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EXHIBIT 10.17
SECOND AMENDMENT TO
MORTGAGE LOAN WAREHOUSING AGREEMENT
SECOND AMENDMENT TO MORTGAGE LOAN WAREHOUSING AGREEMENT (the "Amendment"),
dated as of September 11, 1996 by and among EMERGENT MORTGAGE CORP.
("Borrower"), CAROLINA INVESTORS, INC. and EMERGENT GROUP, INC. (each, jointly
and severally, a "Guarantor" and, collectively, the "Guarantors"), FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, COMERICA BANK, FIRST NATIONAL BANK OF BOSTON,
BANK UNITED OF TEXAS FSB, and BANK ONE TEXAS, N.A. (collectively, the
"Lenders"); and FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as administrative
agent for the Lenders (in such capacity, the "Administrative Agent").
STATEMENT OF PURPOSE
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to a Mortgage Loan Warehousing Agreement dated as of March 6, 1996, as
amended by that certain First Amendment to Mortgage Loan Warehousing Agreement
dated as of April 3, 1996 (as so amended, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement as set
forth below; and
WHEREAS, subject to and upon the terms and conditions herein set forth,
the Lenders and the Administrative Agent are willing to continue to make
available to the Borrower the credit facilities provided for in the Credit
Agreement; and
WHEREAS, a specific condition to the willingness of the Lenders and the
Administrative Agent to continue to make available to the Borrower the credit
facilities provided for in the Credit Agreement, is the reaffirmation by each
of the Guarantors of the Guaranty to which such Guarantor is a party; and
WHEREAS, each of the Guarantors will derive a material benefit from the
continued availability to the Borrower of the credit facilities provided for in
the Credit Agreement and therefore each of the Guarantors is willing to
reaffirm the Guaranty to which such Guarantor is a party;
NOW, THEREFORE, in consideration of the premises and agreements contained
herein, and for good and valuable consideration, the receipt and sufficiency of
which are
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acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined shall have
the respective meanings provided to such terms in the Credit Agreement, as
amended hereby.
2. Amendments to the Credit Agreement.
a. The following sentence is hereby added to the end of Paragraph 1(a) of
the Credit Agreement:
"Provided, that no Regular Loans shall be made or shall be
outstanding under this Agreement at any time at which the amount
of Affiliate Receivables owing to CII from Affiliates other than
the Company shall exceed $30,000,000."
b. The following sentence is hereby added to the end of Paragraph 1(b) of
the Credit Agreement:
"Provided further, that no Swing Line Loans shall be made or
shall be outstanding under this Agreement at any time at which the
amount of Affiliate Receivables owing to CII from Affiliates other
than the Company shall exceed $30,000,000."
c. The following phrase is hereby added to the end of the first sentence
of Paragraph 1(c)(1) of the Credit Agreement:
"; provided, however, that at any time at which the amount of
Affiliate Receivables owing to CII from Affiliates other than the
Company shall exceed $30,000,000, Swing Line Loans shall be
refunded by the Lenders upon demand by FUNB no later than 4:00
p.m. (Charlotte, North Carolina time) on the day of such demand"
d. The following paragraph is hereby added as a new Paragraph 2(l)(4) to
the Credit Agreement:
"(4) The Company shall prepay all outstanding Loans to the
Administrative Agent on behalf of the Lenders on any day on which
the amount of Affiliate Receivables owing to CII from Affiliates
other than the Company shall exceed $30,000,000; provided,
however, that if at such time as the Company shall be required to
prepay Loans under this Paragraph 2(l)(4) the amount of
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Affiliate Receivables owing to CII from Affiliates other than
the Company shall be reduced to an amount less than or equal to
$30,000,000, the Company shall not be required to prepay such
Loans."
e. The following definition of the term "Affiliate Receivables" is hereby
added to Paragraph 11 of the Credit Agreement:
"'Affiliate Receivables' shall mean that amount reflected on
the consolidated balance sheet of CII and its Subsidiaries as due
to CII from Affiliate of CII other than the Company (and as
determined in accordance with GAAP)."
