FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement is made this 21st
day of April, 1997, by and between
The First National Bank of Boston, a national banking association with a
place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter "Bank") and
IMC Mortgage Company, a Florida corporation (the "Parent") and
Industry Mortgage Company, L.P., a Delaware limited partnership (the
"Borrower")
in consideration of the mutual covenants contained herein and the
benefits derived herefrom.
WITNESSETH
WHEREAS, the Bank, the Parent and the Borrower have entered into certain
loan arrangements which loan arrangements are evidenced by, among other
documents and instruments, a certain Loan and Security Agreement dated as of
December 31, 1996 (hereinafter, as same has been amended or modified from time
to time, the "Loan Agreement"); and
WHEREAS, the Parent and the Borrower have requested that the Bank agree
to increase the amount available to be borrowed as under the Loan Agreement and
otherwise modify various of the terms and conditions thereof; and
WHEREAS, the Bank, the Parent and the Borrower have agreed to amend the
Loan Agreement upon the terms and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Bank, the Parent and the
Borrower hereby agree as follows:
1. Definitions. All capitalized terms used herein and not otherwise
defined shall have the same meaning herein as in the Loan Agreement.
2. Amendment to Background. The first paragraph of the section captioned
"BACKGROUND" on page 1 of the Loan Agreement is hereby amended by deleting the
reference to "TWENTY-FIVE MILLION DOLLARS ($25,000,000.00)" contained therein
and replacing same with "FIFTY MILLION DOLLARS ($50,000,000.00)".
3. Amendments to Article I. The provisions of Article I of the Loan
Agreement are hereby amended as follows:
(a) The definition of "Bridge Loan Sublimit" is hereby
amended by deleting subsection (a) contained therein and
replacing same with the following:
"(a) Fifty Million Dollars ($50,000,000.00) or"
(b) The definition of Commitment is hereby amended by deleting
the reference to "Twenty-Five Million Dollars ($25,000,000.00)"
contained therein and replacing same with "Fifty Million Dollars
($50,000,000.00)"
4. Amendments to Article II. The provisions of Article II
of the Loan Agreement are hereby amended as follows:
(a) Section 2.01(a) of the Loan Agreement is hereby amended by
deleting the reference to "December 31, 1997" contained in the third
line thereof and replacing same with "April 15, 1998".
(b) Section 2.02(a) of the Loan Agreement is hereby amended by
deleting the reference to "December 31, 1997" contained in the third
line thereof and replacing same with "April 15, 1998".
(c) Section 2.03(a) of the Loan Agreement is hereby amended by
deleting the reference to "December 31, 1997" contained in the fourth
line thereof and replacing same with "April 15, 1998".
(d) Section 2.10 of the Loan Agreement is hereby deleted in its
entirety and shall be replaced by the following:
Section 2.10. Minimum Balance. The Obligors shall maintain
outstanding Loans with an average principal balance of at least
$37,500,000.00 (the "Minimum Balance"), to be tested annually by the
Bank on April 15 of each year. In the event the Obligors do not maintain
the Minimum Balance during any annual period, (a) the Obligors shall
thereafter maintain such average principal balances in excess of
$37,500,000.00 (the "Increased Balances") as may be necessary so as to
result in the Bank's realization of the yield which the Bank would have
achieved had the Minimum Balance been maintained throughout the term of
the Loans (after giving effect to any scheduled amortization of the
Loans), or (b) if the Obligors cannot maintain the Increased Balances
due solely to (i) the expiration of the borrowing periods set forth in
Sections 2.01(a), 2.02(a) and 2.03(a) hereof, or (ii) the Increased
Balances would result in the Commitment's or the applicable borrowing
base's being exceeded, then the Obligors shall pay the Bank a fee equal
to the present value of the yield not realized by the Bank. Such fee
shall
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be due and payable within five (5) days after presentation by the Bank
to the Obligors of a statement detailing the amount due.
5. Amendments to Article VIII. The provisions of Section 8.03 of the
Loan Agreement are hereby amended by deleting the first sentence thereof in its
entirety and replacing same with the following:
The Parent will not permit its Consolidated Net Worth at any time to be
less than the aggregate of (a) $82,700,000.00, plus (b) fifty (50%)
percent of the Parent's Consolidated Net Income for each fiscal quarter,
beginning with the fiscal quarter ending December 31, 1996, plus (c) the
net proceeds received by the Parent from the offering of equity or other
securities to be consummated by the Parent on or before April 30, 1997.
6. Amendments to Exhibits. The Exhibits to the Loan Agreement are hereby
amended as follows:
(a) Exhibit 2.01(e) to the Loan Agreement is hereby deleted in
its entirety and is replaced by a new Exhibit 2.01(e) in the form
annexed hereto.
