THIRD AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT

Exhibit 10.15

EXECUTION VERSION

THIRD AMENDMENT TO WAREHOUSING
CREDIT AND SECURITY AGREEMENT

THIS THIRD AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT (this “Amendment”) is made as of April 12, 2013, by and among XXXXXX & DUNLOP, LLC (the “Borrower”), BANK OF AMERICA, N.A., as credit agent (the “Credit Agent”), and the lenders party hereto (the “Lenders”).

R E C I T A L S

The Borrower, the Credit Agent, and the Lenders are parties to, among other documents, instruments, and agreements, that certain Warehousing Credit and Security Agreement dated as of September 4, 2012 (as amended, supplemented, or otherwise modified to the date hereof, the “Loan Agreement”).

Capitalized terms used in this Amendment without definition have the meanings specified therefor in the Loan Agreement.

The Borrower, the Credit Agent and the Lenders desire to amend the Loan Agreement on and subject to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the agreements of the parties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

1. Amendments. Effective on the Effective Date (as hereafter defined), the Loan Agreement is hereby amended as follows:

(a) Section 3.10 is hereby deleted in its entirety and replaced with the following:

“3.10 Continuing Authority of Authorized Representatives

Credit Agent is authorized to rely upon the continuing authority of the Persons hereafter designated by Borrower (“Authorized Representatives”) to bind Borrower with respect to (a) all matters pertaining to the Loan and the Loan Documents, including, but not limited to, the submission of requests for Warehousing Advances, and certificates with regard thereto, instructions with regard to the Operating Account and, to the extent permitted under this Agreement, the Collateral, and matters pertaining to the procedures and documentation for Warehousing Advances (any such Person so designated, a “Fully Authorized Representative”), or (b) such limited matters pertaining to the Loan as may be specified in writing by Borrower to Credit Agent. The identities and/or authorizations of the Authorized Representatives may be changed only upon written notice to

Credit Agent given by a Fully Authorized Representative, which notice shall be effective not sooner than five (5) Business Days following receipt thereof by Credit Agent. The Authorized Representatives, and their respective levels of authorization if any such Person is not a Fully Authorized Representative, as of the Closing Date are listed on Exhibit D. Credit Agent shall have a right of approval, not to be unreasonably withheld or delayed, over the identity of the Fully Authorized Representatives so as to assure Credit Agent that each Fully Authorized Representative is a responsible and senior employee of the Borrower. Upon any change in the identities or authorizations of any Authorized Representative made from time to time in accordance with this Section, Exhibit D shall be deemed to have been amended, without further action or documentation. Credit Agent may, and at Borrower’s or any Lender’s request shall, from time to time create an updated Exhibit D reflecting the then Authorized Representatives, which Credit Agent shall furnish to Borrower and all Lenders.”

(b) Section 13.1 is hereby amended as follows:

(i) The definition of “Applicable Margin” is hereby deleted in its entirety and replaced with the following:

“Applicable Margin” means 1.65%.

(ii) The definition of “BBA LIBOR Daily Floating Rate” is hereby amended by (x) deleting the words”(“BBA LIBOR”)” where appearing in the second line thereof, and (y) adding the following text immediately after the words “British Bankers Association LIBOR Rate” where appearing in the second line thereof:

“or the successor thereto if the British Bankers Association is no longer making a LIBOR rate available (in either case, for the purposes of this definition, “BBA LIBOR”)”.

(iii) The following new definitions are hereby added in the proper alphabetical order:

“Change in Law” means the occurrence of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-

Xxxxx Xxxx Xxxxxx Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code.

“Fully Authorized Representative” has the meaning set forth in Section 3.10.

“Governmental Authority” means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

(i) References to changes in any law, rule, regulation or the like, regardless of the phrasing or terminology utilized, shall include any Change in Law as such term is defined in the definition thereof added by this Amendment.

(ii) References to any governmental agency, authority, or the like, regardless of the phrasing or terminology utilized, shall include any Governmental Authority as such term is defined in the definition thereof added by this Amendment.

(iii) References to any requirements of law, applicable law, or the like, regardless of the phrasing or terminology utilized, shall include FATCA as such term is defined in the definition thereof added by this Amendment.

