EXHIBIT 10.38
FIRST AMENDMENT TO
CONSTRUCTION LOAN PURCHASE AND SERVICING AGREEMENT
The First Amendment to Construction Loan Purchase and Servicing Agreement
dated as of March 1, 1997 (this "Amendment"), by and between XxXxxxxx Financial
Corporation (the "Parent"), XxXxxxxx Home Alliance, Inc. ("XxXxxxxx"),
Plymouth Capital Company, Inc. ("Plymouth Capital") (the Parent, XxXxxxxx and
Plymouth Capital being referred to collectively as the "Sellers"), and
Residential Funding Corporation ("RFC") amends certain provisions of that
certain Construction Loan Purchase and Servicing Agreement dated as of April
14, 1995 (as amended, supplemented or otherwise modified from time to time, the
"Agreement"), by and between the Sellers and RFC.
WHEREAS, RFC and the Sellers have agreed to amend portions of the
Agreement relating to the Parent's Tangible Net Worth, all as described below.
In consideration of the mutual promises contained herein and in the
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Definitions. For purposes of this Amendment, all section references
shall refer to sections of the Agreement and, unless otherwise indicated, all
capitalized terms shall have the meanings assigned to those terms in the
Agreement.
2. AMENDMENTS TO AGREEMENT AND EXHIBITS.
a. Section 3.04(d) shall be amended and restated in its entirety to
read as follows:
(d) The Parent shall immediately notify RFC in writing if
its Tangible Net Worth, calculated in accordance with GAAP
applied on a basis consistent with the Parent's most recent
audited consolidated financial statement, shall be less than
$500,000 at any time prior to December 31, 1997, and less
than $8 million on or after December 31, 1997.
b. Section 8.01 shall be amended and restated in its entirety to
read as follows:
Section 8.01 TERM OF AGREEMENT. This Agreement may be
terminated at will by either party upon the giving of 180 days
prior
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written notice to the other Party; provided, however, if at any
time on or after December 31, 1997 the Parent's Tangible Net
Worth, calculated in accordance with GAAP applied on a basis
consistent with the Parent's most recent audited consolidated
financial statements, is less than $8 million, then RFC may
terminate this agreement upon 30 days prior written notice to
the Sellers. In addition, if a Change of Control occurs, RFC
may terminate this Agreement immediately upon the giving of
written notice to the Sellers.
3. Continued Effectiveness of Agreement. The Agreement shall continue
to be in full force and effect and is hereby ratified and confirmed in all
respects, and all references to the Agreement in any document shall hereafter
be deemed to refer to the Agreement as amended hereby. This Amendment is
hereby incorporated into, and shall for all purposed be deemed to be a part of,
the Agreement.
4. Section Headings. Section headings in this Amendment are for
convenience only and shall not in any way limit or affect the meaning or
interpretation of any of the provisions of this Amendment.
5. Entire Agreement. The Agreement, as amended by this Amendment,
embodies the entire agreement between the parties as to the subject matter
hereof and supersedes all prior agreements and understandings relating to the
subject matter hereof.
6. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
7. Effectiveness. This Amendment shall be of no force or effect unless
and until it has been executed and delivered by RFC and each of the Sellers.
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IN WITNESS WHEREOF, each of the undersigned parties to this Amendment has
caused this Amendment to be duly executed in its corporate name by one of its
duly authorized officers, all as of the date first above written.
XXXXXXXX FINANCIAL CORPORATION
Attest:
By: /s/ XXXXX X. XXXXXX
-------------------
By: /s/ XXXXXXXXX X. XXXXX Name: XXXXX X. XXXXXX
----------------------
Name: XXXXXXXXX X. XXXXX Its: VICE PRESIDENT
Its: VICE PRESIDENT
XXXXXXXX HOME ALLIANCE, INC.
Attest:
By: /s/ XXXXX X. XXXXXX
-------------------
By: /s/ XXXXXXXXX X. XXXXX Name: XXXXX X. XXXXXX
----------------------
Name: XXXXXXXXX X. XXXXX Its: VICE PRESIDENT
Its: VICE PRESIDENT
PLYMOUTH CAPITAL COMPANY, INC.
Attest:
By: /s/ XXXXX X. XXXXXX
-------------------
By: /s/ XXXXXXXXX X. XXXXX Name: XXXXX X. XXXXXX
----------------------
Name: XXXXXXXXX X. XXXXX Its: VICE PRESIDENT
Its: VICE PRESIDENT
RESIDENTIAL FUNDING CORPORATION
Attest:
By: /s/ XXXXXXX X. XXXXXXX
----------------------
By: /s/ XXXXXX XXXXXXXX Name: XXXXXXX X. XXXXXXX
-------------------
Name: XXXXXX XXXXXXXX Its: DIRECTOR
Its: MANAGING DIRECTOR
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