AMENDMENT TO LOAN AGREEMENT AND NOTE
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AMENDMENT TO LOAN AGREEMENT
AND NOTE
THIS AMENDMENT TO LOAN AGREEMENT AND NOTE ("Amendment") entered into on
June 25, 2002 (the "Amendment Date"), by and between Imagine Investments, Inc.,
a Delaware corporation ("Lender"), whose address is 0000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 and Riverside Group, Inc., a Florida
corporation ("Borrower"), whose address is 0000 Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxx 00000.
WHEREAS, On August 31, 1999, Borrower and Lender entered into that certain
Loan Agreement (as the same may have been amended, modified, renewed, extended
or restated from time to time, the "Loan Agreement");
WHEREAS, pursuant to that certain First Amendment to Loan Agreement and
Stock Pledge Agreements (the "First Amendment") dated August 31, 2000 between
Borrower and Lender, Borrower executed and delivered to Lender that certain
First Amended and Restated Promissory Note in the principal amount of Two
Million Twenty-One Thousand Six Hundred Twenty-Eight and .01/100 Dollars
($2,021,628.01) (the "Note")
WHEREAS, Borrower has requested and, subject to the terms and conditions of
this Amendment, Lender has agreed, to extend the maturity of the indebtedness,
liabilities and obligations evidenced by the Note and the other Loan Documents
(the "Indebtedness") to September 30, 2002.
NOW, THEREFORE, notwithstanding anything to the contrary contained in the
Note or any of the other Loan Documents, Borrower and Lender agree as
follows:
1. Defined Terms. All terms used herein and not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Reaffirmation of Indebtedness. Borrower and Lender hereby acknowledge
and confirm that: (a) the outstanding principal balance and accrued interest of
the Note as of the Amendment Date is equal to $2,496,264.77, (b) Borrower's
obligation to repay the outstanding principal balance and accrued interest of
the Note and all other Indebtedness is unconditional and not subject to any
offsets, defenses or counterclaims, and (c) by entering into this Amendment,
Lender does not waive or release any term or condition of the Note or the other
Loan Documents or any of its rights or remedies under such Loan Documents, or
applicable law, except as set forth herein.
3. Interest. Effective as of December 15, 2000, notwithstanding anything to
the contrary contained in the Note or the other Loan Documents, the interest on
the unpaid principal of the Indebtedness is hereby amended to accrue at the rate
of twelve and three fourths of one percent (12.75%) per annum until all of the
Indebtedness (including, without limitation, principal and interest) is
indefeasibly paid in full.
4. Payment of Principal and Interest on the Indebtedness. Effective as of
December 15, 2000, the Note and each of the other Loan Documents are hereby
amended to extend the maturity date of the Indebtedness (regardless of the
stated date of the maturity of the Indebtedness for the Note or the other Loan
Documents) to September 30, 2002, at which time all Indebtedness (including,
without limitation, principal and interest) shall be due and payable in full.
5. Reinstatement of Note and Loan Documents. Lender, without prejudice to
or waiver of any right or remedy available to it by reason of the occurrence
subsequent to the date hereof of any event or condition constituting a Possible
Default or Event of Default or any other default or event of default that has
occurred and is continuing under the Note or the other Loan Documents hereby
agrees to take no action with respect to any such Possible Default or Event of
Default or any other default or event of default that has occurred and is
continuing under the Note or the other Loan Documents which heretofore has
occurred. Borrower and Lender hereby agree that the Note and the Loan Documents
are fully reinstated in accordance with their terms and conditions, as amended,
by this Amendment, as if no Possible Default or Event of Default or any other
default or event of default that has occurred and is continuing under the Note
or the other Loan Documents had occurred in the payment of the Indebtedness
prior to the date of this Agreement. It is expressly understood that Lender will
and does hereafter require full performance of any and all terms, conditions and
requirements of all Loan Documents, as amended by this Amendment. It is further
understood and agreed that the validity and perfection of the liens and security
interests granted under the Loan Documents are not diminished or impaired in any
way by this Amendment. Borrower agrees to perform and/or observe the terms and
provisions of the Loan Documents to which it is a party, as amended by this
Amendment.
6. No Commitment to Make Further Advances. Notwithstanding anything to the
contrary contained herein or in any other Loan Document (including, without
limitation, the Loan Agreement) any and all commitments of Lender to advance
funds or issue letters of credit to, or on behalf of, Borrower are hereby
terminated and Lender shall have no further obligation to advance funds or issue
letters of credit to, or on behalf of, Borrower.
7. Expenses. All expenses incurred by Borrower or Lender in connection with
this transaction, including, but not limited to, attorneys' fees, shall be borne
by Borrower and to the extent Lender's expenses are not paid by Borrower within
10 days of Lender submitting an invoice therefor to Borrower, the amount of such
expenses shall be added to the outstanding principal amount of the Indebtedness
and shall accrue interest in accordance with Paragraph 3 hereof.
