SIXTH AMENDMENT TO LOAN DOCUMENTS AND WAIVER
EXHIBIT 6.7
SIXTH AMENDMENT TO LOAN DOCUMENTS AND WAIVER
THIS SIXTH AMENDMENT TO LOAN DOCUMENTS AND WAIVER (this “Agreement”) is entered into as of January 5, 2024 (the “Effective Date”), by and between IRON BRIDGE MORTGAGE FUND, LLC, an Oregon limited liability company (“Borrower”), on the one hand, and UMPQUA BANK, an Oregon state-chartered bank (“Lender”), on the other hand.
RECITALS
1. Lender heretofore extended to Borrower a revolving line of credit in the original maximum principal amount of Forty Million and No/100 Dollars ($40,000,000.00) (the “Loan” or “Revolving Line of Credit”), which Revolving Line of Credit is evidenced by, without limitation, that certain Promissory Note dated as of May 7, 2021, executed by Borrower in favor of Lender (together with any and all amendments thereto or modifications thereof, the “Note”).
2. In connection with the Loan, ▇▇▇▇▇▇▇▇ also executed and delivered to and in favor of Lender that certain Business Loan and Security Agreement (Revolving Line of Credit) dated May 7, 2021 (together with any and all amendments thereto or modifications thereof, the “Loan Agreement”), pursuant to which, among other things, Borrower granted to Lender a security interest in the Collateral (as defined in the Loan Agreement) to secure ▇▇▇▇▇▇▇▇’s obligations to Lender in connection with the Loan.
3. Lender perfected its interest in and to the Collateral by causing to be filed a UCC-1 financing statement with the Oregon Secretary of State on July 26, 2021 as Filing No. 92877891 (the “UCC Financing Statement”). ▇▇▇▇▇▇’s security interest in the Collateral is first in priority and duly perfected under applicable Law.
4. The Loan Agreement and Note were previously amended pursuant to that certain First Amendment to Loan Documents dated August 10, 2021 (the “First Amendment”) executed by ▇▇▇▇▇▇▇▇ and Lender, whereby, among other things, the Credit Limit (as defined in the Loan Agreement) of the Revolving Line of Credit was increased to $50,000,000.00.
5. The Loan Agreement and Note were previously amended pursuant to that certain Second Amendment to Loan Documents dated January 28, 2022 (the “Second Amendment”) executed by ▇▇▇▇▇▇▇▇ and Lender, whereby, among other things, the Credit Limit of the Revolving Line of Credit was increased to $60,000,000.00.
6. The Loan Agreement and Note were previously amended pursuant to that certain Third Amendment to Loan Documents dated June 8, 2022 (the “Third Amendment”) executed by ▇▇▇▇▇▇▇▇ and Lender, whereby, among other things, the Credit Limit of the Revolving Line of Credit was increased to $75,000,000.00, and the Maturity Date (as defined in the Loan Agreement) of the Revolving Line of Credit was extended to May 5, 2024.
7. The Note was previously amended pursuant to that certain Fourth Amendment to Loan Documents dated February 16, 2023 (the “Fourth Amendment”) executed by ▇▇▇▇▇▇▇▇ and Lender, whereby, among other things, a temporary interest rate ceiling was provided.
8. The Loan Agreement and Note was previously amended pursuant to that certain Fifth Amendment to Loan Documents dated June 29, 2023 (the “Fifth Amendment”) executed by ▇▇▇▇▇▇▇▇ and Lender, whereby, among other things, (i) Lender waived the reporting requirement failures by Borrower, (ii) the Maturity Date of the Revolving Line of Credit was extended to May 5, 2025, (ii) the Credit Limit of the Revolving Line of Credit was reduced to $60,000,000.00, (iii) certain financial reporting requirements applicable to the Borrower were modified, and (iv) the previously provided temporary interest rate ceiling applicable to the Note was extended, all at more particularly set forth therein.
9. The Loan Agreement, Note, UCC Financing Statement, First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment, and all other assignments, agreements, instruments and other documents executed by Borrower in connection with the Revolving Line of Credit shall at times hereinafter be referred to collectively as the “Loan Documents.”
10. Borrower has requested that ▇▇▇▇▇▇ amend the Loan Documents to, among other things, extend the previously provided temporary interest rate ceiling applicable to the Note. ▇▇▇▇▇▇ is willing to agree to said requests subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. Recitals; Defined Terms.
