EXHIBIT 10.31.2
AMENDMENT NUMBER FIVE
to the
Amended and Restated Master Loan and Security Agreement
dated as of March 27, 2000
Among
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.,
HANOVER CAPITAL PARTNERS, LTD.
and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
This AMENDMENT NUMBER FIVE (this "Amendment") is made this
28th day of March, 2002, among HANOVER CAPITAL MORTGAGE HOLDINGS, INC., HANOVER
CAPITAL PARTNERS, LTD. (each, a "Borrower" and collectively, the "Borrowers")
and GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. (the "Lender") to the MASTER LOAN
AND SECURITY AGREEMENT, dated as of March 27, 2000, between the Lender and the
Borrowers, as amended (the "Loan Agreement").
RECITALS
WHEREAS, the Borrowers have requested that the Lender agree to
amend the Loan Agreement to extend the Termination Date thereunder and the
Borrowers and the Lender have agreed to make such additional modifications to
the Loan Agreement as more expressly set forth below.
WHEREAS, as of the date of this Amendment, the Borrowers
represent to the Lender that they are in compliance with all of the
representations and warranties and all of the affirmative and negative covenants
set forth in the Loan Agreement and are not in default under the Loan Agreement.
WHEREAS, in order to induce the Lender to enter into this
Amendment Number Five the Borrowers have agreed to pay the Lender a facility fee
in an amount equal to $150,000.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. Effective as of March 28, 2002, the definition of
"Business Day" in Section 1 of the Loan Agreement is hereby amended to read in
its entirety as follows:
"Business Day" shall mean any day other than (i) a Saturday or
Sunday, (ii) a day on which the New York Stock Exchange, the
Federal Reserve Bank of New York, the Custodian or banking and
savings and loan institutions in the State of New York or
Connecticut or the City of New York or the city or state in
which the Custodian's offices are located are closed, or (iii)
a day on which trading in securities on the New York Stock
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Exchange or any other major securities exchange in the United
States is not conducted.
SECTION 2. Effective as of March 28, 2002, the definition of
"Termination Date" in Section 1 of the Loan Agreement is hereby amended to read
in its entirety as follows:
"Termination Date" shall mean March 27, 2003 or such earlier
date on which this Loan Agreement shall terminate in
accordance with the provisions hereof or by operation of law.
SECTION 3. Effective as of March 28, 2002, Section 2 of the
Loan Agreement is hereby amended by deleting Section 2.10 in its entirety and
inserting in its place "2.10 [Intentionally Omitted]."
SECTION 4. Effective as of March 28, 2002, Section 3.05 of the
Loan Agreement is hereby amended to read in its entirety as follows:
3.05 Non-usage Fee. The Borrowers agree to pay to the Lender,
on June 30, 2002, September 30, 2002, December 30, 2002 and
March 27, 2003, in addition to any other fees then payable, a
non-usage fee equal to (a) 12.5 basis points (0.125%)
multiplied by (b)(i) the number of days from and including
March 28, 2002 or the previous payment date of such Non-usage
Fee up to but not including the related payment date of such
Non-usage Fee or the Termination Date, as applicable, during
which the unused portion of the Maximum Committed Amount
exceeded $5,000,000, divided by (ii) 360, multiplied by (c)
the average daily amount of the entire unused portion of the
Maximum Committed Amount for the applicable days on which the
unused portion of the Maximum Committed Amount exceeded
$5,000,000, such payment to be made in Dollars, in immediately
available funds, without deduction, set-off, or counterclaim.
The Lender may, in its sole discretion, net such Non-usage Fee
from the proceeds of any Advance made to a Borrower hereunder.
SECTION 5. Effective as of March 28, 2002, Section 3.06 of the
Loan Agreement is hereby amended to read in its entirety as follows:
3.06 Facility Fee. On March 28, 2002, the Borrowers shall pay
to the Lender a facility fee in connection with the extension
of the Termination Date hereunder, equal to $150,000. Such
facility fee shall not be subject to offset or credit against
any underwriting fees earned by the Lender at any time. The
extension of the Termination Date to March 27, 2003 shall
become effective upon receipt by the Lender of such facility
fee.
SECTION 6. Effective as of March 28, 2002, Section 5.02(j) of
the Loan Agreement is hereby amended to read in its entirety as follows:
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(j) No Material Adverse Effect or Other Event. There
shall not have occurred:
(i) one or more events that, in the reasonable
judgment of the Lender, constitutes or
should reasonably be expected to constitute
a Material Adverse Effect; or
(ii) an event or events resulting in the inability of the
Lender to finance any Advances with traditional
counterparties at rates which would have been
reasonable prior to the occurrence of such event or
events or a material adverse change in the financial
condition of the Lender which affects (or can
reasonably be expected to affect) materially and
adversely the ability of the Lender to fund its
obligations under or otherwise comply with the terms
of this Loan Agreement; or
(iii) any other event beyond the control of the Lender
which the Lender reasonably determines may result in
the Lender's inability to perform its obligations
under this Loan Agreement including, without
limitation, acts of God, strikes, lockouts, riots,
acts of war or terrorism, epidemics, nationalization,
expropriation, currency restrictions, fire,
communication line failures, computer viruses, power
failures, earthquakes, or other disasters of a
similar nature to the foregoing.
