EXHIBIT 4.37
WAIVER AND FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Agreement") is made and entered into as of the 31st day of August, 2004,
between FCC, LLC, d/b/a First Capital, a Florida limited liability company
("Lender"), and Addison York Insurance Brokers Ltd., a Delaware corporation
("Borrower").
W I T N E S S E T H:
WHEREAS, Borrower and Lender are parties to that certain Loan and Security
Agreement dated as of June 3, 2004 (as amended, restated, modified or
supplemented from time to time, the "Loan Agreement"); and
WHEREAS, Borrower is in default under the Loan Agreement; and
WHEREAS, Borrower has requested that Lender waive such default, and Lender
is willing to do so on the terms and conditions set forth herein; and
WHEREAS, Borrower and Lender desire to amend the Loan Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise expressly defined
herein shall have the respective meanings given to such terms in the Loan
Agreement.
2. Borrower hereby acknowledges and agrees that Borrower is in default
under Section 6 of the Loan Agreement and Item 20(b) of the Schedule to the Loan
Agreement as a result of Borrower's failure to maintain a Tangible Net Worth
plus Subordinated Debt of at least $3,000,000 as of June 30, 2004 (the "Existing
Default"). Lender hereby waives the Existing Default. Additionally, Borrower has
informed Lender that Borrower expects to be in violation of Section 6 of the
Loan Agreement and Item 20(b) of the Schedule to the Loan Agreement as of July
31, 2004, August 31, 2004, and September 30, 2004 (the "Pending Defaults").
Lender hereby waives the Pending Defaults.
3. The Loan Agreement is amended by inserting the following new clause (e)
in Item 20 of the Schedule to the Loan Agreement:
(e) From and after September 30, 2004, Borrower shall cause Borrower's
division which will operate the insurance agency acquired from Xx
Xxxxxxxxxxx Ltd. to maintain a ratio of such division's (i) net income
(excluding extraordinary gains) before provision for interest expense,
taxes, depreciation and amortization, to (ii) interest expense, plus
payments of principal actually made or scheduled to be made with respect to
indebtedness (other than scheduled but unpaid payments on Subordinated Debt
and principal payments on revolving
loans under this Agreement), plus payments with respect to capitalized
leases, plus taxes, plus dividends and distributions, plus unfinanced
capital expenditures, of at least 1.0 to 1.0. For the months of September,
2004 through July, 2005, such ratio shall be measured as of the last day of
each month for the period from September 1, 2004 through the last day of
the calendar month most recently ended, and, for the month ending August
31, 2005 and for each calendar month thereafter, such ratio shall be
measured as of the last day of such calendar month for the twelve-month
period then ended.
4. Borrower hereby restates, ratifies, and reaffirms each and every term,
condition representation and warranty heretofore made by it under or in
connection with the execution and delivery of the Loan Agreement, as amended
hereby, and the other Loan Documents, as fully as though such representations
and warranties had been made on the date hereof and with specific reference to
this Agreement and the Loan Documents.
5. Except as set forth herein, the Loan Agreement shall be and remain in
full force and effect as originally written, and shall constitute the legal,
valid, binding and enforceable obligation of Borrower to Lender.
6. In consideration of the accommodations made by Lender hereunder,
Borrower agrees to pay to Lender on demand all costs and expenses of Lender in
connection with the preparation, execution, delivery and enforcement of this
Agreement and the other Loan Documents and any other transactions contemplated
hereby and thereby, including, without limitation, the fees and out-of-pocket
expenses of legal counsel to Lender.
7. To induce Lender to enter into this Agreement, Borrower hereby
represents and warrants that, as of the date hereof, and after giving effect to
the terms hereof, there exists no Event of Default under the Loan Agreement or
any of the other Loan Documents.
8. To induce Lender to enter into this Agreement, Borrower (a) acknowledges
and agrees that no right of offset, defense, counterclaim, claim or objection
exists in favor of Borrower against Lender arising out of or with respect to the
Loan Agreement, the other Loan Documents, the Obligations, or any other
arrangement or relationship between Lender and Borrower, and (b) releases,
acquits, remises and forever discharges Lender and its affiliates and all of
their past, present and future officers, directors, employees, agents,
attorneys, representatives, successors and assigns from any and all claims,
demands, actions and causes of action, whether at law or in equity, whether now
accrued or hereafter maturing, and whether known or unknown, which Borrower now
or hereafter may have by reason of any manner, cause or things to and including
the date of this Agreement with respect to matters arising out of or with
respect to the Loan Agreement, the other Loan Documents, the Obligations, or any
other arrangement or relationship between Lender and Borrower.
9. Borrower acknowledges that (a) except as expressly set forth herein,
Lender has not agreed to (and has no obligation whatsoever to discuss, negotiate
or agree to) any restructuring, modification, amendment, waiver or forbearance
with respect to the Obligations or any of the terms of the Loan Documents, (b)
no understanding with respect to any other
restructuring, modification, amendment, waiver or forbearance with respect to
the Obligations or any of the terms of the Loan Documents shall constitute a
legally binding agreement or contract, or have any force or effect whatsoever,
unless and until reduced to writing and signed by authorized representatives of
Borrower and Lender, and (c) the execution and delivery of this Agreement has
not established any course of dealing among the parties hereto or created any
obligation or agreement of Lender with respect to any future restructuring,
modification, amendment, waiver or forbearance with respect to the Obligations
or any of the terms of the Loan Documents.
10. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
11. This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto.
12. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Georgia, other than its laws respecting choice of law.
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IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be
duly executed as of the date first above written.
ADDISON YORK INSURANCE BROKERS LTD.
By: /s/ P. Podorieszach
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Primo Podorieszach, Chief Executive Officer
FCC, LLC, d/b/a First Capital
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Vice President
Each of the undersigned acknowledges the foregoing and agrees that his
respective Contingent Guaranty in favor of Lender dated as of June 3, 2004
remains in full force and effect, subject to no right of offset, claim or
counterclaim.
/s/ P. Podorieszach
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PRIMO PODORIESZACH
/s/ Xxxx Xxxxxxxx
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XXXX XXXXXXXX
/s/ Xxxx Xxxxxxx
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XXXX XXXXXXX
The undersigned acknowledges the foregoing and agrees that the Guarantee of the
undersigned in favor of Lender dated as of June 3, 2004 remains in full force
and effect, subject to no right of offset, claim or counterclaim.
XXXXXXX XXXXX INTERNATIONAL INSURANCE BROKERS LTD.
By: /s/ P. Podorieszach
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Name: P. Podorieszach
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Title: CEO
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Oak Street Funding LLC hereby consents to the foregoing.
OAK STREET FUNDING LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: President
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