THIRD MODIFICATION OF SECOND AMENDED
AND RESTATED LOAN AGREEMENT
THIS THIRD MODIFICATION OF SECOND AMENDED AND RESTATED LOAN
AGREEMENT (this "Agreement") is entered into as of the 30th day of
May, 1997, by and between AMRESCO, INC., a Delaware corporation
("AMRESCO"), and the other entities designated as "Borrowers" in
Exhibit A attached hereto (collectively, "Borrowers"), NationsBank
of Texas, N.A., a national banking association, as agent ("Agent")
for itself and the other Lenders (as defined in the Loan Agreement
(defined below)), and the other Lenders.
W I T N E S S E T H:
WHEREAS, reference is made to the credit facilities in the
maximum principal amount of $350,000,000, governed by that certain
Second Amended and Restated Loan Agreement (as amended from time to
time, the "Loan Agreement") dated February 7, 1997, executed by and
among certain Lenders (the "Lenders"), Agent and Borrowers (each
term used herein but not otherwise defined herein shall be defined
as set forth in the Loan Agreement); and
WHEREAS, Borrowers and certain Lenders have requested that
certain changes be made to the Loan Agreement, including without
limitation, (a) the addition of several entities as lenders
thereunder, and (b) the modification of certain definitions and
other provisions set forth therein; and
WHEREAS, Agent and the other Lenders have agreed to the above
requests, subject to the terms and conditions contained herein.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, That for and
in consideration of the terms and conditions contained herein and
for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto,
Agent, the Lenders and Borrowers hereby agree as follows:
1. Definitions. Section 1.1 of the Loan Agreement is hereby
amended as follows:
(a) The following definitions are amended and restated
in their entirety to read as follows:
Eligible Assignee means (a) a Lender; (b) an Affiliate of
a Lender; and (c) any other Person approved by the Agent (such
approval not to be unreasonably withheld or delayed) and,
unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with Section
11.10, AMRESCO, such approval not to be unreasonably withheld
or delayed by AMRESCO; provided, however, that none of the
Borrowers nor any Affiliate of any of the Borrowers shall
qualify as an Eligible Assignee.
Term Facility Termination Date means May 31, 2001.
(b) In connection with the Term Facility, the definition
of "Borrowers" shall be, and is hereby, modified to exclude AMRESCO
Canada, Inc., AMRESCO Equities Canada, Inc., AMRESCO Jersey
Ventures Limited, AMRESCO Retail Ventures II Limited, AMRESCO
Services Canada, Inc., AMRESCO UK Holdings Limited, AMRESCO UK
Limited, AMRESCO UK Ventures Limited, Old Midland House Limited and
any future foreign subsidiaries of AMRESCO (collectively the
"Foreign Entities"), and none of the Foreign Entities shall be a
"Maker" as such term is defined in each Term Note. However, each
Foreign Entity agrees to jointly and severally guarantee the
payment in full of all amounts outstanding under the Term Notes (in
the Dollar Equivalent of such amounts). Lenders, Borrowers and the
Foreign Entities understand and agree that wherever the term
"Borrowers" is used in the Loan Documents, such term shall also
refer to the Foreign Entities in their capacity as guarantors of
the Term Facility.
2. Remedies. The first paragraph of Section 9.2 of the Loan
Agreement shall be amended and restated in its entirety as follows:
Section 9.2. Remedies. Upon the occurrence of an Event
of Default, Agent may, and at the direction and election of
the Required Lenders shall, acting by or through any of its
agents, trustees or other Persons, without notice (unless
expressly provided for herein), demand or presentment
(including, without limitation, notice of default, notice of
intent to accelerate or of acceleration) all of which are
hereby waived, and in addition to any other provision of this
Agreement or any other Loan Document, exercise any or all of
the following rights, remedies and recourses:
3. Assignments and Participations. Section 11.10 of the
Loan Agreement shall be amended such that subsection (g) is deleted
in its entirety, and the parenthetical referencing such
subparagraph in subsection (d) is deleted.
4. Taxes. Subsection (a) of Section 11.20 shall be amended
and restated in its entirety as follows:
(a) (x) two duly completed and signed copies of
either Internal Revenue Service Form 1001 (relating to such
Non-U.S. Lender and entitling it to a complete exemption from
withholding of U.S. Taxes on all amounts to be received by
such Non-U.S. Lender pursuant to this Agreement and the other
Loan Documents) or Form 4224 (relating to all amounts to be
received by such Non-U.S. Lender pursuant to this Agreement
and the other Loan Documents), or successor and related
applicable forms, as the case may be, or (y) two duly
completed and signed copies of Internal Revenue Service Form
W-8 or W-9, or successor and related applicable forms, as the
case may be; ;or
5. Amended Schedule I. Schedule I of the Loan Agreement
shall be, and is hereby, amended and restated in its entirety as
set forth on Exhibit A attached hereto and incorporated herein by
reference for all purposes.