SECTION 7. Effective as of March 28, 2002, Section 7 of the
Loan Agreement is hereby amended by adding the following new Section 7.27 to
read in its entirety as follows:
7.27 Certificate of a Responsible Officer of the
Borrowers. Not later than the last Business Day of each month,
each Borrower shall forward to the Lender (to the attention of
the Credit Department) a certificate of a Responsible Officer
of such Borrower which demonstrates that such Borrower is in
compliance with the covenants set forth in Section 7.09 of
this Loan Agreement.
SECTION 8. Effective as of March 28, 2002, Section 11.17 of
the Loan Agreement is hereby amended to read in its entirety as follows:
"11.17 Set-Off. In addition to any rights and remedies of the
Lender provided by this Loan Agreement and by law, the Lender
shall have the
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right, without prior notice to the Borrowers, any such notice
being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and
payable by the Borrowers hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all property
and deposits (general or special, time or demand, provisional
or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Lender or any
Affiliate thereof to or for the credit or the account of
either Borrower. The Lender may set-off cash, the proceeds of
the liquidation of any Collateral and all other sums or
obligations owed by the Lender or its Affiliates to either
Borrower against all of either Borrowers' obligations to the
Lender or its Affiliates, whether under this Loan Agreement or
under any other agreement between the parties or between
either Borrower and any Affiliate of the Lender, or otherwise,
whether or not such obligations are then due, without
prejudice to the Lender's or its Affiliate's right to recover
any deficiency. The Lender agrees promptly to notify the
related Borrower after any such set-off and application made
by the Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and
application."
SECTION 9. Fees and Expenses. The Borrower agrees to pay to
the Lender all fees and out of pocket expenses incurred by the Lender in
connection with this Amendment (including all reasonable fees and out of pocket
costs and expenses of the Lender's legal counsel incurred in connection with
this Amendment Number Five), in accordance with Section 11.03 of the Loan
Agreement
SECTION 10. Facility Fee. In order to induce the Lender to
enter into this Amendment Number Five, the Borrowers hereby agree to pay to the
Lender, in addition to any other amounts required pursuant to the Agreement, a
facility fee equal to $150,000 to be paid to the Lender upon execution of this
Amendment Number Five. Such facility fee shall be paid in dollars, in
immediately available funds, in accordance with the Lender's instructions. This
Amendment Number Five shall be effective upon the Lender's receipt of such
facility fee.
SECTION 11. Defined Terms. Any terms capitalized but not
otherwise defined herein shall have the respective meanings set forth in the
Loan Agreement.
SECTION 12. Representations. In order to induce the Lender to
execute and deliver this Amendment Number Five, the Borrowers hereby represent
to the Lender that as of the date hereof, after giving effect to this Amendment
Number Five, the Borrowers are in full compliance with all of the terms and
conditions of the Loan Agreement and no Default or Event of Default has occurred
under the Loan Agreement.
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SECTION 13. Limited Effect. Except as expressly amended and
modified by this Amendment Number Five, the Loan Agreement shall continue in
full force and effect in accordance with its terms. Reference to this Amendment
Number Five need not be made in the Loan Agreement or any other instrument or
document executed in connection therewith, or in any certificate, letter or
communication issued or made pursuant to, or with respect to, the Loan
Agreement, any reference in any of such items to the Loan Agreement being
sufficient to refer to the Loan Agreement as amended hereby.
SECTION 14. GOVERNING LAW. THIS AMENDMENT NUMBER FIVE SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS DOCTRINE APPLIED
IN SUCH STATE (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
SECTION 15. Counterparts. This Amendment Number Five may be
executed by each of the parties hereto on any number of separate counterparts,
each of which shall be an original and all of which taken together shall
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Borrowers and the Lender have caused
this Amendment Number Five to be executed and delivered by their duly authorized
officers as of the day and year first above written.
HANOVER CAPITAL MORTGAGE
HOLDINGS, INC.
BORROWER
By: _______________________________
Name: _____________________________
Title:_____________________________
HANOVER CAPITAL PARTNERS, LTD.
BORROWER
By: _______________________________
Name: _____________________________
Title:_____________________________
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.,
LENDER
By: _______________________________
Name: _____________________________
Title:_____________________________