(d) Attached hereto as Exhibit D is an updated Exhibit D to the Loan Agreement, reflecting all Authorized Representatives as of the Effective Date, which shall be subject to further modification from time to time as provided in Section 3.10 of the Loan Agreement as amended by this Amendment.

2. Acknowledgments by Borrower. The Borrower acknowledges, confirms and agrees that:

(a) This Amendment is a Loan Document. From and after the Effective Date, all references to the Loan Agreement in any Loan Document shall be to the Loan Agreement as amended by this Amendment and as it from time to time hereafter may be amended, supplemented, restated, or otherwise modified.

(b) Except as provided herein, the terms and conditions of the Loan Agreement and the other Loan Documents remain in full force and effect, and the Borrower hereby (x) ratifies, confirms and reaffirms all and singular of the terms and conditions of the Loan Agreement and the other Loan Documents, and (y) represents and warrants that:

(i) No Default or Event of Default exists as of the date the Borrower executes this Amendment, nor will a Default or Event of Default exist as of the Effective Date.

(ii) The representations and warranties made by the Borrower in the Loan Agreement and the other Loan Documents are true and correct as of the date hereof, and will be true and correct as of the Effective Date, except as to (A) matters which speak to a specific date, and (B) changes in the ordinary course to the extent permitted and contemplated by the Loan Agreement.

(iii) The Borrower has the power and authority and legal right to execute, deliver and perform this Amendment, has taken all necessary action to authorize the execution, delivery, and performance of this Amendment, and the person executing and delivering this Amendment on behalf of the Borrower is and will be duly authorized to do so.

(iv) This Amendment has been duly executed and delivered by the Borrower, and constitutes the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the effect of applicable bankruptcy and other similar laws affecting the rights of creditors generally and the effect of equitable principles whether applied in an action at law or a suit in equity.

(c) The Borrower shall promptly pay upon receipt of an invoice or statement therefor the reasonable attorneys’ fees and expenses and disbursements incurred by the

Credit Agent and the Lenders in connection with this Amendment and any prior matters involving the Loan.

(d) The Borrower does not have any offsets, defenses, claims, counterclaims or causes of action of any kind or nature against the Credit Agent or any Lender with respect to any of its liabilities and obligations to the Credit Agent or any Lender, and, in any event, the Borrower specifically waives, releases, and forever relinquishes all claims, demands, obligations, liabilities, and causes of action of whatever kind or nature, whether known or unknown, which it has or may have, from the beginning of the world to both the date hereof and the Effective Date, against the Credit Agent, or any Lender or their respective current or former Affiliates, officers, directors, employees, agents, attorneys, independent contractors, and predecessors, together with their successors and assigns, directly or indirectly arising out of or based upon any matter related to the Loan, the Obligations, the Loan Agreement, any other Loan Documents, or the administration thereof.

3. Conditions Precedent. This Amendment shall be effective upon the satisfaction by the Borrower of, or written waiver by the Credit Agent and the Lenders of, the following conditions, and any other conditions set forth in this Amendment, by no later than 4:00 p.m. (Boston time) on the date of this Amendment, as such time and date may be extended in writing by the Credit Agent and the Lenders, in their sole discretion (with the date, if at all, by which such conditions have been satisfied or waived being referred to herein as, the “Effective Date”), failing which this Amendment and all related documents shall be null and void at the option of the Credit Agent and the Lenders:

(a) Delivery by the Borrower to the Credit Agent and each Lender of the following:

(i) This Amendment, duly executed by the Borrower, the Credit Agent and each Lender.

(ii) Such certificates of resolutions or other actions, incumbency certificates and/or other certificates of an authorized officer of the Borrower as the Credit Agent may require evidencing (A) the authority of the Borrower to enter into this Amendment and any other documents to be executed and delivered in connection herewith, and (B) the identity, authority and capacity of each officer of the Borrower authorized to act on its behalf in connection with this Amendment and the other Loan Documents.

(iii) Such other documents as the Credit Agent or any Lender reasonably may require, duly executed and delivered.