The recitals are incorporated herein by this reference as are all exhibits. ▇▇▇▇▇▇▇▇ agrees and acknowledges that the factual information recited above is true and correct. Except as may be otherwise expressly defined in this Agreement, all terms used in this Agreement beginning with a capital letter shall have the meanings ascribed to them in the Loan Agreement.
2. Borrower Acknowledgments as to Obligations and Other Matters.
a. ▇▇▇▇▇▇▇▇ acknowledges, confirms and agrees that as of January 16, 2024, the total outstanding principal balance of the Note is $51,457,531.35, plus accrued and unpaid interest thereon.
b. ▇▇▇▇▇▇▇▇ specifically acknowledges, confirms and agrees that they do not have any valid offset or defense to the obligations, indebtedness and liability under the Loan Documents.
3. Reaffirmation of Obligations.
This Agreement is, in part, a reaffirmation of the obligations, indebtedness and liability of Borrower to Lender as evidenced by the Loan Agreement and the other Loan Documents. Therefore, Borrower represents, warrants, acknowledges and agrees that, except as specified herein, all of the terms and conditions of the Loan Documents are and shall remain in full force and effect, without waiver or modification of any kind whatsoever, and are ratified and confirmed in all respects.
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4. Amendments to Note.
a. Section 2.1(a) of the Note is hereby deleted in its entirety and replaced with the following:
“(a) Subject to Section 7 (relating to the Default Interest Rate), the outstanding principal balance of this Note shall bear interest at a variable rate per annum equal to the greater of (i) four percent (4.00%) or (ii) two and eight tenths of one percent (2.80%) in excess of the Index, as the same may change from time to time; provided, however, the applicable Note Rate hereunder shall not exceed the Temporary Interest Rate Ceiling from January 5, 2023 through January 4, 2025, and, for the avoidance of doubt, the Temporary Interest Rate Ceiling shall expire on January 5, 2025 and no longer be applicable to the Note Rate on and after such date. The Note Rate shall be adjusted with each change in the Index and changes to the Note Rate shall be effective as and when any adjustment in the Index occurs. The Note Rate is subject to increase pursuant to Section 6.16 of the Loan Agreement. The Index is not necessarily the lowest rate charged by Lender on its loans. Lender will tell Borrower the current publication source used upon ▇▇▇▇▇▇▇▇’s request. The interest rate change will not occur more often than once each month. Borrower understands that Lender may make loans based on other rates as well. Interest on the unpaid principal balance of this Note will be calculated as described in Section 2.2 of this Note. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by Applicable Law. The effective rate of any change in the Index will be the rate which appears the day which is two U.S. Government Securities Business Days preceding the date of change.”
5. Agreement as a Loan Document.
From and after the Effective Date of this Agreement, this Agreement and any other documents and instruments executed in connection herewith shall each constitute one of the “Loan Documents.”
6. Effective Date of Agreement.
This Agreement and the amendments provided for herein shall be effective as of the Effective Date, subject to the timely and complete satisfaction of each and all of the conditions precedent set forth in Section 8 of this Agreement.
7. ▇▇▇▇▇▇▇▇’s Representations and Warranties.
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Borrower hereby represents and warrants to Lender and covenant and agree with ▇▇▇▇▇▇ as follows:
a. Borrower has full legal right, power and authority to enter into and perform this Agreement. The execution and delivery of this Agreement by Borrower and the consummation by Borrower of the transactions contemplated hereby have been duly authorized by all necessary action by or on behalf of Borrower. This Agreement is a valid and binding obligation of Borrower enforceable against Borrower in accordance with its terms, except as enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights and (ii) by general principles of equity.
b. Neither the execution and delivery of this Agreement by ▇▇▇▇▇▇▇▇, nor the consummation by Borrower of the transactions contemplated hereby, conflicts with or constitutes a violation or a default under any material Law applicable to Borrower, or any contract, commitment, agreement, arrangement or restriction of any kind to which Borrower is a party, by which Borrower is bound or to which any of Borrower’s property or assets is subject.
c. There are no actions, suits, or proceedings pending, or threatened in writing, against or affecting the Borrower, or involving the validity or enforceability of any of the Loan Documents, except actions, suits, and proceedings that are fully covered by insurance or which, if adversely determined, would not substantially impair the ability of Borrower to perform its obligations under the Loan Documents, and Borrower is not in default with respect to any material order, writ, injunction, decree or demand of any court or any Governmental Agency.
d. Borrower hereby reaffirms and confirms that the representations and warranties of Borrower contained in the Loan Documents are true, correct and complete in all material respects as of the date of this Agreement (without duplication of any materiality qualifiers).
e. Borrower is in full and complete compliance with the terms, covenants, provisions and conditions of the Loan Agreement, the Note and the other Loan Documents to which they are a party.
