AMENDMENT NO. 2 AND WAIVER TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT
NO. 2 AND WAIVER
TO
AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT
This
AMENDMENT NO. 2 AND WAIVER TO AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(“Amendment
No. 2”)
is
dated as of April 16, 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.
W
I T N E
S S E T H:
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
Amendment No. 1 and Waiver to Amended and Restated Revolving Credit Agreement
dated as of October 11, 2006 (the “Credit Agreement”);
and
WHEREAS,
the parties desire to undertake a further amendment and waiver 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. |
Defined
Terms
|
Capitalized
terms used but not defined herein are used with the meanings assigned to them
in
the Credit Agreement.
II. |
Amendment
to the Credit
Agreement
|
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 and (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;”
III. |
Waiver
|
Because
Xxxxxxx Xxxxx Tax Credit Funds, Inc. (“RJTCF”) expects to fund and carry an
unusually large volume of projects during the six-month period from April 1,
2007 to September 30, 2007 pending final approval and equity take-out by one
of
its major clients, the Borrower has requested that the permitted dollar limit
for guarantees or loans by the Borrower with respect to the activities of RJTCF
or any of its Subsidiaries during this period be increased from $100,000,000
to
$125,000,000 for purposes of Sections 6.11(j) and 6.15(d) of the Credit
Agreement. The Lenders hereby consent to such request and agree to waive any
Default or Unmatured Default during the period from April 1, 2007 through the
Facility Termination Date by virtue of such guarantees or loans by the Borrower
to RJTCF or its Subsidiaries exceeding $100,000,000, so long as such guarantees
or loans do not exceed $125,000,000 in aggregate amount outstanding during
such
period. This waiver is limited to its terms and shall not constitute a waiver
of
any other term, condition, representation or covenant under the Credit Agreement
or any other Loan Document.
IV. |
Borrower
Representations
|
In
order
to induce the Lenders and the Agent to execute and deliver this Amendment No.
2,
the Borrower represents and warrants to the Lenders that, both before and after
giving effect to this Amendment No. 2, (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. 2
have been duly authorized by all requisite corporate proceedings; (iv) this
Amendment No. 2 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.
2
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.
V. |
Effectiveness
|
This
Amendment No. 2 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. 2 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.
VI. |
Ratification
|
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) except for the limited waiver set forth in Article
III above, this Amendment No. 2 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. 2, 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.
VII. |
Governing
Law
|
THIS
AMENDMENT NO. 2 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.
VIII. |
Execution
in Counterparts
|
This
Amendment No. 2 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. 2 as of the date first above written.
XXXXXXX
XXXXX FINANCIAL, INC.
By: /s/
Xxxxxxx X. Xxxxxx
Title: SVP
&
CFO
Address
for Notices:
000
Xxxxxxxx Xxxxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
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:
Financial
Institutions-Broker-Dealer Group
000
Xxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxxxx
X.
Poz
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Address
for Funding Matters:
Loan
and
Agency Services
0000
Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
XX 00000
Attention: Xxxxxx
Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment:
CITIBANK,
N.A.,
$40,000,000
Individually
and as Syndication Agent
By: /s/
Xxxxxxx
Xxxxxxxxxx
Title: Managing
Director
Address
for Notices:
000
Xxxxxxxxx Xxxxxx
0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
Xxxxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment:
THE
BANK
OF NEW YORK,
$40,000,000
Individually
and as Co-Documentation Agent
By:/s/
Xxxxxx
Xxxxx
Title: Managing
Director
Address
for Notices:
Xxx
Xxxx
Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxx
Xxxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment:
XXXXX
FARGO BANK, NATIONAL
$40,000,000
ASSOCIATION,
Individually
and as Co-Documentation Agent
By:
/s/
Xxxxxx
X.Xxxxxxxxx
Title:
Vice
President
Address
for Notices:
Xxxxx
Fargo Center
Sixth
and
Marquette
Xxxxxxxxxxx,
XX 00000
Attention:
Financial Institutions Division
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
Commitment:
CALYON
NEW YORK BRANCH,
$40,000,000
Individually
and as Co-Documentation Agent
By:
/s/
Xxxxxxxxx
Xxxxx
Title:
Managing
Director
By:/s/
Xxxxxx Xxx
Xxxxxxx
Title:
Managing
Director
Address
for Notices:
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention: Xxxx
Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000