Exhibit 10.22
jackson
hewitt tax service inc.
and
jackson
hewitt inc.
first
amendment to note purchase agreement
Dated as of January 7,
2005
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Re:
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Note Purchase Agreement dated as of June 21,
2004
and
$175,000,000 Floating Rate Senior Notes due June 25,
2009
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To each of the institutional
investors (the “Noteholders”)
Named in Schedule I attached
hereto
Ladies and Gentlemen:
Reference is made to the Note
Purchase Agreement dated as of June 21, 2004 (the “Note
Purchase Agreement”) by and among Jackson Hewitt Tax
Service Inc., a Delaware corporation (the
“Company”), Jackson Hewitt Inc., a Virginia
corporation (the “Issuer”), and each of the
institutional investors party thereto, under and pursuant to which,
among other things, the Issuer originally issued and sold its
Floating Rate Senior Notes due June 25, 2009 in an aggregate
principal amount of $175,000,000 (the “Notes”),
Terms used but not otherwise defined herein shall have the meanings
ascribed to such terms in the Note Purchase Agreement.
The Company and the Issuer hereby
jointly and severally agree with you in this First Amendment to
Note Purchase Agreement (this or the “First
Amendment”) as follows:
section
1.
amendment
to section 10.4 (restricted payments) op notepurchase
agreement .
Section 10.4 of the Note Purchase
Agreement shall be and is hereby amended by (A) deleting the
“and” at the end of clause (f) thereof and substituting
“,” in lieu thereof and (B) inserting the following at
the end of clause (g) thereof “and (h) the Company may
repurchase Capital Stock in the Company in an aggregate amount
during any fiscal year not to exceed the greater of (i) 500,000
shares of such Capital Stock of the Company and (ii) the number of
shares of Capital Stock of the Company issued upon the exercise of
stock options during such fiscal year.”
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Jackson Hewitt Tax Service Inc.
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First Amendment to
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Jackson Hewitt Inc,
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Note Purchase Agreement
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section
2.
representations and
warranties.
The Company and the Issuer hereby
jointly and severally represent and warrant that as of the date
hereof:
(a)
The execution and delivery of the
First Amendment by the Company and the Issuer and compliance by the
Company and the Issuer with all of the provisions of the Note
Purchase Agreement, as amended by the First Amendment
—
(i)
are within the corporate power and
authority of the Company and the Issuer, as the case may be;
and
(ii)
will not violate any provisions of
any law or any order of any court or governmental authority or
agency and will not conflict with or result in any breach of any of
the terms, conditions or provisions of, or constitute a default
under the articles or certification of incorporation or by-laws of
the Company and the Issuer, as the case may be, or any indenture or
other agreement or instrument to which the Company or the Issuer is
party or by which the Company or the Issuer may be bound or result
in the imposition of any Liens or encumbrances on any property of
the Company or the Issuer.
(b)
The execution and delivery of the
First Amendment has been duly authorized by all necessary corporate
action on the part of the Company and the Issuer (no action by the
stockholders of the Company or the Issuer being required by law, by
the articles or certificate of incorporation or by-laws of the
Company or the Issuer or otherwise, other than those actions which
have been obtained or effected); and the First Amendment has been
duly executed and delivered by the Company and the Issuer, as the
case may be, and the Note Purchase Agreement, as amended by the
First Amendment, constitutes the legal, valid and binding
obligation, contract and agreement of the Company and the Issuer
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
creditors’ rights generally, and general principles of equity
(regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
(c)
Upon the effectiveness of this First
Amendment and that certain First Amendment to Credit Agreement,
dated as of January 7, 2005 (the “Credit Agreement
Amendment”), in respect of the Bank Credit Agreement, no
Default or Event of Default exists or shall be continuing under the
Note Purchase Agreement.
(d)
Neither the Company or the Issuer
nor any Subsidiary has paid any fees or other consideration (other
than routine fees of counsel) to any other lender holding Debt of
the Company or the Issuer in connection with the execution and
delivery of any amendment or waiver pertaining or relating to the
subject matter of this First Amendment.
2
sections
3.
miscellaneous.
Section 3.1. Ratification of Note
Purchase Agreement. Except as herein expressly amended, the Note
Purchase Agreement is in all respects ratified and confirmed.
If and to the extent that any of the terms or provisions of
the Note Purchase Agreement is in conflict or inconsistent with any
of the terms or provisions of this First Amendment, this First
Amendment shall govern.
Section 3.2. References to Note
Purchase Agreement. References in the Note Purchase Agreement
or in any Note, certificate, instrument or other document related
to or delivered in connection with the transactions contemplated by
the Note Purchase Agreement shall be deemed to be references to the
Note Purchase Agreement as amended hereby and as further amended
from time to time.
Section 3.3. Successors and
Assigns. This First
Amendment shall be binding upon the Company and the Issuer and
their respective successors and assigns and shall inure to the
benefit of each Noteholder and such Noteholder’s successors
and assigns, including each successive holder or holders of any
Notes.
Section 3.4. Requisite Approval;
Expenses. This First
Amendment shall be effective as of the date first written above
upon the satisfaction of the following conditi
