EXHIBIT 10.1
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FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (the
"Fourth Amendment") is made and entered into as of this 20th day of October,
1997, by and among DVL, Inc., a Delaware corporation having an office at 00
Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Borrower"), NPM Capital LLC, a
Delaware limited liability company with an address c/o Pembroke Companies,
Inc., 0000 Xxxxxxxx Xxxxxx, Xx. X, Xxxxxxx Xxxx, Xxxxxx 00000 (the "Lender"),
and Bridge Capital, LLC, a limited liability company organized under the laws
of the State of Delaware having an office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Bridge Capital Lender").
W I T N E S S E T H :
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WHEREAS, Borrower and Lender are parties to an Amended and Restated
Loan Agreement dated as of March 27, 1996, as amended by Amendments thereto
dated as of July 10, 1996, September 27, 1996 and March 6, 1997 (the Amended
and Restated Loan Agreement, as so amended, being referred to herein as the
"Loan Agreement"), pursuant to which, among other things, Lender acquired
approximately $7.5 million of outstanding indebtedness of Borrower and
advanced additional sums to Borrower (the "Loan"); and
WHEREAS, concurrently with the execution of the Loan Agreement,
Borrower, NPO Management LLC, a Delaware limited liability company ("NPO; the
Lender and NPO sometimes hereinafter collectively referred to as the "NPM
Parties"), and certain other parties entered into an Asset Servicing Agreement
(the "Servicing Agreement") pursuant to which, among other things, Borrower
engaged NPO to assist Borrower to perform certain services with respect to the
ownership, sale, financing and asset management of certain of Borrower's
assets; and
WHEREAS, Borrower's obligations to the NPM Parties arising out of and
relating to the Loan Agreement and the Servicing Agreement, respectively, are,
among other things, secured by the pledge by Borrower to the NPM Parties of
certain of Borrower's assets, all as more specifically set forth in certain
Security, Pledge and Guaranty Agreements and Stock Pledge and Guaranty
Agreements entered into by Borrower and the NPM Parties concurrently with the
execution of the Loan Agreement; and
WHEREAS, Borrower is desirous of Bridge Capital Lender advancing up
to $1,760,000 (the "Bridge Capital Loan") in order to finance Borrower's
acquisition, together with related costs and expenses (the "Debt Tender
Offer"), of Borrower's outstanding 10% Redeemable Promissory Notes due
December 31, 2005 (the "Redeemable Notes"); and
WHEREAS, Bridge Capital Lender desires to advance Borrower the Bridge
Capital Loan in order to permit Borrower to pursue the Debt Tender Offer, all
in accordance with the terms and conditions set forth herein; and
WHEREAS, Borrower, NPM and Bridge Capital Lender desire to memorialize
the Bridge Capital Loan by modifying the Loan Agreement to give effect to the
Bridge Capital Loan as follows.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Loan Agreement.
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2. The Loan Agreement is hereby amended to add the words "or Bridge
Capital Lender, as the case may be," immediately after the term "Lender" and
the words "or Bridge Capital Lender's, as the case may be," immediately after
the term "Lender's" each time the terms "Lender" and "Lender's" appear
throughout the Loan Agreement as follows:
a. In Article 1, "Definitions", the amendment contemplated by this
paragraph 2 shall be effective with respect to all defined terms other than
(i) A.I. Credit Loan Transfer Documents, (ii) Closing Date, (iii) Collateral
Assignments, (iv) CRT Loan Transfer Documents, (v) Existing Lenders, (vi)
Indebtedness, (vii) Lender, (viii) Lender Default, (ix) Lender Entities, (x)
Lender Expenses, (xi) Lender Litigation Expenses, (xii) Lender Transaction
Expenses, (xiii) Mortgage, (xiv) Security Agreement, (xv) Stock Pledge
Agreement and (xvi) Westrock Loan Transfer Documents, each of which shall
retain the definition given it in the Loan Agreement without giving effect to
this Fourth Amendment.
b. In Article 2, "Terms of Acquisition of Existing Loans...", the
amendment contemplated by this paragraph 2 shall be effective only with
respect to Sections 2.12, 2.14, 2.15 and 2.16. All other Sections of Article
2 shall remain as set forth currently in the Loan Agreement without giving
effect to this Fourth Amendment.
c. The amendment contemplated by this paragraph 2 shall not affect
Article 3, "Conditions Precedent", of the Loan Agreement, which Article 3
shall remain as set forth currently in the Loan Agreement without giving
effect to this Fourth Amendment.
