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EXHIBIT 10.17
10TH AMENDMENT TO RESTATED LOAN AND SECURITY AGREEMENT
(And Waiver)
THIS DOCUMENT is entered into as of June 30, 1995, between LOMAS
MORTGAGE USA, INC., a Connecticut corporation (the "COMPANY"), the banks listed
on the signature pages below ("LENDERS"), BANK ONE, TEXAS, N.A., as
Administrative Agent (in that capacity "ADMINISTRATIVE AGENT"), and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, as Syndication Agent (together with
Administrative Agent, "AGENTS").
The Company, Lenders, and Agents have entered into the Restated Loan
and Security Agreement (as amended through the date of this amendment and as
further renewed, extended, amended, and restated, the "LOAN AGREEMENT") dated
as of July 8, 1993, providing for revolving loans to the Company. The Company
has notified Agents and Lenders that it is not in compliance with the financial
covenants in SECTIONS 7.2(A), 7.2(C), and 7.4 of the Loan Agreement as of May
31, 1995 (the "SUBJECT DEFAULTS"). The Company has requested that Lenders
waive the Subject Defaults, which Lenders have agreed to do subject to and upon
the terms and conditions of this document. To induce Lenders to waive the
Subject Defaults, the Company has agreed to those terms and conditions.
Accordingly, for adequate and sufficient consideration, the parties agree as
follows:
1. CERTAIN DEFINITIONS. Unless otherwise specified in this
document (a) all terms defined in the Loan Agreement have the same meanings
when used in this document and (b) all references to "Sections" are references
to the Loan Agreement's sections.
2. AMENDMENTS. Effective as of the dates indicated:
(a) Effective as of the date of this document, the
following term in SECTION 1.1 is entirely amended as follows:
"OBLIGATIONS" mean all present and future
indebtedness, obligations, and liabilities of the Company to
Agents or to Lenders or to both, and all renewals and
extensions thereof or any part thereof, arising pursuant to
this agreement, any other Loan Paper, the Servicing Facility,
or any "LOAN PAPER" under the Servicing Facility, and all
interest accrued thereon, and reasonable attorneys' fees and
other costs incurred in the drafting, negotiation,
enforcement, or collection thereof, or any amendment, waiver,
restructuring, or any matter related thereto, regardless of
whether such indebtedness, obligations, and liabilities are
direct, indirect, fixed, contingent, joint, several or joint
and several.
(b) Effective as of June 22, 1995, the following terms in
SECTION 1.1 are entirely amended as follows:
"COVERED RATE" means a 2.50% annual interest rate.
"DEFAULT RATE" means for any day, an annual rate of
interest equal from day to day to the lesser of EITHER (a) the
Base Rate plus 5.25% OR (b) the Maximum Rate.
"FEDERAL-FUNDS RATE" means, for any day, the annual
interest rate equal to the SUM of (a) 2.50% PLUS (b) an annual
interest rate (rounded upwards, if necessary, to the nearest
0.01%) determined by Administrative Agent to be equal to
EITHER (i) the
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weighted average of the rates on overnight federal-funds
transactions with members of the Federal Reserve System
arranged by federal-funds brokers for that day (or, if not a
Business Day, for the preceding Business Day) as set forth in
the Federal Reserve Statistical Release published by the Board
of Governors of the Federal Reserve System applicable for that
day, OR (ii) if not so published for any Business Day, the
average quotations for that day on those transactions received
by Administrative Agent from three federal-funds brokers of
recognized standing selected by it.
"SWING BORROWING," "SWING COMMITMENT," "SWING NOTES,"
and "SWING PERCENTAGE" are entirely deleted.
"TERMINATION DATE" means, for the purposes of:
(a) Lenders' Commitments or any other
agreements or obligations to extend credit under the
Loan Papers, the earlier of EITHER (i) July 31, 1995,
OR (b) the date that all Lenders' Commitments and any
other agreements or obligations to extend credit
under the Loan Papers terminate or are cancelled
under this agreement; and
(b) The final maturity of the Ratable
Notes, September 30, 1995.
