
are:
(a) The Subsidiary to be acquired is engaged in one of
the three primary lines of business for the
Borrower -- highway signage, telecommunications or
utility installation;
(b) The ratio of the combined earnings before
deduction of interest, taxes, depreciation,
amortization and lease payments of Borrower and the
Subsidiary to be acquired calculated on a
trailing four quarters basis for both the Borrower
and the Subsidiary to be acquired, divided by the
combined projected interest, principal and lease
payments of Borrower and the Subsidiary to be
acquired, calculated for the four quarters
after acquisition shall be greater than 1.75X; and
(c) The total value of the consideration to be given,
debt to be assumed and expenses to be incurred by
Borrower and the Subsidiaries in connection with
such acquisition shall not exceed $1,000,000.00.
(b) Section 6.21 is hereby amended to read as follows:
6.21. NET WORTH. Shall maintain Borrower's Tangible Net
Worth to be not less than $8,300,000.00 as of April 30,
1996, $8,500,000.00 as of July 31, 1996, $8,700,000.00 as
of October 31, 1996, $8,900,00000 as of January 31, 1997,
$9,100,000.00 as of April 30, 1997 and $9,300,000.00 at
all times after July 31, 1997.
(c) Section 6.22 is hereby amended to read as follows:
6.22 FUNDED DEBT/TANGIBLE NET WORTH. Shall assure that the
ratio of Borrower's Funded Debt to Borrower's Tangible Net
Worth shall be less than: 1.60X as of July 31, and October
31, 1996; 1.50X as of January 31 and April 30, 1997; and
1.40x at the end of each fiscal quarter beginning July 31,
1997.
(d) Section 6.23 is hereby amended to read as follows:
6.23 DEBT SERVICE. Shall assure that the ratio of
Borrower's earnings before deduction of interest payments,
taxes, depreciation, amortization and the Nonrecurring
Write Off shall be greater than 1.20X Debt Service
measured quarterly beginning April 30, 1996 for the
trailing four quarters.
4. WAIVER OF DEFAULTS. Lender agrees that Lender waives any default in
Borrower's compliance with the covenants in Section 6.21, 6.22 and 6.23, which
occurred prior to the date of this Agreement. Lender hereby reserves any and all
rights and remedies exercisable on the occurrence of an existing or future Event
of Default other than those expressly waived above.
5. GUARANTY AGREEMENTS. Guarantors hereby ratify and confirm the
continuing validity of the Guaranty Agreements and any other documents or
agreements given by any Guarantor in connection with the Loan Documents
notwithstanding the amendments to the Loan Agreement contained herein and hereby
further consent to such amendments.
6. NO DEFAULT. Borrower and Guarantors hereby warrant and represent to Lender
that, after giving effect to this Modification, Borrower and Guarantors are in
compliance with all provisions of the Loan Agreement and all other Loan
Documents and that no default or Event of Default has occurred thereunder nor
has any event occurred or failed to occur which with the passage of time or the
giving of notice or both would comprise such a default or Event of Default.
7. MISCELLANEOUS.
(a) This agreement shall be governed by and construed in
accordance with the law of the State of Florida. In the event of any
dispute hereunder, the prevailing party shall be entitled to recover all
costs and attorney's fees from the non-prevailing party. Paragraph
headings used herein are for convenience only and shall not be used to
interpret any term hereof. The Loan Agreement shall continue in full
force and effect as modified by this Modification. In the event the
terms of this Modification conflict with the terms of the Loan
Agreement, the terms of this Modification shall control.
(b) This Modification constitutes the entire agreement among the
parties hereto and supersedes all prior agreements, understandings,
negotiations and discussions, both written and oral among the parties
hereto with respect to the subject matter hereof, all of which prior
agreements, understanding, negotiations and discussions, both written
and oral, are merged into this Modification. Except as hereinabove
specifically amended, all other provisions of the Loan Agreement and
each of the other Loan Documents amended hereby shall remain unchanged
and in full force and effect. Without limiting the generality of any of
the provisions of this Modification, nothing herein or in any instrument
or agreement shall be deemed or construed to constitute a novation,
satisfaction or refinancing of all or any portion of the Loan or in any
manner affect or impair the lien or priority of the Loan Agreement or
any of the Loan Documents as amended hereby.