3. This Amendment shall become effective as of the date hereof, provided
that the Administrative Agent shall have received by such date the following
items:
a. A copy of this Amendment executed by the Borrower, each of
the Guarantors, each of the Lenders, and the Administrative Agent
(whether such parties shall have signed the same or different
copies);
b. A Reaffirmation of Guaranty (the "Reaffirmation") executed
by each of the Guarantors in favor of the Collateral Agent on
behalf of the Lenders;
c. A certificate of even date herewith signed by the
President or any Vice President of the Borrower and attested to by
the Secretary or any Assistant Secretary of the Borrower
certifying that (i) the Articles, Bylaws and resolutions of the
Borrower previously delivered to the Administrative Agent remain
in full force and effect except as provided therein, (ii) the
Borrower remains in good standing, (iii) all representations and
warranties of the Borrower previously made to the Lenders remain
true, complete and accurate, and (iv) no Event of Default or
Potential Default has occurred and is continuing; and
d. Resolutions of the Borrower and of each of the Guarantors
authorizing (i) the execution of this Amendment, and (ii) in the
case of the Guarantors, the Reaffirmation to which such Guarantor
is a party.
4. This Amendment is limited and, except as set forth herein, shall not
constitute a modification, acceptance or waiver
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of any other provision of the Credit Agreement, or any other document or
instrument entered into in connection therewith.
5. This Amendment may be executed in any number of counterparts by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which together
shall constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Borrower and the Administrative Agent.
6. This Amendment and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the laws of the State of
North Carolina.
7. From and after the date hereof, all references in the Credit Agreement,
and any other document or instrument entered into in connection therewith, to
the Credit Agreement shall be deemed to be references to the Credit Agreement
as amended hereby.
8. The Guarantors join in the execution and delivery of this Amendment to
acknowledge and consent to the terms hereof and hereby reaffirm their
obligations under the Guaranties.
9. THE LENDERS, THE ADMINISTRATIVE AGENT, THE GUARANTORS AND THE BORROWER
EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AMENDMENT AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING HERETO OR THERETO.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS AND THE ADMINISTRATIVE
AGENT TO ENTER INTO THIS AMENDMENT.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
EMERGENT MORTGAGE CORP., a South Carolina
corporation
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a
national banking association, as Administrative
Agent and as a Lender
By:
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Name:
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Title:
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COMERICA BANK, a Michigan banking corporation
By:
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Name:
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Title:
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FIRST NATIONAL BANK OF BOSTON, a national banking
association
By:
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Name:
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Title:
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BANK UNITED OF TEXAS FSB, a federal savings bank
By:
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Name:
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Title:
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BANK ONE TEXAS, N.A., a national banking
association
By:
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Name:
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Title:
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CAROLINA INVESTORS, INC., a South Carolina
corporation, as a Guarantor
By:
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Name:
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Title:
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EMERGENT GROUP, INC., a South Carolina
corporation, as a Guarantor
By:
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Name:
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Title:
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(EMC FACILITY)
REAFFIRMATION AND MODIFICATION OF GUARANTY
TO: First Union National Bank
of North Carolina, as Collateral Agent
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XXXX-00, XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
THIS REAFFIRMATION AND MODIFICATION OF GUARANTY (this "Reaffirmation"),
dated as of September 11, 1996, is made by CAROLINA INVESTORS, INC., a South
Carolina corporation ("Guarantor"), in favor of the "Lenders" (as defined
below) and is executed pursuant to the terms of that certain Second Amendment
to Mortgage Loan Warehousing Agreement of even date herewith (the "Amendment")
among Emergent Mortgage Corp. ("Borrower"), the Guarantor, Emergent Group, Inc.
as a Guarantor, the "Lenders" party thereto, including First Union National
Bank of North Carolina ("First Union"), and First Union as "Administrative
Agent", which Amendment amends that certain Mortgage Loan Warehousing Agreement
dated as of March 6, 1996 among Borrower, the Lenders and the Administrative
Agent, as previously amended (as so amended, the "Warehousing Agreement").
Capitalized terms used in this Reaffirmation and not otherwise defined herein
shall have the meanings set forth in the Warehousing Agreement, as amended by
the Amendment; provided, however, that the term "Lenders" shall mean the
"Lenders" party to the Warehousing Agreement and their successors and assigns,
and the term "Lender" shall mean any of the "Lenders" party to the Warehousing
Agreement or any "Lender" which may hereafter become a party to the Warehousing
Agreement or any of such "Lender's" successors and assigns.
Pursuant to the terms and conditions of the Warehousing Agreement,
Guarantor executed a Guaranty dated as of March 6, 1996 in favor of the
Collateral Agent for the benefit of the Lenders (the "Guaranty"), pursuant to
which Guarantor agreed to guaranty the payment of the Obligations.
The Lenders and the Administrative Agent have agreed to amend the
Warehousing Agreement as set forth in the Amendment.
