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EXHIBIT 10.53
SECOND AMENDMENT TO CONSULTING AGREEMENT
This Second Amendment to Consulting Agreement is dated as of September
21, 1995 and is by and between Xxxx Xxxxx ("Consultant"), Lomas Financial
Corporation (the "Company"), Lomas Mortgage USA, Inc. ("LMUSA") and ST Lending,
Inc. ("STL").
WHEREAS, the parties have come to recognize over the course of
Consultant's retention that the business of the Company is inextricably linked
to the operations of its principal subsidiary, LMUSA, and LMUSA's subsidiary,
STL; and
WHEREAS, the parties have come to recognize over the same period that
the greatest portion of Consultant's time and effort must be devoted to LMUSA,
and LMUSA's subsidiary, STL, if the Company is to preserve its value to its
shareholders; and
WHEREAS, the parties wish to formalize the contractual relationship
between LMUSA, STL and Consultant;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein and for other good and valuable consideration, the
parties agree as follows:
1. Position. In addition to continuing to be an officer of the
Company with the title of Senior Vice President - Control and serving as a
consultant to the Company, Consultant shall continue to be an officer of LMUSA
with the title of Executive Vice President and an officer of STL with the title
of Senior Vice President & Controller and shall serve as a consultant to LMUSA
and STL and render such advice and services to LMUSA and STL as reasonably may
be requested by the Chief Executive Officer or the Board of Directors of LMUSA
and STL. Consultant shall devote such time as is necessary to the performance
of his duties for LMUSA and STL. Sections 1 and 3 of the Consulting Agreement
dated as of November 1, 1994 (the "Consulting Agreement") are amended
accordingly.
2. Termination. Consultant's consulting term with LMUSA and STL
shall be co-terminus with his retention by the Company subject to the terms of
the Consulting Agreement. Consultant's retention by LMUSA and STL may only be
terminated concurrently with his retention by the Company as provided in
Section 6 of the Consulting Agreement.
3. Specific Amendments.
(a) Section 2 of the Consulting Agreement is hereby
amended and restated in its entirety to read as follows:
2. Term of Agreement. Consultant shall be
retained by the Company for a period commencing on December 1,
1994 (the "Effective Date"), and terminating on September 30,
1997 (the "Consulting Term").
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(b) Section 3 of the Consulting Agreement is hereby
amended and restated in its entirety to read as follows:
3. Position and Responsibilities. Consultant
agrees to serve as a consultant to the Company and its
subsidiaries and affiliates and to render such advice and
services to the Company and its subsidiaries and affiliates as
reasonably may be requested by the Chief Executive Officer or
the Board of Directors of the Company. The services to be
performed by Consultant under this Agreement shall include,
but not be limited to, the performance of the services
(including supervisory services) that Consultant was
performing in the period immediately preceding the Effective
Date, and Consultant shall continue to perform such services
during the Consulting Term unless and until another person is
designated to perform any of such services by the Chief
Executive Officer or the Board of Directors. Consultant shall
devote substantially all his working time and effort to
rendering services under this Agreement. During the
Consulting Term Consultant shall make himself available in
person to render such services at the Company's headquarters
location on a regular basis equivalent to not less than five
days per week, allowing for reasonable and customary vacations
and taking into account the nature of the services provided.
(c) Section 4 of the Consulting Agreement is hereby
amended and restated in its entirety as follows:
4. Compensation. (a) The Company shall pay
Consultant (i) a monthly retainer (the "Retainer") of $18,400
during the Consulting Term, (ii) a bonus of $50,000 on or
before September 30, 1995, (the "1995 Bonus"), (iii) a bonus
of $165,600 on or before September 30, 1996 (the "1996 Bonus")
and (iv) a bonus of $165,600 on or before September 30, 1997
(the "1997 Bonus" and, together with the 1995 and 1996
Bonuses, the "Bonuses").
(b) During the Consulting Term, the Company shall
continue the participation of Consultant and his spouse in all
employee benefit arrangements of the Company that provide life
insurance and health, medical, hospitalization and similar
benefits, to the extent that Consultant and his spouse are
covered under existing policies, if any, on a basis no less
favorable than that on which they are currently covered under
any such plan or policy.
(c) All outstanding stock options granted to
Consultant prior to the date of his retirement under any stock
incentive plan of the Company shall be fully vested as of such
date and shall continue to be exercisable for the remainder of
their terms.
(d) Consultant shall not be eligible to
participate in the "success bonus" arrangement established by
the Compensation Committee of the Board of
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Directors for senior executives of the Company in connection
with the sale of all or a substantial portion of the Company.
