Exhibit 10.04
Eleventh Amendment To
Mortgage Warehouse Loan And Security Agreement,
Waiver and Consent
This Eleventh Amendment to Mortgage Warehouse Loan and Security
Agreement, Waiver and Consent (this "Amendment"), made by and
between FIRST PREFERENCE MORTGAGE CORP. , a Texas
corporation ("Borrower"), COLONIAL BANK, N.A. (f/k/a
Colonial Bank), a national banking association, as lender
("Lender"), is dated as of the 13 th day of December,
2005.
R E C I T A L S
:
Pursuant to that certain Mortgage Warehouse Loan and Security
Agreement dated as of December 28, 2000, as amended by that certain
First Amendment to Mortgage Warehouse Loan and Security Agreement
dated as of February 20, 2001, that certain Second Amendment to
Mortgage Warehouse Loan and Security Agreement dated as of April
10, 2001, that certain Third Amendment to Mortgage Warehouse Loan
and Security Agreement dated as of August 29, 2001, that certain
Fourth Amendment to Mortgage Warehouse Loan and Security Agreement
dated as of October 31, 2002, that certain Fifth Amendment to
Mortgage Warehouse Loan and Security Agreement dated as of April
30, 2003, that certain Sixth Amendment to Mortgage Warehouse Loan
and Security Agreement dated as of August 29, 2003, that certain
Seventh Amendment to Mortgage Warehouse Loan and Security Agreement
dated as of December 10, 2003, that certain Eighth Amendment to
Mortgage Warehouse Loan and Security Agreement dated as of December
31, 2004, and that certain Ninth Amendment to Mortgage Warehouse
Loan and Security Agreement dated as of March 31, 2005, and that
certain Tenth Amendment to Mortgage Warehouse Loan and Security
Agreement dated as of September 28, 2005 (as heretofore amended,
the "Agreement"), Lender made available to Borrower, subject to the
terms and conditions thereof, a revolving line of credit loan in
the maximum aggregate principal amount not to exceed $5,000,000.00
(the "Line of Credit").
Pursuant to the provisions of the Agreement, the Line of Credit
matures on December 31, 2005. Borrower has requested that
Lender agree to waive certain financial covenant violations under
the Agreement, consent to certain transactions involving Borrower
and its Affiliates, and extend the scheduled maturity date of the
Line of Credit to March 31, 2006 and make certain other changes to
the Agreement, and Lender is willing to do so, but only on the
express condition, among others, that Borrower enters into this
Amendment, pursuant to which the Agreement shall be amended and
modified.
NOW, THEREFORE, in consideration of the premises and agreements
contained herein, and for good and valuable consideration, the
receipt and sufficiency of which are acknowledged by the parties
hereto, the parties hereto do hereby agree, each with the other, as
follows:
1.
If not otherwise defined herein or the context shall not expressly
indicate otherwise, all capitalized terms which are used herein
shall have their respective meanings given to them in the
Agreement.
2.
Section 1.1 ( Defined Terms ) of the Agreement is hereby
amended as follows:
(A)
By amending and restating the definition of "Adjusted Tangible Net
Worth" to read in its entirety as follows:
" Adjusted Tangible Net Worth " shall mean GAAP Net Worth,
minus loans and advances owing to Borrower from officers,
directors, stockholders and other Affiliates and employees of
Borrower (if any), minus investments in Affiliates of
Borrower, minus (without duplication to the extent not
already deducted in the calculation of GAAP Net Worth) the lesser
of (x) the outstanding balance of any indebtedness which is secured
by an accommodation Lien on property owned by Borrower and (y) the
book value of such property as reflected on Borrower's balance
sheet, unless the holder(s) of the Lien(s) on such property have
entered into an intercreditor or other agreement in favor of Lender
in form and substance satisfactory to Lender in its sole discretion
and such agreement remains in full force and effect, plus
that portion of Subordinated Debt (if any) that is not due within
one (1) year, all as of the applicable date of determination.
(B)
By amending and restating the definition of "Change of Control" to
read in its entirety as follows:
" Change of Control " shall mean the occurrence of any one
or more of the following events without the prior written consent
of Lender: (a) First Financial Corporation ceases to own 100% of
the outstanding capital stock of Borrower or David W. Mann and his
immediate family members, collectively, cease to control (which
control may be held directly or indirectly) Borrower, (b) the sale
or other transfer of all or substantially all of Borrower's assets,
voluntarily, by operation of law or otherwise, (c) Borrower is
a party to any merger, consolidation or similar transaction in
which it is not the surviving entity, or (d) David W. Mann
ceases for any reason to be the Chairman of the Board of
Borrower or Charles LaCombe ceases for any reason to be the
President and Chief Executive Officer of Borrower, each with
substantially the same responsibilities and job functions as he has
as of December 12, 2005.
(C)
By amending and restating the definition of "Maturity Date" to read
in its entirety as follows:
" Maturity Date " shall mean March 31, 2006 (or if such day
is not a Banking Day, on the next succeeding Banking Day) or, if
earlier, the date of the termination of the Commitment, in
accordance with Section 2.6 or Section 7.2; provided , that
upon the written request of Borrower to Lender, Lender may elect to
extend the Maturity Date on such terms and conditions as it deems
appropriate in its sole discretion
3.
Section 4.10 ( Negative Pledge ) of the Agreement is hereby
amended and restated in its entirety to read as follows:
Section 2.6 Negative Pledge .
As long as any Obligations remain unpaid or the Commitment
hereunder is outstanding, except for the pledge of up to 100% of
the outstanding capital stock of Borrower by First Financial
Corporation to JRPM Investments, Ltd. pursuant to that certain
Pledge Agreement dated on or about December ___, 2005, none of
Borrower's shareholders or owners shall pledge, assign, transfer or
encumber any capital stock or other ownership interest such Person
holds of Borrower to any third party.
4.
Section 5.8 ( Subsidiaries; Capitalization ) of the
Agreement is hereby amended and restated in its entirety to read as
follows:
5.8
Subsidiaries; Capitalization .
Borrower has no Subsidiaries, except for (1) First Financial
Information Services, Inc. which is a wholly-owned Subsidiary that
predominately holds licenses to computer software and provides data
processing services to Borrower, (2) First Preference Properties,
Inc. which is a wholly-owned Subsidiary of Borrower that
predominately owns, manages and disposes of repossessed properties
securing residential mortgage loans originated by Borrower, and (3)
Tri-Triangle Insurance Agency, Inc. which is a wholly-owned
Subsidiary that solicits homeowners insurance on mortgage loans
originated by Borrower. The issued and outstanding capital
stock or other ownership interests of Borrower is owned,
beneficially and of record, by the shareholders or other owners
listed in Schedule 3 in the amounts and percentage interests
set forth opposite such Person's name.
5.
Schedule 3 ( List of Shareholders and
Ownership Interests ) to the Agreement is hereby amended and
restated in the form of Schedule 3 attached hereto.
6.
Waiver of Certain Defaults and Reservation of all Other Rights
and Remedies . Upon the effectiveness of this Amendment,
Lender hereby waives Borrower's breach of and noncompliance with
the covenants of the Agreement set out on Schedule A hereto
solely with respect to the period(s) set forth on Schedule A
hereto, and Lender waives any Event of Default under the Agreement
as a result of any such breach and/or noncompliance that occurred
solely during the period(s) set forth on Schedule A
hereto. Lender hereby expressly reserves, and Borrower hereby
agrees that Lender does not and has not waived, its right to
require strict performance of all terms of the Agreement, except as
expressly herein waived, and all of its rights and re
