Exhibit 10.16


    
      

    

     

    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 BROWN
      & BROWN, 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;

     


    
      
        
        

      

      
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    (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:

     


    
      
        
        

      

      
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    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

     


    
      
        
        

      

      
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    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:

               

              220
                South Ridgewood Avenue

              Daytona
                Beach, Florida 23115-2412

              Attention:
                Cory T. Walker

              Telephone
                No.: (386) 239-7250

              Telecopy
                No.: (386) 239-7252

            	 	
              BORROWER:

               

              BROWN
                & BROWN, INC.

               

               

              By:     
                /s/ Cory T.
                Walker                                        
                

              Cory
                T. Walker, Senior Vice President, Treasurer

              and
                Chief Financial Officer 

               

               

               

               

            
	 	 	 
	
              With
                a copy to:

               

              Laurel
                L. Grammig

              General
                Counsel

              BROWN
                & BROWN, INC.

              3101
                West Martin Luther King Jr. Boulevard

              Suite
                400

              Tampa,
                Florida 33607

              Telephone
                No.: (813) 222-4182

              Telecopy
                No.: (813) 222-4464

            	 	 
	 	 	 
	
               

               

               

               

               

               

              Address
                for Notices:

               

              SunTrust
                Bank

              Mail
                Code FL-Orlando-1106

              200
                South Orange Avenue

              Tower
                10

              Orlando,
                FL 32801

              Telephone:
                (407) 237-4636

              Telecopy:
                (407) 237-4076

            	 	
              LENDER:

               

              SUNTRUST
                BANK

               

               

               

              By:     
                /s/ Sarah Hudson Anderson

              Sarah
                Hudson Anderson, Vice President

            
	 	 	 


    

    
 

     

     

     

     

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