SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING AND TERM LOAN AGREEMENT
Exhibit
10.15
PTC-3
12-19-06
SECOND
AMENDMENT TO AMENDED AND RESTATED
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING AND TERM LOAN
AGREEMENT
(the
"Second
Amendment"),
dated
and effective as of December 22, 2006, 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 January 3, 2001, the Borrower and the Lender entered into that certain
Amended and Restated Revolving and Term Loan Agreement (the "Initial
Term Loan Agreement")
providing for a term loan all as provided in the Initial Term Loan Agreement;
and
WHEREAS,
on or
about July 15, 2004, the Borrower and the Lender amended the Initial Term
Loan Agreement by virtue of that certain First Amendment To Amended And Restated
Revolving And Term Loan Agreement (the “First
Amendment”)
dated
July 15, 2004. Hereafter, the term “Initial
Term Loan Agreement”
includes the First Amendment; and
WHEREAS,
the
Initial Term Loan Agreement in Section 8.1 of the Initial Term Loan
Agreement contains various restrictions on the ability of the Borrower to incur
other debt; and
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 Term Loan Agreement so as
to
permit, among other matters, (i) the elimination of certain restrictions on
unsecured indebtedness by the Borrower, (ii) the 2006 Note Purchase
Agreement, and (iii) the modification of the terms of the Initial Term Loan
Agreement in accordance with the terms and conditions of this Second
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 Second Amendment, capitalized terms contained herein shall
have
the meaning set forth in the Initial Term Loan Agreement.
2. New
Definitions.
The
following definitions are added to Article I of the Initial Term 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.
1
3. Amendment
to Initial Term Loan Agreement.
The
Initial Term Loan Agreement is hereby amended as follows:
(a) 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;
(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.
(b) Section
8.8 of the Initial Term Loan Agreement captioned “Optional
Prepayments”
is
hereby amended in its entirety to read as follows:
2
Section
8.8 Optional
Prepayments.
Make
any payment in violation of the subordination provisions of any Subordinated
Debt.
(c) Section
8.11 of the Initial Term Loan Agreement captioned “Additional Negative Pledges”
is hereby deleted in its entirety.
(d) Section
8.12 of the Initial Term 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.
(e) Section 8.17
of the Initial Term Loan Agreement captioned “Guaranties”
is
hereby amended in its entirety to read as follows:
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.
(f) Section 8.18
of the Initial Term Loan Agreement captioned “Changes
in Debt Instruments”
is
hereby deleted in its entirety.
4. 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 Term Loan Agreement until
January 30, 2007.
5. Ratification.
Except
as modified by this Second Amendment, the parties do hereby confirm and ratify
the Initial Term Loan Agreement. Hereafter, the term “Term
Loan Agreement”
means
and includes this Second Amendment.
Signature
Page Follows
3
SIGNATURE
PAGE TO SECOND AMENDMENT
IN
WITNESS WHEREOF,
the
parties hereto have caused this Second Amendment to Amended and Restated
Revolving and Term 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
|
4
