Exhibit 10.8



 


FIFTH  AMENDMENT

TO 

MORTGAGE

WAREHOUSE  LOAN  AND  SECURITY

AGREEMENT  


This Fifth Amendment to Mortgage Warehouse Loan
and Security Agreement (this "Amendment"), made by and between FIRST
PREFERENCE MORTGAGE CORP., a Texas corporation ("Borrower"), COLONIAL
BANK, an Alabama banking corporation, as lender ("Lender"), is dated as of
the th day of April, 2003. 


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 and that certain Fourth Amendment to Mortgage Warehouse
Loan and Security Agreement dated as of October 31, 2002 (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 $45,000,000.00 (the "Line of Credit").



Borrower has requested that Lender agree
to increase the maximum principal amount available under the Line of Credit
from $45,000,000.00 to $50,000,000.00 on a temporary basis, and to make certain
other changes, and Lender is willing to do so, but only on the express
condition, among others, that Borrower enters into this Agreement, 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 "Commitment" to read in its entirety as
follows: 


"Commitment" shall mean the commitment of
Lender to make Advances to Borrower which Advances in the aggregate, subject to
each applicable Sublimit, shall not exceed (i) $50,000,000.00 at any time
outstanding prior to July 31, 2003 or  (ii) $45,000,000.00 at any time
outstanding on or after July 31, 2003. The Commitment shall automatically
decrease on July 31, 2003 without notice or other action of any kind on the
part of Borrower, Lender or any other Person. 


(B) By amending and restating the definition of
"Maturity Date"
to read in its entirety as follows:  


"Maturity Date"
shall mean July 31, 2003; 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. 


 






 


(C) By amending and restating the definition of
"Sublimit A" to read in its entirety as follows: 


"Sublimit A" shall mean a portion of the Line
of Credit up to but not exceeding $50,000,000.00 prior to July 31, 2003 or
$45,000,000.00 on or after July 31, 2003, which shall be available to warehouse
Sublimit A Mortgage Loans. 


(D) By amending and restating the definition of
"Sublimit B" to read in its entirety as follows: 


"Sublimit B" shall mean a portion of the Line
of Credit up to but not exceeding $12,500,000.00 (increasing to $17,500,000.00
during the last five (5), followed by the first five (5) Banking Days of each
month) prior to July 31, 2003, or $11,250,000.00 (increasing to $15,750,000.00
during the last five (5), followed by the first five (5) Banking Days of each
month) on or after July 31, 2003, which shall be available to warehouse
Sublimit B Mortgage Loans. 


(E) By amending and restating the definition of
"Sublimit C" to read in its entirety as follows: 


"Sublimit C" shall mean a portion of the Line
of Credit up to but not exceeding $5,000,000.00 prior to July 31, 2003 or
$4,500,000.00 on or after July 31, 2003, which shall be available to warehouse
Sublimit C Mortgage Loans. 


(F) By amending and restating the definition of
"Sublimit D" to read in its entirety as follows: 




"Sublimit D"
shall mean a portion of the Line of Credit up to but not exceeding $1,250,000.00
prior to July 31, 2003 or $1,125,000.00 on or after July 31, 2003, which shall
be available to warehouse Sublimit D Mortgage Loans. 


3. Section 2.4 (Note) of the
Agreement is hereby amended to delete the term "$45,000,000.00" therefrom and
to substitute the term "$50,000,000.00" in lieu thereof. Notwithstanding the
face amount of the Note, the parties acknowledge that the Commitment shall
automatically decrease to $45,000,000.00 on and after July 31, 2003. 


4. Section 6.3 (Special Financial
Covenants) of the Agreement is hereby amended and restated in its entirety to
read as follows: 




Section 6.3 Special Financial Covenants.



Borrower hereby covenants and agrees that,
as long as any Obligations remain unpaid or the Commitment hereunder is outstanding,
the following special financial covenants shall be applicable to Borrower and
tested monthly at the end of each calendar month as set forth below: 


 


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(a) Tangible
Net Worth. Borrower's Tangible Net Worth shall not be less than
$3,600,000.00 until July 31, 2003, and shall not be less than $3,500,000.00 on
and after July 31, 2003. 


(b) Adjusted
Tangible Net Worth. Borrower's Adjusted Tangible Net Worth shall not be
less than $3,400,000.00 until July 31, 2003, and shall not be less than
$3,200,000.00 on and after July 31, 2003. 


(c) Adjusted
Leverage Ratio. Borrower's Adjusted Leverage Ratio shall not be greater
than 15:1.0. 




(d) Current Ratio. Borrower's
Current Ratio shall not be less than 1.0:1.0. 