6. Amended Schedule II. Schedule II of the Loan Agreement
shall be, and is hereby, amended and restated in its entirety as
set forth on Exhibit B attached hereto and incorporated herein by
reference for all purposes. The changes made pursuant to this
paragraph 6 shall be effective as of the date of the first Advance
under the Term Facility.
7. Amended Exhibit A-1. Exhibit A-1 of the Loan Agreement
shall be, and is hereby, amended and restated in its entirety as
set forth on Exhibit C attached hereto and incorporated herein by
reference for all purposes.
8. Definition of Loan Documents. The definition of "Loan
Documents", as defined in the Loan Agreement and as used in the
Loan Agreement, the other Loan Documents and herein, shall be, and
is hereby, modified to include this Agreement and any and all
documents executed in connection herewith.
9. Conditions Precedent to this Agreement. As conditions
precedent to this Agreement and the modifications to the Loan
Agreement pursuant hereto, all of the following shall have been
satisfied:
(a) Borrowers shall have executed and delivered to Agent (i)
this Agreement and (ii) each new Note required to be executed
pursuant to the Loan Agreement payable to each new Lender under the
Credit Facilities; and
(b) Borrowers shall have delivered to Agent all resolutions,
powers of attorney, certificates or documents as Agent may request
relating to (i) the existence of Borrowers, and (ii) the corporate
and partnership authority for the execution and validity of this
Agreement, together with all other documents, instruments and
agreements and any other matters relevant hereto or thereto, all in
form and content satisfactory to Agent.
10. Reaffirmation of Debt. Borrowers hereby agree and
acknowledge that they are well and truly indebted to Lenders
pursuant to the terms of the Notes and the other Loan Documents, as
modified hereby.
11. Ratification. Except as otherwise expressly modified by
this Agreement, all terms and provisions of the Loan Agreement, the
Notes, and the other Loan Documents shall remain unchanged and
hereby are ratified and confirmed and shall be and shall remain in
full force and effect, enforceable in accordance with their terms.
12. Default. Except as otherwise expressly modified by this
Agreement, no Event of Default has occurred and is continuing under
any of the Loan Documents.
13. Payment of Expenses. Borrowers agree to provide to
Lenders, upon demand, the reasonable attorneys' fees and expenses
of Agent's counsel, filing and recording fees and other reasonable
expenses incurred by Agent in connection with this Agreement.
14. Further Assurances. Borrowers shall execute and deliver
to Agent such other documents as may be necessary or as may be
required, in the opinion of counsel to Agent, to effect the
transactions contemplated hereby and to protect the liens and
security interests.
15. Binding Agreement. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties' respective heirs,
representatives, successors and assigns.
16. Enforceability. In the event the enforceability or
validity of any portion of this Agreement, the Loan Agreement, the
Notes, or any of the other Loan Documents is challenged or
questioned, such provision shall be construed in accordance with,
and shall be governed by, whichever applicable federal or Texas law
would uphold or would enforce such challenged or questioned
provision.
17. Counterparts. This Agreement may be executed in several
counterparts, all of which are identical, each of which shall be
deemed an original, and all of which counterparts together shall
constitute one and the same instrument.
18. Choice of Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT FEDERAL LAWS
PREEMPT THE LAWS OF THE STATE OF TEXAS.
19. Entire Agreement. This Agreement, the Loan Agreement and
the Notes, together with the other Loan Documents, contain the
entire agreements between the parties relating to the subject
matter hereof and thereof and all prior agreements relative thereto
which are not contained herein or therein are terminated.
THIS AGREEMENT AND THE OTHER WRITTEN INSTRUMENTS, AGREEMENTS
AND DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT, AND THE
LOAN AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES 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.
IN WITNESS WHEREOF, this Agreement is executed effective as of
the date first written above.
BORROWERS:
AMRESCO, INC., a Delaware corporation
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Treasurer
AFC EQUITIES, INC.
AMRESCO ATLANTA INDUSTRIAL, INC.
AMRESCO BUILDERS GROUP, INC.
AMRESCO CANADA, INC.
AMRESCO CAPITAL CORPORATION
AMRESCO CAPITAL LIMITED, INC.
AMRESCO CONSOLIDATION CORP. f/k/a AMRESCO
MORTGAGE CAPITAL, INC.
AMRESCO EQUITIES CANADA INC.
AMRESCO FINANCIAL I, INC.
AMRESCO FINANCIAL I, L.P.
AMRESCO FUNDING CORPORATION
AMRESCO INSTITUTIONAL, INC.
AMRESCO INVESTMENTS, INC.
AMRESCO JERSEY VENTURES LIMITED
AMRESCO MANAGEMENT, INC.
AMRESCO NEW ENGLAND, L.P.
AMRESCO NEW ENGLAND II, L.P.
AMRESCO NEW ENGLAND, INC.
AMRESCO NEW ENGLAND II, INC.
AMRESCO NEW HAMPSHIRE, INC.
AMRESCO NEW HAMPSHIRE, L.P.
AMRESCO OVERSEAS, INC. f/k/a AMRESCO
SERVICES, INC.
AMRESCO PORTFOLIO INVESTMENTS, INC.