All covenants, representations and warranties of Borrower herein are incorporated by reference and hereby made a part of the Loan Agreement.
8. Conditions Precedent to Effectiveness of Agreement.
The effectiveness of this Agreement shall be expressly conditioned upon the following having occurred or Lender having received all of the following on or before January 26, 2024, in form and content satisfactory to Lender and its counsel, in its or their reasonable discretion, and suitable for filing or recording, as the case may be, as required:
a. This Agreement, fully executed by ▇▇▇▇▇▇▇▇; and
b. Payment of the fees and costs of Lender in connection with the preparation, negotiation, administration and execution of this Agreement including, but not limited to, attorneys’ fees, and other costs and fees of other professionals retained by Lender.
9. General Release of Lender.
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a. Except as to the obligations imposed upon ▇▇▇▇▇▇, as provided herein, Borrower on behalf of itself, its respective successors and assigns, and each of them, does hereby forever relieve, release, acquit and discharge Lender and its predecessors, successors and assigns, and their respective past and present attorneys, accountants, insurers, representatives, affiliates, partners, subsidiaries, officers, employees, directors, and shareholders, and each of them (collectively, the “Released Parties”), from any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs and expenses (including, but not limited to, attorneys’ fees), damages, injuries, actions and causes of action, of whatever kind or nature, whether legal or equitable, known or unknown, suspected or unsuspected, contingent or fixed, which Borrower now owns or holds or has at any time heretofore owned or held or may at any time hereafter own or hold against the Released Parties, or any of them, by reason of any acts, facts, transactions or any circumstances whatsoever occurring or existing through the date of this Agreement, including, but not limited to, those based upon, arising out of, appertaining to, or in connection with the Recitals above, the Loan, the Loan Documents, the facts pertaining to this Agreement, any collateral heretofore granted to Lender or granted in connection herewith, or to any other obligations of Borrower to Lender.
10. Miscellaneous.
a. Section headings used in this Agreement are for convenience only and shall not affect the construction of this Agreement.
b. This Agreement may be executed in one or more counterparts but all of the counterparts shall constitute one agreement; provided, however, this Agreement shall not be effective and enforceable unless and until it is executed by all parties hereto.
c. This Agreement and the other documents and instruments executed in connection therewith constitute the product of the negotiation of the parties hereto and the enforcement hereof shall be interpreted in a neutral manner, and not more strongly for or against any party based upon the source of the draftsmanship hereof.
d. This Agreement shall be binding upon and inure to the benefit of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and their respective successors and assigns, except that Borrower shall not assign its rights hereunder or any interest therein without the prior written consent of ▇▇▇▇▇▇.
e. This Agreement is not a novation, nor, except as expressly provided in this Agreement, is it to be construed as a release or modification of any of the terms, conditions, warranties, waivers or rights set forth in the Loan Documents. Nothing contained in this Agreement shall be deemed to constitute a waiver by Lender of any required performance by Borrower of any Event of Default or default heretofore or hereafter occurring under or in connection with the other Loan Documents. In the event there is a conflict in any term, condition or provision of this Agreement, on the one hand, and the Loan Agreement, or any of the other Loan Documents, on the other hand, the terms, conditions and provisions of this Agreement are to control.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ have executed and delivered this Agreement as of the date set forth above.
| BORROWER: |
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| IRON BRIDGE MORTGAGE FUND, LLC an Oregon limited liability company | |||
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| By: | Iron Bridge Management Group, LLC, an Oregon limited liability company | ||
| Its: | Manager | ||
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
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| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
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| Its: | Managing Member |
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| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
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| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
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| Its: | Managing Member |
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| LENDER: | ||
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| UMPQUA BANK, an Oregon state-chartered bank |
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| By: | /s/ ▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇ ▇▇▇▇ | |
| Its: | Senior Vice President | |
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