MODIFICATION AGREEMENT EXHIBIT 10.1
DATE: December 1, 1995
PARTIES: Borrower: CH MORTGAGE COMPANY,
a Colorado corporation formerly known as
American Western Mortgage Company.
Bank: BANK ONE, ARIZONA, NA,
a national banking association.
RECITALS:
A. Bank has extended to Borrower credit ("Loan") in the principal
amount of $25,000,000.00 pursuant to the Amended and Restated Mortgage
Warehousing Credit and Security Agreement, dated July 1, 1995 ("Credit
Agreement"), and evidenced by the Replacement Revolving Line of Credit
Promissory Note, dated July 1, 1995 ("Note"). The unpaid principal of the Loan
as of the date hereof is $0.
B. The Loan is secured by, among other things, the collateral described
in the Credit Agreement (the agreements, documents, and instruments securing the
Loan and the Note are referred to individually and collectively as the "Security
Documents") (The Note, the Credit Agreement, the Security Documents, any
arbitration resolution, any environmental certification and indemnity agreement,
and all other agreements, documents, and instruments evidencing, securing, or
otherwise relating to the Loan are sometimes referred to individually and
collectively as the "Loan Documents").
D. Borrower has requested that Bank modify the Loan and the Loan
Documents as provided herein. Bank is willing to so modify the Loan and the Loan
Documents, subject to the terms and conditions herein.
AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower and Bank agree as follows:
1. ACCURACY OF RECITALS.
Borrower acknowledges the accuracy of the Recitals.
2. MODIFICATION OF LOAN DOCUMENTS.
2.1 The Loan Documents are modified, effective as of December 1, 1995,
as follows:
2.1.1 The definition of Floating Rate, as set forth in Section 1.1
of the Credit Agreement, is hereby deleted
2.1.2 The "Maturity Date", as defined in Section 1.1 of the Credit
Agreement, is hereby changed from December 1, 1995 to December 1, 1996.
2.1.3 Section 2.4(d) of the Credit Agreement is hereby amended as
follows:
(a) The phrase "Floating Rate" is deleted and the
phrase "Prime Rate" is substituted therefor.
(b) The following sentences are hereby added thereto,
immediately after the first sentence:
Interest at the Default Rate shall be computed on the basis
of a 360 day year and accrue on a daily basis for the actual
number of days elapsed. The Default Rate will change on each
day that the Prime Rate changes.
2.1.4 Section 2.4(e)(ii) of the Credit Agreement is hereby
deleted.
2.1.5 Section 2.4(e)(iii) of the Credit Agreement is hereby
deleted.
2.1.6 The following phrase is hereby added at the end of the last
sentence of Paragraph 3.7 of the Credit Agreement: "except that Bank shall be
responsible to pay the cost of shipping the Collateral Documents from Bank to an
Approved Bailee pursuant to the terms of an Approved Bailee Agreement."
2.1.7 Section A(3) of Exhibit A to the Credit Agreement is hereby
modified by inserting the phrase "If required by Bank" at the beginning of each
of the first two (2) sentences thereof.
2.1.8 Exhibit B to the Credit Agreement is hereby amended in its
entirety to mean that document attached hereto as Exhibit B.
2.2 Each of the Loan Documents is modified to provide that it shall be
a default or an event of default thereunder if Borrower shall fail to comply
with any of the covenants of Borrower herein or if any representation or
warranty by Borrower herein or by any guarantor in any related Consent and
Agreement of Guarantor(s) is materially incomplete, incorrect, or misleading as
of the date hereof.
2.3 Each reference in the Loan Documents to any of the Loan Documents
shall be a reference to such document as modified herein.
3. RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL.
The Loan Documents are ratified and affirmed by Borrower and shall remain in
full force and effect as modified herein. Any property or rights to or interests
in property granted as security in the Loan Documents shall remain as security
for the Loan and the obligations of Borrower in the Loan Documents.
4. BORROWER REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Bank:
4.1 No default or event of default under any of the Loan Documents as
modified herein, nor any event, that, with the giving of notice or the passage
of time or both, would be a default or an event of default under the Loan
Documents as modified herein has occurred and is continuing.