d. In Article 4, "Representations and Warranties", the amendment
contemplated by this paragraph 2 shall be effective with respect to all
Sections of Article 4 other than the preamble to Article 4 and Sections 4.26
and 4.29 thereto, which preamble and two Sections shall remain as set forth
currently in the Loan Agreement without giving effect to this Fourth
Amendment.
e. In Article 5, "Financial Statements and Information", the amendment
contemplated by this paragraph 2 shall be effective with respect to all
Sections of Article 5.
f. In Article 6, "Affirmative Covenants", the amendment contemplated
by this paragraph 2 shall be effective with respect to all Sections of Article
6 other than Sections 6.14(b) and 6.18, which two Sections shall remain as set
forth currently in the Loan Agreement without giving effect to this Fourth
Amendment.
g. In Article 7, "Negative Covenants", the amendment contemplated by
this paragraph 2 shall be effective with respect to all Sections of Article
7.
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h. In Article 8, "Events of Default...", the amendment contemplated
by this paragraph 2 shall be effective with respect to all Sections of Article
8.
i. In Article 9, "Miscellaneous", the amendment contemplated by this
paragraph 2 shall be effective with respect to all Sections of Article 9 other
than Sections 9.1(c), 9.1(d), 9.10, 9.12 and 9.16, which five Sections shall
remain as set forth currently in the Loan Agreement without giving effect to
this Fourth Amendment.
3. The Loan Agreement is hereby amended by adding to Section 1 thereto
the following defined terms:
a. "Bridge Capital Lender" shall mean Bridge Capital, LLC, a Delaware
limited liability company.
b. "Bridge Capital Loan" shall mean that certain loan by Bridge Capital
Lender to Borrower in the aggregate maximum principal amount of $1,760,000
being made in order to finance Borrower's acquisition, together with
Borrower's costs and expenses related to said acquisition and the Bridge
Capital Loan, of Borrower's Redeemable Notes pursuant to the Debt Tender
Offer, all as contemplated by the Fourth Amendment.
c. "Debt Tender Offer" shall mean Borrower's proposed offer to purchase
any and all outstanding Redeemable Notes of Borrower, all as more fully set
forth in the draft of Borrower's Offer to Purchase dated October 20, 1997, as
such offer may be amended and modified from time to time.
d. "Permitted Working Capital Advances" shall mean advances or other
loans from time to time made by Lender to Borrower following the date hereof
in the maximum aggregate principal amount of $300,000. All Permitted Working
Capital Advances shall be on terms separately negotiated by Lender and
Borrower.
e. "Redeemable Notes" shall mean Borrower's 10% Redeemable Promissory
Notes due December 31, 2005, together with all other promissory notes of
Borrower issued in satisfaction of Borrower's interest obligations under such
Redeemable Notes.
f. "Subordination Agreement" shall mean that certain Subordination
Agreement dated as of the date of this Fourth Amendment among Borrower,
Lender, NPO and Bridge Capital Lender, as the same may be amended, modified
or supplemented from time to time.
4. The definition of "Loan Documents" set forth in Section 1 of the Loan
Agreement is hereby further amended to read in its entirety as follows:
"Loan Documents" shall mean the collective reference to this
Agreement, as amended, the Note, the Second Note, the Bridge Capital Note, the
Collateral Documents, the Subordination Agreement, any instrument or other
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document evidencing any Permitted Working Capital Advance and all other
agreements, instruments, documents and certificates, including, without
limitation, pledges, powers of attorney, consents, assignments, contracts,
notices, and all other written matter whether heretofore, now or hereafter
executed by or on behalf of Borrower or any of its Affiliates, or any employee
of Borrower or any of its Affiliates, and delivered to Lender or Bridge
Capital Lender in connection with this Agreement, as amended, the Note, the
Second Note, the Bridge Capital Note, the Collateral Documents, the
Subordination Agreement, any Permitted Working Capital Advance or the
transactions contemplated hereby or thereby, together with all amendments,
modifications and supplements to such Loan Documents."
5. The definition of "Obligations" set forth in Section 1 of the Loan
Agreement is hereby further amended to include within the definition of
"Obligations" the indebtedness evidenced by the Bridge Capital Note and any
Permitted Working Capital Advances.
6. The definition of "Senior Debt" set forth in Section 1 of the Loan
Agreement is hereby further amended to read in its entirety as follows:
"'Senior Debt' shall mean the collective reference to all principal
of, interest on, and all other amounts of any nature whatsoever owing in
respect of, the Loan Documents and the Servicing Agreement, specifically
excluding, however, obligations of Borrower arising under the Bridge Capital
Note or the Fourth Amendment."
7. The Loan Agreement is hereby amended by adding a new Section 2.17
thereto as follows:
"2.17 BRIDGE CAPITAL LOAN.
