EXHIBIT 4.45
FIRST AMENDMENT
TO
TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement (the "Amendment")
is executed as of April 3, 2003, by ADDISON YORK INSURANCE BROKERS, LLC, a
Delaware limited liability company ("Borrower"), and TEXTRON FINANCIAL
CORPORATION, a Delaware corporation ("Lender").
RECITALS
A. Lender and Borrower have established a discretionary revolving credit
facility pursuant to that certain Loan and Security Agreement dated as
of July 31, 2002 (the "Agreement").
B. B. Lender and Borrower wish to amend certain provisions of the
Agreement, as more particularly set forth in this Amendment.
AGREEMENT
In reliance upon the representations, warranties and covenants of
Borrower set forth in the Agreement, as hereby amended, Lender and Borrower
agree as follows:
1. Capitalized terms not defined in this Amendment shall have the
definitions given to them in the Agreement, where applicable, or the
Uniform Commercial Code as the same may be amended from time to time.
2. The definition of "Adjustable Net Worth" set forth in paragraph 1 of
the Agreement is hereby deleted:
3. The definition of "Coverage Ratio" set forth in paragraph 1 of the
Agreement is hereby deleted:
4. Paragraph 1 of the Agreement is amended by adding the following
definition thereto:
""Dollar" and "$" means, unless otherwise specifically stated, United
States dollars."
5. Paragraph 3 of the Agreement is amended by adding the following at the
end thereof
"The foregoing notwithstanding, for the period from and after the date
of this Amendment, as set forth above, through June 30, 2003, Borrower
shall not be required to pay the Minimum Interest. From and after July
1, 2003, Borrower shall be required to pay the Minimum Interest at all
times unless (a) there has been a Loan advance under the terms of the
Agreement, and (b) the balance of the Loans outstanding is greater than
zero. Nothing set forth in this paragraph shall reduce, waive or
otherwise modify Borrower's obligation to pay
- 2 -
earned interest hereunder. Notwithstanding the forgoing, no Minimum
Interest shall apply following the date of termination of this
Agreement and satisfaction of all Obligations.."
6. Paragraph 8 of the Agreement is amended by deleting it in its entirety
and substituting therefore the following:
"8. Prepayment. In the event Borrower elects to prepay the Loans in
full and otherwise voluntarily terminates this Agreement, Borrower
shall pay Lender the Principal Sum plus accrued but unpaid interest on
the Promissory Note and all other Obligations in whole or in part at
any time without notice bonus or penalty; provided, however, in the
event of a default by Borrower, which default causes a termination of
this Agreement to occur, unless all Obligations are paid in full within
seven days after notice to the Borrower by the Lender demanding full
payment of the Loan as a result of the occurance of the event of
default, Borrower shall, in addition to all other payments due as
provided in this Agreement, pay Lender a termination fee equal to 4.0%
of the Maximum Loan Amount. Any partial prepayment shall be applied
first against any fees or other charges, then second against accrued
and unpaid interest, then third against the Principal Sum, until all
amounts due Lender are paid in full. The security interest created by
Borrower in favor of Lender pursuant to this Agreement, and all other
rights and remedies of Lender pursuant to this Agreement, shall
continue in full force and effect notwithstanding any termination of
this Agreement, until the Principal Sum, all accrued and unpaid
interest, all Obligations and all other obligations owing from Borrower
to Lender are discharged in full."
7. Paragraph 140) of the Agreement is amended by deleting therefrom the
dollar amount "$25,000" and substituting the dollar amount "$100,000"
thereat.
8. Paragraph 14(m) of the Agreement is deleted in its entirety.
9. Paragraph 14(n) of the Agreement is amended by deleting it in its
entirety and substituting therefore the following:
"at any time permit its Leverage Ratio of the Combined Entity to be
greater than the following:
(i) 6.0 to 1.0 as of the date of Borrower's first
acquisition hereunder (the "First Acquisition");
(ii) 3.0 to 1.0 as of the first anniversary date of the
First Acquisition; and
(iii) 1.5 to 1.0 as of the second anniversary of the First
Acquisition and at all times thereafter."
10. Paragraph 14(o) of the Agreement is deleted in its entirety.
11. Paragraph 14(p) of the Agreement is deleted in its entirety.
- 3 -
12. Paragraph 14(r) of the Agreement is amended by deleting it in its
entirety and substituting the following therefore:
"at any time permit EBITDA of the Combined Entity to be less than
CDN$125,000 as of each fiscal quarter end of Borrower, as determined by
Lender, in its discretion."