4.2 There has been no material adverse change in the financial
condition of Borrower or any other person whose financial statement has been
delivered to Bank in connection with the Loan from the most recent financial
statement received by Bank.
4.3 Each and all representations and warranties of Borrower in the Loan
Documents are accurate on the date hereof.
4.4 Borrower has no claims, counterclaims, defenses, or set-offs with
respect to the Loan or the Loan Documents as modified herein.
4.5 The Loan Documents as modified herein are the legal, valid, and
binding obligation of Borrower, enforceable against Borrower in accordance with
their terms.
4.6 Borrower is validly existing under the laws of the State of its
formation or organization and has the requisite power and authority to execute
and deliver this Agreement and to perform the Loan Documents as modified herein.
The execution and delivery of this Agreement and the performance of the Loan
Documents as modified herein have been duly authorized by all requisite action
by or on behalf of Borrower. This Agreement has been duly executed and delivered
on behalf of Borrower.
5. BORROWER COVENANTS.
Borrower covenants with Bank:
5.1 Borrower shall execute, deliver, and provide to Bank such
additional agreements, documents, and instruments as reasonably required by Bank
to effectuate the intent of this Agreement.
5.2 Borrower fully, finally, and forever releases and discharges Bank
and its successors, assigns, directors, officers, employees, agents, and
representatives from any and all actions, causes of action, claims, debts,
demands, liabilities, obligations, and suits, of whatever kind or nature, in law
or equity of Borrower, whether now known or unknown to Borrower, (i) in respect
of the Loan, the Loan Documents, or the actions or omissions of Bank in respect
of the Loan or the Loan Documents and (ii) arising from events occurring prior
to the date of this Agreement.
5.3 Contemporaneously with the execution and delivery of this
Agreement, Borrower has paid to Bank:
5.3.1 All accrued and unpaid interest under the Note and all
amounts, other than interest and principal, due and payable by Borrower under
the Loan Documents as of the date hereof.
5.3.2 All the internal and external costs and expenses
incurred by Bank in connection with this Agreement (including, without
limitation, inside and outside attorneys, processing, filing, and recording
costs, expenses, and fees).
5.3.3 A Commitment Fee of one-eighth of one percent (.125%)
per annum of the Commitment amount (i.e., $31,250.00).
6. EXECUTION AND DELIVERY OF AGREEMENT BY BANK.
Bank shall not be bound by this Agreement until (i) Bank has executed and
delivered this Agreement, (ii) Borrower has performed all of the obligations of
Borrower under this Agreement to be performed contemporaneously with the
execution and delivery of this Agreement, (iii) each guarantor(s) of the Loan,
if any, has executed and delivered to Bank a Consent and Agreement of
Guarantor(s), and (iv) if required by Bank, Borrower and any guarantor(s) have
executed and delivered to Bank an arbitration resolution, an environmental
questionnaire, and an environmental certification and indemnity agreement.
7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION,
OR WAIVER.
The Loan Documents as modified herein contain the complete understanding and
agreement of Borrower and Bank in respect of the Loan and supersede all prior
representations, warranties, agreements, arrangements, understandings, and
negotiations. No provision of the Loan Documents as modified herein may be
changed, discharged, supplemented, terminated, or waived except in a writing
signed by the parties thereto.
8. BINDING EFFECT.
The Loan Documents as modified herein shall be binding upon and shall inure to
the benefit of Borrower and Bank and their successors and assigns and the
executors, legal administrators, personal representatives, heirs, devisees, and
beneficiaries of Borrower, provided, however, Borrower may not assign any of its
right or delegate any of its obligation under the Loan Documents and any
purported assignment or delegation shall be void.
9. CHOICE OF LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Arizona, without giving effect to conflicts of law principles.
10. COUNTERPART EXECUTION.
This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same document. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one document.
DATED as of the date first above stated.
CH MORTGAGE COMPANY, a Colorado
corporation formerly known as American
Western Mortgage Company
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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BORROWER
BANK ONE, ARIZONA, NA,
a national banking association
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Assistant Vice President
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BANK