(a) Contemporaneously with the execution of this Fourth Amendment,
Borrower is executing and delivering to Bridge Capital Lender a single
promissory note evidencing the Bridge Capital Loan in the form attached to
this Fourth Amendment as Exhibit A (the "Bridge Capital Note"). The original
principal amount of the Bridge Capital Note shall be $1,760,000. All
outstanding principal of, and then due accrued interest on, the Bridge Capital
Note shall become due and payable in cash, without notice or demand, on
September 30, 2002 or such earlier date pursuant to the terms of the Loan
Agreement, subject, however, at all times, to the terms of the Subordination
Agreement. Notwithstanding the foregoing, commencing with the date that is
30 months following the date of this Fourth Amendment, Borrower shall remit
to Bridge Capital Lender, in the form of prepayments of principal under the
Bridge Capital Note, 15% of all proceeds that, but for the provisions of this
Section 2.17, would otherwise have been remitted to either or both of the NPM
Parties pursuant to this Loan Agreement as a consequence of the sale or other
disposition by Borrower of any Primary Collateral (the "Prepayments"). All
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Prepayments shall be remitted to Bridge Capital Lender simultaneously with the
delivery to either or both of the NPM Parties of their allocable share of the
proceeds from the sale or other disposition of any Primary Collateral.
Interest on the outstanding principal balance of the Bridge Capital Note shall
accrue at the rate of 12% per annum on a year of 360 days for the actual
number of days elapsed, and shall be payable annually on each anniversary of
this Fourth Amendment (i) while obligations of Borrower remain outstanding to
either of the NPM Parties, by the issuance of promissory notes of Borrower
similar in form and substance, including interest rate and maturity date, to
the Bridge Capital Note (the "PIK Notes"), except that the principal amount
of such PIK Notes shall be the amount of accrued interest then payable, and
(ii) after all obligations of Borrower to either of the NPM Parties are
satisfied, in cash directly from 100% of the proceeds then available to
Borrower from the mortgage collateral held as security for the Senior Debt.
(b) Borrower hereby acknowledges that (i) up to $1,700,000 of the
principal amount of the Bridge Capital Loan is being made in order to
facilitate Borrower's purchase of Redeemable Notes pursuant to the terms of
the Debt Tender Offer and to fund Borrower's costs and expenses related to the
purchase of said Notes and the Bridge Capital Loan and (ii) the remaining
$60,000 principal amount of the Bridge Capital Loan represents the commitment
fee payable by Borrower to Bridge Capital Lender concurrently with the
execution of this Agreement, as further contemplated by subparagraph 7(g)
below.
(c) Bridge Capital Lender's maximum commitment pursuant to the Bridge
Capital Loan shall be $1,760,000, to be advanced to Borrower from time to time
as follows. Each advance under the Bridge Capital Loan shall be in an
integral multiple of $1,000 and not less than $50,000. Each advance shall be
made on written notice or telephonic notice from an authorized officer of
Borrower to the person designated by Bridge Capital Lender prior to or on the
day of borrowing, which shall be a business day, and shall be promptly
confirmed by Bridge Capital Lender, and which shall include a certification
as to (i) the principal amount of Redeemable Notes which have been properly
tendered pursuant to the Debt Tender Offer and which Borrower intends to
purchase with the proceeds of the requested portion of the Bridge Capital Loan
and/or (ii) the costs and expenses related to the Debt Tender Offer or the
Bridge Capital Loan which Borrower intends to pay with the requested portion
of the Bridge Capital Loan. Each notice shall contain wire transfer
instructions for the advance and otherwise specify the date and amount of such
advance and confirm the outstanding principal balance of the Bridge Capital
Loan subsequent to such advance and shall be effective upon receipt, provided
that any notice received after 3:00 p.m., New York City time, may be deemed
by Bridge Capital Lender, in its sole discretion, effective as of the next
succeeding business day. Whenever any payment to be made under the Bridge
Capital Note shall be stated to be due on a day which is not a business day,
the day for such payment shall be extended to the next succeeding business
day, and such extension of time shall be included in the computation of
interest.
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(d) Borrower shall have the right at any time, subject to the
Subordination Agreement, to voluntarily prepay all or any portion of the
Bridge Capital Note, without premium or penalty. Each prepayment shall be
accompanied by the payment of accrued and unpaid interest on the amount being
prepaid, through the date of prepayment. All prepayments shall be applied
first to accrued and unpaid interest with the remainder applied to principal.
