FOURTH AMENDMENT TO REVOLVING LOAN AGREEMENT
Exhibit
10.18
FOURTH
AMENDMENT TO REVOLVING LOAN AGREEMENT
THIS
FOURTH AMENDMENT TO REVOLVING LOAN AGREEMENT,
dated
and effective as of January 30, 2007 (the "Fourth
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, and by virtue of that certain Third Amendment to Revolving
Loan Agreement (the "Third
Amendment")
dated
December 22, 2006. Hereafter, the term "Initial
Revolving Loan Agreement"
includes the First Amendment, the Second Amendment, and the Third Amendment;
and
WHEREAS,
the
Borrower has requested the Lender to release from liability for the Facility
all
Guarantors and to delete from the Initial Revolving Loan Agreement, the
provisions thereof referring to or requiring Guarantors, and the Lender is
prepared to do so pursuant to the terms of this Fourth 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 Fourth Amendment, capitalized terms contained herein shall
have
the meaning set forth in the Initial Revolving Loan Agreement.
2. Deletion
of Existing Definitions.
The
following existing definitions contained in Article I of the Initial
Revolving Loan Agreement are hereby deleted:
"Contribution
Agreement"
means
that certain Contribution Agreement by and among the Guarantors, in form
acceptable to the Lender.
“Guarantors”
shall
mean, collectively, all present and future Material Subsidiaries, and their
respective successors and permitted assigns.
“Guaranty”
shall
mean any contractual obligation, contingent or otherwise, of a Person with
respect to any Indebtedness or other obligation or liability of another Person,
including without limitation, any such Indebtedness, obligation or liability
directly or indirectly guaranteed, endorsed, co-made or discounted or sold
with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including contractual obligations (contingent
or
otherwise) arising through any agreement to purchase, repurchase, or otherwise
acquire such Indebtedness, obligation or liability or any security therefor,
or
any agreement to provide funds for the payment or discharge thereof (whether
in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make any payment other than for value received. The amount
of
any Guaranty shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect to which said Guaranty is made
or,
if not so stated or determinable, the maximum reasonably anticipated liability
in respect thereof (assuming such Person is required to perform thereunder)
as
determined by such Person in good faith.
“Guaranty
Agreements”
shall
mean, collectively, the Guaranty Agreement executed by each of the Guarantors
from time to time in favor of the Lender in the form reasonably acceptable
to
Lender as the same may be amended, restated or supplemented from time to
time.
"Material
Assets"
shall
mean any assets which are material to the operations of the Consolidated
Companies such as, but not limited, to, trademarks, contractual rights, real
estate, etc.
"Material
Subsidiary"
shall
mean (a)each Subsidiary designated as such in Schedule
6.1
hereto,
and (b) each other Wholly Owned Subsidiary of Borrower, now existing or
hereinafter established or acquired, that at any time prior to the Maturity
Date, has either (i) at an annualized basis, net income which generates one
and
one-half percent (1.5%) or more of the Consolidated Net Income; provided,
however,
if the
aggregate net income of the Borrower and its Material Subsidiaries is at
any
time less than eighty percent (80%) of Consolidated Net Income, then the
one and
one-half percent (1.5%) trigger set forth herein will be reduced to such
a
figure so that the aggregate net income of the Borrower and its Material
Subsidiaries (based on said reduced trigger amount) is not less than eighty
percent (80%) of the Consolidated Net Income of the Borrower, or (ii) any
Material Assets.
3. Amendment
of Existing Definitions
.
The
following existing definitions contained in Article I of the Initial Revolving
Loan Agreement are hereby amended as follows:
“Credit
Documents”
shall
mean, collectively, this Agreement and the Note.
“Credit
Parties”
shall
mean, collectively, each of Borrower, and every other Person who from time
to
time executes a Credit Document with respect to all or any portion of the
Obligations.
"Executive
Officer"
shall
mean with respect to any Person, the Chief Executive Officer, the President,
any
Vice President, Chief Financial Officer, Treasurer, Secretary and any Person
holding comparable offices or duties.
"Letter
of Credit"
shall
mean any Standby Letters of Credit or Trade Letters of Credit issued pursuant
to
Section 2.9 by Lender for the account of the Borrower under the LC
Commitment.
4. Amendments
to Initial Revolving Loan Agreement.
The
Initial Revolving Loan Agreement is hereby amended as follows:
(a) Section
4.17 captioned "Benefits
to Guarantors"
is
hereby deleted in its entirety.
(b) Section
6.25 captioned “Guarantors
- Income Requirement”
is
hereby deleted in its entirety.
(c) Section
7.7(l) captioned "New
Material Subsidiaries"
is
hereby deleted in its entirety.
(d) Section
7.7(m) captioned "Intercompany
Asset Transfers"
is
hereby deleted in its entirety.
(e) Section
7.10 captioned “Additional
Guarantors”
is
hereby deleted in its entirety.
(f) Section 7.11
of the Initial Revolving Loan Agreement captioned “Ownership
of Guarantors”
is
hereby deleted in its entirety.
(g) Section
8.1(e), containing an exception to the prohibition on Indebtedness, is hereby
replaced with "(c) The Intercompany Loans described on Schedule
6.22
and any
other loans between any of the 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)."
(h) Section
8.3(b), containing an exception to the prohibition on sale or lease of assets,
is hereby replaced with "(b) other asset sales (including sales of the Capital
Stock of Subsidiaries) between any of the Consolidated Companies."
(i) Section
8.5(c), containing an exception to the prohibition on Investments relating
to
Guarantors, is hereby deleted in its entirety, and Section 8.5(b), also
containing an exception to the prohibition on Investments, is hereby replaced
with "(b) Investments in Subsidiaries, provided
however,
nothing
in this Section
8.5(b)
shall be
deemed to authorize an investment in any entity that is not a Subsidiary
prior
to such investment."
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(j) Section
8.17 of the Initial Revolving Loan Agreement captioned “Guaranties”
is
hereby deleted in its entirety.
(k) Section
9.10 captioned "Ownership
of Credit Parties and Pledged Entities"
is
hereby deleted in its entirety.
5. Ratification.
Except
as modified by this Fourth Amendment, the parties do hereby confirm and ratify
the Initial Revolving Loan Agreement. Hereafter, the term “Revolving
Loan Agreement”
means
and includes this Fourth Amendment.
6. 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 dated December 22, 2006, and that certain Third 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
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SIGNATURE
PAGE TO FOURTH AMENDMENT TO REVOLVING LOAN AGREEMENT
IN
WITNESS WHEREOF,
the
parties hereto have caused this Fourth 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
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BORROWER:
XXXXX
& XXXXX, INC.
By:
/s/ Xxxx X.
Xxxxxx
Xxxx
X. Xxxxxx, Senior Vice President, Treasurer
and Chief Financial Officer |
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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
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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
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LENDER:
SUNTRUST
BANK
By:
/s/ Xxxxx Xxxxxx Xxxxxxxx
Xxxxx
Xxxxxx Xxxxxxxx, Vice President
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