(b) No Default or Event of Default shall have occurred and be continuing, or will be caused by or result from the Borrower’s execution and delivery of this

Amendment and the documents, instruments, and agreements related hereto, or the performance by the Borrower of its obligations thereunder.

(c) The representations and warranties of the Borrower contained in this Amendment or in any document, instrument, or agreement delivered or to be delivered in connection with this Amendment (i) shall have been true and correct in all material respects on the date that such representations and warranties were made (except for those which expressly relate to an earlier date, which shall be true and correct as of such earlier date), and (ii) shall be true and correct in all material respects on the Effective Date as if made on and as of such date (except for those which expressly relate to an earlier date, which shall be true and correct as of such earlier date).

(d) In addition to all other expense payment and reimbursement obligations of the Borrower under the Loan Agreement and other Loan Documents, the Borrower will, promptly following the receipt of an appropriate invoice therefor, pay or reimburse the Credit Agent and each Lender for all of their respective reasonable out of pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses and disbursements) incurred in connection with the preparation of this Amendment and any other documents in connection herewith and the matters addressed in and contemplated by, this Amendment.

4. Miscellaneous.

(a) This Amendment shall be governed in accordance with the internal laws of the Commonwealth of Massachusetts (without regard to conflict of laws principles) as an instrument under seal.

(b) This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument. Signatures transmitted electronically (including by fax or e-mail) shall have the same legal effect as originals, but each party nevertheless shall deliver originally signed counterparts of this Amendment to each other party, upon request.

(c) This Amendment constitutes the complete agreement among the Borrower, the Credit Agent, and the Lenders with respect to the subject matter of this Amendment and supersedes all prior agreements and understanding relating to the subject matter of this Amendment, and may not be modified, altered, or amended except in accordance with the Loan Agreement.

(d) Time is of the essence with respect to all aspects of this Amendment.

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Executed as a sealed instrument as of the date first above written.

	XXXXXX & DUNLOP, LLC

	By:	/s/ Xxxxxxx X. Xxxxxxxx
	Name:	Xxxxxxx X. Xxxxxxxx
	Title:	EVP, CFO & Treasurer


	BANK OF AMERICA, N.A., as Credit Agent and a Lender

	By:	/s/ Xxxx X. Xxxxxxxxxx
	Name:	Xxxx X. Xxxxxxxxxx
	Title:	Senior Vice President


	TD BANK, N.A., as a Lender

	By:	/s/ Xxxxxxx X. Xxx
	Name:	Xxxxxxx X. Xxx
	Title:	Vice President

EXHIBIT D

Authorized Representatives

A. Fully Authorized Representatives

Xxxxxx Xxxxxx

Xxxxx Xxxxxx

Xxxxxxx Xxxxx

Xxxx Xxxxxxxxxx

Xxxxxxxx Xxxxxxxx-Xxxxx

Xxxx Xxx

Xxxxxxxx Xxxxxxxxx

Xxxxxxx Xxxxxx

Xxxxx XxXxxxx

Xxxxxxx Xxxxx

Xxx Xxxxxxxxx

Xxxxxxx X. Xxxxxxxx

Xxxxx Xxxxxxx

Xxxxxxx X. Xxxxxx

B. Authorized Representatives with limited authority (as marked below)

(Check all that apply)

Typed Name

Note
Endorsements

Assignments
of Mortgages

Requests for
Advance

Trust Receipts

Shipping
Requests

Preliminary
Notices

Sources &
Uses
Statements

Xxxxxxxxx Xxxxxxx

Xxxxx Xxxxx

Xxx Xxxxxx

Xxxxxx Xxxxx

Xxxxx Xxxxxx

Xxxxx Xxxxx

Xxxxx Xxxxxx

Xxxxx Xxxxxxxx

Xxxxxxx Xxxx

Xxx Xxxxxx

Xxxxx Xxxxxx

Xxxxx XxXxxxx

Xxxx Xxxxx

Xxxxxxx Blessed

Xxxxxxx Xxxxx

Xxxx Xxxxxxxx

Xxxxxx Xxxxxxxx

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THIRD AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT

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