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EXHIBIT 10.4.e
MODIFICATION AGREEMENT
This Modification Agreement (herein so called), is entered into
effective as of the 2nd day of April, 1998, by and among ALLIED MORTGAGE
CORPORATION, a Texas corporation (the "Company"), ALLIED MORTGAGE CAPITAL
CORPORATION, a Texas corporation ("Capital") (the Company and Capital being
called collectively the "Borrowers" and individually, a "Borrower"), XXX X.
XXXXX ("Guarantor"), and COASTAL BANC ssb ("Lender"). Capitalized terms used
but not defined herein have the meanings assigned to them in that certain
Loan Agreement dated effective as of April 30, 1996, by and among the
Borrowers and Lender, as amended by those certain Modification Agreements
dated February 18, 1997, May 30, 1997, September 8, 1997, October 31, 1997,
January 8, 1998, and February 1, 1998, respectively, among the Borrower,
Guarantor and Lender ("Credit Agreement").
Section 1. Recitals. Borrowers, Guarantor, and Lender desire to amend
certain provisions of the Credit Agreement. Therefore, Borrowers,
Guarantor and Lender hereby agree as follows, intending to be legally
bound:
Section 2. Amendments. The Credit Agreement is hereby amended as
follows:
(a) The definition of "Commitment Limit" in Section 1.2 of the
Credit Agreement is hereby deleted in its entirety therefrom and the
following is substituted in lieu thereof:
""Commitment Limit" means $19,000,000.00."
(b) Section 2.16 Discretionary Advances. of the Credit Agreement
is hereby deleted therefrom and the following is substituted in lieu
thereof for all purposes:
"Section 2.16. Discretionary Advances. Notwithstanding the
Commitment Limit, the Lender shall have the right, but shall not
be obligated, to make Advances requested by either Borrower, which
when added to all Aggregate Advances as of the date of any request
are in excess of the Commitment Limit, in such amounts as such
Borrower may request prior to the Termination Date up to the
maximum amount hereinafter stated and each Borrower may borrow,
pay, prepay, in whole or in part, and reborrow in respect thereof;
provided, however, the aggregate principal amount of all such
discretionary Advances shall not exceed at any one time
outstanding the sum of $1,900,000.00 ("Discretionary Advances").
Any request for an Advance hereunder by either Borrower,
which when added to all Aggregate Advances as of the date of such
request is in excess of the Line of Credit Commitment, shall be
deemed to be a request for a Discretionary Advance. Each request
for a Discretionary Advance
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made by either Borrower may be approved or denied, with or
without cause, by the Lender in its sole and absolute discretion.
Lender's approval of any request for a Discretionary Advance
shall not be deemed to be a waiver of its right to deny any
subsequent request for a Discretionary Advance, with or without
cause, regardless of whether or not the same circumstances and
factors which existed at the time of Lender's approval of any
previous request exist at the time of any subsequent request.
Each Discretionary Advance and all Mortgage Loans pledged in
connection therewith shall be subject to all terms, conditions,
representations, warranties, covenants, and agreements contained
in this Agreement applicable to any Advance hereunder and any
Mortgage Loan pledged to secure the Obligations. Discretionary
Advances, and interest thereon, shall be evidenced by the Note
and shall be due and payable in accordance with the Loan
Documents. Discretionary Advances shall be secured by the
Security Instruments and any and all Collateral heretofore, now
or hereafter given by the Borrowers to secure any of the
Obligations."
(c) The Revolving Credit Note ("Credit Note") dated April 2,
1998, in the original principal sum of $20,900,000.00 executed by
Borrowers payable to the order of Lender is given in renewal and
extension of the Revolving Credit Note dated January 8, 1998, in the
original principal sum of $16,500,000.00 executed by Borrowers
payable to the order of Lender and not in novation or discharge
thereof. The definition of the term "Note" in the Credit Agreement is
hereby amended to mean the Credit Note and all renewals, extensions,
modifications, increases, rearrangements, and replacements thereof.
Section 3. Representations. Borrowers represent and warrant that all of
the representations and warranties contained in the Credit Agreement and all
instruments and documents executed pursuant thereto or contemplated thereby
are true and correct in all material respects on and as of this date.