(e) Borrower hereby acknowledges and agrees that concurrently with
the execution of this Fourth Amendment and the delivery to Bridge Capital
Lender of the Bridge Capital Note, Borrower, for the purpose of securing its
obligations to Bridge Capital Lender under the Bridge Capital Note, has
granted to Bridge Capital Lender a Lien covering all Collateral previously
pledged by Borrower to the NPM Parties to secure Borrower's obligations to the
NPM Parties pursuant to the Loan Agreement and the other Loan Documents and
the Servicing Agreement. Notwithstanding anything to the contrary set forth
in the Fourth Amendment or any other Loan Document or the Servicing Agreement,
the Lien hereby granted to Bridge Capital shall, at all times, be subordinate
to the Liens previously granted by Borrower to the NPM Parties pursuant to the
Loan Agreement and the other Loan Documents and the Servicing Agreement, all
in accordance with the Subordination Agreement, but otherwise senior to all
other Liens which may be granted by Borrower with respect to the Collateral,
except as set forth on Schedule A hereto. Borrower hereby covenants that it
has obtained the written consent of the NPM Parties and any other relevant
senior creditor to the granting to Bridge Capital Lender of the Lien
contemplated by this subparagraph 7(e), subject, at all times, to the
Subordination Agreement.
(f) Notwithstanding anything to the contrary set forth in this Fourth
Amendment or the other Loan Documents or the Servicing Agreement,
simultaneously with the time that all obligations of Borrower owing to each
of the NPM Parties pursuant to the Loan Agreement and the other Loan Documents
and the Servicing Agreement (other than any obligations arising solely from
the indemnification provisions set forth in the Servicing Agreement) are
satisfied in their entirety, (i) Borrower shall execute and deliver all
assignments, financing statements, mortgages, deeds of trust and any other
documents reasonably requested by Bridge Capital Lender in order for Bridge
Capital Lender to perfect its Lien with respect to the Collateral and (ii)
each of the NPM Parties shall execute and deliver, without recourse and
without representation or warranty (express or implied), all assignments to
relevant financing statements, mortgages and deeds of trust previously filed
by the NPM Parties with respect to the Collateral, all as may reasonably be
requested by Bridge Capital Lender.
(g) As further consideration for Bridge Capital Lender's making the
Bridge Capital Loan to Borrower, Borrower hereby (i) pays to Bridge Capital
Lender, in accordance with the terms of the Bridge Capital Note, a commitment
fee in the amount of $60,000, such commitment fee being evidenced by a portion
of the principal amount of the Bridge Capital Note, (ii) issues and delivers
to Bridge Capital Lender a certificate representing 325,000 shares of Common
Stock of Borrower (the "Shares"), and (iii) agrees to issue and deliver to
Bridge Capital Lender, at the Expiration Date (as defined) of the Debt Tender
Offer, a second certificate representing an additional number of shares of
Common Stock of Borrower (the "Debt Tender Shares") equal to the product of
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(A) 328,000 MULTIPLIED BY (B) the fraction, the numerator of which shall be
the aggregate principal amount of Redeemable Notes purchased by Borrower in
the Debt Tender Offer (up to a maximum numerator of $3,998,000) and the
denominator of which shall be $3,998,000. Borrower represents to Bridge
Capital Lender that the issuance of the Shares and the Debt Tender Shares has
been duly authorized by Borrower and that the Shares and Debt Tender Shares,
when issued and delivered in accordance with the Fourth Amendment, will be
validly issued, fully paid and non-assessable. Bridge Capital Lender
represents to Borrower that it is acquiring the Shares and the Debt Tender
Shares for its own account for investment, and not with a view to any
distribution thereof. Bridge Capital Lender acknowledges that the
certificates representing the Shares and the Debt Tender Shares will contain
a legend restricting transfer thereof pursuant to the Securities Act of 1933,
as amended (the "Securities Act"), and that the Shares and the Debt Tender
Shares may not be sold, transferred or otherwise disposed of unless pursuant
to an effective registration statement under the Securities Act or pursuant
to an exemption therefrom."
8. Section 2.4 of the Loan Agreement is hereby further amended to
read in its entirety as follows:
"2.4 LOAN. The Senior Debt and all of the other obligations of
Borrower arising under this Agreement, the Fourth Amendment, the Note, the
Second Note, the Bridge Capital Note, any instruments or documents evidencing
the Permitted Working Capital Advances and the other Loan Documents shall
constitute general obligations and loans of Borrower secured by all of the
Collateral."
9. Section 2.12 of the Loan Agreement is hereby further amended to
read in its entirety as follows:
"2.12 NO ADVANCES. Except as set forth in SECTION 2.1.e of the Loan
Agreement and Permitted Working Capital Advances, Borrower acknowledges and
agrees that Lender or Bridge Capital Lender shall not be obligated to advance
any additional funds under the Note, the Second Note, the Bridge Capital Note,
the Loan Agreement, any of the other Loan Documents or otherwise."
