EXHIBIT 10
FOURTH AMENDMENT TO THE LOAN AGREEMENT
This FOURTH AMENDMENT TO THE LOAN AGREEMENT ("AGREEMENT") is made
effective as of, although not necessarily on, the 31ST DAY OF JANUARY, 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 Delaware corporation
("GUARANTOR").
W I T N E S S E T H :
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");
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 desire to amend the Loan
Documents to reflect certain changes to the Loan Agreement. 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 modifications are hereby made to
the Loan Agreement effective as of the date hereof:
(a) Page 3, the definition of "COMMITMENT TERMINATION DATE" is
hereby modified to read in its entirety:
""COMMITMENT TERMINATION DATE" (or Maturity Date of the Loan)
shall mean FEBRUARY 28, 1997 or such earlier date on which the
Commitment terminates as provided in this Agreement."
2. NOTE. The following modification is hereby made to the Note
effective as of the date hereof:
(a) The date of "JANUARY 31, 1997" appearing on the fourth
paragraph of Page 1 is hereby changed to "FEBRUARY 28, 1997".
3. ACKNOWLEDGEMENT 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.
4. ACKNOWLEDGEMENT 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.
5. 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.
6. 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.
7. 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.
8. 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 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.
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9. 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.
10. TIME. Time is of the essence in the performance of the covenants
contained herein and in the Loan Documents.
11. 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.
12. 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.
13. 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.
14. 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 acknowledgement of, or on behalf of, each
party or that the signature and acknowledgement 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
acknowledgement of, or on behalf of, each of the parties hereto. Any signature
and acknowledgement page to any counterpart may be detached from such
counterpart without impairing the legal effect of the signatures and
acknowledgements thereon and thereafter attached to another counterpart
identical thereto except having attached to it additional signature and
acknowledgement pages.
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.
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EXECUTED as of the date first above written.
BANK:
GUARANTY FEDERAL BANK, F.S.B.,
a federal savings bank
By: /s/ W. Xxxxx Xxxxxxxx
___________________________
W. Xxxxx Xxxxxxxx,
Assistant Vice President
BORROWER:
HOMEOWNERS MORTGAGE & EQUITY, INC.,
a Delaware corporation d/b/a HOME, INC.
By: /s/ Xxxxx X. Xxxxxx
___________________________
Xxxxx X. Xxxxxx,
Executive Vice President
GUARANTOR:
HOMECAPITAL INVESTMENT CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
___________________________
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 30th day of January, 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
______________________________
Notary Public - State of Texas
My Commission expires: Xxxxxxxxx Xxxxxxxx
1-31-2000 ______________________________
Printed Name of Notary
STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
This instrument was ACKNOWLEDGED before me the 29 day of January, 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/ Xxxxxx Xxxxxxx
______________________________
Notary Public - State of Texas
My Commission expires: Xxxxxx Xxxxxxx
1-20-98 ______________________________
Printed Name of Notary
STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
This instrument was ACKNOWLEDGED before me the 29 day of January, 1997, by
Xxxx X. Xxxxxxx, President/CEO of HOMECAPITAL INVESTMENT CORPORATION, a Delaware
corporation, on behalf of said corporation.
/s/ Xxxxxx Xxxxxxx
______________________________
Notary Public - State of Texas
My Commission expires: Xxxxxx Xxxxxxx
1-20-98 ______________________________
Printed Name of Notary
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