Section 4. Continued Force and Effect. Except as specifically amended
herein, all of the terms and conditions of the Credit Agreement and all
other Loan Documents are and remain in full force and effect in accordance
with their respective terms. All of the terms used herein have the same
meanings as set out in the Credit Agreement, unless amended hereby or unless
the context clearly requires otherwise. References in the Credit Agreement
to the "Agreement," the "Loan Agreement," "hereof," "herein" and words of
similar import shall be deemed to be references to the Credit Agreement as
amended through the date hereof. Any reference in the other Loan Documents
to the "Agreement", the "Line of Credit Agreement", "Warehouse Agreement",
or the "Loan Agreement" shall be deemed to be references to the Credit
Agreement as amended through the date hereof. Any reference in the Credit
Agreement, this Modification Agreement, or the other Loan Documents to the
"Note" shall be deemed references to the Credit Note.
Section 5. ADDITIONAL REPRESENTATIONS. Except as otherwise specified
herein, the terms and provisions hereof shall in no manner impair, limit,
restrict or otherwise affect
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the obligations of Borrowers, Guarantor, or any third party to Lender, as
evidenced by the Loan Documents. Borrowers and Guarantor hereby acknowledge,
agree, and represent that (i) Borrowers are indebted to Lender pursuant to
the terms of the Credit Note; (ii) the liens, security interests and
assignments created and evidenced by the Loan Documents are, respectively,
first, prior, valid and subsisting liens, security interests and assignments
against the Collateral and secure all indebtedness and obligations of
Borrowers to Lender under the Credit Note, the Credit Agreement, all other
Loan Documents, as modified herein; (iii) there are no claims or offsets
against, or defenses or counterclaims to, the terms or provisions of the
Loan Documents; and the other obligations created or evidenced by the Loan
Documents; (iv) neither the Borrowers nor the Guarantor have any claims,
offsets, defenses or counterclaims arising from any of the Lender's acts or
omissions with respect to the Loan Documents, or the Lender's performance
under the Loan Documents; (v) the representations and warranties contained
in the Loan Documents are true and correct representations and warranties of
Borrowers, as of the date hereof; (vi) Borrowers promise to pay to the order
of Lender the indebtedness evidenced by the Credit Note according to the
terms thereof; and (vii) Lender is not in default and no event has occurred
which, with the passage of time, giving of notice, or both, would constitute
a default by Lender of Lender's obligations under the terms and provisions
of the Loan Documents. IN CONSIDERATION OF THE MODIFICATION OF CERTAIN
PROVISIONS OF THE LOAN DOCUMENTS, ALL AS HEREIN PROVIDED, AND THE OTHER
BENEFITS RECEIVED BY BORROWERS AND GUARANTOR HEREUNDER, BORROWERS AND
GUARANTOR HEREBY RELEASE, RELINQUISH AND FOREVER DISCHARGE LENDER, ITS
PREDECESSORS, SUCCESSORS, ASSIGNS, SHAREHOLDERS, PRINCIPALS, PARENTS,
SUBSIDIARIES, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND
REPRESENTATIVES (COLLECTIVELY, THE "LENDER RELEASED PARTIES"), OF AND FROM
ANY AND ALL CLAIMS, DEMANDS, ACTIONS AND CAUSES OF ACTION OF ANY AND EVERY
KIND OR CHARACTER, WHETHER KNOWN OR UNKNOWN, PRESENT OR FUTURE, WHICH
BORROWERS AND GUARANTOR, OR ANY ONE OR MORE OF THEM, HAVE, OR MAY HAVE
AGAINST LENDER RELEASED PARTIES, ARISING OUT OF OR WITH RESPECT TO ANY AND
ALL TRANSACTIONS RELATING TO THE CREDIT AGREEMENT, AND THE OTHER LOAN
DOCUMENTS OCCURRING PRIOR TO THE DATE HEREOF, INCLUDING ANY OTHER LOSS,
EXPENSE AND/OR DETRIMENT, OF ANY KIND OR CHARACTER, GROWING OUT OF OR IN ANY
WAY CONNECTED WITH OR IN ANY WAY RESULTING FROM THE ACTS, ACTIONS OR
OMISSIONS OF THE LENDER RELEASED PARTIES, AND INCLUDING ANY LOSS, COST OR
DAMAGE IN CONNECTION WITH ANY BREACH OF FIDUCIARY DUTY, BREACH OF ANY DUTY
OF FAIR DEALING, BREACH OF COMPETENCE, BREACH OF FUNDING COMMITMENT, UNDUE
INFLUENCE, DURESS, ECONOMIC COERCION, CONFLICT OF INTEREST, NEGLIGENCE, BAD
FAITH, MALPRACTICE, VIOLATIONS OF THE RACKETEER INFLUENCE AND CORRUPT
ORGANIZATIONS ACT, INTENTIONAL OR NEGLIGENT INFLICTION OF EMOTIONAL OR
MENTAL DISTRESS, TORTIOUS INTERFERENCE WITH CORPORATE GOVERNMENTS OR
PROSPECTIVE BUSINESS ADVANTAGE, TORTIOUS INTERFERENCE WITH CONTRACTUAL
RELATIONS, BREACH OF CONTRACT, DECEPTIVE TRADE PRACTICES, LIBEL, SLANDER,
CONSPIRACY, THE CHARGING, CONTRACTING FOR, TAKING, RESERVING, COLLECTING OR
RECEIVING OF INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE TO THE
LOAN DOCUMENTS (I.E., USURY), ANY VIOLATIONS OF FEDERAL OR STATE LAW, ANY
VIOLATIONS OF FEDERAL OR STATE BANKING RULES, LAWS OR REGULATIONS,
INCLUDING, BUT NOT LIMITED TO, ANY VIOLATIONS OF REGULATION B, EQUAL CREDIT
OPPORTUNITY, BANK TYING ACT CLAIMS, ANY VIOLATION OF THE TEXAS FREE
ENTERPRISE ANTITRUST ACT OR ANY VIOLATION OF FEDERAL ANTITRUST ACTS.