(c) This Modification may be executed in any number of
counterparts with each executed counterpart constituting an original,
but altogether constituting but one and the same instrument.
(d) This Modification shall be binding upon and inure to the
benefit of the Borrower, the Guarantors and the Lender and their
respective heirs, legal representatives, executors, successors and
assigns.
8. RELEASE. IN CONSIDERATION OF THE ACCOMMODATIONS PROVIDED HEREIN, EACH
OF THE BORROWER AND THE GUARANTORS HEREBY UNCONDITIONALLY, IRREVOCABLY AND
FOREVER RELEASES, ACQUITS AND DISCHARGES THE LENDER AND EACH OF THE LENDER'S
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND COUNSEL FROM ANY AND ALL
CLAIMS, DEMANDS AND CAUSES OF ACTION THAT ANY OF THEM HAD, NOW HAS OR MAY IN THE
FUTURE HAVE AGAINST ANY ONE OR MORE OF THE LENDER OR ANY ONE OR MORE OF THE
LENDER'S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR COUNSEL FOR THE ACTS OR
OMISSIONS OF ANY OF THE FOREGOING PARTIES FROM THE BEGINNING OF TIME THROUGH, TO
AND INCLUDING THE DATE OF THE EFFECTIVENESS OF THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS ARISING OUT OF OR CONNECTED IN ANY MANNER WITH
THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THE LOAN AGREEMENT, AS AMENDED HEREBY
OR ANY OTHER LOAN DOCUMENTS, AS THE SAME MAY BE AMENDED HEREBY, AS THE CASE MAY
BE.
9. WAIVER OF JURY TRIAL. THE BORROWER, THE GUARANTORS AND THE LENDER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM 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 AGREEMENT EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS,
(WHETHER VERBAL OR WRITTEN) OR ACTIONS BY ANY PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE LENDER ENTERING INTO THIS AGREEMENT AND MAKING ANY
LOAN, ADVANCE OR OTHER EXTENSION OF CREDIT TO THE BORROWER. FURTHER, EACH OF THE
BORROWER AND THE GUARANTOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF
THE LENDER, NOR THE LENDER'S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE
THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO
REPRESENTATIVE OR AGENT OF THE LENDER, NOR THE LENDER'S COUNSEL HAS THE
AUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.
IN WITNESS WHEREOF, Borrower, Lender and Guarantor have caused this
agreement to be executed as of the day and year set forth above.
Witnesses: LENDER:
SUNTRUST BANK, SOUTH FLORIDA, N.A.,
a national banking association
/S/XXXXXXXX X. SOLAR By /S/XXXX XXXXXXXX
------------------------------------ ---------------------------------------
Print Name: XXXXXXXX X. SOLAR Print Name: XXXX X. XXXXXXXX
------------------------ --------------------------
Its: SENIOR VICE PRESIDENT
----------------------------------
/S/XXXXXXXX XXXXXXX
------------------------------------
Print Name: XXXXXXXX XXXXXXX
------------------------
BORROWER:
ABLE TELCOM HOLDING CORPORATION, a
Florida corporation
/S/XXXXXX X. XXXXXXX
------------------------------------ By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXXX X. XXXXXXX -----------------------------------
------------------------ Print Name: XXXXXXX X. XXXXXXXX
---------------------------
Its: CHIEF EXECUTIVE OFFICER
----------------------------------
/S/XXXXXXXXX XXXXXXXXXX
------------------------------------
Print Name: XXXXXXXXX XXXXXXXXXX
------------------------
GUARANTORS:
TRANSPORTATION SAFETY CONTRACTORS,
INC., a Florida corporation
/S/XXXXXX X. XXXXXXX
----------------------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXXX X. XXXXXXX ---------------------------------------
Print Name: XXXXXXX X. XXXXXXXX
---------------------------
Its: CHAIRMAN
/S/XXXXXXXXX XXXXXXXXXX ----------------------------------
-----------------------------------
Print Name: XXXXXXXXX XXXXXXXXXX
-----------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
TRANSPORTATION SAFETY CONTRACTORS OF
VIRGINIA, a Virginia corporation
/S/XXXXXX X. XXXXXXX
------------------------------------
Print Name: XXXXXX X. XXXXXXX By:/S/XXXXXXX X. XXXXXXXX
----------------------- ---------------------------------
