Exhibit 10.03
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this " Agreement "), is dated
effective as of December 13, 2005 by and between:
1. Colonial
Bank, N.A. (" Colonial ") and any permitted assignees ("
Lender A ") as Lender under that certain Mortgage Warehouse
Loan and Security Agreement, dated as of December 28, 2000, as
amended (as amended, the " Colonial Loan Agreement "),
between Colonial and First Preference Mortgage Corp. (" FPMC
") as Borrower and the related loan documents including, but not
limited to, the $5,000,000.00 Promissory Note, dated as of December
28, 2000, as amended by FPMC payable to the order of Colonial (the
" Colonial Note ") (the Colonial Loan Agreement, the
Colonial Note and the related loan documents are hereinafter
referred to collectively as " Note A ");
2. Bluebonnet
Investments, Ltd. (" BIL ") and any permitted assignees ("
Lender B ") as Lender under the $350,000 Promissory Note
dated the date hereof (" Note B ") by First Financial
Corporation (" FFC ");
3. JRPM
Investments, Ltd. (" JRPM ") and any permitted assignees ("
Lender C ") as Lender under the $350,000 Promissory Note
dated the date hereof (" Note C ") by FFC;
4. JRPM and any
permitted assignees (" Lender D ") as Lender under the
$500,000 Promissory Note dated the date hereof (" Note D ")
by FFC;
5. FPMC; and
6. FFC.
RECITALS
WHEREAS, Note A is secured by liens and security interest in and to
certain residential mortgage loans funded (or to be funded) with
advances made by Lender A, including without limitation, the
mortgage notes, mortgagees (or, if applicable, deeds to secure debt
or deeds of trust), investor commitments and other mortgage loan
documentation relating to such residential mortgage loans, the
proceeds of the sale of such residential mortgage loans and the
other collateral more particularly described in the Colonial Loan
Agreement (collectively, the " Colonial Collateral ");
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WHEREAS, Note B, Note C and Note D are secured by liens and
security interests in and to certain real property, personal
property (other than Colonial Collateral) and fixtures at the site
owned by FPMC located at Highway 77 in McLennan County, Texas ("
Hwy 77 Site ") under the Second Lien Deed of Trust, Security
Agreement and Financing Statement, of even date herewith, among
Herbert S. Bristow, as Trustee, Lender B, Lender C, Lender D and
FPMC (the " Hwy 77 DOT ");
WHEREAS, Note C and Note D are secured by:
1. Liens and
security interests in and to certain real property, personal
property (other than Colonial Collateral) and fixtures at the site
owned by Shelter Resources, Inc. (" SRI "), which is a
subsidiary of FFC, located at 826 Columbus, Waco, in McLennan
County, Texas [RE Asset #4201] and located at 823 Washington, Waco,
in McLennan County, Texas [RE Asset #4301] (" SRI Properties
"), under the Deed of Trust, Security Agreement and Financing
Statement in favor of FFC, as Lender and Lender D (the " SRI
DOT ");
2. Liens and
security interests in and to certain real property, personal
property (other than Colonial Collateral) and fixtures at the sites
owned by First Preference Properties, Inc. ("FPP"), located at 901
Columbus, Waco, in McLennan County, Texas [RE Asset #61101] and
located at 325 North 9 th Street, Waco, in McLennan
County, Texas [RE Asset #61102] (" FPP Properties "), under
the Deed of Trust, Security Agreement and Financing Statement (the
" FPP DOT ");
3. Liens and
security interests in and to certain real property, personal
property (other than Colonial Collateral) and fixtures at the site
owned by First Financial Corporation ("FFC") [RE Asset #14501] and
located at 2520 Robinson Drive, Waco, in McLennan County, Texas,
under the Third Lien Deed of Trust, Security Agreement and
Financing Statement (the " FFC DOT ");
4. Security
interests in the stock of SRI, (" SRI Stock ") owned by FFC
granted under the Pledge Agreement dated the date hereof by FFC in
favor of FFC, as Lender C and Lender D (" FFC Pledge ");
5. Security
interests in the stock of First Advisory Services, Inc. ("
FAS Stock ") owned by FFC granted under the FFC
Pledge;
6. Security
interests in the stock of FPMC (" FPMC Stock ") owned by FFC
granted under the FFC Pledge; and
7. Security
interests in the stock of FPP (" FPP Stock ") owned
by FFC granted under the FFC Pledge.
