Exhibit 10.31.9
AMENDMENT NUMBER TWELVE
to the
Amended and Restated Master Loan and Security Agreement
Dated as of March 27, 2000
among
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.
HANOVER CAPITAL PARTNERS LTD.
and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
This AMENDMENT NUMBER TWELVE is made this 31st day of January, 2006,
among HANOVER CAPITAL MORTGAGE HOLDINGS, INC. and HANOVER CAPITAL PARTNERS LTD.
each having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ (each, a "Borrower" and collectively, "the Borrowers") and GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Lender"), to the Amended and Restated Master
Loan and Security Agreement, dated as of March 27, 2000, by and between the
Borrowers and the Lender, as amended (the "Agreement"). Capitalized terms used
but not otherwise defined herein shall have the meanings assigned to such terms
in the Agreement.
RECITALS
WHEREAS, the Borrowers have requested and the Lender has agreed to
amend the Agreement to remove Hanover Capital Partners Ltd. as a Borrower;
WHEREAS, the Borrowers and the Lender have agreed to amend the
Agreement as set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. Effective as of January 31, 2006, the first paragraph of the
Agreement is hereby amended to read in its entirety as follows:
AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT, dated as of
March 27, 2000, between HANOVER CAPITAL MORTGAGE HOLDINGS, INC. ("Hanover
Capital Holdings"), a Maryland corporation, (the "Borrower"), and GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation (the "Lender").
SECTION 2. Effective as of January 31, 2006, the first paragraph of Exhibit
▇-▇, ▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit D-4 is hereby amended to read in its
entirety as follows:
Reference is made to the Amended and Restated Master Loan and Security
Agreement, dated as of March 27, 2000 (the "Loan Agreement";
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capitalized terms used but not otherwise defined herein shall have the
meaning given them in the Loan Agreement), between Hanover Capital Mortgage
Holdings, Inc. (the "Borrower") and Greenwich Capital Financial Products,
Inc. (the "Lender").
SECTION 3. Effective as of January 31, 2006, the word "Borrowers" shall be
replaced by the word, "Borrower" throughout the Agreement.
SECTION 4. No Breach. The merger of Hanover Capital Partners, Ltd. and
Hanover Capital Partners 2, Inc. with and into Hanover Trade, Inc. as a result
of which Hanover Trade, Inc. is the surviving entity with the corporate name
"Hanover Capital Partners 2, Ltd." will not constitute a Change of Control as
defined by the Agreement, a breach of the representations and warranties of any
Borrower under Section 6 of the Agreement, or a breach of the covenants of any
Borrower under Section 7 of the Agreement. The parties hereto acknowledge and
agree that subject to the provisions of this Amendment Number Twelve, the
provisions of the Agreement remain in full force and effect and that the
execution of this Amendment Number Twelve does not operate as a waiver by the
Lender of any of its rights, powers or privileges under either the Agreement or
under any of the Loan Documents.
SECTION 5. Effectiveness. This Amendment Number Twelve shall be effective
upon the Lender's receipt of a new Note, executed by Hanover Capital Mortgage
Holdings, Inc. in the form attached hereto as Exhibit A, to replace the existing
Note by Hanover Capital Mortgage Holdings, Inc. and Hanover Capital Partners
Ltd.
SECTION 6. Defined Terms. Any terms capitalized but not otherwise defined
herein shall have the respective meanings set forth in the Agreement.
SECTION 7. Fees and Expenses. The Borrower agrees to pay to the Lender all
fees and out of pocket expenses incurred by the Lender in connection with this
Amendment Number Twelve (including all reasonable fees and out of pocket costs
and expenses of the Lender's legal counsel incurred in connection with this
Amendment Number Twelve), in accordance with Section 11.03 of the Agreement
SECTION 8. Limited Effect. Except as amended hereby, the Agreement shall
continue in full force and effect in accordance with its terms. Reference to
this Amendment Number Twelve need not be made in the Agreement or any other
instrument or document executed in connection therewith, or in any certificate,
letter or communication issued or made pursuant to, or with respect to, the
Agreement, any reference in any of such items to the Agreement being sufficient
to refer to the Agreement as amended hereby.
SECTION 9. Representations. The Borrowers hereby represents to the Lender
that as of the date hereof, the Borrowers are in full compliance with all of the
terms and conditions of the Agreement and no Default or Event of Default has
occurred and is continuing under the Agreement.
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SECTION 10. Governing Law. This Amendment Number Twelve shall be construed
in accordance with the laws of the State of New York and the obligations,
rights, and remedies of the parties hereunder shall be determined in accordance
with such laws without regard to conflict of laws doctrine applied in such state
(other than Sections 5-1401 and 5-1402 of the New York General Obligations Law).
