EXHIBIT 10.21
SECOND AMENDMENT TO LOAN AND
SECURITY AGREEMENT
This Second Amendment to Loan and
Security Agreement (“Amendment”) is dated as of
March 16, 2007 by C&F Finance Company
(“Borrower”) and Wells Fargo Financial Preferred
Capital, Inc. (“Lender”).
BACKGROUND
A. Borrower
and Lender are parties to a certain Loan and Security Agreement
dated as of August 1, 2005 (as may hereafter be amended or
modified from time to time, the “Loan Agreement”) and
related agreements, instruments and documents (collectively, with
the Loan Agreement, the “Existing Loan Documents”).
Capitalized terms used but not otherwise defined in this Amendment
shall have the meanings respectively ascribed to them in the Loan
Agreement.
B. Borrower
has requested that Lender amend the Loan Agreement in certain
respects, all on the terms and conditions set forth
herein.
NOW, THEREFORE, the parties hereto,
intending to be legally bound, hereby promise and agree as
follows:
1. Waiver
of Existing Event of Default. Upon the
effectiveness of this Amendment, Lender shall be deemed to have
waived the Existing Default (as defined therein) caused by
Borrower’s failure to comply with Section 6.4(d) of the
Loan Agreement for the calendar month ending December 31, 2006
(“Existing Default”), provided that Lender’s
waiver thereof shall not be deemed to be a waiver of any subsequent
violations of any of the covenants contained in the Loan Agreement
or a waiver of any other Default or Event of Default which may have
occurred but is not specifically referred to herein.
2.
Amendment. The Loan Agreement is
hereby amended in the following manner:
a.
Financial Covenants.
Section 6.4(d) of the Loan Agreement
is amended and restated in its entirety as follows:
(d)
Senior Debt to Capital Base. At all
times, a ratio of Senior Debt to Capital Base of not more than 4.25
to 1.0.
3. Legal
and Filing Fees. Borrower agrees to pay
immediately upon demand therefor all legal fees and out-of-pocket
expenses of Lender related to this Amendment, including the
preparation, negotiation, documentation, execution, filing and
delivery thereof.
4.
Effectiveness Conditions. This
Amendment shall be effective upon the completion of the following
conditions precedent (all agreements, documents and instruments to
be in form and substance satisfactory to Lender and Lender’s
counsel):
a. Execution
and delivery by Borrower to Lender of this Amendment;
and
b. Execution
and/or delivery of all other agreements, instruments and documents
requested by Lender to effectuate and implement the terms hereof
and the Existing Loan Documents.
5.
Representations and Warranties.
Borrower represents and warrants to Lender
that:
a. All
warranties and representations made to Lender under the Loan
Agreement and the Existing Loan Documents are true and correct as
to the date hereof.
b. The
execution and delivery by Borrower of this Amendment and the
performance by Borrower of the transactions herein contemplated:
(i) are and will be within such party’s powers,
(ii) have been authorized by all necessary organizational
action, and (iii) are not and will not be in contravention of
any o