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WHEREAS, Lender A, Lender B, Lender C and Lender D, and their
successors and assigns from time to time party to this Agreement
(collectively, " Lenders ") desire to set forth their
relative priority and relationship with regard to payments under
Note A, Note B, Note C and Note D, and any replacement or
refinanced loan agreements and promissory notes, as amended from
time to time and described in Schedule 1, as amended,
(collectively, " Notes ") and their relative priority and
relationships with regard to exercising remedies against FPMC and
FFC (collectively, " Borrowers ") and any collateral
securing the Notes including but not limited to the Collateral
described in Schedule 1 (collectively, " Collateral ").
THEREFORE, for the premises set forth herein and other valuable
consideration, the Lenders, FFC and FPMC agree as follows.
AGREEMENTS
1.
Certain Definitions; Rules of Construction.
(a)
Certain definitions below refer to different parties depending on
their relative priority. The priority of the Lenders are set
forth in Schedule 1. Until there are no Senior Loan
Liabilities (defined below) with regard to the Lender with the
highest priority, for all purposes under this Agreement, such
Lender shall be the "Senior Lender" and the Notes payable to such
Lender and set forth in Schedule 1 are the "Senior Notes".
Upon the payment in full of the Senior Loan Liabilities to the
Senior Lender, the Lender with the next highest priority shall
become the "Senior Lender" and the Notes payable to such Lender and
set forth in Schedule 1 are the "Senior Notes". If there is
only one Lender, whether by virtue of all but one Note having been
canceled or by virtue of one party holding multiple Notes, such
Lender may, at its option, terminate this Agreement or preserve its
existence to accommodate future transfers of Notes to multiple
Lenders. The changes to the foregoing definitions and any
amendment to Schedule 1 are referred to as a " Priority
Shift ". If any Mezzanine Note is refinanced or amended,
and such modification is not described in Schedule 1, as amended,
or such modification was made without the consents and other
actions required under Section 5, then any additional principal,
interest or other amounts owed by Borrower as a result of such
modification shall be excluded from the Senior Loan Liabilities if
such Mezzanine Note becomes a Senior Note through a Priority
Shift.
(b)
As used in this Agreement, the following capitalized terms shall
have the following meanings:
" Affiliate
" means, as to any particular Person, any Person directly or
indirectly, through one or more intermediaries, controlling,
Controlled by or under common control with the Person or Persons in
question.
" Agreement
" means this Agreement, as the same may be amended, modified and in
effect from time to time, pursuant to the terms hereof.
" Borrower " means any obligor
under the Notes.
" Borrower Group " has the
meaning provided in Section 8(c).
{H0033021.8}
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" Business
Day " means a weekday, Monday through Friday, except a legal
holiday or a day on which banking institutions in Waco, Texas or
Orlando, Florida are authorized or required by law to be
closed. Unless otherwise provided, the term " days "
when used herein shall mean calendar days.
"
Collateral " is defined in the Recitals.
" Colonial
Collateral " is defined in the Recitals.
" Continuing
Senior Loan Event of Default " means an Event of Default under
the Senior Loan Documents for which each Senior Lender has provided
notice of such Event of Default to each Mezzanine Lender in
accordance with Section 10 of this Agreement.
" Control "
means the ownership, directly or indirectly, in the aggregate of
more than fifty percent (50%) of the beneficial ownership interests
of an entity and the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of an entity, whether through the ability to exercise
voting power, by contract or otherwise. "Controlled by,"
"controlling" and "under common control with" shall have the
respective correlative meaning thereto.
" Enforcement
Action " means any (i) judicial or non-judicial foreclosure
proceeding, the exercise of any power of sale, the taking of a deed
or assignment in lieu of foreclosure, the obtaining of a receiver
or the taking of any other enforcement action against the
Collateral or Borrower, including, without limitation, the taking
of possession or control of the Collateral, (ii) acceleration of,
or demand or action taken in order to collect, all or any
indebtedness secured by the Collateral (other than giving of
notices of default and statements of overdue amounts) or (iii) any
other action or proceeding or other exercise of any right or remedy
available to any Lender under its Loan Documents, at law, in equity
or otherwise with respect to Borrower and/or the Collateral.