AMRESCO PRINCIPAL MANAGERS I, INC.
AMRESCO PRINCIPAL MANAGERS II, INC.
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC.
AMRESCO RESIDENTIAL CONDUIT, INC.
AMRESCO RESIDENTIAL CREDIT CORPORATION
AMRESCO RESIDENTIAL MORTGAGE CORPORATION
AMRESCO RHODE ISLAND, INC.
AMRESCO SERVICES CANADA INC.
AMRESCO UK HOLDINGS LIMITED
AMRESCO UK LIMITED
AMRESCO UK VENTURES LIMITED
AMRESCO VENTURES, INC. f/k/a AMRESCO
GENERAL PARTNERS, INC.
AMRESCO 1994-N2, INC.
ASSET MANAGEMENT RESOLUTION COMPANY
BEI 1992 - N1, INC.
BEI 1993 - N3, INC.
BEI 1994 - N1, INC.
BEI MULTI-POOL, INC.
BEI PORTFOLIO INVESTMENTS, INC.
BEI PORTFOLIO MANAGERS, INC.
BEI REAL ESTATE SERVICES, INC.
BEI SANJAC, INC.
CLC LEASING, INC.
COMMONWEALTH TRUST DEED SERVICES, INC.
COMMERCIAL LENDING CORPORATION
ENT MIDWEST, INC.
ENT NEW JERSEY, INC.
ENT SOUTHERN CALIFORNIA, INC.
EXPRESS FUNDING, INC.
GRANITE EQUITIES, INC.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
LIFETIME HOMES, INC., f/k/a LIFETIME
HOMES OF NEW JERSEY, INC.
OAK CLIFF FINANCIAL, INC.
OLD MIDLAND HOUSE LIMITED
PRESTON HOLLOW ASSET HOLDINGS, INC.
QUALITY FUNDING, INC.
QUALITY TRUSTEE SERVICES, INC.
SAVE-MORE INSURANCE SERVICES, INC.
WHITEROCK INVESTMENTS, INC.
By: AMRESCO, INC., a Delaware
corporation, as attorney-in-fact
By:________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
Treasurer
AGENT:
NATIONSBANK OF TEXAS, N.A.,
a national banking association, as
Agent for Lenders
By:_____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
REVOLVING LENDERS:
NATIONSBANK OF TEXAS, N.A., a
national banking association
By:_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
BANK ONE, TEXAS, NA,
a national banking association
By:________________________________
Name:______________________________
Title:_____________________________
▇▇▇▇▇ FARGO BANK (TEXAS), N.A.,
a national banking association
By:________________________________
Name:______________________________
Title:_____________________________
COMERICA BANK - TEXAS,
a state banking association
By:________________________________
Name:______________________________
Title:_____________________________
BANK UNITED,
a federal savings bank
By:________________________________
Name:______________________________
Title:_____________________________
THE BANK OF NEW YORK,
a national banking association
By:________________________________
Name:______________________________
Title:_____________________________
THE NIPPON CREDIT BANK, LTD.
By:________________________________
Name:______________________________
Title:_____________________________
FLEET BANK, N.A.,
a national banking association
By:________________________________
Name:______________________________
Title:_____________________________
THE SUMITOMO BANK, LTD.
By:________________________________
Name:______________________________
Title:_____________________________
By:________________________________
Name:______________________________
Title:_____________________________
PNC BANK, KENTUCKY, INC.
By:________________________________
Name:______________________________
Title:_____________________________
IMPERIAL BANK
By:________________________________
Name:______________________________
Title:_____________________________
TERM LENDERS:
NATIONSBANK OF TEXAS, N.A., a
national banking association
By:____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
ALLSTATE INSURANCE COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
INDOSUEZ CAPITAL FUNDING II, LIMITED
By: Indosuez Capital Luxembourg, SA, as
Collateral Manager
By:___________________________
Name:_________________________
Title:________________________
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital Luxembourg, SA, as
Collateral Manager
By:___________________________
Name:_________________________
Title:________________________
KZH HOLDING CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
EXHIBIT A
SCHEDULE I
LENDERS AND BORROWERS
I. LENDERS, AGENT AND ARRANGER
A. AGENT:
NationsBank of Texas, N.A.
Commercial Banking Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
B. ARRANGER:
NationsBanc Capital Markets, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
C. REVOLVING LENDERS:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank One, Texas, NA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy of all notices to:
Bank One, Texas, NA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank (Texas), N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Comerica Bank - Texas
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank United of Texas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Nippon Credit Bank, Ltd.
