FIRST AMENDMENT TO INTERCREDITOR AND SUBORDINATION AGREEMENT
Exhibit
99.8
FIRST
AMENDMENT TO
This
FIRST AMENDMENT TO INTERCREDITOR AND SUBORDINATION AGREEMENT (this "Amendment") is made
and entered into effective as of June 13, 2008 (the "Effective Date")
between Xxxxx Fargo Foothill, Inc., a California corporation, as agent for the
Senior Lenders (“Senior Agent”) and
Newcastle Partners, L.P., a Texas limited partnership ("Subordinated
Creditor").
R E C I T A L
S:
A. The
parties entered into an Intercreditor and Subordination Agreement (the “Agreement”) dated as
of March 12, 2007.
B. Subordinated
Creditor has requested that the Agreement be amended in certain respects, and
Senior Agent is willing to comply with such request subject to the terms and
provisions of this Amendment.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE
1
DEFINITIONS
Section
1.1 Terms
Defined. Unless otherwise defined in this Amendment, each
capitalized term used in this Amendment has the meaning given to such term in
the Agreement (as amended by this Amendment).
ARTICLE
2
AMENDMENTS
Section
2.1 Amendments. Effective as of the
Effective Date:
(a) The
definition of “Subordinated Creditor Agreements” appearing in Section 1 of the
Agreement shall be amended by replacing the words “the Note (as defined in the
Subordinated Creditor Agreements)” with the words “the Newcastle
Note”.
(b) Section 2(a) of the
Agreement shall be amended by replacing the words “the Note (as defined in the
Subordinated Creditor Agreements)” with the words “the Newcastle
Note”.
(c) A
new Section 30
shall be added to the Agreement as follows:
“30. Buyout. Notwithstanding
anything to the contrary set forth in this Agreement and without prejudice to
the enforcement of the Senior Creditor Remedies, Subordinated Creditor, for
itself, and Senior Agent, on behalf of itself and the Senior Lenders, agree
that:
(a) Subordinated
Creditor shall have the right, by giving written notice (a “Committed Buy-Out
Notice”) to the Senior Agent, for the benefit of Senior Agent and the
Senior Lenders, to acquire on the date that is 5 Business Days after the date of
Senior Agent’s receipt of such Committed Buy-Out Notice, from Senior Agent and
the Senior Lenders all (but not less than all) of the right, title and interest
of Senior Agent and the Senior Lenders in and to the Senior Creditor
Indebtedness and the Loan Documents; and
(b) upon
the receipt by the Senior Agent of the Committed Buy-Out Notice, Subordinated
Creditor irrevocably shall be committed to acquire, within 5 Business Days
following such receipt (the “Purchase Date”), from
the Senior Agent and the Senior Lenders all (but not less than all) of the
right, title, and interest of Senior Agent and the Senior Lenders in and to the
Senior Creditor Indebtedness and the Loan Documents by paying to the Senior
Agent, for the benefit of Senior Agent and the Senior Lenders, in cash a
purchase price (the “Purchase Price”)
equal to (subject to this Agreement) the sum of:
(i) 100%
of the outstanding balance with respect to the Advances, including, without
limitation, principal, interest accrued and unpaid thereon, and any unpaid fees
and premiums (including, without limitation, any prepayment premiums), to the
extent earned or due and payable in accordance with the Senior Creditor
Agreements (it being understood that any prepayment premiums would be earned and
due and payable on the Purchase Date),
(ii) any
un-reimbursed obligations in respect of Letters of Credit owing to Senior Agent
and the Senior Lenders (which may be satisfied by providing cash collateral for
the reimbursement obligations in respect of undrawn Letters of Credit in an
amount equal to 105% thereof),
(iii) any
un-reimbursed obligations in respect of Bank Product Obligations owing to the
Bank Product Provider (which may be satisfied by providing cash collateral for
such Bank Product Obligations in an amount equal to the Bank Product Reserve
established in respect thereof in accordance with the Senior Creditor
Agreements), and
(iv) all
expenses to the extent earned or due and payable in accordance with the Senior
Creditor Agreements (including the reimbursement of extraordinary expenses,
attorneys fees, financial examination expenses and appraisal fees);
whereupon
Senior Agent and the Senior Lenders shall assign to Subordinated Creditor,
without any representation, recourse, or warranty whatsoever, their right,
title, and interest with respect to the Senior Creditor Indebtedness and the
Loan Documents.”
ARTICLE
3
MISCELLANEOUS
Section
3.1 Governing
Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLIED TO CONTRACTS TO BE
PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
Section
3.2 Counterparts. This
Amendment may be executed in any number of counterparts, all of which when taken
together shall constitute one agreement, and any of the parties hereto may
execute this Amendment by signing any such counterpart. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.
Section
3.3 Agreement remains in
Effect. Except as expressly provided herein, all terms and
provisions of the Agreement shall remain unchanged and in full force and effect
and are hereby ratified and confirmed.
Section
3.4 Severability. Any
provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
Section
3.5 Successors and
Assigns. This Amendment is binding upon and shall inure to the
benefit of Senior Agent, Senior Lenders and Subordinated Creditor and their
respective successors and assigns.
Section
3.6 Headings. The
headings, captions and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered by their duly authorized officers effective as of the date first above
written.
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XXXXX
FARGO FOOTHILL, INC.,
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a
California corporation, as Senior Agent
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By:
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/s/ Xxxxxx Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Vice
President
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NEWCASTLE
PARTNERS, L.P.,
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a
Texas limited partnership, as Subordinated Creditor
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By:
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/s/ Xxxx Xxxxx
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Name:
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Xxxx
Xxxxx
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Title:
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General
Counsel of Newcastle Capital Management, Co.,
its
General Partner
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