"WET SUBLIMIT", at any time, means 5% of the total
Commitments as of June 23, 1995, and 0% of the total
Commitments as of June 28, 1995.
(c) Effective as of June 22, 1995 (i) Administrative
Agent has terminated its commitment to extend Swing Borrowings, (ii)
the Principal Debt of all Swing Borrowings, and interest on that
Principal Debt, is immediately due and payable, (iii) all references
in the Loan Agreement to Swing Borrowings, Swing Commitments, Swing
Notes, and Swing Percentage are deleted, and (iv) SECTION 2.2(C) is
entirely amended as follows:
(c) [INTENTIONALLY BLANK].
(d) Effective as of the date of this document, SECTION
7.2 is entirely amended as follows:
7.2 Leverage Ratios. Directly or indirectly
create, incur, or suffer to exist:
(a) Any Debt if, after giving effect
thereto and to any simultaneous retirement of other Debt, the
Company's consolidated Debt (OTHER THAN Excepted Debt) would
exceed EITHER 270% of the Company's Consolidated Net Worth OR,
after the Company adopts Financial Accounting Standards Board
Statement Nos. 121 and 122 (if ever), 420% of the Company's
Consolidated Net Worth;
(b) [INTENTIONALLY BLANK]; or
(c) [INTENTIONALLY BLANK].
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(e) Effective as of the date of this document, SECTION
7.3(B)(I) is entirely amended as follows:
(i) $3,800,000 as reduced by the outstanding
principal of any advances or loans (at any date of
determination) by the Company or any of its Subsidiaries to
Lomas Financial Corporation permitted under SECTION 7.8(E),
(f) Effective as of the date of this document, SECTION
7.4 is entirely amended as follows:
7.4 Consolidated Net Worth. Permit its
Consolidated Net Worth to be less than the greater of EITHER
(i) the amount required by FHA, FHLMC, FNMA, VA, and GNMA at
any and all times for maintaining the Company's status as an
approved mortgagee, seller/servicer, or issuer, OR (ii) EITHER
$140,000,000 OR, after the Company adopts Financial Accounting
Standards Board Statement Nos. 121 and 122 (if ever),
$85,000,000.
(g) Effective as of the date of this document, SECTION
7.8(E) is entirely amended as follows:
(e) While no Potential Default or Default exists,
loans or advances to Lomas Financial Corporation by the
Company or any of its Subsidiaries that never exceed a total
of $3,800,000 principal and that were loaned or advanced
before May 31, 1995 -- as that amount is reduced by any
dividends made to Lomas Financial Corporation on or after
December 31, 1994;
(h) Effective as of the date of this document, SECTIONS
8.1(H) and (I) are entirely amended as follows:
(h) Either the Company or Lomas Financial
Corporation or both shall (i) execute an assignment for the
benefit of creditors; or (ii) become or be adjudicated
bankrupt or insolvent; or (iii) admit in writing its
respective inability to pay its respective debts generally as
they become due; or (iv) apply for or consent to the
appointment of a conservator, receiver, trustee, or liquidator
of it or of all or a substantial part of its respective
Property; or (v) file a voluntary petition seeking
reorganization or an arrangement with creditors or to take
advantage or seek any relief under any bankruptcy, insolvency,
or other similar Law; or (vi) file an answer admitting the
material allegations of, or consenting to, or default in, a
petition filed against it in any proceedings under any
bankruptcy, insolvency, or other similar Law; or (vii)
institute, or voluntarily be or become a party to, any other
judicial proceedings intended to effect a discharge of its
respective Debts, obligations, liabilities, or indebtedness,
in whole or in part, or a postponement of the maturity or the
collection thereof, or a suspension of any of the rights of
the Lenders granted in the Loan Papers.
