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EXHIBIT 10.4
THIRD AMENDMENT TO MORTGAGE LOAN AGREEMENT
THIS THIRD AMENDMENT TO MORTGAGE LOAN AGREEMENT (the "Third Amendment")
is entered into effective as of June 30, 1999 by PRECISION RESPONSE CORPORATION
(as "Borrower"), and BANK OF AMERICA, N.A., d/b/a NATIONSBANK, N.A., successor
to NATIONSBANK, N.A., as Bank under that certain Mortgage Loan Agreement dated
May 29, 1998 ("NationsBank").
W I T N E S S E T H:
WHEREAS, that certain Mortgage Loan Agreement (the "Mortgage Loan
Agreement") was executed as of May 29, 1998 by Borrower and NationsBank; and
WHEREAS, the Mortgage Loan Agreement was modified by First Amendment
dated as of June 30, 1998 and by Second Amendment dated September 30, 1998; and
WHEREAS, the parties desire to further modify the Mortgage Loan
Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties do hereby modify the Mortgage Loan
Agreement as follows:
1. LOAN HOLDBACK. Section 2.02 is hereby modified in its entirety to
read as follows:
2.02 LOAN HOLDBACK. The amount of One Million One Hundred
Twenty Thousand Dollars ($1,120,000.00) shall not be disbursed
to Borrower at Closing, and shall constitute the "Interior
Improvement Holdback". The Interior Improvement Holdback shall
be disbursed to Borrower upon the substantial completion by
Borrower of the interior improvements to the Mortgaged
Property in a lien free manner to the satisfaction of Bank.
The Borrower agrees to substantially complete the interior
improvements not later than January 31, 2000. The interior
improvements shall be deemed to be substantially completed at
such time as (a) Borrower has obtained a Certificate of
Occupancy or Completion for the premises and improvements, and
(b) Borrower has obtained a contractor's final lien release
from all contractors who have worked on the interior
improvements, and (c) Bank's inspector (I.E., an inspector
designated by Bank) has inspected the interior improvements
and has verified to Bank that the interior improvements have
been substantially completed and (d) Borrower has furnished to
Bank an updated endorsement to the title policy insuring the
Mortgage confirming the absence of liens on the Mortgaged
Property. In the event that Borrower fails to substantially
complete the interior improvements in accordance with this
Section 2.02 on or before January 31, 2000, then Bank shall
not be obligated to advance the Interior Improvement
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Holdback and at the option of Bank the amount of the Loan
shall be deemed reduced by the amount of the Interior
Improvement Holdback. The failure of Borrower to substantially
complete the interior improvements on or before January 31,
2000 in accordance with this Section 2.02 shall not be deemed
to constitute a Default under this Agreement and the only
consequence of such failure shall be a reduction in the amount
of the Loan, but the foregoing shall not be deemed to permit
any construction liens to attach to the Mortgaged Property.
The Interior Construction Holdback shall not be deemed an
advance of funds to the Borrower and shall not bear interest
unless and until such funds are advanced to Borrower.
2. DEFINITIONS.
(a) Commencing as of October 1, 1999, and at all times
thereafter, The definitions of "EBIT" and "EBITDA" in Section 1.01 are hereby
modified in their entirety to read as follows:
"EBIT" means, for any Four-Quarter Period ending on the date
of computation thereof, the sum of, without duplication, (i)
net income, (ii) interest expense, (iii) taxes on income of
the Borrower, and (iv) any extraordinary loss in such period
minus (v) any extraordinary gain in such period, all
determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis.
"EBITDA" means, for any Four-Quarter Period ending on the date
of computation thereof, the sum of, without duplication, (i)
net income, (ii) interest expense, (iii) income tax expense of
the Borrower, (iv) amortization expense of the Borrower, (v)
depreciation of the Borrower and its Subsidiaries, and (vi)
any extraordinary loss in such period minus (vii) any
extraordinary gain in such period, all determined on a
consolidated basis in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis.
(b) The definition of "Note" in Section 1.01 is hereby
modified in its entirety to read as follows:
"Note" means the $5,120,000.00 Consolidated Renewal Promissory
Note of the Borrower payable to the order of Bank dated as of
May 29, 1998, as amended by First Amendment of even date
herewith.
3. NEGATIVE COVENANTS. Sections 5.03 and 5.04 are hereby modified in
their entirety to read as follows:
5.03 FIXED CHARGE COVERAGE RATIO. Permit the ratio of (a) the
sum of EBITDA for any Four-Quarter Period plus Rents Expense
for such Four-Quarter Period to (b) the sum of interest
expense for such Four-
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Quarter Period plus Rents Expense for such Four-Quarter Period
plus income tax expense for such Four-Quarter Period plus 20%
of Funded Debt (but excluding the indebtedness evidenced by
the Note) outstanding as of the last day of the applicable
Four-Quarter Period plus the current maturities of the Xxxxxxx
Debt to be less than 1.80 to 1.00 as of the last day of each
Four-Quarter Period.
5.04 CAPITAL EXPENDITURES. Make or become committed to make
Capital Expenditures which exceed in the aggregate (on a
noncumulative basis, with the effect that amounts not expended
in any Fiscal Year may not be carried forward to a subsequent
period) Thirty Million Dollars ($30,000,000) in any Fiscal
Year.
4. REAFFIRMATION. Except as expressly modified herein, the Mortgage
Loan Agreement, as previously amended, is hereby reaffirmed in its entirety.
PRECISION RESPONSE CORPORATION,
as the Borrower
By: /s/ Xxxxxx X. Xxxxxx
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Name: XXXXXX X. XXXXXX
Title: VP AND TREASURER
BANK OF AMERICA, N.A., d/b/a NATIONSBANK,
N.A., successor to NATIONSBANK, N.A., as
Agent and as a Bank under the Credit
Agreement
By: /s/ Xxxxxxx Viejo
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Name: XXXXXXX VIEJO
Title: VICE PRESIDENT
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STATE OF FLORIDA )
------------------------- ) SS.
COUNTY OF DADE )
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The foregoing instrument was acknowledged before me this 30th day of
July, 1999 by XXXXXX X. XXXXXX, as VP AND TREASURER of PRECISION RESPONSE
CORPORATION, a Florida corporation, who [x] is personally known to me or [ ] has
produced _________________________________ as identification.
(Seal)
/s/ Xxxxxx Xxxxxxxxx
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Notary Public
Print Name: XXXXXX XXXXXXXXX
My commission expires: 4/25/2003
STATE OF FLORIDA )
------------------------- ) SS.
COUNTY OF DADE )
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The foregoing instrument was acknowledged before me this 30 day of
July, 1999 by XXXXXXX VIEJO, as VICE PRESIDENT of BANK OF AMERICA, N.A.,
d/b/a NATIONSBANK, N.A., successor to NATIONSBANK, N.A., who [ ] is personally
known to me or [ ] has produced _______________________________________ as
identification.
(Seal)
/s/ Xxxxxxxxx Xxxxxxx
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Notary Public
Print Name: Xxxxxxxxx Xxxxxxx
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My commission expires:
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