MODIFICATION TO CREDIT AGREEMENT
MODIFICATION
TO CREDIT AGREEMENT
This
Modification to Credit Agreement ("Modification") is made as of July 20, 2007,
by and among XXXXX MORTGAGE INVESTMENT FUND, a California
limited partnership (“Borrower”) and CALIFORNIA BANK & TRUST, FIRST
BANK and CITY NATIONAL BANK (which are collectively
known as “Lenders”).
RECITALS
A. Pursuant
to the terms of a Credit Agreement ("Credit Agreement") between Lenders and
Borrower dated as of August 31, 2001, Lenders agreed to make Revolving Loans
to
Borrower up to the credit limit of the principal sum of
$20,000,000. California Bank & Trust is the agent of Lenders
under the Credit Agreement (“Agent”). The Credit Agreement was
amended by a Modification to Credit Agreement, dated February 28, 2002, executed
by the parties that, among other things, added Swing Loans to the
facility. The Revolving Loans and Swing Loans are collectively
referred to as “Loans.” By a Modification to Credit Agreement, dated
August 16, 2002, executed by the parties, the “Amount of Aggregate Commitment”
for each Lender was increased. By a Modification to Credit Agreement
dated July 31, 2003, executed by the parties, the “Commitment Termination Date”
was extended to July 31, 2005. By a further Modification to Credit
Agreement dated July 31, 2005, the “Commitment Termination Date” was extended to
September 30, 2005. By another Modification to Credit Agreement,
dated September 30, 2005, the “Commitment Termination Date” was extended to July
31, 2007. By another Modification to Credit Agreement, dated February
9, 2006, the Amount of Aggregate Commitment for each Lender through July 31,
2006 was amended and Second Replacement Revolving Promissory Notes were
executed. By a Modification to Credit Agreement, dated August 15,
2006, compliance with section 11.25 of the Credit Agreement as of September
30,
2006 was waived. By a further Modification to Credit Agreement, dated February
23, 2007, the “Amount of Aggregate Commitment” for Loans was temporarily
increased through July 31, 2007, provision for an Unused Commitment Fee was
added, and Third Replacement Promissory Notes were executed.
B. In
response to Borrower's request and in reliance upon Borrower's representations
made to Lenders in support thereof, Lenders have agreed to further modify the
terms of the Credit Agreement, as set forth in this
Modification. Capitalized terms shall have the meanings assigned to
them in the Credit Agreement, as previously modified, except as set forth in
this Modification.
AGREEMENT
NOW,
THEREFORE, Borrower and Lenders agree as follows:
1. Adoption
of Recitals. Borrower hereby represents and warrants that each of
the recitals set forth above is true, accurate and complete.
2. Conditions
Precedent. This Modification shall become effective only upon
Borrower's delivery or satisfaction of the following conditions in form and
substance acceptable to Agent:
{Clients\cbt-ln\0091\agr\07001227.DOC}
1
Exhibit
10.1
3. There
shall be no Event of Default under the Credit Agreement;
(a) Borrower
shall execute this Modification;;
(b) Guarantor
shall execute the Acknowledgment and Consent appended to the
Modification;
(c) Borrower
shall pay to Agent all of Agent’s attorneys' fees incurred in the preparation of
this Modification and all out-of-pocket fees incurred by Agent in connection
with this Modification; and
(d) Borrower
shall provide any other items or documents required by Agent in connection
with
the consummation of this transaction.
4. Representations
and Warranties. Borrower hereby represents and warrants that no
event of default, breach or failure of condition has occurred or exists, or
would exist with notice or lapse of time, or both, under any of the Credit
Documents, and all representations and warranties of Borrower in this
Modification and the other Credit Documents are true and correct as of the
date
of this Modification and shall survive the execution of this
Modification.
5. Modification
of Loan Documents. The Credit Documents are hereby supplemented,
amended and modified to incorporate the following, which shall supersede and
prevail over any existing and conflicting provisions thereof:
(a) The
definition of “Commitment Termination Date” in Section 1.1 of the Credit
Agreement is amended by deleting the date “July 31, 2007” and inserting “July
31, 2009” in its place; and
|
(b)
|
The
Notes are amended by deleting all references to “July 31, 2007” and
inserting “July 31, 2009” in their
place.
|
6. Security
Instruments. The Credit Documents which recite that they are
security instruments shall secure, in addition to any other obligations secured
thereby, the payment and performance by Borrower of all obligations under the
Credit Documents, as modified hereby, and any amendments, modifications,
extensions or renewals of the same which are hereafter agreed to in writing
by
the parties.
