EXHIBIT 10
SIXTH AMENDMENT TO THE LOAN AGREEMENT
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This SIXTH AMENDMENT TO THE LOAN AGREEMENT ("AGREEMENT") is made effective
as of, although not necessarily on, the 15TH DAY OF MAY, 1997, by and between
GUARANTY FEDERAL BANK, F.S.B., a federal savings bank ("BANK") and HOMEOWNERS
MORTGAGE & EQUITY, INC., a Delaware corporation, D/B/A HOME, INC. ("BORROWER")
and HOMECAPITAL INVESTMENT CORPORATION, a Nevada corporation ("GUARANTOR").
W I T N E S S E T H :
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WHEREAS, on JUNE 1, 1996, Borrower and Bank entered into that certain
WAREHOUSE LOAN AGREEMENT (together with all amendments, modifications and
restatements thereof, the "LOAN AGREEMENT") dated of even date therewith
providing for a $2,000,000.00 credit facility (together with all increases,
collectively, the "LOAN").
WHEREAS, in connection with the execution of the Loan Agreement, Borrower
executed that certain Promissory Note dated of even date (the "NOTE"), that
certain Security Agreement ("SECURITY AGREEMENT") was executed by Borrower and
Bank and a Financing Statement filed with the Secretary of State of Texas (the
"FINANCING STATEMENT") together with all documents or instruments representing,
evidencing or securing the Loan (the "LOAN DOCUMENTS");
WHEREAS, effective as of JULY 9, 1996 Bank and Borrower entered into that
one certain FIRST AMENDMENT to the Loan Agreement whereby the loan amount was
increased $10,000,000.00 and certain other changes were made to the loan
documents;
WHEREAS, effective as of SEPTEMBER 17, 1996 Bank and Borrower entered into
that certain SECOND AMENDMENT to Loan Agreement;
WHEREAS, Bank, Borrower and Guarantor, effective as of OCTOBER 15, 1996
entered into that certain THIRD AMENDMENT to Loan Agreement whereby the loan
amount was increased to $15,000,000.00 and certain other changes were made to
the Loan Documents;
WHEREAS, Bank, Borrower and Guarantor, effective as of JANUARY 31, 1997,
entered into that certain FOURTH AMENDMENT to the Loan Agreement whereby the
maturity date of the loan was extended to FEBRUARY 28, 1997;
WHEREAS, Bank, Borrower and Guarantor, effective as of JANUARY 1, 1997,
entered into that certain FIFTH AMENDMENT to the Loan Agreement modifying
certain terms of the Loan Documents;
WHEREAS, Bank, Borrower and Guarantor desire to TEMPORARILY increase the
amount of the Loan and to reflect such temporary increase and subsequent
decrease to the current Loan amount by amending the Loan Documents. All terms
not defined herein are used as defined in the Loan Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Bank and Borrower hereby agree as follows:
1. LOAN AGREEMENT. The following TEMPORARY MODIFICATION is hereby made to the
Loan Agreement EFFECTIVE AS OF THE DATE HEREOF AND EXPIRES WITHOUT ANY FURTHER
ACTION BY ANY PARTY ON MAY 29, 1997:
(a) The definition of "Commitment" is hereby modified to replace the figure
of "$15,000,000.00" with the figure of "$20,000,000.00".
2. NOTE. The following temporary modification is hereby made to the stated
amount of the Note; it shall increase to "$20,000,000.00" effective as of the
date hereof.
3. REDUCTION IN COMMITMENT. The $5,000,000.00 increase in the "Commitment" is
a temporary two week increase only. Any principal amounts outstanding in excess
of the lesser of (a) the Borrowing Base or (b) $15,000,000.00, on May 29, 1997
shall be paid in full by Borrower on May 29, 1997.
4. COMMITMENT FEE. Borrower shall pay to Bank simultaneously with the
execution of this Agreement an additional $2,000.00 commitment fee for such two
week increase in the Loan amount.
5. ACKNOWLEDGMENT BY BORROWER. Except as otherwise specified herein, the
terms and provisions of the Loan Documents are ratified and confirmed and shall
remain in full force and effect, enforceable in accordance with their terms.