" Event of
Default " as used herein means (i) with respect to the Senior
Loan and the Senior Loan Documents, any Event of Default thereunder
which has occurred and is continuing and (ii) with respect to the
Mezzanine Loan and the Mezzanine Loan Documents, any Event of
Default thereunder which has occurred and is continuing.
" Loan "
means each of the Senior Loan and the Mezzanine Loans.
" Loan
Documents " means the Senior Loan Documents and the Mezzanine
Loan Documents.
" Mezzanine
Borrower " means the payors under the Mezzanine Notes.
" Mezzanine
Lender " means each Lender other than the Senior Lender.
" Mezzanine
Loan " means the loans advanced under the Mezzanine Notes.
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" Mezzanine Loan
Documents " means the Mezzanine Note together with all
documents and instruments executed now or in the future in
connection therewith including but not limited to deposit account
agreements and cash collateral account agreements, as any of the
foregoing may be modified, amended, extended, supplemented,
restated or replaced from time to time, subject to the limitations
and agreements contained in this Agreement.
" Mezzanine Loan
Modification " has the meaning provided in Section 5(b)
hereof.
" Mezzanine
Note " means each Note other than the Senior Notes.
" Person "
means any individual, sole proprietorship, corporation, general
partnership, limited partnership, limited liability company or
partnership, joint venture, association, joint stock company, bank,
trust, estate unincorporated organization, any federal, state,
county or municipal government (or any agency or political
subdivision thereof) endowment fund or any other form of
entity.
" Prior
Lender " means, as to each Lender, another Lender ranked with
higher priority to such Lender in Schedule 1.
" Prior Loan
" means, as to each Loan, another Loan that is ranked with higher
priority to such Loan in Schedule 1.
" Prior Loan
Documents " means the Loan Documents relating to the Prior
Loans.
" Priority
Shift " is defined in Section 1(a).
" Proceeding
" has the meaning provided in Section 8(c) hereof.
"
Security Documents " means any agreement granting a lien or
security interest to secure a Note.
"
Senior Lender " is defined under Section 1(a). As of the
date of this Agreement, Colonial is the Senior Lender.
"
Senior Loan " means all obligations under the Senior
Note.
"
Senior Loan Documents " means the Senior Notes and the
related Security Documents together with the instruments and
documents executed in connection with the foregoing, and as any of
the foregoing may be modified, amended, extended, supplemented,
restated or replaced from time to time, subject to the limitations
and agreements contained in this Agreement. As of the date of this
Agreement, the Colonial Loan Agreement, the Colonial Note and the
other loan documents included in "Note A" are the Senior Loan
Documents.
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"
Senior Loan Liabilities " shall mean, collectively, all of
the indebtedness, liabilities and obligations of Borrower evidenced
by the Senior Loan Documents and all amounts due or to become due
pursuant to the Senior Loan Documents, including interest thereon
and any other amounts payable in respect thereof or in connection
therewith, including, without limitation, any late charges, default
interest, prepayment fees or premiums, exit fees, advances and
post-petition interest and the Senior Lenders commitment to make
any additional advances or other extensions of credit.
"
Senior Loan Modification " has the meaning provided in
Section 5(a) hereof.
"
Senior Mortgage " refers to any document granting a lien in
real property to secure the Senior Note.
"
Senior Note " is defined under Section 1(a). As of the date
of this Agreement, the documents constituting "Note A" are the
Senior Note.
"
Transfer " means any assignment, pledge, conveyance, sale,
transfer, mortgage, encumbrance, grant of a security interest,
issuance of a participation interest, or other disposition, either
directly or indirectly, by operation of law or otherwise.