(b) Exhibit 2.02(d) to the Loan Agreement is hereby deleted in
its entirety and is replaced by a new Exhibit 2.02(d) in the form
annexed hereto.
(c) The terms and provisions of Exhibit 2.05 to the Loan
Agreement are hereby modified and amended as follows:
(i) The Obligors and the Bank hereby acknowledge and
agree that the Obligors shall not have the option of requesting
Loans of any nature at the Federal Funds Rate or converting any
Loan to a Federal Funds Rate Loan. Any references to Federal
Funds Rate borrowing in Exhibit 2.05 or in any other section of
the Loan Agreement are hereby deemed inoperative.
(ii) The definition of "Libor Rate" is hereby amended by
deleting clause (ii) thereof and replacing same with the
following:
(ii) two and three quarters percent (2.75%).
(iii) Paragraph 3 of Exhibit 2.05 is hereby deleted in its
entirety and shall be replaced by the following:
Available Rates. All Loans shall, at the Borrower's option but
subject to the provisions of this Exhibit 2.05, bear interest at
either the (a) Libor Rate or (b) the Domestic Rate.
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(iv) The blank space in Paragraph 11 of Exhibit 2.05 is
hereby completed by inserting "ten" therein.
7. Conditions Precedent. This First Amendment shall not be effective
until each of the following conditions precedent have been fulfilled to the
satisfaction of the Bank:
(a) The Parent shall have received a minimum of Thirty Million
Dollars ($30,000,000.00) in net proceeds from the issuance of equity or
other securities, such net proceeds to be received on or before April
30, 1997.
(b) The Bank shall have received a certificate of the Secretary
of each Obligor attesting to all corporate actions taken by the
Obligors, including without limitation, resolutions of its board of
directors authorizing the execution, delivery and performance of the
Loan Documents (including this First Amendment).
(c) The Bank shall have received a favorable opinion of outside
counsel to the Obligors acceptable to the Bank as to such matters as the
Bank may reasonably request.
(d) The Bank shall have received an advisory fee of Three Hundred
and Seventy-Five Thousand Dollars ($375,000.00) from the Parent and the
Borrower.
(e) The Parent and the Borrower shall have paid all costs and
expenses incurred by the Bank in connection with the negotiation and
preparation of this First Amendment and all documents incidental thereto
(including, without limitation, reasonable attorneys' fees).
(f) The Parent and the Borrower shall have executed and delivered
such other documents and taken such other action as the Bank and its
counsel may have reasonably requested.
8. Miscellaneous. (a) Except as expressly amended hereby, the remaining
terms and conditions of the Loan Agreement and other Loan Documents shall remain
in full force and effect. This Amendment constitutes the entire agreement of the
parties with respect to the matters set forth herein and shall not be modified
by any prior oral or written discussions. This Amendment shall be executed as an
instrument under seal as the date first written above.
(b) The Borrower and the Parent acknowledge and agree they have no
claims, counterclaims, offsets, defenses and/or causes of action against the
Bank with respect to the amounts outstanding under the Loan Agreement or
otherwise; and to the extent such
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claims, counterclaims, offsets, defenses or cause of action should exist,
whether known or unknown, at law or in equity, the Borrower and the Parent
hereby WAIVE same and RELEASE the Bank from any and all liability in connection
therewith.
THE FIRST NATIONAL BANK OF
BOSTON
By:___________________________
Title: Vice President
IMC MORTGAGE COMPANY
By____________________________
Name: ________________________
Title:________________________
INDUSTRY MORTGAGE COMPANY, L.P.
BY ITS GENERAL PARTNER
INDUSTRY MORTGAGE CORPORATION
By____________________________
Name: ________________________
Title: _______________________
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CONFIRMATION OF GUARANTY
April 21, 1997
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
Gentlemen:
On December 31, 1996, Industry Mortage Company, L.P ("IMCLP") and IMC
Mortgage Company entered into certain loan arrangements with The First National
Bank of Boston. (the "Lender"), in accordance with the terms of a Loan and
Security Agreement of that date. The undersigned (the "Guarantor") has executed
and delivered an Unlimited Guaranty (the "Guaranty") of the Obligations (as
therein defined) of IMCLP to the Lender. IMCLP, the Guarantor and the Lender
desire to further modify and amend the terms of the Loan Agreement. However, the
Lender has indicated that it will not enter into such amendment unless, among
other things, the Guarantor executes and delivers this letter to the Lender.
Therefore, to induce the Lender to enter into an amendment to the Loan Agreement
with IMCLP, the Guarantor hereby warrants, represents, covenants, and agrees as
follows:
1. The Guarantor hereby ratifies and confirms its
obligations to the Lender under the Guaranty and
acknowledges that the "Obligations" guaranteed by the
Guarantor include, without limitation, all obligations
of IMCLP to the Lender under the Loan Agreement, as
amended by a First Amendment to Loan and Security
Agreement of even date, and as such hereinafter may be
modified, amended, supplemented or restated.