(d) Subsection 6.(a) of the Consulting Agreement is
hereby amended and restated in its entirety to read as follows:
6. Termination and Liquidated Damages. (a) This
Agreement and Consultant's retention hereunder may be
terminated at any time by either party upon sixty (60) days
prior written notice to the other party. In the event of (i)
such a termination by the Company, other than a termination
for "Cause," as hereinafter defined, or (ii) a termination at
any time by Consultant as a result of a breach of this
Agreement by the Company, Consultant shall be entitled to
receive as liquidated damages an amount in cash equal to the
unpaid portion of the Bonuses.
(e) Subsection 7.(a) of the Consulting Agreement is
hereby amended and restated in its entirety to read as follows:
7. Status; Taxes.
(a) Status of Consultant. During the Consulting
Term, Consultant shall not be an employee of the Company,
LMUSA or STL, and shall not be entitled to participate in any
employee benefit plans or other benefits or conditions of
employment available to the employees of the Company except to
the extent set forth in paragraphs 4(b), (c) and (d).
Consultant shall have no authority to act as an agent of the
Company, LMUSA or STL, except on authority specifically so
delegated, and he shall not represent to the contrary to any
person. Consultant shall only consult, render advice and
perform such tasks as Consultant determines are necessary to
achieve the results specified by the Company, LMUSA or STL.
Although the Company, LMUSA or STL may specify the results to
be achieved by the Consultant and may control and direct him
in that regard, the Company, LMUSA and STL shall not control
or direct the Consultant as to the details or means by which
such results are accomplished.
(f) Section 11 of the Consulting Agreement is hereby
deleted in its entirety and Section 12 of the Consulting Agreement is
redesignated as Section 11. The new Subsections 11(b) and (g) are
hereby amended and restated in their entirety to read as follows:
11. Miscellaneous.
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(b) Entire Agreement; Amendments. This Agreement
supersedes all prior agreements between Consultant and the
Company relating to Consultant's employment and the
termination thereof, including, without limitation, the
Employment Agreement, and, together with the agreements
evidencing the stock options and other awards referred to in
Paragraph 4(c) and the documents evidencing the benefits to
which Consultant and his spouse are entitled pursuant to
Paragraphs 4(b) and (d), contains the entire understanding of
the parties with respect to the retention of Consultant by the
Company; provided, however, that this Agreement shall not
impair any rights or benefits accrued by Consultant under any
benefit plan, compensation arrangement or pension, excess
retirement or management security plan of the Company prior to
the termination of his employment on December 1, 1994. Except
as aforesaid, there are no restrictions, agreements, promises,
warranties, covenants or undertakings between the parties with
respect to the subject matter herein other than those
expressly set forth herein. This Agreement may not be
altered, modified, or amended except by written instrument
signed by the parties hereto.
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(g) Successors; Binding Agreement. This
Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs,
representatives, successors and assigns.
4. Indemnification. Consultant shall enjoy the same duty of
indemnification from LMUSA and STL as he enjoys from the Company for the
performance of Consultant's duties on behalf of LMUSA or STL.
5. Joint and Several Liability. The liability of LMUSA, STL and
the Company for payment of the retainer, bonus, benefits and other perquisites
due Consultant under the Consulting Agreement shall be joint and several,
without requirement to apportion between LMUSA, STL and the Company the
relative time and effort spent on behalf of each by Consultant.
6. Relation Back. This Second Amendment to Consulting Agreement
relates back to the execution of the Consulting Agreement such that LMUSA and
STL assume joint and several liability for all of the Company's duties and
obligations to Consultant from and after that date to and including the present
and ratifies all agreements and understandings between the Company and
Consultant.
7. Execution by LMUSA and STL. LMUSA and STL each join in the
execution of this Second Amendment to Consulting Agreement, although not
originally a party to the Consulting Agreement, for the purpose of
acknowledging the terms of this Second Amendment to Consulting Agreement and to
signify that it is contractually bound by the terms hereof.
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IN WITNESS WHEREOF, the parties have executed this Second
Amendment to Consulting Agreement as of the date written above.
LOMAS FINANCIAL CORPORATION
By: /s/ XXXXX X. XXXXXXX
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Its: Senior Vice President & General Counsel
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LOMAS MORTGAGE USA, INC.
By: /s/ XXXXX X. XXXXXXX
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Its: Senior Vice President & General Counsel
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ST LENDING, INC.
By: /s/ XXXXX X. XXXXXXX
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Its: Senior Vice President & General Counsel
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/s/ XXXX XXXXX
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Xxxx Xxxxx
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