GUARANTOR (i) CONSENTS TO THE TERMS AND PROVISIONS OF THIS MODIFICATION
AGREEMENT, (ii) RATIFIES AND CONFIRMS HIS GUARANTY IS IN FULL FORCE AND
EFFECT IN ACCORDANCE WITH ITS TERMS, AND (iii) ACKNOWLEDGES THAT THE
GUARANTY AND ALL OTHER GUARANTY AGREEMENTS OF THE GUARANTOR EXECUTED IN
CONNECTION WITH THE CREDIT
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AGREEMENT ARE NOT SUBJECT TO ANY CLAIMS, OFFSETS, DEFENSES, OR COUNTERCLAIMS
OF ANY NATURE WHATSOEVER.
Section 6. Severability. In the event any one or more provisions
contained in the Credit Agreement or this Modification Agreement should be
held to be invalid, illegal or unenforceable in any respect, the validity,
enforceability and legality of the remaining provisions contained herein and
therein shall not be affected in any way or impaired thereby and shall be
enforceable in accordance with their respective terms.
Section 7. Expenses. Borrowers agree to pay all out-of-pocket costs
and expenses of Lender in connection with the preparation, operation,
administration and enforcement of this Modification Agreement.
Section 8. Acknowledgment. Except as amended hereby, Borrowers ratify
and confirm that the Security Instruments and all other Loan Documents are
and remain in full force and effect in accordance with their respective
terms and that all Collateral is unimpaired by this Modification Agreement
and secures the payment and performance of all indebtedness and obligations
of Borrowers under the Note, the Credit Agreement, and all other Loan
Documents, as modified hereby. Each of the undersigned officers of Borrowers
executing this Modification Agreement represents and warrants that he has
full power and authority to execute and deliver this Modification Agreement
on behalf of Borrowers that such execution and delivery has been duly
authorized and that the resolutions and affidavits previously delivered to
Lender, in connection with the execution and delivery of the Credit
Agreement, are and remain in full force and effect and have not been
altered, amended or repealed in anywise.
Section 9. No Waiver. Borrowers agree that no Event of Default and no
Default has been waived or remedied by the execution of this Modification
Agreement by Lender, and any such Default or Event of Default heretofore
arising and currently continuing shall continue after the execution and
delivery hereof.
Section 10. Governing Law. This Modification Agreement shall be
governed by and construed in accordance with the laws of the State of Texas
and, to the extent applicable, by federal law.
Section 11. Counterparts. This Modification Agreement may be executed
in any number of counterparts and all of such counterparts taken together
shall be deemed to constitute one and the same instrument.
SECTION 12. NO ORAL AGREEMENTS. THIS WRITTEN MODIFICATION AGREEMENT,
THE CREDIT AGREEMENT, THE CREDIT NOTE, THE GUARANTY, AND THE OTHER LOAN
DOCUMENTS, AS MODIFIED HEREBY, REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR ORAL AGREEMENTS OF THE PARTIES.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
EXECUTED and effective as of the dates first written above.
BORROWERS:
ALLIED MORTGAGE CORPORATION, a
Texas corporation
By: /s/ XXX X. XXXXX
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XXX X. XXXXX, President
ALLIED MORTGAGE CAPITAL CORPORATION, a
Texas corporation
By: /s/ XXX X. XXXXX
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XXX X. XXXXX, Vice President
GUARANTOR:
/s/ XXX X. XXXXX
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XXX X. XXXXX
LENDER:
COASTAL BANC ssb
By: /s/ XXX XXXX
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XXX XXXX, Vice President
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