2. The Guarantor hereby acknowledges and agrees that it has no
offsets, defenses, or counterclaims against the Lender with
respect to its obligations under the Guaranty or otherwise, and
to the extent that the Guarantor has any such offsets, defenses,
or counterclaims, the Guarantor hereby waives and releases the
same.
3. The Guarantor further acknowledges that pursuant to the
terms of the Guaranty, the Guarantor previously
guaranteed the payment of all Obligations of IMCLP to
the Lender, that this acknowledgment is being executed
as a confirmation of the Guarantor's obligations to
Lender under the Guaranty and that the Guarantor shall
remain liable for all of the Obligations now existing or
hereafter arising, whether or not any similar
confirmation letter is executed in the future.
This letter is intended to take effect as a sealed instrument.
Very truly yours,
IMC MORTGAGE COMPANY
BY:________________________
TITLE:_____________________
2
CONFIRMATION OF GUARANTY
April 21, 1997
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
Gentlemen:
On December 31, 1996, Industry Mortage Company, L.P and IMC Mortgage
Company (each, a "Borrower" and collectively, the "Borrowers") entered into
certain loan arrangements with The First National Bank of Boston. (the
"Lender"), in accordance with the terms of a Loan and Security Agreement of that
date. The undersigned (the "Guarantor") has executed and delivered certain
Unlimited Guaranties (individually and collectively, the "Guaranty") of the
Obligations (as therein defined) of each of the Borrowers to the Lender. The
Borrowers and the Lender desire to further modify and amend the terms of the
Loan Agreement. However, the Lender has indicated that it will not enter into
such amendment unless, among other things, the Guarantor executes and delivers
this letter to the Lender. Therefore, to induce the Lender to enter into an
amendment to the Loan Agreement with the Borrowers, the Guarantor hereby
warrants, represents, covenants, and agrees as follows:
1. The Guarantor hereby ratifies and confirms its
obligations to the Lender under the Guaranty and
acknowledges that the "Obligations" guaranteed by the
Guarantor include, without limitation, all obligations
of each Borrower to the Lender under the Loan Agreement,
as amended by a First Amendment to Loan and Security
Agreement of even date, and as such hereinafter may be
modified, amended, supplemented or restated.
2. The Guarantor hereby acknowledges and agrees that it has no
offsets, defenses, or counterclaims against the Lender with
respect to its obligations under the Guaranty or otherwise, and
to the extent that the Guarantor has any such offsets, defenses,
or counterclaims, the Guarantor hereby waives and releases the
same.
3. The Guarantor further acknowledges that pursuant to the
terms of the Guaranty, the Guarantor previously
guaranteed the payment of all Obligations of each
Borrower to the Lender, that this acknowledgment is
being executed as a confirmation of the Guarantor's
obligations to Lender under the Guaranty and that the
Guarantor shall remain liable for all of the Obligations
now existing or hereafter arising, whether or not any
similar confirmation letter is executed in the future.
This letter is intended to take effect as a sealed instrument.
Very truly yours,
IMC CORPORATION OF AMERICA
BY:________________________
TITLE:_____________________
2
CONFIRMATION OF GUARANTY
April 21, 1997
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx
Gentlemen:
On December 31, 1996, Industry Mortage Company, L.P and IMC Mortgage
Company ("IMC") entered into certain loan arrangements with The First National
Bank of Boston. (the "Lender"), in accordance with the terms of a Loan and
Security Agreement of that date. The undersigned (the "Guarantor") has executed
and delivered an Unlimited Guaranty (the "Guaranty") of the Obligations (as
therein defined) of IMC to the Lender. IMC, the Guarantor and the Lender desire
to further modify and amend the terms of the Loan Agreement. However, the Lender
has indicated that it will not enter into such amendment unless, among other
things, the Guarantor executes and delivers this letter to the Lender.
Therefore, to induce the Lender to enter into an amendment to the Loan Agreement
with IMC, the Guarantor hereby warrants, represents, covenants, and agrees as
follows:
1. The Guarantor hereby ratifies and confirms its
obligations to the Lender under the Guaranty and
acknowledges that the "Obligations" guaranteed by the
Guarantor include, without limitation, all obligations
of IMC to the Lender under the Loan Agreement, as
amended by a First Amendment to Loan and Security
Agreement of even date, and as such hereinafter may be
modified, amended, supplemented or restated.