8. Ratification of Prior Instruments and Priorities. Except as herein
expressly amended, each and every term, condition, warranty and provision of the
Note and the other Loan Documents shall remain in full force and effect and the
Note and other Loan Documents are hereby ratified, confirmed and approved by the
parties hereto. Nothing herein shall be construed to alter or affect the
priority of the liens, security interests or title created by the Loan
Documents. Any provision herein that might otherwise be construed to conflict
with the desire of Lender that the liens, security interests and title of the
Loan Documents be maintained and preserved prior to any and all encumbrances
affecting the Collateral arising subsequent to the execution of the Loan
Documents shall, at Lender's option, be void and of no force and effect; it
being the expressly declared intention of the parties hereto that no novation of
the Loan Documents be created hereby. Any promissory note or other indebtedness
described in the Loan Documents as the obligation secured thereby shall
hereafter mean the Note as modified by this Agreement and the Indebtedness. The
Loan Documents as modified and amended hereby are hereby ratified and confirmed
in all respects.
9. Representations and Warranties. Borrower hereby represents and warrants
that: (a) Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida; (b) Borrower has all requisite
power and authority and all necessary consents, approvals, licenses, permits and
other authorizations (i) to own and operate the Collateral, (ii) to execute and
deliver this Amendment and all other documents and agreements to be executed by
Borrower in connection herewith, and (iii) to carry out and comply with the
terms of the Note and the other Loan Documents, as amended by this Amendment;
(c) the Note and the other Loan Documents remain in full force and effect and
constitute, and upon the execution and delivery of this Amendment will continue
to constitute, the legal, valid and binding obligations of Borrower enforceable
in accordance with their terms; (f) Borrower is the sole legal and beneficial
owner of the Collateral; and (g) neither the execution and delivery of this
Amendment nor the consummation of the transactions contemplated herein nor
compliance by Borrower with the provisions of the Loan Documents, as amended by
this Amendment, will conflict with or result in a breach of, or constitute a
default under, any of the terms, conditions or provisions of any law, rule,
regulation, order, writ, injunction or decree of any court or governmental
authority to which Borrower is subject, or of the articles of incorporation,
bylaws or any other organizational document of Borrower, or of any indenture,
mortgage, deed of trust, promissory note, loan agreement or any other agreement
or undertaking to which Borrower is a party or by which Borrower or its
properties may be bound or subject.
10. Conditions to Effectiveness of this Amendment. This Amendment shall not
become effective until, and shall become effective when, each and every one of
the following conditions shall have been satisfied:
a. executed counterparts of this Amendment, duly executed by Borrower
and Lender, shall have been delivered to Lender;
b. Lender shall have received a copy of the resolutions of the Board
of Directors of Borrower authorizing the execution, delivery and
performance by Borrower of this Amendment and any and all documents
relating thereto, certified by Borrowers' Secretary or an Assistant
Secretary; and
c. the representations and warranties of Borrower set forth herein are
true and correct on and with respect to the date hereof.
11. Defenses. Borrower covenants and warrants that there are no defenses,
counterclaims or offsets to the Note, the other Loan Documents or the
Indebtedness, and Borrower hereby waives any defense, claim or counterclaim
against Lender.
12. Further Assurances. Borrower, upon request from Lender, agrees to
execute such other and further documents as may be reasonably necessary or
appropriate to consummate the transactions contemplated herein or to perfect the
liens and security interests intended to secure the payment of the Indebtedness.
13. Business and Financial Information. Borrower will promptly furnish to
Lender from time to time such information regarding the Collateral and/or the
business and affairs and financial condition of Borrower as Lender may
reasonably request, and will furnish such items Lender.
14. Descriptive Headings. Descriptive headings are inserted for convenience
and reference only and do not in any way limit or amplify the terms and
provisions hereof.
15. Default. If Borrower shall fail to perform or observe any of the
covenants or agreements contained herein or if any statement, representation or
warranty contained herein is false, misleading or erroneous in any material
respect, an Event of Default shall be deemed to have occurred and Lender shall
be entitled at its option to exercise any and all of the rights and remedies
granted pursuant to any of the Loan Document or which Lender may otherwise be
entitled, whether at law or in equity.
16. FINAL AGREEMENT. THE NOTE AND THE OTHER LOAN DOCUMENTS, AS AMENDED
HEREBY REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO RELATED TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have each executed this
Amendment as of June 25, 2002.
LENDER:
IMAGINE INVESTMENTS, INC.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
BORROWER:
RIVERSIDE GROUP, INC.,
a Florida corporation
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
AMENDMENT TO CREDIT AGREEMENT
AND NOTES
THIS AMENDMENT TO CREDIT AGREEMENT AND NOTES ("Amendment") entered into on
June 25, 2002 (the "Amendment Date"), by and between Imagine Investments, Inc.,
a Delaware corporation ("Lender"), whose address is 0000 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 and Riverside Group, Inc., a Florida
corporation ("Borrower"), whose address is 0000 Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxx 00000.