(c)
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i)
all capitalized terms defined in the recitals to this Agreement
shall have the meanings ascribed thereto whenever used in this
Agreement and the terms defined in this Agreement have the meanings
assigned to them in this Agreement, and the use of any gender
herein shall be deemed to include the other genders;
(ii)
all references in this Agreement to designated Sections,
Subsections, Paragraphs, Articles, Exhibits, Schedules and other
subdivisions or addenda without reference to a document are to the
designated sections, subsections, paragraphs and articles and all
other subdivisions of and exhibits, schedules and all other addenda
to this Agreement, unless otherwise specified;
(iii)
a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall apply to
Paragraphs and other subdivisions;
(iv)
the terms "includes" or "including" shall mean without limitation
by reason of enumeration;
(v)
the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular provision;
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(vi)
the words "to Mezzanine Lender's knowledge" or "to the knowledge of
Mezzanine Lender" (or words of similar meaning) shall mean to the
actual knowledge of officers of such Mezzanine Lender with direct
oversight responsibility for the Mezzanine Loan without independent
investigation or inquiry and without any imputation whatsoever;
and
(vii)
the words "to Senior Lender's knowledge" or "to the knowledge of
Senior Lender" (or words of similar meaning) shall mean to the
actual knowledge of officers of Senior Lender with direct oversight
responsibility for the Senior Loan without independent
investigation or inquiry and without any imputation whatsoever.
2.
Approval of Loans and Loan Documents . Each Mezzanine
Lender hereby acknowledges (and acknowledges upon each Priority
Shift) that (i) it has received and reviewed and, subject to the
terms and conditions of this Agreement, hereby consents to and
approves of the making of the Senior Loan and, subject to the terms
and provisions of this Agreement, all of the terms and provisions
of the Senior Loan Documents, (ii) the execution, delivery and
performance of the Senior Loan Documents will not constitute a
default or an event which, with the giving of notice or the lapse
of time, or both, would constitute a default under the Mezzanine
Loan Documents, (iii) no Senior Lender is under any obligation or
duty to, nor has any Senior Lender represented that it will, see to
the application of the proceeds of the Senior Loans by Borrower or
any other Person to whom any Senior Lender disburses such proceeds,
and (iv) any application or use of the proceeds of the Senior Loans
for purposes other than those provided in the Senior Loan Documents
shall not affect, impair or defeat the terms and provisions of this
Agreement or the Senior Loan Documents.
3.
Representations and Warranties. Each Mezzanine Lender
makes the following representations and warranties on the date
hereof and upon each Priority Shift:
(a)
The Mezzanine Notes are the only Mezzanine Loan Document to which
such Mezzanine Lender is party as of the date hereof. There
currently exists no default or event which, with the giving of
notice or the lapse of time, or both, would constitute a default
under any of the Mezzanine Loan Documents to which such Mezzanine
Lender is party.
(b)
Such Mezzanine Lender is the legal and beneficial owner of such
Mezzanine Notes, respectively, free and clear of any lien, security
interest, option or other charge or encumbrance.
(c)
There are no conditions precedent to the effectiveness of this
Agreement that have not been satisfied or waived.
(d)
Such Mezzanine Lender has, independently and without reliance upon
any Senior Lender and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement.
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(e)
Such Mezzanine Lender is duly organized and is validly existing
under the laws of the jurisdiction under which it was organized
with full power to execute, deliver, and perform this Agreement and
consummate the transactions contemplated hereby. All actions
necessary to authorize the execution, delivery, and performance of
this Agreement on behalf of such Mezzanine Lender have been duly
taken, and all such actions continue in full force and effect as of
the date hereof.
(f)
Such Mezzanine Lender has duly executed and delivered this
Agreement and this Agreement constitutes the legal, valid, and
binding agreement of such Mezzanine Lender enforceable against such
Mezzanine Lender in accordance with its terms subject to (x)
applicable bankruptcy, reorganization, insolvency and moratorium
laws, and (y) general principles of equity which may apply
regardless of whether a proceeding is brought in law or in
equity.
(g)
To such Mezzanine Lender's knowledge, no consent of any other
Person and no consent, license, approval, or authorization of, or
exemption by, or registration or declaration or filing with, any
governmental authority, bureau or agency is required in connection
with the execution, delivery or performance by such Mezzanine
Lender of this Agreement or consummation by such Mezzanine Lender
of the transactions contemplated by this Agreement.
(h)
Such Mezzanine Lender represents that none of the execution,
delivery and performance of this Agreement nor the consummation of
the transactions contemplated by this Agreement will (v) violate or
conflict with any provision of the organizational or governing
documents of such Mezzanine Lender, (w) to such Mezzanine Lender's
knowledge, violate, conflict with, or result in the breach or
termination of, or otherwise give any other Person the right to
terminate, or constitute (or with the giving of notice or lapse of
time, or both, would constitute) a default