10. To induce Lender and Bridge Capital Lender to execute and deliver
this Fourth Amendment, Borrower hereby makes the representations and
warranties set forth in Sections 4.1 through 4.25, 4.27 and 4.28 and 4.30
through 4.38 of the Loan Agreement to Lender and Bridge Capital Lender, each
and all of which shall be true and accurate in all material respects as of the
date of execution and delivery of this Fourth Amendment, other than any
inaccuracy that would not otherwise result in, or otherwise cause Borrower to
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experience, a Material Adverse Effect, and other than as set forth on the
Supplemental Schedule annexed hereto. Notwithstanding the foregoing or
anything to the contrary set forth herein, the representations and warranties
hereby being made by Borrower to Lender and Bridge Capital Lender shall
specifically not include, and there shall be omitted from such representations
and warranties, all references and information pertaining or otherwise
relating to any of the real properties or related mortgages, notes, Affiliated
Partnerships or Limited Partnership Interests set forth on Schedule B to this
Fourth Amendment, each of which item of real property has been disposed by
Borrower in the ordinary course of its business during the period commencing
as of the date of the Loan Agreement (without giving effect to any amendments)
and ending as of the date of this Fourth Amendment. Further, each of Lender
and Bridge Capital Lender acknowledge and agree that the representations and
warranties made by Borrower in this paragraph 10 do not cover the matters set
forth in Sections 4.26 and 4.29 of the Loan Agreement, for which no
representations or warranties are being made.
11. Article 6 of the Loan Agreement, "Affirmative Covenants", is
hereby further amended to provide that so long as any obligations of Borrower
remain outstanding to either of the NPM Parties (other than obligations
arising solely from the indemnification provisions set forth in of the
Servicing Agreement), Lender shall have the sole right to take (or not take)
any and all actions to be taken (or not taken) by either or both of Lender or
Bridge Capital Lender or to give (or refuse) any and all consents to be given
(or refused) by either or both of Lender or Bridge Capital Lender, pursuant
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to this Article 6, and such actions so taken (or not taken) or consents so
given (or refused) by Lender shall be effective and binding upon Borrower as
if both Lender and Bridge Capital Lender had so acted.
12. Article 7 of the Loan Agreement, "Negative Covenants", is hereby
further amended to provide that so long as any obligations of Borrower remain
outstanding to either of the NPM Parties (other than obligations arising
solely from the indemnification provisions set forth in the Servicing
Agreement), Lender shall have the sole right to take (or not take) any and all
actions to be taken (or not taken) by either or both of Lender or Bridge
Capital Lender (or to give (or refuse) any and all consents to be given (or
refused) by either or both of Lender or Bridge Capital Lender, pursuant to
this Article 7, and such actions so taken (or not taken) or consents so given
(or refused) by Lender shall be effective and binding upon Borrower as if both
Lender and Bridge Capital Lender had so acted.
13. Clause a.(ii) of Section 7.3 of the Loan Agreement is hereby
further amended to read in its entirety as follows:
"(ii) the Note, the Second Note, the Bridge Capital Note or any
instrument or document evidencing any Permitted Working Capital Advance,"
14. The first sentence of Section 7.5 of the Loan Agreement is hereby
further amended to read in its entirety as follows:
"Borrower shall not, and shall not permit any Subsidiary of Borrower
to, issue or agree to issue any of their respective authorized but not
outstanding shares of Stock (including treasury shares) except (a) the Shares,
(b) the Debt Tender Shares, and (c) as permitted by the Permitted Stockholder
Documents."
15. The first sentence of Section 7.16a. of the Loan Agreement is
hereby further amended to read in its entirety as follows:
"Borrower shall not, and shall not permit any of its Subsidiaries to,
make any payments on, or with respect to any Restricted Debt, including any
payments in redemption or repurchase thereof, except (i) as contemplated by
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the Debt Tender Offer and (ii) mandatory payments of principal, interest, fees
and expenses required by the terms of the agreement governing or instrument
evidencing such Indebtedness."
16. Section 7.18 of the Loan Agreement is hereby further amended by
adding a new sentence directly at the end of Section 7.18 as follows:
"Notwithstanding anything in this Section 7.18 or elsewhere in the
Loan Agreement to the contrary, the maximum amount of permitted Capital
Expenditures during each calendar year of Borrower shall be increased from
$10,000 per year to $25,000 per year commencing with the calendar year during
which all obligations of Borrower to each of the NPM Parties (other than
obligations arising solely from the indemnification provisions set forth in
the Servicing Agreement) have been satisfied in full."