WHEREAS, On or about April 1, 1999, Borrower borrowed the aggregate sum of
Ten Million Dollars ($10,000,000) from several different entities (collectively,
the "Original Note Holders" and each individually, an "Original Note Holder")
pursuant to a Credit Agreement dated as of April 1, 1999 (the "Credit
Agreement") and a promissory note made by Borrower in favor of each Original
Note Holder (collectively, the "Original Notes" and each individually, an
"Original Note");
WHEREAS, On or prior to the Amendment Date, Lender purchased or otherwise
acquired from certain Original Note Holders all of their respective rights,
titles and interests in certain Original Notes (collectively, the "Notes" and
each individually, a "Note"), the Credit Agreement, all other loan documents and
security documents related thereto (collectively, the "Loan Documents") and the
collateral securing the Notes; and
WHEREAS, Borrower has requested and, subject to the terms and conditions of
this Amendment, Lender has agreed, to extend the maturity of the indebtedness,
liabilities and obligations (the "Indebtedness") evidenced by the Notes and the
other Loan Documents to September 30, 2002.
NOW, THEREFORE, notwithstanding anything to the contrary contained in the
Notes or any of the other Loan Documents, Borrower and Lender agree as follows:
1. Defined Terms. All terms used herein and not otherwise defined herein
shall have the meanings given to them in the Credit Agreement.
2. Reaffirmation of Indebtedness. Borrower and Lender hereby acknowledge
and confirm that: (a) the outstanding principal balance of and accrued interest
on the Indebtedness as of the Amendment Date is $11,791,241.94, (b) Borrower's
obligation to repay the outstanding principal balance and accrued interest of
each Note and all other Indebtedness is unconditional and not subject to any
offsets, defenses or counterclaims, and (c) by entering into this Amendment,
Lender does not waive or release any term or condition of the Notes or the other
Loan Documents or any of its rights or remedies under such Loan Documents, or
applicable law, except as set forth herein.
3. Interest. Effective as of September 30, 2000, notwithstanding anything
to the contrary contained in the Notes or the other Loan Documents, the interest
on the unpaid principal of the Indebtedness is hereby amended to accrue at the
rate of eleven percent (11%) per annum until all of the Indebtedness (including,
without limitation, principal and interest) is indefeasibly paid in full.
4. Payment of Principal and Interest on the Indebtedness. Effective as of
September 30, 2000, each of the Notes and the other Loan Documents is hereby
amended to extend the maturity date of the Indebtedness (regardless of the
stated date of the maturity of the Indebtedness for such Note or Loan Document)
to September 30, 2002, at which time all Indebtedness (including, without
limitation, principal and interest) shall be due and payable in full.
5. Reinstatement of Notes and Loan Documents. Lender, without prejudice to
or waiver of any right or remedy available to it by reason of the occurrence
subsequent to the date hereof of any event or condition constituting a Default
or Event of Default or any other default or event of default that has occurred
and is continuing under any of the Notes or the other Loan Documents hereby
agrees to take no action with respect to any such Default or Event of Default or
any other default or event of default that has occurred and is continuing under
any of the Notes or the other Loan Documents which heretofore has occurred.
Borrower and Lender hereby agree that the Notes and the Loan Documents are fully
reinstated in accordance with their terms and conditions, as amended, by this
Amendment, as if no Default or Event of Default or any other default or event of
default that has occurred and is continuing under any of the Notes or the other
Loan Documents had occurred in the payment of the Indebtedness prior to the date
of this Agreement. It is expressly understood that Lender will and does
hereafter require full performance of any and all terms, conditions and
requirements of all Loan Documents, as amended by this Amendment. It is further
understood and agreed that the validity and perfection of the liens and security
interests granted under the Loan Documents are not diminished or impaired in any
way by this Amendment. Borrower agrees to perform and/or observe the terms and
provisions of the Loan Documents to which it is a party, as amended by this
Amendment.
6. No Commitment to Make Further Advances. Notwithstanding anything to the
contrary contained herein or in any other Loan Document (including, without
limitation, the Credit Agreement) any and all commitments of Lender to advance
funds or issue letters of credit to, or on behalf of, Borrower are hereby
terminated and Lender shall have no further obligation to advance funds or issue
letters of credit to, or on behalf of, Borrower.
7. Expenses. All expenses incurred by Borrower or Lender in connection
with this transaction, including, but not limited to, attorneys' fees, shall be
borne by Borrower and to the extent Lender's expenses are not paid by Borrower
within 10 days of Lender submitting an invoice therefor to Borrower, the amount
of such expenses shall be added to the outstanding principal amount of the
Indebtedness and shall accrue interest in accordance with Paragraph 3 hereof.