13. As a condition to Lender making a loan advance to Borrower to fund the
First Acquisition, Borrower shall deposit cash collateral with a United
States based bank acceptable to Lender, in its sole discretion in the
form of a money market account in an amount equal to not less than
eighty percent (80%) of the amount of the Loan advance for the First
Acquisition. Lender agrees that not more frequently than each month end
Borrower may request Lender to release from its security interest the
amount in the money market account in excess of 80% of the remaining
Loan balance. Borrower hereby acknowledges and agrees that the security
interests created pursuant to the Agreement shall apply to such money
market account, and Borrower shall take all action and execute all
documents that Lender may require in its sole discretion in connection
therewith and in furtherance thereof.
14. The parties to this Amendment acknowledge and agree that the security
interests created pursuant to the Agreement shall remain in full force
and effect and shall constitute the Agreement shall remain in full
force and effect and shall constitute the legal, valid, binding and
enforceable obligations of Borrower, and nothing contained in this
Amendment shall be deemed a release of any of the Collateral.
15. Borrower hereby represents and warrants to Lender that after giving
effect to this Amendment:
(a) each and every one of the representations and warranties made
by or on behalf of Borrower in the Agreement or the related
loan documents is true and correct in all respects on and as
of the date hereof, except to the extent that any of such
representations and warranties related, by the expressed terms
thereof, solely to a date prior hereto;
(b) Borrower has duly and properly performed, complied with and
observed each of its covenants, agreements and obligations
contained in the Agreement and related loan documents;
(c) no event has occurred or is continuing, and no condition
exists which would constitute an Event of Default;
(d) Borrower has legal power and authority to execute and deliver
this Amendment;
(e) the officer executing the Amendment on behalf of Borrower has
been duly authorized to execute and deliver the same and bind
Borrower with respect to the provisions provided for herein;
- 4 -
(f) the execution and delivery hereof by Borrower and the
performance and observance by Borrower of the provisions
hereof do not violate or conflict with the organizational
documents, regulations or operating agreement of Borrower or
any law applicable to Borrower or result in the breach of any
provision of or constitute a default under any agreement,
instrument or document binding upon or enforceable against
Borrower;
(g) this Amendment constitutes a valid and legally binding
obligation upon Borrower in every respect; and
(h) the Agreement, as amended by this Amendment, constitutes a
valid and legally binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, without
defense, counterclaim or offset.
16. This Amendment shall not be effective until each party named on the
signature pages of this Amendment shall have executed and delivered a
counterpart of this Amendment.
17. Except as expressly amended by the terms of this Amendment, all terms,
covenants and provisions of the Agreement are and shall remain in full
force and effect without further modification or amendment.
18. Borrower hereby releases, waives, extinguishes, forever discharges and
covenants not to ▇▇▇ Lender from and with respect to any and all
actions, causes of action, suits, debts, obligations, agreements, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, loans,
invoices, covenants, contracts, controversies, promises, variances,
trespasses, claims, damages, demands, judgments, executions, decrees;
discrimination suits or charges, costs and attorneys' fees, whatsoever,
in law, admiralty, equity, arbitration or otherwise, whether known or
unknown, accrued or unaccrued, foreseen or unforeseen, matured or not
matured, that Borrower had or now has as of the date of this Amendment.
The matters released, waived, extinguished and discharged hereby
include any and all claims for attorneys' fees; any and all contract,
tort or common law claims; and any and all claims under any federal,
state or local statute, ordinance or regulation or under any federal,
state or local common law.
19. This Amendment may be executed in several counterparts, each of which
shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
20. This Amendment, contains the entire and exclusive agreement of the
parties with reference to all matters discussed in this Amendment, and
this Amendment supersedes all prior drafts and communications with
respect thereto. This Amendment shall be deemed incorporated into, and
made a part of, the Agreement.
- 5 -
The undersigned, pursuant to due authority, have caused this Amendment
to be executed as of the date set forth above.
ADDISON YORK INSURANCE BROKERS
By: (signed) Primo Podorieszach
Name: Primo Podorieszach
Title: CEO
TEXTRON FINANCIAL CORPORATION
By: (signed) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President