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet Bank, N.A.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The Sumitomo Bank, Limited
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PNC Bank, Kentucky, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Imperial Bank
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Rya Vadalma
D. TERM LENDERS:
NationsBank of Texas, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Allstate Insurance Companies
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Indosuez Capital Funding II, Limited
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Indosuez Capital Funding III, Limited
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
KZH Holding Corporation
▇/▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Revolving Revolving Participation
Loan Loan Fee Amount
Commitment Percentage
Amount
Revolving
Lenders:
NationsBank $50,000,000 17.24138% $100,000
Bank One $45,000,000 15.51724% $90,000
▇▇▇▇▇ Fargo $25,000,000 8.62069% $31,250
Comerica $20,000,000 6.89655% $15,000
Bank United $30,000,000 10.34483% $37,500
Bank of New York $30,000,000 10.34483% $37,500
Nippon Credit Bank $15,000,000 5.17241% $11,250
Sumitomo $25,000,000 8.62069% $62,500
Fleet $25,000,000 8.62069% $62,500
PNC $15,000,000 5.17241% $22,500
Imperial $10,000,000 3.44828% $15,000
Total $290,000,000 100% $485,000
Term Loan Term Loan Participation
Commitment Percentage Fee Amount
Amount
Term
Lenders:
Allstate $10,000,000 16.66667% $25,000
KZH $15,000,000 25.00000% $37,500
NationsBank $20,000,000 33.33333% $50,000
Indosuez $15,000,000 25.00000% $37,500
Total $60,000,000 100% $150,000
II. BORROWERS
AFC EQUITIES, INC.
AMRESCO ATLANTA INDUSTRIAL, INC.
AMRESCO BUILDERS GROUP, INC.
AMRESCO CANADA, INC.
AMRESCO CAPITAL CORPORATION
AMRESCO CAPITAL LIMITED, INC.
AMRESCO CONSOLIDATION CORP. f/k/a AMRESCO
MORTGAGE CAPITAL, INC.
AMRESCO EQUITIES CANADA INC.
AMRESCO FINANCIAL I, INC.
AMRESCO FINANCIAL I, L.P.
AMRESCO FUNDING CORPORATION
AMRESCO INSTITUTIONAL, INC.
AMRESCO INVESTMENTS, INC.
AMRESCO JERSEY VENTURES LIMITED
AMRESCO MANAGEMENT, INC.
AMRESCO NEW ENGLAND, L.P.
AMRESCO NEW ENGLAND II, L.P.
AMRESCO NEW ENGLAND, INC.
AMRESCO NEW ENGLAND II, INC.
AMRESCO NEW HAMPSHIRE, INC.
AMRESCO NEW HAMPSHIRE, L.P.
AMRESCO OVERSEAS, INC. f/k/a AMRESCO
SERVICES, INC.
AMRESCO PORTFOLIO INVESTMENTS, INC.
AMRESCO PRINCIPAL MANAGERS I, INC.
AMRESCO PRINCIPAL MANAGERS II, INC.
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC.
AMRESCO RESIDENTIAL CONDUIT, INC.
AMRESCO RESIDENTIAL CREDIT CORPORATION
AMRESCO RESIDENTIAL MORTGAGE CORPORATION
AMRESCO RHODE ISLAND, INC.
AMRESCO SERVICES CANADA INC.
AMRESCO UK HOLDINGS LIMITED
AMRESCO UK LIMITED
AMRESCO UK VENTURES LIMITED
AMRESCO VENTURES, INC. f/k/a AMRESCO GENERAL
PARTNERS, INC.
AMRESCO 1994-N2, INC.
ASSET MANAGEMENT RESOLUTION COMPANY
BEI 1992 - N1, INC.
BEI 1993 - N3, INC.
BEI 1994 - N1, INC.
BEI MULTI-POOL, INC.
BEI PORTFOLIO INVESTMENTS, INC.
BEI PORTFOLIO MANAGERS, INC.
BEI REAL ESTATE SERVICES, INC.
BEI SANJAC, INC.
CLC LEASING, INC.
COMMONWEALTH TRUST DEED SERVICES, INC.
COMMERCIAL LENDING CORPORATION
ENT MIDWEST, INC.
ENT NEW JERSEY, INC.
ENT SOUTHERN CALIFORNIA, INC.
EXPRESS FUNDING, INC.
GRANITE EQUITIES, INC.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
LIFETIME HOMES, INC., f/k/a LIFETIME HOMES OF
NEW JERSEY, INC.
OAK CLIFF FINANCIAL, INC.
OLD MIDLAND HOUSE LIMITED
PRESTON HOLLOW ASSET HOLDINGS, INC.
QUALITY FNDING, INC.
QUALITY TRUSTEE SERVICES, INC.
SAVE-MORE INSURANCE SERVICES, INC.
WHITEROCK INVESTMENTS, INC.
c/o AMRESCO, INC.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ 342
Dallas, Texas 75201-7424
Attn: Treasurer
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit B
SCHEDULE II
COMMITMENT FEE PERCENTAGE; LIBOR MARGIN
Qualified Applicable Commitment
Senior Consolidated Funded Debt/ Investment LIBOR Fee
Adjusted EBITDA Rating Margin Percentages
Greater than 2.25 to 1.0 BB+/Ba1, or (a) 175.0 b.p. 37.5 b.p.
Lower (b) 250.0 b.p.
Less than or equal to 2.25 to 1.0, BBB-/Baa3 (a) 150.0 b.p. 25.0 b.p.
but greater than 1.75 to 1.0 (b) 225.0 b.p.