SECTION 9. Counterparts. This Amendment Number Twelve may be executed by
each of the parties hereto on any number of separate counterparts, each of which
shall be an original and all of which taken together shall constitute one and
the same instrument.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Borrowers and the Lender have caused this
Amendment Number Twelve to be executed and delivered by their duly authorized
officers as of the day and year first above written.
HANOVER CAPITAL MORTGAGE
HOLDINGS, INC.
(Borrower)
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: COO
HANOVER CAPITAL PARTNERS LTD.
(Borrower)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
(Lender)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
EXHIBIT A
[FORM OF PROMISSORY NOTE]
$20,000,000 Dated January 31, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
FOR VALUE RECEIVED, HANOVER CAPITAL MORTGAGE HOLDINGS, INC., a
Maryland corporation (the "Borrower"), hereby promises to pay to the order of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. a Delaware corporation (the
"Lender"), at the principal office of the Lender at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in lawful money of the United States, and in
immediately available funds, the principal sum of TWENTY MILLION DOLLARS
($20,000,000) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Advances made by the Lender to the Borrower under the
Loan Agreement as defined below), on the dates and in the principal amounts
provided in the Loan Agreement, and to pay interest on the unpaid principal
amount of each such Advance, at such office, in like money and funds, for the
period commencing on the date of such Advance until such Advance shall be paid
in full, at the rates per annum and on the dates provided in the Loan Agreement.
The date, amount and interest rate of each Advance made by the Lender
to the Borrower, and each payment made on account of the principal and interest
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Note, endorsed by the Lender on the schedule attached hereto or any
continuation thereof; provided, that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Loan Agreement or
hereunder in respect of the Advances made by the Lender.
* This Note is the Note referred to in the Amended and Restated Master Loan
and Security Agreement dated as of March 27, 2000 (as amended, supplemented
or otherwise modified and in effect from time to time, the "Loan
Agreement") between the Borrower and the Lender, and evidences Advances
made by the Lender thereunder. Terms used but not defined in this Note have
the respective meanings assigned to them in the Loan Agreement.
The Borrower agrees to pay all the Lender's costs of collection and
enforcement (including attorneys' fees and disbursements of Lender's counsel) in
respect of this Note when incurred, including, without limitation, attorneys'
fees through appellate proceedings.
Notwithstanding the pledge of the Collateral, the Borrower hereby
acknowledges, admits and agrees that the Borrower's obligations under this Note
are recourse obligations of the Borrowers to which the Borrowers pledge their
full faith and credit.
The Borrower, and any indorsers hereof, (a) severally waive diligence,
presentment, protest and demand and also notice of protest, demand, dishonor and
nonpayments of this Note, (b) expressly agree that this Note, or any payment
hereunder, may be extended from time to time, and consent to the acceptance of
further Collateral, the release of any Collateral for this Note, the release of
any party primarily or secondarily liable hereon, and (c) expressly agree that
it will not be necessary for the Lender, in order to enforce payment of this
Note, to first institute or exhaust the Lender's remedies against the Borrower
or any other party liable hereon or against any Collateral for this Note. No
extension of time for the payment of this Note, or any installment hereof, made
by agreement by the Lender with any person now or hereafter liable for the
payment of this Note, shall affect the liability under this Note of the
Borrower, even if the Borrower are not a party to such agreement; provided,
however, that the Lender and the Borrower, by written agreement between them,
may affect the liability of the Borrower.
Any reference herein to the Lender shall be deemed to include and
apply to every subsequent holder of this Note. Reference is made to the Loan
Agreement for provisions concerning optional and mandatory prepayments,
Collateral, acceleration and other material terms affecting this Note.
The Borrower hereby acknowledges and agrees that it will be liable to
the Lender for all representations, warranties, covenants and liabilities of the
Borrower hereunder.
Any enforcement action relating to this Note may be brought by motion
for summary judgment in lieu of a complaint pursuant to Section 3213 of the New
York Civil Practice Law and Rules.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE BUT WITH
REFERENCE TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY
ITS TERMS APPLIES TO THIS NOTE) WHOSE LAWS THE BORROWER EXPRESSLY ELECT TO APPLY
TO THIS NOTE. THE BORROWER AGREES THAT ANY ACTION OR PROCEEDING BROUGHT TO
ENFORCE OR ARISING OUT OF THIS NOTE MAY BE COMMENCED IN THE SUPREME COURT OF THE
STATE OF NEW YORK, BOROUGH OF MANHATTAN, OR IN ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ FOR THE SOUTHERN DISTRICT OF NEW YORK. THE BORROWER HEREBY SUBMITS TO NEW
YORK JURISDICTION WITH RESPECT TO ANY ACTION BROUGHT WITH RESPECT TO THIS NOTE
AND WAIVES ANY RIGHT WITH RESPECT TO THE DOCTRINE OF FORUM NON CONVENIENS WITH
RESPECT TO SUCH TRANSACTIONS.
HANOVER CAPITAL MORTGAGE HOLDINGS, INC.
By:
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Name:
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Title:
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