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EXHIBIT 10.4.c
MODIFICATION AGREEMENT
This Modification Agreement (herein so called), is entered into
effective as of the 16th day of October, 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,
February 1, 1998, April 2, 1998, and May 28, 1998 respectively, among the
Borrowers, Guarantor and Lender ("Credit Agreement").
Section 1. Recitals. Borrowers, Guarantor, and Lender desire to amend
the Credit Agreement to increase the Repurchase Advance sublimit and increase
the Basic Rate with respect to Repurchase Advances. 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) Section 2.1. Loan. of the Credit Agreement is hereby
deleted therefrom and the following is substituted in lieu thereof
for all purposes:
"Subject to the terms and conditions and relying on
the representations and warranties contained in this
Agreement, Lender agrees to make Advances to either Borrower
at any time, and from time to time, on any Business Day prior
to the Termination Date in such amounts as such Borrower may
request up to but not exceeding the Commitment Limit and each
Borrower may borrow, repay, and reborrow hereunder so long as
the Aggregate Advances at any one time outstanding shall not
exceed the Commitment Limit. No Advance shall be made against
a Mortgage Loan that is not an Eligible Mortgage Loan. The
amount of any Advance made hereunder against an Eligible
Mortgage Loan shall not exceed such Eligible Mortgage Loan's
Warehouse Line Limit. Lender's Commitment shall terminate on
the Termination Date or such earlier date pursuant to the
terms of this Agreement. All revolving loans made pursuant to
this Section 2.1 and all payments of principal with respect to
all loans under the Commitment shall be evidenced by notations
made by Lender in its business records. The Aggregate Advances
reflected by the notations made in Lender's business records
shall be conclusive evidence of the principal amount owing and
unpaid on the Note. The Aggregate Advances against "B, C, & D"
Mortgage Loans outstanding at any one time shall not exceed
$6,000,000.00. The Aggregate Advances against FHA Title I
Mortgage Loans outstanding at any one time shall not exceed
$1,000,000.00. The aggregate amount of all Repurchased
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Advances outstanding at any one time shall not exceed
$350,000.00. Notwithstanding anything to the contrary
contained in this Agreement or otherwise, Capital shall
not be permitted at any time to receive any Repurchase Advance
hereunder."
(b) The Basic Rate, with respect to Aggregate Advances
relating to Repurchase Mortgage Loans, means, for any day, the LIBOR
Rate for that day plus 4.00%.
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
Revolving Credit Note dated May 28, 1998 in the original principal sum of
$23,000,000.00 executed by Borrowers payable to the order of the Lender.
Section 5. ADDITIONAL REPRESENTATIONS. Except as otherwise specified
herein, the terms and provisions hereof shall in no manner impair, limit,
restrict or otherwise affect 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 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 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 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 IS HEREIN PROVIDED, AND THE
OTHER BENEFITS RECEIVED BY BORROWERS AND GUARANTOR
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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 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
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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 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.
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/ XXXXX XXXXX
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XXXXX XXXXX, President
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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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