Less than or equal to 1.75 to 1.0, BBB/Baa2 (a) 125.0 b.p. 25.0 b.p.
but greater than 1.25 to 1.0 (b) 200.0 b.p.
Less than or equal to 1.25 to 1.0 A-/A3, or (a) 100.0 b.p. 20.0 b.p.
better (b) 175.0 b.p.
(a) - The Applicable LIBOR Margin for the Revolving Credit Facility.
(b) - The Applicable LIBOR Margin for the Term Facility.
Borrowers' Senior Consolidated Funded Debt to Adjusted EBITDA ratio
shall be computed on a trailing four quarter basis. The applicable LIBOR
Margin or Commitment Fee Percentage shall be based on whichever of the
Senior Consolidated Funded Debt to Adjusted EBITDA ratio or Qualified
Investment Rating would produce the lowest LIBOR Margin or Commitment
Fee Percentage.
Exhibit C
Exhibit A-1
TERM NOTE
$_________________.00 Dallas, Texas ___________, 1997
FOR VALUE RECEIVED, AMRESCO, INC., a Delaware corporation, and the
other parties executing this Note or hereafter added hereto as "Maker"
(collectively "Makers"), hereby, jointly and severally, promise to pay
to the order of _________________, a _______________("Lender") in
care of Agent, at its banking house in the City of Dallas, Dallas County,
Texas, or at such other address in Dallas County, Texas, given to Makers
by Agent, the principal sum of ______________ and No/100 Dollars
($________________), or so much thereof as may be advanced and outstanding,
together with interest, as hereinafter described.
This Note has been executed and delivered pursuant to the terms of that
certain Second Amended and Restated Loan Agreement (as the same may be
modified, amended, supplemented, extended or restated from time to time,
the "Loan Agreement") dated as of February 7, 1997, executed by and among
Makers, Guarantors (as herein defined), Agent and the Lenders (which
includes the payee of this Note) and is one of the notes defined therein
as a "Term Note", the terms and provisions of the Loan Agreement related
to this Note being incorporated herein by reference for all purposes.
Each capitalized term not expressly defined herein shall have the meaning
given to such term under the Loan Agreement. The terms of the Loan
Agreement shall govern in the case of any inconsistency between such
terms and the terms hereof.
This Note is secured by the Collateral Assignment, the Pledge Agreements,
the Security Agreement, the Mortgages, the other Security Documents and
all the other Loan Documents, and all liens and security interests created
or evidenced thereby. Any holder shall be entitled to all benefits
and remedies and security set forth in the Loan Agreement and all the
other Loan Documents.
1. Interest and Payment.
(a) Maturity. The principal of this Note and all accrued but unpaid
interest hereon shall be due and payable in full on the Term
Facility Termination Date.
(b) Accrual of Interest. Subject to Paragraph 1(f) below, interest on
this Note shall accrue at a rate per annum equal to the lesser of
(i) at Makers' option, the Variable Rate or the Adjusted LIBOR Rate,
subject, however, to the provisions of the Loan Agreement, or (ii) the
Maximum Lawful Rate; provided, however, that as to any portion of the
outstanding principal balance hereof that is not subject to an effective
election of or conversion to the Adjusted LIBOR Rate in accordance with
the terms of the Loan Agreement, interest on such portion of this Note shall
accrue interest at the lesser of (i) the Variable Rate or (ii) the Maximum
Lawful Rate. Interest on this Note shall be calculated at a daily rate
equal to 1/360 of the annual percentage rate which this Note bears,
subject to the provisions hereof limiting interest to the Maximum Lawful
Rate. Without notice to any Maker or any other Person, the Variable Rate
and the Maximum Lawful Rate shall each automatically fluctuate upward
and downward as and in the amount by which the Base Rate and the
Maximum Lawful Rate, respectively, fluctuate, subject always to limitations
contained in this Note and the Loan Agreement.
(c) Agreements Concerning Pricing Election. Reference should be made
to the provisions of Section 3.5 of the Loan Agreement concerning the terms,
manner and agreements related to the interest rate elections available to
Makers under this Note.
(d) Principal and Interest Payments. Principal and interest hereon shall
be due and payable as is provided in Article III of the Loan Agreement, which
provides, in part, for (i) quarterly payments of interest on the first
(1st) day of each calendar quarter, commencing on July 1, 1997, and
continuing on the first (1st) day of each January, April, July and
October during the Credit Period, and (ii) an annual principal payment in
an amount equal to $50,000.00, on April 15 of each year, commencing on
April 15, 1998, and continuing on each April 15 thereafter during the
Credit Period.
(e) Costs Due to Regulatory Changes. Makers shall indemnify Lender against
and reimburse Lender for increased costs to Lender, as a result of any
Regulatory Change, in the maintaining of any LIBOR Rate Portion. All
payments made pursuant to this paragraph shall be made free and clear,
without reduction for, or account of, any present or future taxes or
other levies of any nature, excluding net income and franchise taxes.
