THIRD AMENDMENT TO FINANCE AGREEMENT
Exhibit
4.8(d)
THIRD
AMENDMENT TO FINANCE AGREEMENT
This
Third Amendment to Finance Agreement (“Amendment”) is dated as of January 2,
2007, by and between COASTAL CREDIT, L.L.C., a Virginia limited liability
company with its principal office located at 0000 Xxxxxxxx Xxxxx Xxxxxxxxx,
Xxxxxxxx Xxxxx, Xxxxxxxx 00000 (the “Borrower”) and XXXXX FARGO FINANCIAL
PREFERRED CAPITAL, INC., an Iowa corporation with its principal office located
at 000 Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000 (“WFFPC”).
BACKGROUND
A. On
April
16, 2001, Borrower and WFFPC entered into a certain Amended Finance Agreement
(as amended or modified from time to time, the “Finance Agreement”) and related
agreements, instruments and documents among Borrower and WFFPC (collectively,
with the Finance Agreement referred to as the “Credit Documents”).
B. Capitalized
terms used but not defined in this Amendment shall have the meanings
respectively ascribed to them in the Finance Agreement.
C. Borrower
and WFFPC desire to amend the Finance Agreement as provided herein.
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby promise
and
agree as follows.
AMENDMENTS
1. CERTAIN
DEFINITIONS.
Section
1.1 of the Finance Agreement is amended by deleting the prior definition
of
“Stated Maturity Date” in its entirety and replacing it with the
following:
“Stated
Maturity Date”
means
December 31, 2011, as such date may be extended from time to time in accordance
with the provisions of Section 2.4 of this Agreement.
2. Interest.
Section
2.6 of the Finance Agreement is amended by deleting prior subparagraph 2.6(a)
in
its entirety and replacing it with the following:
(a) In
the
absence of an Event of Default or Default hereunder, and prior to maturity,
the
outstanding balance of the Loan will bear interest at an annual rate determined
in accordance with the following formula:
(i) Interest
shall accrue at the Base Rate plus 2.60% during any calendar quarter immediately
following the end of a quarter in which the Borrower’s Senior Debt to Capital
Base Ratio is less than or equal to 2.5.
(ii) Interest
shall accrue at the Base Rate plus 2.85% during any calendar quarter immediately
following the end of a quarter in which the Borrower’s Senior Debt to Capital
Base Ratio exceeds 2.5 but is less than or equal to 3.25.
(iii) Interest
shall accrue at the Base Rate plus 3.10% during any calendar quarter immediately
following the end of a quarter in which the Borrower’s Senior Debt to Capital
Base Ratio exceeds 3.25.
Interest
shall be payable monthly in arrears on the first day of each month commencing
on
the first such date after the first Advance under the Loan and continuing
until
the Commitment is terminated and Borrower’s indebtedness thereunder is paid in
full. Interest as provided hereunder will be calculated on the basis of a
360
day year and the actual number of days elapsed.
The
rate
of interest provided for hereunder is subject to increase or decrease when
and
as the Base Rate increases or decreases in an amount corresponding to the
change
in the Base Rate. Any such change in interest rate hereunder shall take effect
the first day of the month following a change in the Base Rate.
3. Legal
and Filing Fees.
Borrower agrees to pay immediately upon demand therefor, all legal fees and
out-of-pocket expenses of WFFPC related to this Amendment, including the
preparation, negotiation, documentation, execution, filing and delivery
thereof.
4. Acknowledgment
of Indebtedness/Release.
By its
execution of this Agreement, Borrower acknowledges and agrees that as of
January
2, 2007, there was due and owing to WFFPC under the Finance Agreement the
principal sum of $49,000,000 plus continually accruing interest, without
defense
or right of setoff or counterclaim of any kind. Borrower does hereby release
WFFPC, its employees, officers, directors and agents from any and all liability
for any act or failure to act or for any claim based upon any other theory
of
liability whether grounded in contract or tort or otherwise, whether known
or
unknown at this time, arising out of any matter occurring prior to the date
of
this Agreement. This Release shall be binding on the Borrower and its respective
heirs, successors and assigns.
5. Effectiveness
Conditions.
This
Amendment shall be effective upon the completion of the following conditions
precedent:
a. Execution
and delivery by Borrower of this Amendment to WFFPC;
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b. Execution
and delivery to WFFPC of a certified copy of Resolutions of Borrower’s managers
authorizing the execution, delivery and performance of this Amendment and
all
other documents and instruments to be executed in connection with the Amendment;
and designating the appropriate officers to execute and deliver this Amendment
and all other documents and instruments to be executed in connection herewith;
and
c. Such
other matters as WFFPC may require.
6. Representations
and Warranties.
Borrower represents and warrants to WFFPC that:
a. All
warranties and representations made to WFFPC under the Finance Agreement
are
true and correct as of the date hereof;
b. The
execution and delivery by Borrower of this Amendment and the performance
of it
of the transactions herein contemplated (i) are and will be within its powers,
(ii) have been authorized by all necessary company action, and (iii) are
not and
will not be in contravention of any order of any court or other agency of
government, of law or any other indenture, agreement or undertaking to which
Borrower is a party or by which the property of Borrower is bound, or be
in
conflict with, result in breach of, or constitute (with due notice and/or
lapse
of time) a default under any such indenture, agreement or undertaking or
result
in the imposition of any lien, charge or encumbrance of any nature on any
of the
properties of Borrower;
c. This
Amendment and any assignment, instrument, document, or agreement executed
and
delivered in connection herewith, will be valid, binding and enforceable
in
accordance with its respective terms; and
d. No
Default or Event of Default or any event which would constitute an Event
of
Default with the giving of notice or the passage of time, or both, has occurred
under the Finance Agreement or any of the other Credit Documents.
7. Collateral.
As
security for the payment of the obligations under the Finance Agreement and
satisfaction by Borrower of all covenants and undertakings contained in the
Finance Agreement, Borrower reconfirms the prior security interest and lien
in
and to all right, title and interest in and to the Collateral.
8. Ratification
of Existing Finance Agreement.
Except
as expressly set forth herein, all of the terms and conditions of the Finance
Agreement are hereby ratified and confirmed and shall continue unchanged
and in
full force and effect. All references to the Finance Agreement shall mean
the
Finance Agreement as modified by this Amendment.
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9. Governing
Law.
This
Amendment shall be governed by, construed and enforced in accordance with
the
laws of the State of Iowa, excluding its conflict of laws rules.
10. Counterparts.
This
Amendment may be executed in any number of counterparts, each of which shall
be
an original and all of which shall constitute one agreement and it shall
not be
necessary in making proof of this Amendment to produce or account for more
than
one counterpart.
11. This
Amendment shall be incorporated into and deemed a part of the Finance
Agreement.
IMPORTANT:
READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY
BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL
PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY
CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date
first
written above.
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BORROWER:
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COASTAL
CREDIT, L.L.C.
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By:
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/s/
Xxxxxxx X. XxXxxxxx
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Name: Xxxxxxx
X. XxXxxxxx
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Title: President
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LENDER:
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XXXXX
FARGO FINANCIAL PREFERRED CAPITAL, INC.
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By:
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/s/
Xxxxx X. Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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Title: Senior
Vice-President
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