FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
Exhibit 10.1
Execution Version
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”), is made and entered
into as of February 16, 2010, by and among XXXXXX INVESTMENT MANAGEMENT CORP., a Maryland
corporation (the “Borrower”), the several banks and other financial institutions from time to time
party hereto (collectively, the “Lenders”) and SUNTRUST BANK, in its capacity as Administrative
Agent for the Lenders (the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to a certain
Revolving Credit Agreement, dated as of April 20, 2009 (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit Agreement), pursuant
to which the Lenders have made certain financial accommodations available to the Borrower;
WHEREAS, the Borrower has requested that the Lenders and the Administrative Agent amend
certain provisions of the Credit Agreement, and subject to the terms and conditions hereof, the
Lenders are willing to do so;
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of
which are acknowledged, the Borrower, the Lenders and the Administrative Agent agree as follows:
1. Amendments.
(a) Section 1.1 of the Credit Agreement is hereby amended by (i) adding the following
definitions of “Historical Account” and “Permitted Acquisition” in the appropriate alphabetical
order and (ii) by replacing the definitions of Delinquent Account”, “Portfolio Delinquency Ratio”
and “Portfolio Loss Ratio” in their entirety with the following definitions:
“Delinquent Account” shall mean a Historical Account as to which any
payment, or part thereof, remains unpaid for more than thirty days (30) from the
original Due Date for such payment, excluding (i) those Historical Accounts owed by
an Mortgage Obligor in a bankruptcy proceeding that is making payments on the
Account in contractual compliance with the mortgage payment plan approved by the
bankruptcy court and (ii) Historical Accounts that have been foreclosed
“Historical Account” shall mean an Account owed by an Mortgage Obligor
existing on April 17, 2009.
“Permitted Acquisition” shall mean any acquisition by any Loan Party of
the Capital Stock, all or substantially all of the assets or a division or business
unit of any Person, whether through purchase, merger, or other business
combination or transaction so long as the following conditions are satisfied in
connection therewith: (i) before and after giving effect to such Acquisition, no
Default or Event of Default has occurred and is continuing or would result
therefrom, all representations and warranties of each Loan Party set forth in the
Loan Documents shall be and remain true and correct in all material respects and the
Borrower is in compliance on a Pro Forma Basis with each of the
covenants set forth in Article VI (recomputed as of the day of the most recently ended Fiscal Quarter
(for which financial statements are required to have been delivered) as if such
Acquisition has occurred of the first day of each relevant period for testing
compliance), (ii) the board of directors (or equivalent thereof) of the Person whose
assets or stock is being acquired has approved the Acquisition and (iii) the Person
or assets being acquired is in the same line of business as the Borrower and its
Subsidiaries or any business reasonably related thereto.
“Portfolio Delinquency Ratio” shall mean, as of any date, the average
delinquency ratio (expressed as a percentage) of the Delinquent Accounts of the
Borrower and its Subsidiaries compared to the average balance of Historical Accounts
for the Borrower and its Subsidiaries, in each case measured for the Fiscal Quarter
ending on or immediately prior to such date, as reported in a manner consistent with
past practice as of the Closing Date.
“Portfolio Loss Ratio” shall mean, as of any date, the ratio (expressed
as a percentage) of (i) the sum of the realized losses for Historical Accounts to
(ii) the average balance sheet Historical Account balance before allowances, in each
case measured for the four consecutive Fiscal Quarters ending on or immediately
prior to such date.
(b) Section 7.4 of the Credit Agreement is hereby amended by (i) deleting the “and” at the
end of clause (e), (ii) relettering clause (f) to clause (g) and (iii) adding the following clause
(f) to such Section:
(f) acquisitions of residential real estate assets and Permitted Acquisitions
and redemptions or repurchases of Indebtedness issued by any WMC Trust so long as
the aggregate purchase price (excluding any purchase price financed with
Indebtedness permitted to be incurred hereunder) does not exceed $77,000,000; and
2. Conditions to Effectiveness of this Amendment. Notwithstanding any other provision
of this Amendment and without affecting in any manner the rights of the Lenders hereunder, it is
understood and agreed that this Amendment shall not become effective, and the Borrower shall have
no rights under this Amendment, until the Administrative Agent shall have received (i)
reimbursement or payment of its costs and expenses incurred in connection with this Amendment or
the Credit Agreement (including reasonable fees, charges and disbursements of King & Spalding LLP,
counsel to the Administrative Agent), and (ii) executed counterparts to this Amendment from the
Borrower, each of the Subsidiary Loan Parties and the Lenders.