(f) Default Rate. After maturity of this Note or the occurrence of an
Event of Default, the outstanding principal balance of this Note shall,
at the option of the Required Lenders, bear interest at the Default Rate.
Any past due principal, and to the extent permitted by law, past due
interest on this Note shall bear interest, payable as it accrues on demand,
for each day until paid at the Default Rate. Such interest shall continue
to accrue at the Default Rate notwithstanding the entry of a judgment with
respect to any of the Obligations or the foreclosure of any of the
Lenders' Liens, unless otherwise provided by law.
(g) Maximum Lawful Rate Adjustments. If at any time the Applicable Rate
shall be limited to the Maximum Lawful Rate, any subsequent reductions in
the Applicable Rate shall not reduce the rate of interest on this Note
below the Maximum Lawful Rate until the total amount of interest accrued
equals the amount of interest which would have accrued if the Applicable
Rate had at all times been in effect. In the event that at maturity
(stated or by acceleration), or at the final payment of the Term Facility,
the total amount of interest paid or accrued on the Term Facility
is less than the amount of interest which would have accrued if the
Applicable Rate had at all times been in effect with respect thereto,
then at such time, to the extent permitted by law, Makers shall
pay to Agent, for the ratable benefit of the Lenders, an amount equal
to the difference between (a) the lesser of the amount of interest which
would have accrued if the Applicable Rate had at all times
been in effect and the amount of interest which would have accrued if
the Maximum Lawful Rate had at all times been in effect, and (b) the
amount of interest actually paid on the Term Facility.
2. Default. The occurrence of a Default or an Event of Default,
under and as defined in the Loan Agreement, shall constitute, respectively,
a Default or an Event of Default under this Note.
3. Remedies.
(a) All Remedies Available. Upon the occurrence of an Event of
Default, the holder hereof, acting by and through Agent in accordance
with the terms of Articles IX and X of the Loan Agreement, shall have
the right to declare the entire unpaid principal balance of, and all
accrued unpaid interest on, this Note at once due and payable (and upon
such declaration, the same shall be at once due and payable), to
foreclose any and all liens and security interests securing
payment hereof, to offset against this Note any sum or sums owed by
it to Maker, and to exercise any of its other rights, powers and
remedies under this Note, under the Loan Agreement or any other
Loan Document, or at law or in equity.
(b) No Waiver. Neither the failure by the holder hereof to exercise,
nor delay by the holder hereof in exercising, the right to accelerate the
maturity of this Note or any other right, power or remedy upon any Default
or Event of Default shall be construed as a waiver of such Default
or Event of Default or as a waiver of the right to exercise any such
right, power or remedy at any time. No single or partial exercise by
the holder hereof of any right, power or remedy shall exhaust
the same or shall preclude any other or further exercise thereof,
and every such right, power or remedy may be exercised at any time
and from time to time. All rights and remedies provided for
in this Note and in any other Loan Document are cumulative of each
other and of any and all other rights and remedies existing at law
or in equity, and the holder hereof shall, in addition to the rights
and remedies provided herein or in any other Loan Document, be entitled
to avail itself of all such other rights and remedies as may now or
hereafter exist at law or in equity for the collection of the
indebtedness owing hereunder, and the resort to any right or remedy
provided for hereunder or under any such other Loan Document or
provided for by law or in equity shall not prevent the concurrent
or subsequent employment of any other appropriate rights or remedies.
Without limiting the generality of the foregoing provisions, the
acceptance by the holder hereof from time to time of any payment under
this Note which is past due or which is less than the payment in full
of all amounts due and payable at the time of such payment, shall not
(i) constitute a waiver of or impair or extinguish the rights of the
holder hereof to accelerate the maturity of this Note or to exercise any
other right, power or remedy at the time or at any subsequent time, or
nullify any prior exercise of any such right, power or remedy, or
(ii) constitute a waiver of the requirement of punctual payment
and performance, or a novation in any respect.
4. Usury Savings Provisions.
(a) General Limitation. Notwithstanding anything herein or in
any other Loan Documents, expressed or implied, to the contrary, in no
event shall any interest rate charged hereunder or under any of the
other Loan Documents, or any interest contracted for, collected or
received by Lender or any holder hereof, exceed the Maximum Lawful Rate.
(b) Intent of Parties. It is expressly stipulated and agreed to be
the intent of Makers and Lender at all times to comply with the applicable
law governing the maximum rate or amount of interest payable on or in
connection with this Note. If the applicable law is ever judicially
interpreted so as to render usurious any amount called for under this
Note or under any of the other Loan Documents, or contracted for,
charged, taken, reserved or received with respect to this Note,
or if acceleration of the maturity of this Note, any prepayment by
Makers, or any other circumstance whatsoever, results in Lender having
been paid any interest in excess of that permitted by applicable
law, then it is the express intent of Makers and Lender that all excess
amounts theretofore collected by Lender be credited on the principal
balance of this Note (or, if this Note has been or would
thereby be paid in full, refunded to Makers), and the provisions of
this Note and the other applicable Loan Documents immediately be deemed
reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any
new document, so as to comply with the applicable law, but so as to
permit the recovery of the fullest amount otherwise called for
hereunder and thereunder. The right to accelerate the maturity of
this Note does not include the right to accelerate any interest which
has not otherwise accrued on the date of such acceleration, and
Lender does not intend to collect any unearned interest in the event
of acceleration. All sums paid or agreed to be paid to Lender for
the use, forbearance or detention of the indebtedness evidenced
hereby or by any other Loan Document shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full
so that the rate or amount of interest on account of such indebtedness
does not exceed the Maximum Lawful Rate. The term "applicable law"
as used herein shall mean the laws of the State of Texas,
or DIDMCA or any other applicable United States federal law to the
extent that it permits Lender to contract for, charge, take, reserve
or receive a greater amount of interest than under Texas law.
