WPALM/49251_1.DOC
EXHIBIT 10.23 THIRD MODIFICATION OF TERM LOAN
------------- -------------------------------
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AGREEMENT is made as of the 2nd day of December, 1996, by and
between SUNTRUST BANK, SOUTH FLORIDA, N.A., a national banking association (the
"Lender"), ABLE TELCOM HOLDING CORP., a Florida corporation (the "Borrower") ,
TRANSPORTATION SAFETY CONTRACTORS, INC., a Florida corporation, TRANSPORTATION
SAFETY CONTRACTORS OF VIRGINIA, INC., a Virginia corporation, ABLE
COMMUNICATIONS SERVICES, INC., formerly known as BCD COMMUNICATIONS, INC., a
Florida corporation, TIPCO, INC., a Florida corporation, TELECOMMUNICATIONS
SERVICES GROUP, INC., a Florida corporation, TRAFFIC MANAGEMENT GROUP, INC., a
Florida corporation, and GEORGIA ELECTRIC COMPANY, a Georgia corporation,
(singularly an "Existing Guarantor" and collectively the "Existing Guarantors"),
DIAL COMMUNICATIONS,, INC., a Florida corporation and X.X. XXXXXXX, INC., a
Florida corporation (singularly a "New Guarantor" and collectively the "New
Guarantors" and collectively with the Existing Guarantors the "Guarantors"), .
WITNESSETH:
WHEREAS, Lender, Borrower and Existing Guarantors entered into a Term
Loan, Revolving Credit and Security Agreement dated as of November 29, 1995, as
amended by Modification of Term Loan Revolving Credit and Security Agreement
dated as of May 30, 1996 and as further amended by Second Modification of Term
Loan Revolving Credit and Security Agreement dated as of October 30, 1996 (the
"Loan Agreement") in connection with which Lender made available to Borrower the
Loans which are evidenced and secured by the Loan Documents; and
WHEREAS, the Loan Agreement provides that all Subsidiaries of Borrower
will join in the Loan Agreement as Guarantors and to pledge the Collateral owned
by those Subsidiaries to the Lender as security for the Loans and Lender has
required that the New Guarantors join in the Loan Agreement as Guarantors; and
WHEREAS, Borrower has requested an additional $1,900,000 loan from
Lender (the "New Loan") which is to be evidenced by a new $1,900,000 promissory
note (the "New Note") which is to be secured by the Loan Agreement and a lien on
the Collateral, including, without limitation, the Collateral owned by the New
Guarantors; and
WHEREAS, Lender, Borrower and the Guarantors have agreed to amend the
Loan Agreement to evidence the New Guarantors' joinder in the Loan Agreement, to
evidence the pledge of the Collateral owned by the New Guarantors, to
acknowledge that the New Loan is secured by the Loan Documents and to otherwise
ratify and confirm the terms of the Loan Agreement; and
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. JOINDER. The New Guarantors execute this Agreement to evidence their
joinder in the Loan Agreement as Guarantors subject to all the terms and
obligations of a Guarantor under the Loan Agreement, including, without
limitation, the imposition of the liens and security interests created by the
Loan Documents on the Collateral now or hereafter owned by the New Guarantors.
The New Subsidiaries join in this Agreement to acknowledge their obligation and
agreement to join in the Loan Agreement as Guarantors and to provide Guarantees
if and when required by Lender.
3. Section 6.27 is hereby added to the Loan Agreement to read as
follows:
6.27 DIAL COMMUNICATIONS INC. NET WORTH. Shall
maintain the tangible net worth of Dial Communications, Inc.
(stockholders' equity in Dial Communications, Inc. less any
tangible assets of Dial Communications, Inc.) at not less
than One Million Seven Hundred Thousand and no/100s Dollars
($1,700,000).
4. ADDITIONAL DEBT. The Borrower and the Guarantors hereby acknowledge
that the New Loan is included in the Indebtedness secured by the Loan Documents,
the New Loan is included in the Loans and that the New Note, this Agreement, the
new guarantees executed by the New Guarantors and any documents executed in
connection therewith are included in the Loan Documents. Borrower agrees that no
further advances will be requested or made under the Equipment Facility until
the New Loan has been repaid, refinanced or otherwise resolved to the
satisfaction of Lender in its sole discretion.
5. GUARANTY AGREEMENTS. Existing Guarantors hereby ratify and confirm
the continuing validity of the Guaranty Agreements and any other documents or
agreements given by any Existing 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 Agreement, 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 Agreement. In the event the terms
of this Agreement conflict with the terms of the Loan Agreement, the
terms of this Agreement shall control.