7. Governing
Law. This Modification shall be construed, governed and enforced
in accordance with the laws of the State of California.
8. Interpretation. No
provision of this Modification is to be interpreted for or against either
Borrower or Lenders because that party, or that party's representative, drafted
such provision.
9. Full
Force and Effect. Except as set forth herein, all other terms and
conditions of the Loan Documents shall remain in full force and
effect.
{Clients\cbt-ln\0091\agr\07001227.DOC}
2
Exhibit
10.1
10. Reaffirmation. Borrower
hereby acknowledges, reaffirms and confirms its obligations under the Credit
Documents, as amended and modified by this Modification.
11. Entire
Agreement. This Modification and the Credit Documents represent
the entire agreement of the parties and supersede all prior oral and written
communication between the parties. If there is any conflict between
this Modification and any documents referred to herein, this Modification shall
prevail. No amendment of this Modification shall be valid unless it
is in writing and is signed by the parties to this Modification.
12. IN
WITNESS WHEREOF, the parties have executed this Modification as of the day
and
year first above written.
XXXXX
MORTGAGE INVESTMENT FUND,
a
California limited partnership,
By: XXXXX
FINANCIAL GROUP, INC.,
a
California corporation, its general
partner
By: /s/
Xxxxx X. Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: CFO
0000
Xxxxxxx Xxxxxxxxx
Xxxxxx
Xxxxx, XX 00000
Fax:
{Clients\cbt-ln\0091\agr\07001227.DOC}
3
Exhibit
10.1
CALIFORNIA
BANK & TRUST, a California
banking
corporation
By: /s/
Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx
X. Xxxxxxxxx
Title: Senior
Vice President
By: /s/
Xxxxxx Xxxx
Name: Xxxxxx
Xxxx
Title: Vice
President
San
Francisco Corporate Banking
000
Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Fax: 415/000-0000
{Clients\cbt-ln\0091\agr\07001227.DOC}
4
Exhibit
10.1
FIRST
BANK, a Missouri banking corporation, formerly
FIRST BANK & TRUST
By: /s/
Xxxxx X. Xxxxxxxx
Name: Xxxxx
X. Xxxxxxxx
Title:
Senior Vice President
By: s/
Xxxxx X. Xxxxxxxx
Name:
Xxxxx X. Xxxxxxxx
Title: Senior
Vice President
Commercial
and Private Banking
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxxxxxx, XX 00000
Fax: 415/000-0000
{Clients\cbt-ln\0091\agr\07001227.DOC}
5
Exhibit
10.1
CITY
NATIONAL BANK, a national
banking
corporation
By: /s/
Xxxxxxx X. Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: VP
By:
Name:
Title:
0000
Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx
Xxxxx, XX 00000
Fax: 925/000-0000
{Clients\cbt-ln\0091\agr\07001227.DOC}
6
Exhibit
10.1
ACKNOWLEDGMENT
AND CONSENT
Guarantor
acknowledges and consents to the foregoing Modification to Credit Agreement
and
all prior Modifications to Credit Agreement executed by Borrower and Lenders
in
connection with the Credit Agreement. Guarantor further acknowledges
that the Continuing Guaranty, dated August 31, 2001, executed by Guarantor
in
favor of Agent and Banks remains in full force and effect without known defense
as to the indebtedness of Borrower under the Credit Agreement, as previously
and
as herewith modified.
Dated: July
20, 2007
XXXXX
FINANCIAL GROUP, INC.,
a
California corporation
By:
/s/ Xxxxx X. Xxxxxx
Printed
Name: Xxxxx X. Xxxxxx
Title: CFO
ACCEPTED
AND ACKNOWLEDGED BY:
CALIFORNIA
BANK & TRUST, AS AGENT FOR BANKS
By:
/s/ Xxxxxx Xxxx
Printed
Name: Xxxxxx Xxxx
Title: Vice
President
{Clients\cbt-ln\0091\agr\07001227.DOC}
7
