EXHIBIT 10.1
SECOND MODIFICATION TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
THIS SECOND MODIFICATION TO AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (this "Second Modification") is made and entered
into as of September 30, 2008, by and among PATRIOT TRANSPORTATION
HOLDING, INC., a Florida corporation (the "Borrower"), the several
banks and other financial institutions identified on Exhibit "A"
(the "Lenders"), and WACHOVIA BANK, NATIONAL ASSOCIATION, in its
capacity as Administrative Agent for the Lenders (the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, Wachovia Bank, National Association
("Wachovia"), Bank of America, N.A. ("Bank of America"), SunTrust Bank
("SunTrust") and Compass Bank ("Compass") are parties to an Amended
and Restated Revolving Credit Agreement dated as of November 10, 2004,
as amended by the First Modification to Amended and Restated Revolving
Credit Agreement dated as of June 23, 2006, (collectively, the "Credit
Agreement"), with Wachovia named therein as Administrative Agent; and
WHEREAS, the parties wish to make certain modifications to the
Credit Agreement, including increasing the Revolving Commitments provided
by SunTrust and Wachovia by $5,000,000 in the aggregate to replace the
$5,000,000 Revolving Commitment previously provided by Compass, all as
more fully set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders and the
Administrative Agent agree as follows:
Section 1.1 Definitions. The capitalized terms used herein
shall have the meanings ascribed to them in the Credit Agreement unless
other meanings are set forth herein.
Section 1.2 Modified Definitions. The following definition in
the Credit Agreement is modified as follows:
"Commitment Termination Date" shall mean
the earliest of (i) December 31, 2013, (ii)
the date on which the Revolving Commitments
are terminated pursuant to Section 2.8 or
(iii) the date on which all amounts outstanding
under this Agreement have been declared or
have automatically become due and payable
(whether by acceleration or otherwise).
Section 1.3 Letters of Credit. The following is hereby added
as a new Section 4.20 to the Credit Agreement:
4.20 Letters of Credit Issued Outside the
Provisions of the Agreement. On the date of
this Agreement, the Borrower has no letters of
credit issued outside the provisions of this
Agreement for its account except as disclosed
on Schedule 4.20 attached hereto.
Section 1.4 Consolidated Total Debt to EBITDA Ratio. Section
6.2 of the Credit Agreement is hereby deleted in its entirety.
Section 1.5 Fixed Charge Coverage Ratio. Section 6.3 of the
Credit Agreement is hereby amended and restated in its entirety to read
as follows:
Section 6.3. Fixed Charge Coverage Ratio. The
Borrower will have, as of the end of each fiscal
quarter of the Borrower, commencing with the fiscal
quarter ending September 30, 2008, a Fixed Charge
Coverage Ratio of not less than 2.25:1.0, calculated
based on a rolling four quarter basis.
Section 1.6 Ratification. The Borrower hereby represents to
the Bank that it has no defenses, counterclaims, offsets or claims
against the Lenders or the Administrative Agent in any way relating
to the Credit Agreement, this Second Modification, or any other Loan
Documents or relating to the administration of the Loans, and to the
extent the Borrower has or has had any defense, counterclaim, offset
or claim, the Borrower does hereby release and waive them. The
Borrower acknowledges that the provisions of this paragraph have been
separately bargained for and are a principal inducement to the Lenders
and Administrative Agent to enter into and/or consent to this Second
Modification with the Borrower.
Section 1.7 Disclosure Schedules. The Borrower hereby represents
to the Bank that the Disclosure Schedules to the Credit Agreement are
true, correct and complete as of the date hereof, provided Disclosure
Schedules 4.5, 4.14, 4.20, 7.1, 7.2 and 7.4 to the Credit Agreement are
hereby amended and restated in their entirety as set forth on Schedule
4.5, 4.14, 4.20, 7.1, 7.2 and 7.4 attached hereto (collectively, the
"Revised Disclosure Schedules").
Section 1.8 Representations. The Borrower hereby represents
and warrants to the Bank that the representations and warranties
contained in the Credit Agreement are true and correct as of the date
hereof other than as may be modified by the Revised Disclosure
Schedules delivered pursuant to Section 1.7 hereof.
Section 1.9 Upfront Fee. On the date of this Second
Modification, the Borrower shall pay to the Administrative Agent, for
the ratable benefit of each Lender, a one-time upfront fee equal to
..0020 multiplied by the Aggregate Revolving Commitments.
Section 1.10 Required Consents. This Second Modification has
been executed pursuant to Section 10.2(b) of the Agreement and shall
become effective upon receipt by the Administrative Agent of the
written consent of the Required Lenders.
Section 1.11 Beneficiaries. The Administrative Agent and
all Lenders are intended to be beneficiaries of and entitled to
rely upon this Second Modification.
Section 1.12 Miscellaneous. This Second Modification shall
be governed by the laws of the State of Florida without regard to
its conflict of laws principles. This Second Modification shall
benefit and bind the parties hereto and their successors and assigns.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Second Modification to be duly executed, under seal in the case of
the Borrower, by their respective authorized officers as of the day
and year first above written.
PATRIOT TRANSPORTATION HOLDING, INC.
By:_________________________________
Xxxx X. Xxxxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, as Letter of
Credit Issuer and as a Lender
By:_________________________________
Print Name:
Title:
Revolving Commitment: $15,500,000.00
[SIGNATURE PAGE TO
SECOND MODIFICATION TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMONG PATRIOT TRANSPORTATION HOLDING, INC.,
WACHOVIA BANK, AS ADMINISTRATIVE AGENT
AND THE LENDERS SIGNATORIES THERETO]
SUN TRUST BANK
By:__________________________
Print Name: _________________
Title:_______________________
Revolving Commitment: $11,500,000.00
[SIGNATURE PAGE TO
SECOND MODIFICATION TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMONG PATRIOT TRANSPORTATION HOLDING, INC.,
WACHOVIA BANK, AS ADMINISTRATIVE AGENT
AND THE LENDERS SIGNATORIES THERETO]
BANK OF AMERICA, N.A.
By: _________________________
Name:________________________
Title:_______________________
Revolving Commitment: $10,000,000.00
Swingline Commitment: $5,000,000.00
Exhibit A
Lenders
Wachovia Bank, National Association
Revolving Commitment: $15,500,000
SunTrust Bank
Revolving Commitment: $11,500,000
Bank of America, N.A.
Revolving Commitment: $10,000,000
Swingline Commitment: $5,000,000
[Scheduled Intentionally Omitted]