(i) If (A) an order, judgment, or decree shall be
entered by any Tribunal approving a petition seeking
reorganization of either the Company or Lomas Financial
Corporation or both or appointing a conservator, receiver,
trustee, or liquidator for either the Company or Lomas
Financial Corporation or both or all or any substantial part
of its respective Property, or (B) a petition is filed against
the Company or Lomas Financial Corporation or both seeking
reorganization, an arrangement with creditors,
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or any other relief under any bankruptcy, insolvency, or other
similar Law and such petition is not discharged within 60 days
after the filing thereof.
(i) Effective as of the date of this document, Sections
8.2(A), (B) and (C) are entirely amended as follows:
(a) Upon the occurrence of a Default described in
SECTIONS 8.1(H) or (I) in respect of the Company (but not
Lomas Financial Corporation), the Lenders' Commitments to lend
under this agreement shall be terminated and the outstanding
Principal Debt, and the accrued and unpaid interest thereon,
and the other Obligations shall automatically become due and
payable, without presentment, demand, protest, notice of
protest, notice of protest and nonpayment, notice of
acceleration or of intent to accelerate, or other notice of
any kind, all of which are expressly waived by the Company.
(b) Upon the occurrence of a Default -- EXCLUDING
those described in SECTIONS 8.1(H) and (I) as they relate to
the Company but INCLUDING those described in those two
sections as they relate to Lomas Financial Corporation -- and
regardless of whether any other Lender has, or other Lenders
have, waived such Default as to itself, any Lender may
terminate its Commitment to lend under this agreement and
reduce any claim in respect of its Note to judgment.
(c) Upon the occurrence of a Default -- EXCLUDING
those described in SECTIONS 8.1(H) and (I) as they relate to
the Company but INCLUDING those described in those two
sections as they relate to Lomas Financial Corporation --
Agents shall, upon the direction of the Determining Lenders,
declare the Principal Debt, and the accrued and unpaid
interest thereon, plus all other Obligations of the Company to
Agents and the Lenders, or any part thereof, to be immediately
due and payable, whereupon they shall be due and payable, and
the commitments of Lenders to lend under this agreement shall
be automatically terminated.
3. WAIVER. Upon the Company's request and effective as of May
31, 1995, Lenders waive the Subject Defaults for the period ending May 31,
1995, and the ensuing period through the date of this document, which waiver is
not a waiver of any other existing or future Defaults or Potential Defaults or
of either Agent's or any Lender's rights to otherwise insist upon compliance by
the Company with each Loan Paper.
4. CONDITIONS PRECEDENT. The foregoing amendments and waiver are
not effective unless and until the following conditions precedent are
satisfied:
(a) Administrative Agent receives counterparts of this
document executed by the Company, both Agents, and every Lender.
(b) Payment to Agent of all Principal Debt of Swing
Borrowings and interest accrued thereon that are outstanding, if any,
as of the date of this document.
(c) The 14th Amendment to Servicing Payments Loan and
Security Agreement dated the date of this document, between the
Company, Agents, and Lenders in respect of the Servicing Facility is
fully executed and delivered by those parties and all of the
conditions precedent to its effectiveness have been satisfied.
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(d) All of the representations and warranties in this
document and each of the other Loan Papers are true and correct as of
-- as if made on -- the date of this document.
(e) The Company pays to Administrative Agent for the
account of each Lender -- in respect of this document and the document
referred to in CLAUSE (B) above -- a $15,000 amendment and waiver fee
for each Lender.
(f) Payment to or on behalf of each Agent and every
Lender all of the fees and expenses required to be paid by the Company
under PARAGRAPH 7 below and which have been invoiced to the Company
and remain unpaid as of the date of this document.