A specific condition to the willingness of the Lenders and the
Administrative Agent to enter into the Amendment and to continue to make
available to Borrower the credit facilities provided for in the Warehousing
Agreement, as so amended, is the reaffirmation and modification of the terms
of the Guaranty. Guarantor is providing management resources to, and receiving
management fees from, the Borrower and thus will benefit from the continued
availability to
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Borrower of the credit facilities provided for in the Warehousing Agreement.
To induce the Lenders and the Administrative Agent to modify the terms of
the Warehousing Agreement pursuant to the Amendment and to continue to make
available to Borrower the credit facilities provided for in the Warehousing
Agreement, as so amended, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor hereby
agrees as follows:
1. The Guaranty is hereby modified by deleting Section 11(l)(4) thereof
in its entirety and substituting the following clause in lieu thereof:
"(4) the amount of its receivables from any Affiliate of the
Affiliate Guarantor (other than the Company) to exceed $30,000,000
at any time at which (A) there are either 1. any Loans outstanding
under the Warehousing Agreement, or 2. any advances outstanding
under the EMC Syndicated Facility, or (B) the Affiliates of the
Affiliate Guarantor (other than the Company) do not have available
borrowing capacity under credit facilities to which such
Affiliates are party, or available liquidity, in either case in
the aggregate, sufficient to repay on demand the amount of such
receivables from such Affiliates of the Affiliate Guarantor which
are in excess of $30,000,000."
2. The Guarantor hereby reaffirms its obligations under the Guaranty, as
modified hereby, and agrees that the Guaranty, as modified hereby, shall remain
in full force and effect with respect to the Obligations.
IN WITNESS WHEREOF, the undersigned has executed this Reaffirmation as of
the date and year first above written.
CAROLINA INVESTORS, INC., a South Carolina
corporation
By:
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Name:
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President
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(EMC FACILITY)
REAFFIRMATION OF GUARANTY
TO: First Union National Bank
of North Carolina, as Collateral Agent
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XXXX-00, XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
THIS REAFFIRMATION OF GUARANTY (this "Reaffirmation"), dated as of
September 11, 1996, is made by EMERGENT GROUP, INC., a South Carolina
corporation ("Guarantor"), in favor of the "Lenders" (as defined below) and is
executed pursuant to the terms of that certain Second Amendment to Mortgage
Loan Warehousing Agreement of even date herewith (the "Amendment") among
Emergent Mortgage Corp. ("Borrower"), the Guarantor, Carolina Investors, Inc.
as a Guarantor, the "Lenders" party thereto, including First Union National
Bank of North Carolina ("First Union"), and First Union as "Administrative
Agent", which Amendment amends that certain Mortgage Loan Warehousing Agreement
dated as of March 6, 1996 among Borrower, the Lenders and the Administrative
Agent, as previously amended (as so amended, the "Warehousing Agreement").
Capitalized terms used in this Reaffirmation and not otherwise defined herein
shall have the meanings set forth in the Warehousing Agreement, as amended by
the Amendment; provided, however, that the term "Lenders" shall mean the
"Lenders" party to the Warehousing Agreement and their successors and assigns,
and the term "Lender" shall mean any of the "Lenders" party to the Warehousing
Agreement or any "Lender" which may hereafter become a party to the Warehousing
Agreement or any of such "Lender's" successors and assigns.
Pursuant to the terms and conditions of the Warehousing Agreement,
Guarantor executed a Guaranty dated as of March 6, 1996 in favor of the
Collateral Agent for the benefit of the Lenders (the "Guaranty"), pursuant to
which Guarantor agreed to guaranty the payment of the Obligations.
The Lenders and the Administrative Agent have agreed to amend the
Warehousing Agreement as set forth in the Amendment.
A specific condition to the willingness of the Lenders and the
Administrative Agent to enter into the Amendment and to continue to make
available to Borrower the credit facilities provided for in the Warehousing
Agreement, as so amended, is the reaffirmation of the terms of the Guaranty.
Guarantor owns directly or indirectly one hundred percent (100%) of the
outstanding capital voting stock of the Borrower and thus will benefit from the
continued availability to Borrower of the credit facilities provided for in the
Warehousing Agreement.
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To induce the Lenders and the Administrative Agent to modify the terms of
the Warehousing Agreement pursuant to the Amendment and to continue to make
available to Borrower the credit facilities provided for in the Warehousing
Agreement, as so amended, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor hereby
reaffirms its obligations under the Guaranty and agrees that the Guaranty shall
remain in full force and effect with respect to the Obligations.
IN WITNESS WHEREOF, the undersigned has executed this Reaffirmation as of
the date and year first above written.
EMERGENT GROUP, INC., a South Carolina
corporation
By:
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Name:
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President
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