AMENDMENT NO. 3 TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT
NO. 3
TO
AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
This
AMENDMENT NO. 3 TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(“Amendment No. 3”) is dated as of July 11, 2007 by and among XXXXXXX
XXXXX FINANCIAL, INC., a Florida corporation (the “Borrower”), the
Lenders named on the signature page hereto (the “Lenders”), and JPMORGAN
CHASE BANK, N.A., individually and as administrative agent (the “Agent”)
for the Lenders.
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W
I
T N E S S E T H:
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WHEREAS,
the Borrower, the Agent and the Lenders are parties to that certain Amended
and
Restated Revolving Credit Agreement dated as of October 13, 2005, as amended
by
(i) Amendment No. 1 and Waiver to Amended and Restated Revolving Credit
Agreement dated as of October 11, 2006 and (ii) Amendment No. 2 and Waiver
to
Amended and Restated Revolving Credit Agreement dated as of April 16, 2007
(the
“CreditAgreement”); and
WHEREAS,
the parties desire to undertake a further amendment to the Credit Agreement
as
set forth herein.
NOW,
THEREFORE, in consideration of the premises herein contained, and for other
good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby agree as follows:
I.
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Defined
Terms
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Capitalized
terms used but not defined herein are used with the meanings assigned to them
in
the Credit Agreement.
II.
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Amendment
to the Credit Agreement
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Subsection
(c) of Section 6.14 of the Credit Agreement entitled “Investments and
Acquisitions” is hereby amended in its entirety to read as follows:
“(c)(i)
Publicly traded securities, (ii) direct or indirect proprietary private
Investments (including venture capital, merchant banking and leveraged aircraft
lease Investments) not exceeding $100,000,000 in aggregate amount at any time
invested or outstanding, and (iii) bridge loans of a tenor of six months or
less
not exceeding $200,000,000 in aggregate principal amount at any time outstanding
relating to investment banking financing activities;”
III.
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Borrower
Representations
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In
order
to induce the Lenders and the Agent to execute and deliver this Amendment No.
3,
the Borrower represents and warrants to the Lenders that, both before and after
giving effect to this Amendment No. 3, (i) there exists no Default or Unmatured
Default on the date hereof; (ii) each of the representations and warranties
contained in Article V of the Credit Agreement is true and correct on the date
hereof; (iii) the execution and delivery by the Borrower of this Amendment
No. 3
have been duly authorized by all requisite corporate proceedings; (iv) this
Amendment No. 3 and the other Loan Documents to which the Borrower is a party
constitute the legal, valid and binding obligations of the Borrower enforceable
in accordance with their respective terms; (v) no authorization or approval
of,
and no notice to or filing with, any Governmental Authority or other Person
is
required for the due execution, delivery or performance of this Amendment No.
3
by the Borrower; and (vi) no material adverse change in the business, Property,
condition (financial or otherwise) or results of operations of the Borrower
and
its Subsidiaries taken as a whole has occurred since September 30,
2006.
IV.
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Effectiveness
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This
Amendment No. 3 shall become effective as of the date first above written upon
fulfillment of the following conditions (and when notice thereof shall have
been
given by the Agent to the Borrower and the Lenders):
(i) the
Agent
shall have received counterparts of this Amendment No. 3 duly executed by the
Borrower and the Lenders; and
(ii) all
accrued fees and expenses of the Agent (including the accrued fees and expenses
of counsel to the Agent invoiced on or prior to the date hereof) shall have
been
paid by the Borrower.
V.
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Ratification
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Except
as
specifically provided herein, (a) the Credit Agreement shall otherwise remain
unaltered and in full force and effect, and the respective terms, conditions
and
covenants thereof are hereby ratified and confirmed in all respects as
originally executed, and (b) this Amendment No. 3 shall not operate as a waiver
of any right, power or remedy of any Lender or the Agent under any of the Loan
Documents. Upon the effectiveness of this Amendment No. 3, each
reference in the Credit Agreement to “this Agreement”, “hereof”, “herein”,
“hereunder” or words of like import shall mean and be a reference to the Credit
Agreement as amended hereby.
VI.
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Governing
Law
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THIS
AMENDMENT NO. 3 SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
VII.
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Execution
in Counterparts
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This
Amendment No. 3 may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
[signature
pages follow]
IN
WITNESS WHEREOF, the Borrower, the
Lenders and the Agents have executed this Amendment No. 3 as of the date first
above written.
XXXXXXX
XXXXX FINANCIAL, INC.
By:
/s/ Xxxxxxx X. Xxxxxx
Title:
Senior Vice President and CFO
Address
for Notices:
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000
Xxxxxxxx Xxxxxxx
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Xx.
Xxxxxxxxxx, Xxxxxxx 00000
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Attention:
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Xxxxxxx
X. Xxxxxx
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Commitment: JPMORGAN
CHASE BANK, N.A.,
$40,000,000 Individually
and as Administrative Agent
By:
/s/ Xxxxxx X. Poz
Title:
Vice President
Address
for General Notices:
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Financial
Institutions-Broker-Dealer Group
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000
Xxxx Xxxxxx
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00xx
Xxxxx
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Xxx
Xxxx, XX 00000
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Attention:
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Xxxxxx
X. Poz
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Address
for Funding Matters:
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Loan
and Agency Services
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0000
Xxxxxx, 00xx
Xxxxx
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Xxxxxxx,
XX 00000
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Attention:
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Xxxxxx
Xxxxxx
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Commitment: CITIBANK,
N.A.,
$40,000,000 Individually
and as Syndication Agent
By:
/s/ Xxxxxxx Xxxxxxxxxx
Title:
Managing Director
Address
for Notices:
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000
Xxxxxxxxx Xxxxxx
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0xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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Xxxxxxx
Xxxxxxxxxx
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Commitment: THE
BANK OF NEW YORK,
$40,000,000 Individually
and as Co-Documentation Agent
By:
/s/ Xxxx Xxxxxxxxx
Title:
Vice President
Address
for Notices:
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Xxx
Xxxx Xxxxxx
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00xx
Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Attention:
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Xxxx
Xxxxxxxxx
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Commitment: XXXXX
FARGO BANK, NATIONAL
$40,000,000 ASSOCIATION,
Individually
and as Co-Documentation
Agent
By:
/s/ Xxxxxxxxx X. Xxxxxxx
Title:
Vice President
Address
for Notices:
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Xxxxx
Fargo Center
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Sixth
and Marquette
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Xxxxxxxxxxx,
XX 00000
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Attention:
Financial Institutions Division
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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Commitment: CALYON
NEW YORK BRANCH,
$40,000,000 Individually
and as Co-Documentation Agent
By:
/s/ Xxxxxxxxx Xxxxx
Title:
Managing Director
By:
/s/ Xxxxxx X. Xxxxxxx
Title:
Managing Director
Address
for Notices:
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0000
Xxxxxx xx xxx Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Attention:
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Xxxx
Xxxxxx
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Telephone:
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(000)
000-0000
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Facsimile:
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(000)
000-0000
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