The provisions of this paragraph shall control all agreements
between Makers and Lender.
5. General Provisions.
(a) Business Days. Whenever any payment shall be due under this Note on a
day which is not a Business Day, the date on which such payment is due
shall be extended to the next succeeding Business Day, and such extension
of time shall be included in the computation of the amount of interest
then payable.
(b) Manner of Payment. The manner in which payments are to be made on
this Note shall be governed by the provisions hereof and the Loan Agreement,
including, without limitation, Article III of the Loan Agreement.
(c) Prepayments. Prepayments may be made, and as provided in Section
3.6 of the Loan Agreement are required to be made, on this Note subject
to and in accordance with Section 3.6 of the Loan Agreement.
(d) Application of Payments. All payments made on this Note shall
be applied in accordance with Sections 3.6, 3.9 and 9.10 of the Loan
Agreement, as applicable. Nothing herein shall limit or impair any
rights of any holder hereof to apply as provided in the Loan Documents any
past due payments, any proceeds from the disposition of any collateral
by foreclosure or other collections after default. Except to the
extent specific provisions are set forth in this Note or another
Loan Document with respect to application of payments, all payments
received by the holder hereof shall be applied, to the extent thereof,
to the indebtedness owing by Makers to the holder hereof in
such order and manner as the Required Lenders shall deem appropriate,
any instructions from Makers or anyone else to the contrary notwithstanding.
(e) Costs of Collection. If any holder of this Note retains an
attorney in connection with any default or at maturity or to collect,
enforce or defend this Note or any other Loan Document in any lawsuit
or in any probate, reorganization, bankruptcy or other proceeding, or
if any Maker sues any holder of this Note in connection with this Note
or any other Loan Document and does not prevail, then Makers agree to
pay to each such holder, in addition to principal and interest,
all costs and expenses incurred by such holder in trying to collect
this Note or in any such suit or proceeding, including reasonable
attorneys' fees.
(f) Waivers and Acknowledgments. Each Maker and all sureties, endorsers,
guarantors and any other party now or hereafter liable for the payment of
this Note in whole or in part, hereby severally (i) waive demand,
presentment for payment, notice of dishonor and of nonpayment, protest,
notice of protest, notice of intent to accelerate, notice of acceleration
and all other notice (except only for any notice that is specifically
required by the terms of the Loan Agreement or any other Loan Document),
filing of suit and diligence in collecting this Note or
enforcing any of the security herefor; (ii) agree to any substitution,
subordination, exchange or release of any such security or the release
of any party primarily or secondarily liable hereon; (iii)
agree that the holder hereof shall not be required first to institute
suit or exhaust its remedies against any Maker or others liable or to
become liable hereon or to enforce its rights against them or any
security herefor; (iv) consent to any extension or postponement of
time of payment of this Note for any period or periods of time and
to any partial payments, before or after maturity, and to any other
indulgences with respect hereto, without notice thereof to any of them;
and (v) submit (and waive all rights to object) to personal jurisdiction
in the State of Texas, and venue in Dallas County, Texas,
for the enforcement of any and all obligations under the Loan Documents.
(g) Amendments in Writing. This Note may not be changed, amended or
modified except in a writing expressly intended for such purpose and
executed by the party against whom enforcement of the change, amendment
or modification is sought.
(h) Purpose of Proceeds. The proceeds of this Note will be used
solely for business purposes and not for personal, family, household or
agricultural purposes.
(i) Notices. Any notice required or which any party desires to
give under this Note shall be given and effective as provided in Section
11.2 of the Loan Agreement.
(j) Assignments/Participations. Makers acknowledge and agree that
the holder of this Note may, at any time and from time to time, assign
all or a portion of its interest in the Term Facility or transfer to
any Person a participation interest in the Term Facility, subject to and in
accordance with the terms and conditions of the Loan Agreement, including
Section 11.10 thereof.
(k) Successors and Assigns. All of the covenants, stipulations,
promises and agreements contained in this Note by or on behalf of
Makers shall bind their successors and assigns and shall be for the
benefit of Lender and any holder hereof, and their successors and assigns,
whether so expressed or not, subject, however, to the provisions of
Section 11.10 of the Loan Agreement.