5. RATIFICATIONS. This document modifies and supersedes all
inconsistent terms and provisions of the other Loan Papers. Except as
expressly modified and superseded by this document, the terms and provisions of
the other Loan Papers are ratified and confirmed and continue in full force and
effect. The Company, all Lenders, and Agents agree that the Loan Papers, as
amended by this document, continue to be legal, valid, binding, and enforceable
in accordance with their respective terms. The Company ratifies and confirms
that all Liens granted to Agents, on behalf of Lenders, were intended to, do,
and continue to secure the full payment and performance of the Obligations, as
that term is amended in this document. The Company shall perform such acts and
duly authorize, execute, acknowledge, deliver, file, and record such additional
documents as either Agent or any Lender may reasonably request in order to
perfect and protect such Liens and preserve and protect the rights of Agents
and Lenders in respect of all present and future Collateral.
6. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to Lenders and Agents that (a) this document and the other Loan Papers
to be delivered under this document have been duly authorized, executed, and
delivered by the Company, (b) no action of, or filing with, any Tribunal is
required to authorize, or is otherwise required in connection with, the
execution, delivery, and performance by the Company of this document and those
other Loan Papers (c) this document and those other Loan Papers are valid and
binding upon the Company and are enforceable against the Company in accordance
with their respective terms, except as limited by the Bankruptcy Code of the
United States of America and all other similar Laws affecting the rights of
creditors generally, (d) the execution, delivery, and performance by the
Company of this document and those other Loan Papers do not require the consent
of any other Person and do not and will not constitute a violation of any Laws,
agreement, or understanding to which the Company is a party or by which the
Company is bound, (e) the representations and warranties in the Loan Agreement,
as amended by this document, and each other Loan Paper are true and correct in
all material respects on and as of the date of this document as though made as
of the date of this document, and (f) as of the date of this document, no
Default or Potential Default (other than the Subject Defaults that are waived
by this document) exists.
7. EXPENSES. The Company shall pay (a) all reasonable legal fees
and expenses incurred by either or both Agents and by every Lender in
connection with the Subject Defaults, any consultation in respect of the
Subject Defaults and the rights of Agents and Lenders in connection with the
Subject Defaults, and the preparation, negotiation, execution of this document
and the other Loan Papers, (b) all reasonable legal fees incurred by Agents and
Lenders in connection with any amendments, consents, waivers, or approvals
executed in connection with this Loan Agreement and other Loan Papers, (c) all
fees, charges or taxes for the recording or filing of financing statements and
other security instruments, (d) all other reasonable out-of-pocket expenses of
Agents and Lenders in connection with the preparation, negotiation, execution
of this document and the other Loan Papers, including courier expenses incurred
in connection with the Mortgage Collateral, and (e) all amounts expended,
advanced or incurred by Agents or any Lender to satisfy any obligation of the
Company
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under this document or any of the other Loan Papers or to collect Notes, or to
enforce the rights of Agents or any Lender under this document or any of the
other Loan Papers, which amounts shall include all court costs, attorneys' fees
(including, without limitation, for trial, appeal, other proceedings, and
otherwise in connection with the administration of this document), fees of
auditors and accountants, and investigation expenses reasonably incurred by
Agents and Lenders in connection with any such matters. To the extent that
either Agent or any Lender pays all or any part of the items specified in
CLAUSES (A) through (E) above, such payments, together with interest thereon at
the post-maturity rate specified in the Note of that Agent or that Lender, as
applicable, shall be included in the Obligations. In addition, the Company
agrees to pay any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this document, the
Notes and the other Loan Papers, and agrees to save Agents and each Lender
harmless from and against any and all liabilities with respect to or resulting
from any delay in paying or omission to pay such taxes.