5. This Amendment shall become effective
as of the date first written above, provided that the Lender shall have
received by such date the following items, all of which must be in form and
content satisfactory to Lender in its sole discretion: 


(A) This
Amendment executed by Borrower and Lender (whether such parties shall have
signed the same or different counterparts); 


(B) A
Fourth Amendment to Promissory Note executed by Borrower and Lender (the "Note
Amendment") (whether such parties shall have signed the same or different
counterparts); 


(C) An
executed affidavit, in form satisfactory to Lender, regarding the execution of
this Agreement by Borrower outside the State of Florida; 


(D)
Certificates of even date herewith signed by the President and Chief Executive
Officer and/or Secretary or Assistant Secretary of Borrower, as appropriate,
certifying (1) the
authorizing resolutions of Borrower, (2) that the organizational documents of
Borrower previously delivered to the Lender remain in full force and effect
with no modification or amendments except as disclosed in said Certificate, (3)
that all representations and warranties previously made to Lender remains true,
complete and accurate, and (4) that no Event of Default or Potential Default
has occurred and is continuing; 


(E) A confirmation of even date
  herewith from Guarantor with respect to his Guaranty; 


(F) If required by Lender, good
  standing certificates/certificates of existence of a recent date for
Borrower from the State of Texas and each other state in which Borrower
conducts its business 


(G) If
required by Lender, a third party operations audit, the results of which must
be satisfactory to Lender; 


(H) If
required by Lender, such UCC and other lien searches as Lender shall request,
showing no Liens which have priority over Lender's first priority security
interest in the Collateral; and 


(I) Such
other certificates, instruments, opinions and documents (if any) that Lender
shall reasonably request. 




 




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6.
Notwithstanding the execution of this Amendment and the Note Amendment, all of
the indebtedness evidenced by the Note (as amended by the Note Amendment) shall
remain in full force and effect, and any collateral described in any agreement
providing security for any obligation of Borrower so defined to include the
Note shall remain subject to the liens, pledges, security interests and
assignments of any such agreements as security for the indebtedness evidenced
by the Note (as amended by the Note Amendment) and all other indebtedness
described therein. Nothing herein in this Amendment shall be construed to
constitute a novation of the indebtedness evidenced by the Note or to release,
satisfy, discharge or otherwise affect or impair in any manner whatsoever (1)
the validity or enforceability of the indebtedness evidenced by the Note (as
amended by the Note Amendment); (2) the liens, pledges, security interests,
assignments and conveyances affected by the Agreement, the other Loan Documents
and any other agreement securing such Note (as amended by the Note Amendment),
or the priority thereof; (3) the liability of any maker, endorser, surety,
guarantor or other Person that may now or hereafter be liable under or on
account of the Note or any agreement securing such Note; or (4) any other
security or instrument now or hereafter held by Lender as security for as
evidence of any of the above-described indebtedness. In no way limiting the
foregoing, Borrower acknowledges and agrees that the indebtedness evidenced by
the Note (as amended by the Note Amendment) is and shall remain secured by the
collateral described in the Agreement and the other Loan Documents. 




7. In order to induce Lender to
  enter into this Amendment, Borrower represents and warrants that: 




(A) The execution, delivery and
  performance by Borrower of this Amendment, the Note Amendment and the other documents contemplated
hereby to which Borrower is a party are within its corporate powers, has been
duly authorized by all necessary corporate action and is not in contravention
of any law, rule or regulation, or any judgment, decree, writ, injunction,
order to award of any arbitrator, court or governmental authority, or of the
terms of Borrower's certificate of incorporation or bylaws, or of any contract
or undertaking to which Borrower is a party or by which Borrower or its
property is or may be bound or affected. 


(B) Each of
this Amendment, the Note Amendment and the other documents contemplated hereby
to which Borrower is a party is a legal, valid and binding obligation of
Borrower, enforceable against Borrower in accordance with its terms. 


(C) No
consent, approval or authorization of or declaration, registration or filing
with any governmental authority or any nongovernmental person or entity,
including without limitation any creditor or stockholder of Borrower, is required
on the part of Borrower in connection with the execution, delivery and
performance of this Amendment, the Note Amendment or the other documents or the
transactions contemplated hereby or as a condition to the legality, validity or
enforceability of this Amendment or the Note Amendment. 


(D) After
giving effect to the amendments to the Agreement contained in this Amendment,
the representations and warranties contained in Article 5 of the Agreement and
in the other Loan Documents are true and correct on and as of the date hereof
with the same force and effect as if made on and as of the date hereof, no
Event of Default or Potential Default exists or has occurred and is continuing
on the date hereof, and no material adverse change has occurred in the financial
condition of Borrower since the date of the last financial statements submitted
by Borrower to Lender pursuant to the Agreement. 