Borrower hereby acknowledges, agrees and represents that (i) Borrower is
indebted to the Bank pursuant to the terms of the Note; (ii) the liens, security
interests and assignments created and evidenced by the Loan Documents are,
respectively, valid and subsisting liens, security interests and assignments of
the respective dignity and priority recited in the Loan Documents; (iii) the
representations and warranties contained in the Loan Documents are true and
correct representations and warranties of Borrower, as of the date hereof and no
defaults exist under the Loan Documents; and (iv) Borrower has no set-offs,
counterclaims, defenses or other causes of action against the Bank arising out
of the Loan Documents, the modification and extension of the Loan, any documents
mentioned herein or otherwise and to the extent any such set-offs,
counterclaims, defenses or other causes of action may exist, whether known or
unknown, such items are hereby waived by Borrower.
6. ACKNOWLEDGMENT BY GUARANTOR. Except as otherwise specified herein, the
terms and provisions of the Loan Documents are ratified and confirmed and shall
remain in full force and effect, enforceable in accordance with their terms.
Guarantor hereby acknowledges, agrees and represents that (i) Guarantor is
indebted to the Bank pursuant to the terms of the Note; (ii) the liens, security
interests and assignments created and evidenced by the Loan Documents are,
respectively, valid and subsisting liens, security interests and assignments of
the respective dignity and priority recited in the Loan Documents; (iii) the
representations and warranties contained in the Loan Documents are true and
correct representations and warranties of Guarantor, as of the date hereof and
no defaults exist under the Loan Documents; and (iv) Guarantor has no set-offs,
counterclaims, defenses or other causes of action against the Bank arising out
of the Loan Documents, the modification and extension of the Loan, any documents
mentioned herein or otherwise and to the extent any such set-offs,
counterclaims, defenses or other causes of action may exist, whether known or
unknown, such items are hereby waived by Guarantor.
7. NO WAIVER OF REMEDIES. Nothing contained in this Agreement shall
prejudice, act as, or be deemed to be a waiver of any right or remedy available
to the Bank by reason of the occurrence or existence of any fact, circumstance
or event constituting a default under the Note or the other Loan Documents.
8. COSTS AND EXPENSES. Contemporaneously with the execution and delivery
hereof, Borrower shall pay, or cause to be paid, all costs and expenses incident
to the preparation, execution and recordation hereof and the consummation of the
transaction contemplated hereby, including, but not limited to, recording fees
and reasonable fees and expenses of legal counsel to the Bank. The attorney's
fees and expenses of the Bank's law firm, Xxxxxxx & Xxxxxx, L.L.P., shall be
paid.
9. ADDITIONAL DOCUMENTATION. From time to time, Borrower shall execute or
procure and deliver to Bank such other and further documents and instruments
evidencing, securing or pertaining to the Loan or the Loan Documents as shall be
reasonably requested by the Bank so as to evidence or effect the terms and
provisions hereof.
10. EFFECTIVENESS OF THE LOAN DOCUMENTS. Except as expressly modified by the
terms and provisions hereof, each of the terms and provisions of the Loan
Documents are hereby ratified and shall remain in full force and effect;
provided, however, that any reference in any of the Loan Documents to the Loan,
the amount constituting the
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Loan, any defined terms, or to any of the other Loan Documents shall be deemed,
from and after the date hereof, to refer to the Loan, the amount constituting
the Loan, defined terms and to such other Loan Documents, as modified hereby.
11. GOVERNING LAW. THE BORROWER HEREBY AGREES THAT THE OBLIGATIONS CONTAINED
HEREIN ARE PERFORMABLE IN DALLAS COUNTY, TEXAS. ALL PARTIES HERETO AGREE THAT
(I) ANY ACTION ARISING OUT OF THIS TRANSACTION MAY BE FILED IN DALLAS COUNTY,
TEXAS, (II) VENUE FOR ENFORCEMENT OF ANY OF THE OBLIGATIONS CONTAINED IN THE
LOAN DOCUMENTS SHALL BE IN DALLAS COUNTY, TEXAS, (III) PERSONAL JURISDICTION
SHALL BE IN DALLAS COUNTY, TEXAS, (IV) ANY ACTION OR PROCEEDING UNDER THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE COMMENCED AGAINST BORROWER IN DALLAS
COUNTY, (V) SUCH ACTION MAY BE INSTITUTED IN THE COURTS OF THE STATE OF TEXAS
LOCATED IN DALLAS COUNTY, TEXAS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS LOCATED IN DALLAS COUNTY, TEXAS, AT THE OPTION OF THE
BANK AND (VI) THE BORROWER HEREBY WAIVES ANY OBJECTION TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING AND ADDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO BE
SUED ELSEWHERE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF EACH BANK TO
ACCOMPLISH SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
12. TIME. Time is of the essence in the performance of the covenants contained
herein and in the Loan Documents.