2. The Guarantor hereby acknowledges and agrees that it has no
offsets, defenses, or counterclaims against the Lender with
respect to its obligations under the Guaranty or otherwise, and
to the extent that the Guarantor has any such offsets, defenses,
or counterclaims, the Guarantor hereby waives and releases the
same.
3. The Guarantor further acknowledges that pursuant to the
terms of the Guaranty, the Guarantor previously
guaranteed the payment of all Obligations of IMC to the
Lender, that this acknowledgment is being executed as a
confirmation of the Guarantor's obligations to Lender
under the Guaranty and that the Guarantor shall remain
liable for all of the Obligations now existing or
hereafter arising, whether or not any similar
confirmation letter is executed in the future.
This letter is intended to take effect as a sealed instrument.
Very truly yours,
INDUSTRY MORTGAGE COMPANY, L.P.
BY:________________________
TITLE:_____________________
2
AMENDED AND RESTATED RESIDUAL NOTE
$50,000,000.00 April 21, 1997
FOR VALUE RECEIVED, the undersigned, Industry Mortgage Company, L.P., a
Delaware limited partnership ("Borrower"), HEREBY PROMISES TO PAY to the order
of The First National Bank of Boston (the "Bank"), by remittances to the Bank in
accordance with the Agreement (defined below), the principal amount of Fifty
Million Dollars ($50,000,000.00) in lawful money of the United States and in
immediately available funds, payable at the times, in the manner, and at the
interest rates specified in that Loan and Security Agreement dated as of
December 31, 1996 between, among others, the Borrower and the Bank, as amended,
and in effect from time to time (the "Agreement") and is subject in all respects
to the terms of the Agreement.
Terms used herein which are defined in the Agreement shall have their
defined meanings when used herein. The Agreement, among other things, contains
provisions for acceleration of the maturity of this Note upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity of this Note upon the terms and conditions specified in
the Agreement, reference to which is hereby made for a description of the
Collateral provided for therein and the rights of the Borrower and the Bank with
respect to such Collateral.
This Note shall be governed by the laws of the Commonwealth of
Massachusetts, provided that, as to the maximum rate of interest which may be
charged or collected, if the laws applicable to the Bank permit it to charge or
collect a higher rate than the laws of the Commonwealth of Massachusetts, then
such law applicable to the Bank shall apply to the Bank under this Note.
THIS AMENDED AND RESTATED RESIDUAL NOTE IS INTENDED TO AMEND AND REPLACE
THAT CERTAIN RESIDUAL NOTE DATED DECEMBER 31, 1996 MADE BY THE UNDERSIGNED IN
FAVOR OF THE BANK IN THE ORIGINAL PRINCIPAL AMOUNT OF $25,000,000.00.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed as a sealed instrument as of the day and year first above written.
Industry Mortgage Company, L.P.
By:______________________________
Title:
AMENDED AND RESTATED BRIDGE LOAN NOTE
$50,000,000.00 April 21, 1997
FOR VALUE RECEIVED, the undersigned, IMC Mortgage Company, a Delaware
corporation ("Borrower"), HEREBY PROMISES TO PAY to the order of The First
National Bank of Boston (the "Bank"), by remittances to the Bank in accordance
with the Agreement (defined below), the principal amount of Fifty Million
Dollars ($50,000,000.00) in lawful money of the United States and in immediately
available funds, payable at the times, in the manner, and at the interest rates
specified in that Loan and Security Agreement dated as of December 31, 1996
between, among others, the Borrower and the Bank, as amended, and in effect from
time to time (the "Agreement") and is subject in all respects to the terms of
the Agreement.
Terms used herein which are defined in the Agreement shall have their
defined meanings when used herein. The Agreement, among other things, contains
provisions for acceleration of the maturity of this Note upon the happening of
certain stated events and also for prepayments on account of principal hereof
prior to the maturity of this Note upon the terms and conditions specified in
the Agreement, reference to which is hereby made for a description of the
Collateral provided for therein and the rights of the Borrower and the Bank with
respect to such Collateral.
This Note shall be governed by the laws of the Commonwealth of
Massachusetts, provided that, as to the maximum rate of interest which may be
charged or collected, if the laws applicable to the Bank permit it to charge or
collect a higher rate than the laws of the Commonwealth of Massachusetts, then
such law applicable to the Bank shall apply to the Bank under this Note.
THIS AMENDED AND RESTATED BRIDGE LOAN NOTE IS INTENDED TO AMEND AND
REPLACE THAT CERTAIN BRIDGE LOAN NOTE DATED DECEMBER 31, 1996 MADE BY THE
UNDERSIGNED IN FAVOR OF THE BANK IN THE ORIGINAL PRINCIPAL AMOUNT OF
$20,000,000.00.
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed as a sealed instrument as of the day and year first above written.
IMC Mortgage Company
By:______________________________
Title:
