THIRD AMENDMENT TO REVOLVING LOAN AGREEMENT
Exhibit
10.16
PTC-5
12-19-06
THIRD
AMENDMENT TO REVOLVING LOAN AGREEMENT
THIS
THIRD AMENDMENT TO REVOLVING LOAN AGREEMENT,
dated
and effective as of December 22, 2006 (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 September 29, 2003, the Borrower and the Lender entered into that certain
Revolving Loan Agreement (the "Initial
Revolving Loan Agreement")
providing for a revolving loan up to the maximum amount of $75,000,000 from
the
Lender to the Borrower. Subsequently, that Initial Revolving Loan Agreement
was
amended by virtue of that certain First Amendment To Revolving Loan Agreement
(the "First
Amendment")
dated
December 30, 2003, and by virtue of that certain Second Amendment To
Revolving Loan Agreement (the "Second
Amendment")
dated
July 15, 2004. Hereafter, the term "Initial
Revolving Loan Agreement"
includes the First Amendment and the Second Amendment; and
WHEREAS,
the
Borrower desires to reduce the maximum amount of the Revolving Loan Commitment
from $75,000,000 to $20,000,000, and has further requested certain other
adjustments in the Initial Revolving Loan Agreement;
WHEREAS,
the
Borrower desires to incur additional unsecured indebtedness up to the principal
amount of $200,000,000 through the issuance of promissory notes to one or more
investors (the “2006
Note Offering”);
and
WHEREAS,
the
Borrower and the Lender wish to amend the Initial Revolving Loan Agreement
so as
to permit, among other matters, (i) the reduction of the Revolving Loan
Commitment to $20,000,000, (ii) the elimination of certain restrictions on
unsecured indebtedness by the Borrower, (iii) the 2006 Note Purchase
Agreement, and (iv) the modification of the terms of the Initial Revolving
Loan Agreement in accordance with the terms and conditions 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 Revolving Loan Agreement.
2. Amendment
of Existing Definitions.
The
following existing definitions contained in Article I of the Initial
Revolving Loan Agreement are hereby amended:
"Applicable
Margin"
shall
mean the percentage designated below based on the Borrower's Funded Debt to
EBITDA Ratio, measured quarterly on a rolling four (4) quarters
basis:
|
Level
|
Leverage
Ratio
|
Base
Rate
Advances(1)
|
Eurodollar
Advances
|
Availability
Fee
|
|
I
|
<1.00x
|
-1.000%
|
0.450%
|
0.100%
|
|
II
|
<1.50x
|
-1.000%
|
0.575%
|
0.125%
|
|
III
|
<2.00x
|
-1.000%
|
0.700%
|
0.150%
|
|
IV
|
>2.00x
|
-1.000%
|
0.875%
|
0.200%
|
(1)
On
all
Base Rate Advances, the Applicable Margin is a negative 100 basis
points).
provided,
however,
that
adjustments, if any, to the Applicable Margin based on changes in the Ratio
set
forth above shall be made and become effective on the date of this Third
Amendment.
"Maturity
Date"
shall
mean the earlier of (a) December 20, 2011, and (b) the date on which all
amounts outstanding under this Agreement have been declared or have
automatically become due and payable pursuant to the provisions of Article
IX
hereof.
"Revolving
Loan Commitment"
shall
mean the amount of $20,000,000 as the same may be decreased from time to time
as
a result of any reduction thereof pursuant to Section
2.5
hereof,
or any amendment thereof pursuant to Section
11.2
hereof.
The LC Commitment and the Swingline Commitment shall be deemed to be sublimits
under this Revolving Loan Commitment.
3. New
Definitions. The
following definitions are added to Article I of the Initial Revolving Loan
Agreement:
"2006
Note Offering
" shall
mean one or more transactions by which the Borrower has incurred or may in
the
future incur Indebtedness up to the maximum principal amount of $200,000,000,
all pursuant to the 2006 Note Purchase Agreement.
"2006
Note Purchase Agreement"
shall
mean that certain Note Purchase Agreement between the Borrower and the
Purchasers party thereto and dated December 22, 2006 by which the Borrower
has issued Series C Notes (as defined therein) and pursuant to which the
Borrower may issue from time to time Fixed Rate Shelf Notes and Floating Rate
Shelf Notes (as defined therein), as the same may be amended or modified from
time to time.
4. Amendments
to Covenants of Initial Revolving Loan Agreement.
The
Initial Revolving Loan Agreement is hereby amended as follows:
(a) Section
4.11 captioned “Payments
on SunTrust Term Loan From Sale of Assets”
is
hereby amended in its entirety to read as follows:
Section
4.11 Payments
on SunTrust Term Loan From Sale of Assets.
Borrower
shall be required to make mandatory principal payments on the SunTrust Term
Loan
from 100% of the net proceeds received by the Borrower and any of its
Subsidiaries from any sale or other disposition of any Assets (including any
Book of Business Sales) but only to the extent in excess of $10,000,000 in
any
fiscal year.