17. Section 7.25 of the Loan Agreement is hereby further amended by
adding a new sentence directly at the end of Section 7.25 as follows:
"Notwithstanding anything in this Section 7.25 or elsewhere in the
Loan Agreement to the contrary, the maximum aggregate compensation amount
payable by Borrower and its Subsidiaries to their respective employees during
each calendar year of Borrower commencing with the calendar year during which
all obligations of Borrower to each of the NPM Parties (other than obligations
arising solely from the indemnification provisions set forth in the Servicing
Agreement) have been satisfied in full shall be $1,000,000 (exclusive of
amounts payable under the Servicing Agreement)."
18. Section 8.1a. of the Loan Agreement is hereby further amended to
read in its entirety as follows:
"a. Borrower shall fail to make any payment of principal of, or
interest on or any other amount owing in respect of, the Note, the Second
Note, the Bridge Capital Note, any instrument or document evidencing any
Permitted Working Capital Advance or any of the other Obligations when due and
payable or declared due and payable, EXCEPT THAT (1) with respect to any
mandatory payment of principal or interest owing under SECTION 2.6 or SECTION
2.8 of this Agreement, such failure shall have remained unremedied for a
period of ten (10) days after notice by Lender or Bridge Capital Lender to
Borrower (provided that Lender or Bridge Capital Lender shall only be required
to send two such notices to Borrower in any calendar year, and after two such
notices in such calendar year, merely the passage of ten days shall be
required to cause the occurrence of an Event of Default during such calendar
year), and (2) with respect to any other amount payable to Lender or Bridge
Capital Lender under any Loan Document, such failure to pay shall have
remained unremedied for a period of fifteen (15) days after Borrower has
received notice of such failure from Lender or Bridge Capital Lender. For
purposes of this Section 8.1a., and notwithstanding anything to the contrary
set forth in the Loan Agreement, so long as any obligations of Borrower remain
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outstanding to either of the NPM Parties (other than obligations arising
solely from the indemnification provisions set forth in the Servicing
Agreement), Lender shall have the sole right to give (or not give) any notice
to be given (or not given) by either or both of Lender or Bridge Capital
Lender pursuant to this Section 8.1, and the giving (or not giving) of any
such notice by Lender shall be effective and binding upon Borrower as if both
Lender and Bridge Capital Lender had so acted."
19. Section 8.2 of the Loan Agreement is hereby further amended to
provide that, notwithstanding anything to the contrary set forth in the Loan
Agreement, so long as any obligations of Borrower remain outstanding to either
of the NPM parties (other than obligations arising solely from the
indemnification provisions set forth in the Servicing Agreement), Lender shall
have the sole right to take (or not taken) any and all actions to be taken (or
not taken) by either or both of Lender or Bridge Capital Lender pursuant to
this Section 8.2, and such actions so taken (or not taken) by Lender shall be
effective and binding upon Borrower as if both Lender and Bridge Capital
Lender had so acted.
20. The Loan Agreement is hereby amended by adding a new Section 8.4
thereto as follows:
"8.4 RIGHT TO DECLARE DEFAULT AND PURSUE REMEDIES. Notwithstanding
anything to the contrary set forth in the Loan Agreement, Lender, so long as
any obligations of Borrower remain outstanding to either of the NPM Parties
(other than any obligations arising solely from the indemnification provisions
set forth in the Servicing Agreement), Lender shall have the sole right to
declare an Event of Default under the Loan Agreement and pursue remedial
actions thereunder, and the taking and pursuing (or failure to take or pursue)
any such actions by Lender shall be effective and biding upon Borrower as if
both Lender and Bridge Capital Lender had so acted."
21. Section 9.1e. of the Loan Agreement is hereby further amended to
read in its entirety as follows:
"e. No amendment or waiver of any provision of this Agreement, the
Note, the Second Note, the Bridge Capital Note, any instrument or document
evidencing any Permitted Working Capital Advance or any other Loan Document,
nor consent to any departure by Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by Lender or Bridge
Capital Lender, and then such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given,
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provided, however, that, notwithstanding anything to the contrary set forth
in the Loan Agreement, so long as any obligations of Borrower remain
outstanding to either of the NPM Parties (other than obligations arising
solely from the indemnification provisions set forth in the Servicing
Agreement), Lender shall have the sole right to take (or not take) any and all
actions to be taken (or not taken) by either or both of Lender or Bridge
Capital Lender or to give (or refuse) any and all amendments, waivers or
consents to be given (or refused) by either or both of Lender or Bridge
Capital Lender, pursuant to this Section 9.1e., and such actions so taken (or
not taken) or amendments, waivers or consents so given (or refused) by Lender
shall be effective and binding upon Borrower as if both Lender and Bridge
Capital Lender had so acted; provided, further, that, Lender may not
unilaterally amend the Bridge Capital Note or the Loan Agreement without the
prior written consent of Bridge Capital Lender".