Print Name: XXXXXXX X. XXXXXXXX
---------------------
Its: CHAIRMAN
----------------------------
/S/XXXXXXXXX XXXXXXXXXX
------------------------------------
Print Name: XXXXXXXXX XXXXXXXXXX
------------------------
BCD COMMUNICATIONS, INC., a Florida
corporation
/S/XXXXXX X. XXXXXXX
------------------------------------ By:/S/ XXXXXXX X. XXXXXXXX
Print Name: XXXXXX X. XXXXXXX ---------------------------------
Print Name: XXXXXXX X. XXXXXXXX
--------------------
Its:CHAIRMAN
-----------------------------
/S/XXXXXXXXX XXXXXXXXXX
-----------------------------------
Print Name: XXXXXXXXX XXXXXXXXXX
-----------------------
TIPCO, INC., a Florida corporation
/S/ XXXXXX X. XXXXXXX
----------------------------------- By: /S/ XXXXXXX X. XXXXXXXX
Print Name: XXXXXX X. XXXXXXX -------------------------------
Print Name: XXXXXXX X. XXXXXXXX
-------------------
Its:CHAIRMAN
---------------------------
/S/XXXXXXXXX XXXXXXXXXX
----------------------------------
Print Name: XXXXXXXXX XXXXXXXXXX
----------------------
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 8 day of JULY,
1996, by XXXX X. XXXXXXXX as SENIOR VICE PRESIDENT of SUNTRUST BANK, SOUTH
FLORIDA, N.A., a national banking association, on behalf of the bank. HE/She IS
PERSONALLY KNOWN TO ME or has produced _________________________ as
identification.
/S/ XXXXX X. XXXXXXX...........................
XXXXX X. XXXXXXX..................Printed Name:
Notary Public
CC497982........................Commission No.:
My Commission Expires: NOV. 02, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 30TH day of
MAY, 1996, by XXXXXXX X. XXXXXXXX as CHIEF EXEC. OFFICER of ABLE TELCOM HOLDING
CORPORATION, a Florida corporation, on behalf of the corporation. He/She is
personally known to me or has produced _________________________ as
identification.
/S/ XXXXXX X. XXXXXXXXX........................
XXXXXX X. XXXXXXXXX...............Printed Name:
Notary Public
CC555959........................Commission No.:
My Commission Expires: MAY 19, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 30TH day of
MAY, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of TRANSPORTATION SAFETY
CONTRACTORS, INC., a Florida corporation, on behalf of the corporation. He/She
is personally known to me or has produced _________________________ as
identification.
/S/ XXXXXX X. XXXXXXXXX.......................
XXXXXX X. XXXXXXXXX..............Printed Name:
Notary Public
CC555959........................Commission No.:
My Commission Expires: MAY 19, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 30TH day of
MAY, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of TRANSPORTATION SAFETY
CONTRACTORS OF VIRGINIA, INC., a Virginia corporation, on behalf of the
corporation. He/She is personally known to me or has produced
_________________________ as identification.
/S/XXXXXX X. XXXXXXXXX.........................
XXXXXX X. XXXXXXXXX...............Printed Name:
Notary Public
CC555959........................Commission No.:
My Commission Expires: MAY 19, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 30TH day of
MAY, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of BCD COMMUNICATIONS, INC., a
Florida corporation, on behalf of the corporation. He/She is personally known to
me or has produced _________________________ as identification.
/S/XXXXXX X. XXXXXXXXX..........................
XXXXXX X. XXXXXXXXX................Printed Name:
Notary Public
CC555959......................Commission No.:
My Commission Expires: MAY 19, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 30TH day of
MAY, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of TIPCO, INC., a Florida
corporation, on behalf of the corporation. He/She is personally known to me or
has produced _________________________ as identification.
/S/XXXXXX X. XXXXXXXXX..........................
XXXXXX X. XXXXXXXXX................Printed Name:
Notary Public
CC555959......................Commission No.:
My Commission Expires: MAY 19, 2000
WPALM/41434_1.DOC