(b) Section
8.1 captioned "Indebtedness"
is
hereby amended in its entirety to read as follows:
Section
8.1 Indebtedness.
Create,
incur, assume or suffer to exist any Indebtedness, other than:
(a) Indebtedness
under this Agreement;
(b) Indebtedness
outstanding on the date hereof or pursuant to lines of credit in effect on
the
date hereof and described on Schedule
8.1(b),
together with all extensions, renewals and refinancings thereof; provided,
however,
any
such extensions, renewals and refinancings shall not, without the written
consent of the Lender, increase any such Indebtedness or modify the terms of
said Indebtedness on terms less favorable to the maker or obligor;
(c) Purchase
money indebtedness to the extent secured by a Lien permitted by Section
8.2(b)
provided
such purchase money indebtedness does not exceed $5,000,000;
2
(d) Unsecured
current liabilities (other than liabilities for borrowed money or liabilities
evidenced by promissory notes, bonds or similar instruments) incurred in the
ordinary course of business (whether now outstanding or hereafter arising or
incurred) and either (i) not more than thirty (30) days past due, or (ii) being
disputed in good faith by appropriate proceedings with reserves for such
disputed liability maintained in conformity with GAAP and Indebtedness in the
nature of contingent repayment obligations arising in the ordinary and normal
course of business with respect to-deposits and down payments;
(e) The
Intercompany Loans described on Schedule
6.22
and any
other loans between 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)
provided that no loan or other extension of credit may be made by a Guarantor
to
another Consolidated Company that is not a Guarantor hereunder unless otherwise
agreed in writing by the Lender;
(f) Unsecured,
Subordinated Debt, not to exceed an aggregate amount of $25,000,000, and other
Subordinated Debt in form and substance acceptable to the Lender and evidenced
by its written consent thereto;
(g) Unsecured
Indebtedness without any limitation of amount provided that the maturity of
said
Indebtedness is longer than the maturity of the Facility; and
(h) Unsecured
Indebtedness due under the 2004 Note Offering not to exceed at any time the
aggregate amount of $200,000,000 and unsecured Indebtedness due under the 2006
Note Offering not to exceed at any time the aggregate amount of
$200,000,000.
(c) Section 8.8
of the Initial Revolving Loan Agreement captioned “Optional
Prepayments”
is
hereby amended in its entirety to read as follows:
Section 8.8 Optional
Prepayments.
Make
any payment in violation of the subordination provisions of any Subordinated
Debt.
(d) Section
8.11 of the Initial Revolving Loan Agreement captioned “Additional
Negative Pledges”
is
hereby deleted in its entirety.
(e) Section 8.12
of the Initial Revolving Loan Agreement captioned “Limitation
on Payment Restrictions Affecting Consolidated
Companies”
is
hereby amended in its entirety to read as follows:
Section 8.12
Limitation
on Payment Restrictions Affecting Consolidated
Companies.
Create
or otherwise cause or suffer to exist or become effective, any consensual
encumbrance or restriction on the ability of any Consolidated Company to
(a) pay dividends or make any other distributions on such Consolidated
Company’s stock, or (b) pay any indebtedness owed to Borrower or any other
Consolidated Company, except in each case any consensual encumbrance or
restriction existing under the Credit Documents, or as are contained in the
documentation of the SunTrust Term Loan, the 2004 Note Purchase Agreement,
the
2006 Note Purchase Agreement, or Indebtedness described in Section 8.1(g)
hereof.
(f) Section 8.17
of the Initial Revolving Loan Agreement captioned “Guaranties”
is
hereby amended in its entirety to read as follows:
3
Section 8.17
Guaranties.
Without
the prior written consent of the Lender, extend or execute any Guaranty other
than (a) endorsements of instruments for deposit or collection in the
ordinary and normal course of business, (b) Guaranties acceptable in
writing to the Lender, and (c) Guaranties for obligations of any
Consolidated Subsidiary, provided,
however,
said
Guaranteed Indebtedness under this subparagraph (c) will not exceed the
aggregate amount of $10,000,000 without the prior written consent of the Lender,
and (d) Guaranties of Subsidiaries in connection with the SunTrust Term
Loan, the 2004 Note Purchase Agreement, the 2006 Note Purchase Agreement, or
Indebtedness described in Section 8.1(g)
hereof.
(g) Section 8.18
of the Initial Revolving Loan Agreement captioned “Changes
in Debt Instruments”
is
hereby deleted in its entirety.
5. Guaranties.
The
Lender acknowledges that it is considering a request from the Borrower to
eliminate the requirement for Guarantors under the Facility, and in connection
therewith the Lender agrees to waive compliance with the requirements of
Section 6.25 and 7.10 of the Initial Revolving Loan Agreement until
January 30, 2007.
6. Extension
Fee/Upfront Fee. In
connection with this Third Amendment, the Borrower shall pay to the Lender
a fee
of $10,000.00, to be paid with the execution of this agreement. In addition,
the
Borrower shall further pay to the Lender its reasonable costs and attorneys'
fees, in connection with this Third Amendment.
7. Ratification
.
Except
as modified by this Third Amendment, the parties do hereby confirm and ratify
the Initial Revolving Loan Agreement. Hereafter, the term "Revolving
Loan Agreement"
means
and includes this Third Amendment.
8. Conflicts
Between Term Loan and Revolving Loan.
In
addition to the term loan evidenced by the Revolving Loan Agreement, the Lender
has also extended to the Borrower a separate and distinct term loan which is
evidenced by that certain Amended and Restated Revolving and Term Loan Agreement
(as amended or modified, the "Term
Loan Agreement")
dated
January 3, 2001, as amended by that certain First Amendment to Amended and
Restated Revolving and Term Loan Agreement dated July 15, 2004, and that
certain Second Amendment to Amended and Restated Revolving and Term Loan
Agreement of even date herewith. To the extent there is a conflict in the
provisions of said Term Loan Agreement and Revolving Loan Agreement in the
Articles relating to Affirmative Covenants or Negative Covenants (including
any
definitions relating to or used in said Affirmative or Negative Covenants),
the
terms and conditions of the Revolving Loan Agreement shall govern.
Signature
Page Follows
4
SIGNATURE
PAGE TO THIRD AMENDMENT TO REVOLVING LOAN AGREEMENT
IN
WITNESS WHEREOF,
the
parties hereto have caused this Third Amendment to Revolving 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
|
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