8. Ratification of Prior Instruments and Priorities. Except as herein
expressly amended, each and every term, condition, warranty and provision of the
Notes and the other Loan Documents shall remain in full force and effect and
such Notes and other Loan Documents are hereby ratified, confirmed and approved
by the parties hereto. Nothing herein shall be construed to alter or affect the
priority of the liens, security interests or title created by the Loan
Documents. Any provision herein that might otherwise be construed to conflict
with the desire of Lender that the liens, security interests and title of the
Loan Documents be maintained and preserved prior to any and all encumbrances
affecting the Collateral arising subsequent to the execution of the Loan
Documents shall, at Lender's option, be void and of no force and effect; it
being the expressly declared intention of the parties hereto that no novation of
the Loan Documents be created hereby. Any promissory note or other indebtedness
described in the Loan Documents as the obligation secured thereby shall
hereafter mean the Notes as modified by this Agreement and the Indebtedness. The
Loan Documents as modified and amended hereby are hereby ratified and confirmed
in all respects.
9. Representations and Warranties. Borrower hereby represents and warrants
that: (a) Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida; (b) Borrower has all requisite
power and authority and all necessary consents, approvals, licenses, permits and
other authorizations (i) to own and operate the Collateral, (ii) to execute and
deliver this Amendment and all other documents and agreements to be executed by
Borrower in connection herewith, and (iii) to carry out and comply with the
terms of the Notes and the other Loan Documents, as amended by this Amendment;
(c) the Notes and the other Loan Documents remain in full force and effect and
constitute, and upon the execution and delivery of this Amendment will continue
to constitute, the legal, valid and binding obligations of Borrower enforceable
in accordance with their terms; (f) Borrower is the sole legal and beneficial
owner of the Collateral; and (g) neither the execution and delivery of this
Amendment nor the consummation of the transactions contemplated herein nor
compliance by Borrower with the provisions of the Loan Documents, as amended by
this Amendment, will conflict with or result in a breach of, or constitute a
default under, any of the terms, conditions or provisions of any law, rule,
regulation, order, writ, injunction or decree of any court or governmental
authority to which Borrower is subject, or of the articles of incorporation,
bylaws or any other organizational document of Borrower, or of any indenture,
mortgage, deed of trust, promissory note, loan agreement or any other agreement
or undertaking to which Borrower is a party or by which Borrower or its
properties may be bound or subject.
10. Conditions to Effectiveness of this Amendment. This Amendment shall not
become effective until, and shall become effective when, each and every one of
the following conditions shall have been satisfied:
a. executed counterparts of this Amendment, duly executed by Borrower
and Lender, shall have been delivered to Lender;
b. Lender shall have received a copy of the resolutions of the Board
of Directors of Borrower authorizing the execution, delivery and
performance by Borrower of this Amendment and any and all documents
relating thereto, certified by Borrowers' Secretary or an Assistant
Secretary; and
c. the representations and warranties of Borrower set forth herein are
true and correct on and with respect to the date hereof.
11. Defenses. Borrower covenants and warrants that there are no defenseS,
counterclaims or offsets to any of the Notes, the other Loan Documents or the
Indebtedness, and Borrower hereby waives any defense, claim or counterclaim
against Lender.
12. Further Assurances. Borrower, upon request from Lender, agrees to
execute such other and further documents as may be reasonably necessary or
appropriate to consummate the transactions contemplated herein or to perfect the
liens and security interests intended to secure the payment of the Indebtedness.
13. Business and Financial Information. Borrower will promptly furnish to
Lender from time to time such information regarding the Collateral and/or the
business and affairs and financial condition of Borrower as Lender may
reasonably request, and will furnish such items Lender.
14. Descriptive Headings. Descriptive headings are inserted for convenience
and reference only and do not in any way limit or amplify the terms and
provisions hereof.
15. Default. If Borrower shall fail to perform or observe any of the
covenants or agreements contained herein or if any statement, representation or
warranty contained herein is false, misleading or erroneous in any material
respect, an Event of Default shall be deemed to have occurred and Lender shall
be entitled at its option to exercise any and all of the rights and remedies
granted pursuant to any of the Loan Document or which Lender may otherwise be
entitled, whether at law or in equity.
16. FINAL AGREEMENT. THE NOTES AND THE OTHER LOAN DOCUMENTS, AS AMENDED
HEREBY REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO RELATED TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.
IN WITNESS WHEREOF, the parties hereto have each executed this Amendment as
of June __, 2002.
LENDER:
IMAGINE INVESTMENTS, INC.
By:
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Name:
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Title:
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BORROWER:
RIVERSIDE GROUP, INC.,
a Florida corporation
By:
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Name:
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Title:
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