(l) GOVERNING LAW. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY TEXAS LAW, EXCEPT TO THE EXTENT
THAT THE LAWS OF ANOTHER JURISDICTION GOVERN THE CREATION,
PERFECTION OR ENFORCEMENT OF INTERESTS, OR THE REMEDIES RELATED
TO ANY PART OF THE COLLATERAL, OR TO THE EXTENT THAT UNITED STATES
FEDERAL LAW APPLIES PURSUANT TO SECTION 11.8 OF THE LOAN AGREEMENT
OR OTHERWISE.
(m) Time of the Essence. Time shall be of the essence in this
Note with respect to all of Makers' obligations hereunder.
(n) INTEGRATION. THIS NOTE AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES 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.
IN WITNESS WHEREOF, Maker has duly executed this Note as of the date
first above written.
MAKERS:
AMRESCO, INC., a Delaware corporation
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Treasurer
AFC EQUITIES, INC.
AMRESCO ATLANTA INDUSTRIAL, INC.
AMRESCO BUILDERS GROUP, INC.
AMRESCO CAPITAL CORPORATION
AMRESCO CAPITAL LIMITED, INC.
AMRESCO CONSOLIDATION CORP. f/k/a AMRESCO
MORTGAGE CAPITAL, INC.
AMRESCO FINANCIAL I, INC.
AMRESCO FINANCIAL I, L.P.
AMRESCO FUNDING CORPORATION
AMRESCO INSTITUTIONAL, INC.
AMRESCO INVESTMENTS, INC.
AMRESCO MANAGEMENT, INC.
AMRESCO NEW ENGLAND, L.P.
AMRESCO NEW ENGLAND II, L.P.
AMRESCO NEW ENGLAND, INC.
AMRESCO NEW ENGLAND II, INC.
AMRESCO NEW HAMPSHIRE, INC.
AMRESCO NEW HAMPSHIRE, L.P.
AMRESCO OVERSEAS, INC. f/k/a AMRESCO
SERVICES, INC.
AMRESCO PORTFOLIO INVESTMENTS, INC.
AMRESCO PRINCIPAL MANAGERS I, INC.
AMRESCO PRINCIPAL MANAGERS II, INC.
AMRESCO RESIDENTIAL CAPITAL MARKETS, INC.
AMRESCO RESIDENTIAL CONDUIT, INC.
AMRESCO RESIDENTIAL CREDIT CORPORATION
AMRESCO RESIDENTIAL MORTGAGE CORPORATION
AMRESCO RHODE ISLAND, INC.
AMRESCO VENTURES, INC. f/k/a AMRESCO
GENERAL PARTNERS, INC.
AMRESCO 1994-N2, INC.
ASSET MANAGEMENT RESOLUTION COMPANY
BEI 1992 - N1, INC.
BEI 1993 - N3, INC.
BEI 1994 - N1, INC.
BEI MULTI-POOL, INC.
BEI PORTFOLIO INVESTMENTS, INC.
BEI PORTFOLIO MANAGERS, INC.
BEI REAL ESTATE SERVICES, INC.
BEI SANJAC, INC.
CLC LEASING, INC.
COMMONWEALTH TRUST DEED SERVICES, INC.
COMMERCIAL LENDING CORPORATION
ENT MIDWEST, INC.
ENT NEW JERSEY, INC.
ENT SOUTHERN CALIFORNIA, INC.
EXPRESS FUNDING, INC.
GRANITE EQUITIES, INC.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
LIFETIME HOMES, INC., f/k/a LIFETIME HOMES OF
NEW JERSEY, INC.
OAK CLIFF FINANCIAL, INC.
PRESTON HOLLOW ASSET HOLDINGS, INC.
QUALITY FUNDING, INC.
QUALITY TRUSTEE SERVICES, INC.
SAVE-MORE INSURANCE SERVICES, INC.
WHITEROCK INVESTMENTS, INC.
By: AMRESCO, INC., a Delaware corporation, as
attorney-in-fact
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
Treasurer
The undersigned (each a "Guarantor") hereby agree that (a) each is
jointly and severally liable for the payment in full of the indebtedness
evidenced by this Term Note, (b) each shall take any and all actions
necessary to insure Lender is paid such amount in full, (c) each shall
increase the amount payable to such Lender to an amount which, after
deduction from such increased amount of the taxes required to be held
or deducted therefrom solely as a result of the payment by Guarantor of
such amount, will yield to the Lender the amount stated to be payable
with respect thereto, and (d) any and all amounts paid pursuant to
this guaranty shall be paid in U.S. Dollars without consideration
to any currency exchange rate.
AMRESCO CANADA, INC.
AMRESCO EQUITIES CANADA INC.
AMRESCO JERSEY VENTURES LIMITED
AMRESCO RETAIL VENTURES II LIMITED
AMRESCO SERVICES CANADA INC.
AMRESCO UK HOLDINGS LIMITED
AMRESCO UK LIMITED
AMRESCO UK VENTURES LIMITED
OLD MIDLAND HOUSE LIMITED
By: AMRESCO, INC., a Delaware corporation, as
attorney-in-fact
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
Treasurer