8. RELEASE. To the fullest extent lawful, the Company gives this
release to induce Lenders to enter into this document. THE COMPANY RELEASES,
RELINQUISHES, AND FOREVER DISCHARGES -- AND FOREVER WAIVES AND RELEASES AND
RIGHT OR POWER TO BRING ANY CLAIM OR CAUSE OF ACTION IN RESPECT OF -- EVERY
PRESENT AND FUTURE KNOWN AND UNKNOWN CLAIM, DEMAND, ACTION, AND CAUSE OF ACTION
OF ANY KIND OR CHARACTER THAT THE COMPANY MAY HAVE AGAINST EITHER AGENT, ANY
LENDER, OR THEIR RESPECTIVE SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS,
EMPLOYEES, ATTORNEYS, AGENTS, OR REPRESENTATIVES IN ANY WAY RELATED TO ANY
TRANSACTION THAT HAS ANY CONNECTION WITH ANY LOAN PAPER AND THAT OCCURRED
BEFORE THE DATE OF THIS DOCUMENT. THE FOREGOING RELEASE APPLIES, WITHOUT
LIMITATION, TO ANY ACTIONS OR OMISSIONS, BREACH OF FIDUCIARY DUTY, BREACH OF
ANY DUTY OF FAIR DEALING, BREACH OF CONFIDENCE, BREACH OF FUNDING COMMITMENT,
UNDUE INFLUENCE, DURESS, ECONOMIC COERCION, CONFLICT OF INTEREST, NEGLIGENCE,
BAD FAITH, MALPRACTICE, VIOLATIONS OF THE RACKETEER INFLUENCED AND CORRUPT
ORGANIZATIONS ACT, INTENTIONAL OR NEGLIGENT INFLICTION OF MENTAL DISTRESS,
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS OR WITH CORPORATE GOVERNANCE
OR PROSPECTIVE BUSINESS ADVANTAGE, BREACH OF CONTRACT, DECEPTIVE TRADE
PRACTICES, LIBEL, SLANDER, CONSPIRACY, OR CHARGING, COLLECTING, OR RECEIVING
USURIOUS INTEREST.
9. REFERENCES. All references in the Loan Papers to the "Loan
Agreement" refer to the Loan Agreement as amended by this document. Because
this document is a "Loan Paper" referred to in the Loan Agreement, then the
provisions relating to Loan Papers in SECTIONS 1 and 10 are incorporated in
this document by reference, the same as if included in this document verbatim.
10. COUNTERPARTS. This document may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document, and all of those counterparts must be construed together to
constitute one and the same document.
11. PARTIES BOUND. This document binds and inures to the Company,
Agents, each Lender, and (subject to SECTION 10.10) their respective successors
and assigns.
12. ENTIRETY. THIS DOCUMENT, THE LOAN AGREEMENT AS AMENDED BY IT,
AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES FOR
THE TRANSACTIONS THEREIN, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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EXECUTED on June 30, 1995, but effective as provided in this document.
1600 Viceroy Dr., 4th Floor LOMAS MORTGAGE USA, INC., as the Company
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx,
Executive Vice President
By /s/ XXXX X. XXXXXXXX
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Telecopy: 214/879-7018 Xxxx X. Xxxxxxxx, Senior Vice President
Mortgage Finance Group BANK ONE, TEXAS, N.A.,
1717 Xxxx Xxxxxx, 0xx Xxxxx as Administrative Agent and a Lender
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx,
Vice President
Telecopy: 214/290-2275 By /s/ XXXXXXXX X. XXXXXXX
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Xxxxxxxx X. Xxxxxxx, Vice President
000 Xxxxxx Xxxxxx - 0-XXX-X00 XXXXX COMMERCE BANK NATIONAL
Xxxxxxx, Xxxxx 00000 ASSOCIATION, as Syndication Agent and a Lender
Attn: Xxxxxxxx X. Xxxxxx,
Vice President
Telecopy: 713/216-2082 By /s/ XXXXXXXX X. XXXXXX
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Xxxxxxxx X. Xxxxxx, Vice President
First Bank Place, 2nd Floor MPFP0801 FIRST BANK NATIONAL ASSOCIATION,
000 Xxxxxx Xxxxxx Xxxxx as a Lender
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxx,
Vice President
Telecopy: 612/973-0826
By /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Vice President
0000 Xxxxxxx Xxxxxx GUARANTY FEDERAL BANK, F.S.B.,
Xxxxxx, Xxxxx 00000 as a Lender
Attn: Xxxxx X. Xxxxxxx,
Vice President
Telecopy: 214/360-1660
By /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx, Vice President
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