                       
8. If Borrower shall fail to
perform or observe any term, covenant or agreement in this Amendment, or any
representation or warranty made by Borrower in this Amendment shall prove to
have been incorrect in any material
respect when made, such occurrence shall be deemed to constitute an Event of
Default. 




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9. This Amendment shall be
governed by and construed in accordance with the laws of the State of Florida. 


10. Borrower agrees to pay the
reasonable fees and expenses of counsel for Lender, in connection with the
negotiation and preparation of this Amendment and the documents referred to
herein and the consummation of the transactions contemplated hereby, and in
connection with advising Lender as to its rights and responsibilities with
respect thereto. 


11. Unless otherwise expressly
modified or amended hereby, all terms and conditions of the Agreement shall
remain in full force and effect, and the same, as amended hereby, are hereby
ratified and confirmed in all respects. From and after the effective date
hereof, all references in the Agreement, and any other document or instrument
entered into in connection therewith, to the Agreement shall be deemed to be
references to the Agreement as amended by this Amendment. 


12. This Amendment shall inure to
and be binding upon and enforceable by Borrower and Lender and their respective
successors and assigns. 


13. This Amendment may be executed
in one or more counterparts, each of which when executed and delivered shall
constitute an original. All such counterparts shall together be deemed to be
one and the same instrument. 


14. Further, the parties may
execute facsimile copies of this Amendment and the facsimile signature of any
such party shall be deemed an original and fully binding on said party;
provided, however, any party executing this Amendment by facsimile signature
agrees to promptly provide an original executed copy of this Amendment to
Lender. Further, the parties may execute facsimile copies of this Amendment and
the facsimile signature of any such party shall be deemed an original and fully
binding on said party; provided, however, any party executing this Amendment by
facsimile signature agrees to promptly provide an original executed copy of
this Amendment to Lender. 




[Remainder of Page
Intentionally Left Blank.] 




 




 




 




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IN WITNESS WHEREOF, the parties hereto have
duly executed this Amendment, by and through their respective duly authorized
officers as of the day and year first above written. 


	
   	
  BORROWER:
  
	
   	
   
  
	
   	
        FIRST PREFERENCE MORTGAGE CORP.
  
	
   	
   
	
  [CORPORATE SEAL] 

  	
  By: _________________________________

  
	

  	
  Name: 

  	
  David W. Mann 

  
	
  ATTEST: 

  	
  Its: 

  	
  President and Chief Executive Officer 

  





 




By: _____________________

Name: Cathy Davis

Its: Secretary






STATE OF TEXAS


COUNTY OF McLENNAN


On this ______ day
of April, 2003, personally appeared David W. Mann, as President and Chief
Executive Officer of First Preference Mortgage Corp., a Texas corporation
("Borrower"), and before me executed the attached Fifth Amendment to Mortgage
Warehouse Loan and Security Agreement, by and between Colonial Bank, as Lender,
and Borrower. 


IN WITNESS
WHEREOF, I have hereunto set my hand and official seal in the County and
State last aforesaid. 



  	 	
      
 

      
	 	

Signature of Notary
Public-State of Alabama 


      
	 	 
	 	
      
 

      
	 	Print Name: Notary Public, State of Alabama 
	 	

Personally Known
_______________________ 


      
	 	Produced Identification________________
	 	Type of Identification:_________________
	 	   
	 	

 (NOTARIAL SEAL) 




      





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  LENDER:
  
	
   
	
   	
  COLONIAL BANK              
  

	
   	
   
	
   	
  By: 

  	
  
 

  
	
   	
  Name: 

  	
  Amy J. Nunneley 

  
	
   	
  Its: 

  	
  Senior Vice President 

  





STATE OF ALABAMA 


COUNTY OF JEFFERSON 


On
this _____ day of April, 2003, personally appeared Amy J. Nunneley, as Senior
Vice President of Colonial Bank, an Alabama banking corporation, and before me
executed the attached Fifth Amendment to Mortgage Warehouse Loan and Security
Agreement, by and between Colonial Bank, as Lender, and First Preference
Mortgage Corp., as Borrower. 


IN
WITNESS WHEREOF, I have hereunto set my hand and official seal in the
County and State last aforesaid. 



  	 	
      
 

      
	 	

Signature of Notary
Public-State of Alabama 


      
	 	 
	 	
      
 

      
	 	Print Name: Notary Public, State of Alabama 
	 	

Personally Known
_______________________ 


      
	 	Produced Identification________________
	 	Type of Identification:_________________
	 	   
	 	

 (NOTARIAL SEAL) 




      




 

 

 

 

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