22. Section 9.3 of the Loan Agreement is hereby further amended to
provide that, notwithstanding anything to the contrary set forth in the Loan
Agreement, so long as any obligations of Borrower remain outstanding to either
of the NPM Parties, other than obligations arising solely under the
indemnification provisions of the Servicing Agreement), Lender shall have the
sole right to take (or not take) any and all actions to be taken (or not
taken) by either or both of Lender or Bridge Capital Lender or to give (or
refuse) any and all consents to be given (or refused) by either or both of
Lender or Bridge Capital Lender, pursuant to this Section 9.3, and such
actions so taken (or not taken) or consents so given (or refused) by Lender
shall be effective and binding upon Borrower as if both Lender and Bridge
Capital Lender had so acted.
23. Section 9.8 of the Loan Agreement is hereby further amended to
provide that as between Lender and Bridge Capital Lender, if any provision in
the Loan Agreement is in conflict with, or inconsistent with, any provision
in any of the other Loan Documents, including the Subordination Agreement, the
provision contained in the Subordination Agreement shall govern and control.
24. Section 9.10 of the Loan Agreement is hereby further amended to
add the following Subsection c. thereto as follows:
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" c. If to Bridge Capital, at:
Bridge Capital, LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx Xxxx Slate Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxx, Esq."
25. Section 9.20 of the Loan Agreement is hereby further amended to
(a) add the phrase "Subject to the Subordination Agreement," at the beginning
of each sentence in this Section.
26. To induce Bridge Capital Lender to enter into this Fourth
Amendment, Borrower hereby represents, warrants and covenants to Bridge
Capital Lender that:
(a) the execution and delivery of this Fourth Amendment and any other
documents or instruments executed and delivered in connection herewith,
including, without limitation, the Bridge Capital Note, do not violate (i) any
provision of Borrower's charter or by-laws, (ii) any agreement or undertaking
to which Borrower is a party or by which Borrower or any of its assets is
bound or (iii) any Law affecting Borrower or its operations;
(b) each of this Fourth Amendment and the Bridge Capital Note has been
approved by all necessary corporate action on the part of Borrower and each
constitutes the legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with its terms, except to the extent that such
validity, binding effect and enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other Laws affecting
creditors' rights generally from time to time in effect and by general
equitable principles;
(c) Schedule C hereto sets forth all Liens currently encumbering any
of the Collateral. With the exception of the Liens set forth on Schedule C
hereto, Borrower owns the Collateral free and clear of all Liens and other
encumbrances, other than Permitted Encumbrances;
(d) Schedule D hereto sets forth all documents and instruments
evidencing any obligations owing by Borrower to the NPM Parties as of the date
of this Fourth Amendment; correct and complete copies of all such documents
having been made available by Borrower to Bridge Capital Lender; and
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(e) Schedule E hereto sets forth all other obligations of Borrower
(other than those owing to the NPM Parties) as of September 30, 1997.
27. As a further inducement for Bridge Capital Lender to enter into
this Fourth Amendment, Borrower hereby covenants that at any time while any
obligations of Borrower are owing to Bridge Capital Lender, Borrower will not,
without the prior written consent of Bridge Capital Lender (i) enter into any
transaction (except as otherwise contemplated by the Loan Agreement and the
Servicing Agreement) with any Affiliate of Borrower or (ii) increase the
principal amount of, or interest rate (or default interest rate) charged with
respect to, or extend the stated maturity date of, any Senior Debt.
28. As a condition to Bridge Capital Lender's entering into this
Fourth Amendment, Borrower shall cause its counsel (which may be Borrower's
in-house General Counsel) to deliver an opinion to Bridge Capital Lender
covering the matters enumerated in subparagraphs 26(a) and 26(b) hereof.
29. (a) Bridge Capital Lender hereby acknowledges that Lender is not
acting as Bridge Capital Lender's agent with respect to the consummation of
the transactions contemplated by this Fourth Amendment or with respect to
enforcing Bridge Capital Lender's rights under this Fourth Amendment or any
other Loan Document.
(b) Notwithstanding any provision to the contrary elsewhere in
this Agreement, Lender shall not have any express or implied duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with Bridge Capital Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against Lender or NPO.