3. Representations and Warranties. To induce the Lenders and the Administrative Agent
to enter into this Amendment, the Borrower hereby represents and warrants to the Lenders and the
Administrative Agent:
(a) The Borrower and each of its Subsidiaries (i) is duly organized, validly existing and in
good standing as a corporation, partnership or limited liability company under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to carry on its
business as now conducted, and (iii) is duly qualified to do business, and is in good standing, in
each jurisdiction where such qualification is required, except where a failure to be so qualified
could not reasonably be expected to result in a Material Adverse Effect;
(b) The execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party are within such Loan Party’s organizational powers and have been duly
authorized by all necessary organizational, and if required, shareholder, partner or member,
action;
(c) The execution, delivery and performance by the Borrower of this Agreement, and by each
Loan Party of the other Loan Documents to which it is a party (i) do not require any consent or
approval of, registration or filing with, or any action by, any Governmental Authority, except
those as have been obtained or made and are in full force and effect, (ii) will not violate any
Requirements of Law applicable to the Borrower or any of its Subsidiaries or any judgment, order or
ruling of any Governmental Authority, (iii) will not violate or result in a default under any
indenture, agreement or other instrument binding on the Borrower or any of its Subsidiaries or any
of its assets or give rise to a right thereunder to require any payment to be made by the Borrower
or any of its Subsidiaries and (iv) will not result in the creation or imposition of any Lien on
any asset of the Borrower or any of its Subsidiaries;
(d) This Amendment has been duly executed and delivered for the benefit of or on behalf of
each Loan Party and constitutes a valid and binding obligation of each Loan Party, enforceable
against such Loan Party in accordance with its terms except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of equity; and
(e) After giving effect to this Amendment, the representations and warranties contained in the
Credit Agreement and the other Loan Documents are true and correct in all material respects, and no
Default or Event of Default has occurred and is continuing as of the date hereof.
4. Reaffirmation of Subsidiary Guaranty Agreement. Each Subsidiary Loan Party
consents to the execution and delivery by the Borrower of this Amendment and jointly and severally
ratify and confirm the terms of the Subsidiary Guaranty Agreement with respect to the indebtedness
now or hereafter outstanding under the Credit Agreement as amended hereby and all promissory notes
issued thereunder. Each Subsidiary Loan Party acknowledges that, notwithstanding anything to the
contrary contained herein or in any other document evidencing any indebtedness of the Borrower to
the Lenders or any other obligation of the Borrower, or any actions now or hereafter taken by the
Lenders with respect to any obligation of the Borrower, the Subsidiary Guaranty Agreement (i) is
and shall continue to be a primary obligation of the Subsidiary Loan Parties, (ii) is and shall
continue to be an absolute, unconditional, joint and several, continuing and irrevocable guaranty
of payment, and (iii) is and shall continue to be in full force and effect in accordance with its
terms. Nothing contained herein to the contrary shall release, discharge, modify, change or affect
the original liability of the Subsidiary Loan Parties under the Subsidiary Guaranty Agreement.
5. Effect of Amendment. Except as set forth expressly herein, all terms of the Credit
Agreement, as amended hereby, and the other Loan Documents shall be and remain in full force and
effect and shall constitute the legal, valid, binding and enforceable obligations of the Borrower
to the Lenders and the Administrative Agent. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power
or remedy of the Lenders under the Credit Agreement, nor constitute a waiver of any provision of
the Credit Agreement. This Amendment shall constitute a Loan Document for all purposes of the
Credit Agreement.
6. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of New York and all applicable federal laws of the United
States of America.
7. No Novation. This Amendment is not intended by the parties to be, and shall not be
construed to be, a novation of the Credit Agreement or an accord and satisfaction in regard
thereto.
8. Costs and Expenses. The Borrower agrees to pay on demand all costs and expenses of
the Administrative Agent in connection with the preparation, execution and delivery of this
Amendment, including, without limitation, the reasonable fees and out-of-pocket expenses of outside
counsel for the Administrative Agent with respect thereto.
9. Counterparts. This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts, each of which shall be deemed an original and all of which,
taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be
as effective as delivery of a manually executed counterpart hereof.
10. Binding Nature. This Amendment shall be binding upon and inure to the benefit of
the parties hereto, their respective successors, successors-in-titles, and assigns.
11. Entire Understanding. This Amendment sets forth the entire understanding of the
parties with respect to the matters set forth herein, and shall supersede any prior negotiations or
agreements, whether written or oral, with respect thereto.
[Signature Pages To Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, under
seal in the case of the Borrower and the Subsidiary Loan Parties, by their respective authorized
officers as of the day and year first above written.
| BORROWER: XXXXXX INVESTMENT MANAGEMENT CORP. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| SUBSIDIARY LOAN PARTIES: BEST INSURORS, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| HANOVER CAPITAL PARTNERS 2, LTD. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| HANOVER CAPITAL SECURITIES, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| XXXXXX MORTGAGE COMPANY, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
[FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT]
| LENDERS: SUNTRUST BANK, individually and as Administrative Agent |
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| By: | ||||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Managing Director | |||
| REGIONS BANK |
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| By: | ||||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
[FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT]