(b) This Agreement constitutes the entire agreement among the
parties hereto concerning the subject matter hereof 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, understandings,
negotiations and discussions, both written and oral, are merged into
this Agreement. 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
Agreement, 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 Agreement 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 Agreement 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/ XXXXXX XXXXXXX By: /S/ XXXXXXX XXXXX
------------------ ----------------------
Print Name: XXXXXX XXXXXXX Print Name: Xxxxxxx Xxxxx
Its: VICE PRESIDENT
/S/XXXXXXXXX XXXXXXXXXX
-----------------------
Print Name: XXXXXXXXX XXXXXXXXXX
BORROWER:
ABLE TELCOM HOLDING CORP., a Florida
corporation
/S/XXXXX X. XXXXXXX
-------------------
Print Name: XXXXX X. XXXXXXX By: /S/XXXXXXX X. XXXXXXXX
--------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: PRESIDENT
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
EXISTING GUARANTORS:
TRANSPORTATION SAFETY CONTRACTORS,
INC., a Florida corporation
/S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
TRANSPORTATION SAFETY CONTRACTORS OF
VIRGINIA, INC. a Virginia
corporation
/S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
EXISTING GUARANTORS:
ABLE COMMUNICATIONS SERVICES, INC.,
formerly known as BCD
COMMUNICATIONS, INC., a
Florida corporation
/S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
TIPCO, INC., a Florida corporation
/S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
TELECOMMUNICATIONS SERVICES GROUP,
INC., a Florida corporation
/S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
EXISTING GUARANTORS:
TRAFFIC MANAGEMENT GROUP, INC., a
Florida corporation
/S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
GEORGIA ELECTRIC COMPANY, a Georgia
corporation
/S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
NEW GUARANTORS:
DIAL COMMUNICATIONS, INC., a Florida
corporation
/S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
X.X. XXXXXXX, INC., a Florida
corporation
/S/XXXXX X. XXXXXXX /S/XXXXX X. XXXXXXX
------------------- By: /S/XXXXXXX X. XXXXXXXX
Print Name: XXXXX X. XXXXXXX --------------------------
Print Name: XXXXXXX X. XXXXXXXX
Its: CHAIRMAN
/S/XXXXXXX X. XXXXXX
--------------------
Print Name: XXXXXXX X. XXXXXX
STATE OF FLORIDA )
) SS:
COUNTY OF PALM BEACH )
The foregoing instrument was acknowledged before me this 2 day of
DECEMBER, 1996, by XXXXXXX XXXXX as 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/ XXXX X. XXXXXXX
------------------------------------
XXXX X. XXXXXXX... Printed Name:
Notary Public
______________.....Commission No.:
My Commission Expires:
STATE OF GEORGIA )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 1996, by XXXXXXX X. XXXXXXXX as PRESIDENT of ABLE TELCOM HOLDING
CORP., a Florida corporation, on behalf of the corporation. HE/She IS PERSONALLY
known to me or has produced _________________________ as identification.
/S/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 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/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 1996, by XXXXXXX X. MERCCURIO 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/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of ABLE COMMUNICATIONS
SERVICES, INC., formerly known as BCD COMMUNICATIONS, INC., a Florida
corporation, on behalf of the corporation. HE/She is PERSONALLY KNOWN to me or
has produced _________________________ as identification.
/S/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 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/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of TELECOMMUNICATIONS
SERVICES GROUP, INC., a Florida corporation, on behalf of the corporation.
HE/She is PERSONALLY KNOWN to me or has produced _________________________ as
identification.
/S/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of TRAFFIC MANAGEMENT GROUP,
INC., a Florida corporation, on behalf of the corporation. He/She is personally
known to me or has produced _________________________ as identification.
/S/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of GEORGIA ELECTRIC COMPANY,
a Georgia corporation, on behalf of the corporation. HE/She is PERSONALLY known
to me or has produced _________________________ as identification.
/S/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of DIAL COMMUNICATIONS, INC.,
a Florida corporation, on behalf of the corporation. HE/She is PERSONALLY KNOWN
to me or has produced _________________________ as identification.
/S/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 0000
XXXXX XX XXXXXXX )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 2ND day of
DECEMBER, 1996, by XXXXXXX X. XXXXXXXX as CHAIRMAN of X.X. XXXXXXX, a Florida
corporation, on behalf of the corporation. HE/She is PERSONALLY KNOWN to me or
has produced _________________________ as identification.
/S/XXXXX X. XXXXXXX
------------------------------------------
XXXXX X. XXXXXXX....Printed Name:
Notary Public
______________....Commission No.:
My Commission Expires: SEPTEMBER 16, 2000