(c) Neither Lender nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates (other than Borrower) shall be (i)
liable to Bridge Capital Lender for any action lawfully taken or omitted to
be taken by it or such Person under or in connection with this Agreement or
any other Loan Document or (ii) responsible in any manner to Bridge Capital
Lender for any recitals, statements, representations or warranties made by
Borrower or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred
to or provided for in, or received by Lender under or in connection with, this
Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement,
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the Bridge Capital Note or any other Loan Document or for any failure of
Borrower to perform its obligations hereunder or thereunder. Lender shall not
be under any obligation to Bridge Capital Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of Borrower.
(d) Except for notices, reports and other documents expressly
required to be furnished to Bridge Capital Lender by Lender hereunder, Lender
shall not have any duty or responsibility (express or implied) to provide
Bridge Capital Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects
or creditworthiness of Borrower which may come into the possession of Lender,
NPO or any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
(e) Bridge Capital Lender acknowledges that it has made its own
independent credit and legal analyses and decision to enter into this Fourth
Amendment and is not relying on any representations or warranties made by
Lender in entering into this Agreement. Bridge Capital Lender (i)
acknowledges that it has received copies of the Loan Documents, together with
copies of the most current financial statements of Borrower, and such other
documents and information as it has deemed appropriate to make its own
independent credit and legal analyses and decision to enter into this
Agreement; and (ii) agrees that it will, independently and without reliance
upon Lender or NPO and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit and legal
decisions in taking or not taking action under the Loan Documents.
30. So long as no Event of Default has occurred and is continuing
under the Loan Agreement, Bridge Capital Lender agrees to respond
expeditiously to the reasonable request of Lender and/or Borrower (or any
title company retained by Lender or Borrower), and to give its consent to the
release of the Lien granted hereunder by Borrower to Bridge Capital Lender
with respect to any Collateral that Borrower desires to sell or otherwise
dispose of in the ordinary course of its business and as otherwise
contemplated in the Loan Agreement, so that Borrower may sell, transfer,
assign or otherwise deal with such Collateral or any part thereof free of the
Lien granted hereunder to Bridge Capital Lender.
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31. (a) Nothing in this Fourth Amendment, express or implied, shall
give to any Person, other than the parties to this Fourth Amendment and their
successors and assigns hereunder, any benefit or any legal or equitable right,
power, remedy or claim under this Agreement, except to the extent specified
in subparagraph 31(b) below.
(b) Notwithstanding any provision herein to the contrary, the
parties to this Fourth Amendment agree that is appropriate, in furtherance of
the intent of such parties as set forth herein, that NPO receive the benefits
of this Fourth Amendment as an intended third party beneficiary of this Fourth
Amendment. Consequently, Borrower and Bridge Capital Lender shall have the
same obligations to NPO under this Fourth Amendment as if NPO were a party to
this Fourth Amendment.
32. Notwithstanding any provision herein to the contrary, Bridge
Capital Lender, on behalf of itself and its successors and assigns, hereby
covenants that neither it nor they will, directly or indirectly, sell,
negotiate, pledge or otherwise transfer or assign (collectively, a
"Disposition") any portion of the Bridge Capital Note or any of Bridge Capital
Lender's rights or privileges under the Loan Agreement to any person,
PROVIDED, HOWEVER, that a Disposition of all or any portion of the Bridge
Capital Note or Bridge Capital Lender's rights or privileges under the Loan
Agreement shall be permitted if disposed (i) to a Person which is controlled,
directly or indirectly, by Messrs. Xxxxxx Xxxxxx and/or Xxxxxxx Xxxxxx or (ii)
as a part of the sale of all or substantially all of the assets or capital
stock of Bridge Capital Lender.
33. Except as otherwise expressly modified or amended herein or in
any other document or agreement concurrently executed by Borrower, Bridge
Capital Lender and/or the NPM Parties, the Loan Agreement, the other Loan
Documents and the Servicing Agreement are hereby ratified, confirmed and
affirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be executed by their respective officers and partners thereunto
duly authorized, as of the date first above written.
DVL, INC.
By: /s/ Xxxxxx Xxxxxxx
______________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President and
General Counsel
NPM CAPITAL LLC
By: Pembroke Capital LLC, its Manager
By: /s/ Xxxxxxxx X. Xxxxx
______________________________
Name: Xxxxxxxx X. Xxxxx
Title: General Manager
NPO MANAGEMENT LLC
By: Omni Partnership Capital, Inc.
By: /s/ Xxx Xxxxxxxxx
______________________________
Name: Xxx Xxxxxxxxx
Title: President
BRIDGE CAPITAL, LLC
By: /s/ Xxxxxx Xxxxxx
______________________________
Name: Xxxxxx Xxxxxx
Title: Manager
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