13. BINDING AGREEMENT. This Agreement and the Loan Documents shall be binding
upon the heirs, executors, administrators, personal representatives, successors
and assigns of the parties hereto; provided, however, the foregoing shall not be
deemed or construed to (i) permit, sanction, authorize or condone the assignment
of all or any part of the Collateral or any of Borrower's rights, titles or
interest in and to the Collateral or any rights, titles or interests in and to
Borrower, except as expressly authorized in the Loan Documents, or (ii) confer
any right, title, benefit, cause of action or remedy upon any person or entity
not a party hereto, which such party would not or did not otherwise possess.
14. HEADINGS. The section headings hereof are inserted for convenience of
reference only and shall in no way alter, amend, define or be used in the
construction or interpretation of the text of such section.
15. CONSTRUCTION. Whenever the context hereof so required, reference to the
singular shall include the plural and likewise, the plural shall include the
singular; words denoting gender shall be construed to mean the masculine,
feminine or neuter, as appropriate; and specific enumeration shall not exclude
the general but shall be construed as cumulative of the general recitation.
16. COUNTERPARTS. To facilitate execution, this Agreement may be executed in
as many counterparts as may be convenient or required. It shall not be
necessary that the signature and acknowledgment of, or on behalf of, each party
or that the signature and acknowledgment of all persons required to bind any
party appear on each counterpart. All counterparts shall collectively
constitute a single document containing the respective signatures and
acknowledgment of, or on behalf of, each of the parties hereto. Any signature
and acknowledgment page to any counterpart may be detached from such counterpart
without impairing the legal effect of the signatures and acknowledgments thereon
and thereafter attached to another counterpart identical thereto except having
attached to it additional signature and acknowledgment pages.
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THIS AGREEMENT AND THE LOAN DOCUMENTS COLLECTIVELY 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.
EXECUTED as of the date first above written.
BANK:
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GUARANTY FEDERAL BANK, F.S.B.,
a federal savings bank
By: /s/ W. Xxxxx Xxxxxxxx
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W. Xxxxx Xxxxxxxx,
Assistant Vice President
BORROWER:
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HOMEOWNERS MORTGAGE & EQUITY, INC.,
a Delaware corporation d/b/a HOME, INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx,
Executive Vice President
GUARANTOR:
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HOMECAPITAL INVESTMENT CORPORATION,
a Nevada corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President/CEO
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STATE OF TEXAS (S)
(S)
COUNTY OF DALLAS (S)
This instrument was ACKNOWLEDGED before me the 28th day of May, 1997, by W.
Xxxxx Xxxxxxxx, Assistant Vice President of GUARANTY FEDERAL BANK, F.S.B., a
federal savings bank, on behalf of said bank.
/s/ Xxxxxxxxx Xxxxxxxx
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Notary Public - State of Texas
My Commission expires: ________________________________
01-31-2000 Printed Name of Notary
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STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
This instrument was ACKNOWLEDGED before me the 15th day of May, 1997, by
Xxxxx X. Xxxxxx, Executive Vice President of HOMEOWNERS MORTGAGE & EQUITY, INC.
d/b/a Home, Inc., a Delaware corporation, on behalf of said corporation.
/s/ Xxxxxxx Xxxxxxxx
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Notary Public - State of Texas
My Commission expires: Xxxxxxx Xxxxxxxx
-----------------------------------
06-22-98 Printed Name of Notary
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STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
This instrument was ACKNOWLEDGED before me the 15th of May, 1997, by Xxxx
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X. Xxxxxxx President/CEO of HOMECAPITAL INVESTMENT CORPORATION, a Nevada
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corporation, on behalf of said corporation.
/s/ Xxxxxxx Xxxxxxxx
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Notary Public - State of Texas
My Commission expires: Xxxxxxx Xxxxxxxx
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06-22-98 Printed Name of Notary
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