SECOND AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT
AND SECURITY AGREEMENT (this "Amendment") is entered into as of this 29th day of
March 2000, by and between MONUMENT MORTGAGE, INC., a California corporation
(the "Company") and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender").
WHEREAS, the Company and the Lender have entered into a single family
revolving warehouse facility with a present Commitment Amount of $75,000,000, to
finance the origination and acquisition of Mortgage Loans as evidenced by a
Promissory Note in the principal sum of $75,000,000, dated August 9, 1999 (the
"Note"), and by a First Amended and Restated Warehousing Credit and Security
Agreement dated August 9, 1999, as the same may have been amended or
supplemented (the "Agreement");
WHEREAS, the Company has requested that the Lender amend certain terms
of the Agreement and the Lender has agreed to such amendment of the Agreement
subject to the terms and conditions of this Amendment;
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants, agreements and conditions hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise defined shall
have their respective meanings set forth in the Agreement.
2. The effective date ("Effective Date") of this Amendment is_________.
3. Section 1.1 of the Agreement is amended to delete the following
definitions in their entirety, replacing them with the following definitions:
"COLLATERAL DOCUMENTS" means, with respect to each Mortgage
Loan: (a) the Mortgage Note, the Mortgage, and all other documents
executed in connection with or otherwise relating to the Mortgage Loan,
(b) as applicable, the original lender's ALTA Policy of Title Insurance
or its equivalent, documents evidencing the FHA Commitment to Insure or
the VA Guaranty, the appraisal, Private Mortgage Insurance, the
Regulation Z Statement, certificates of casualty or hazard insurance,
credit information on the
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maker(s) of the Mortgage Note, the HUD-1 or corresponding purchase
advice, and (c) any other documents that are customarily desired for
inspection or transfer incidental to the purchase of any Mortgage Note
by an Investor or which are customarily executed by the seller of a
Mortgage Note to an Investor.
"FAIR MARKET VALUE" means at any time for an Eligible Loan or
the related Agency Security (if the Eligible Loan is to be used to back
an Agency Security), (a) if the Eligible Loan is covered by a Purchase
Commitment from Xxxxxx Xxx or Xxxxxxx Mac, or the Eligible Loan is to
be exchanged for an Agency Security and such Agency Security is covered
by a Purchase Commitment, the Committed Purchase Price, or (b)
otherwise, the market price for such Eligible Loan or Agency Security,
determined by the Lender based on market data for similar Mortgage
Loans or Agency Securities and such other criteria as the Lender deems
appropriate.
4. Article 6 of the Agreement is hereby amended to add the following
Section 6.14 at the end thereof:
6.14 XXXXXX MAE TRI-PARTY AGREEMENT. Prior to the origination
by the Company of any Mortgage Loans for sale to Xxxxxx Xxx, enter into
an agreement among the Company, the Lender and Xxxxxx Mae, pursuant to
which Xxxxxx Xxx agrees to send all cash proceeds of Mortgage Loans
sold by the Company to Xxxxxx Mae to the Cash Collateral Account.
5. Sections 8.1(c) and 8.1(n) of the Agreement are deleted in their
entirety and the following are substituted in lieu thereof:
8.1(c) Failure of the Company to perform or comply
with any term or condition applicable to it contained in
Sections 6.3, 6.12, 6.13 and 6.14 or in any Section of Article
7 of this Agreement; or
8.1(n) Xxxx Xxxxxxx shall cease to be the chief
executive officer of the Guarantor; or
6. Section 8.3 of the Agreement is deleted in its entirety and the
following is substituted in lieu thereof:
8.3 APPLICATION OF PROCEEDS. The proceeds of any sale,
disposition or other enforcement of the Lender's security interest in
all or any part of the Collateral shall be applied by the Lender to the
Obligations in such order as the Lender, in its sole and absolute
discretion, will determine.
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If the proceeds of any sale, disposition or other enforcement
are insufficient to cover the costs and expenses of the sale, and the
payment in full of all Obligations, the Company will remain liable for
any deficiency.
7. The Company is in default under Sections 7.9 and 8.1(u) of the
Agreement for the Fiscal Quarter ending December 31, 1999. The liabilities of
the Company for the Fiscal Quarter ending October 31, 1999 were $39,810,000 as
compared to the liabilities of the Company for the Fiscal Quarter ending
December 31, 1999 of $85,664,000, exceeding the 150% growth permitted in Section
7.9 of the Agreement. The liabilities of the Guarantor for the Fiscal Quarter
ending October 31, 1999 were $44,139,000 as compared to the liabilities of the
Guarantor for the Fiscal Quarter ending December 31, 1999 of $89,435,000,
exceeding the 150% growth permitted in Section 8.1(u) of the Agreement. The
Company has requested, and the Lender hereby agrees, to waive its default rights
with respect to the failure of the Company and the Guarantor to comply with the
Liability Growth requirements set forth in Sections 7.9 and 8.1(u) of the
Agreement as of December 31, 1999. The foregoing waiver applies only to the
specific instances described herein. It is not a waiver of any subsequent breach
of the same provision of the Agreement, or of any breach of any other provisions
of the Agreement.
8. Notwithstanding the preceding paragraph, the Lender reserves all of
the rights, powers and remedies presently available to the Lender under the
Agreement, the Note and the Guaranty, including the right to cease making
Advances to the Company and the right to accelerate any of the indebtedness
owing under the Agreement, if any other Default or Event of Default occurs under
the Agreement.
9. EXHIBIT M to the Agreement is deleted in its entirety and replaced
with the new EXHIBIT M attached to this Amendment. All references in this
Amendment and the Agreement to EXHIBIT M shall be deemed to refer to the new
EXHIBIT M.
10. The Company must deliver to the Lender (a) an executed original of
this Amendment; and (b) a $350 document production fee.
11. The Company represents, warrants and agrees that (a) there exists
no Default or Event of Default under the Loan Documents other than as described
in Paragraph 7 above, (b) the Loan Documents continue to be the legal, valid and
binding agreements and obligations of the Company enforceable in accordance with
their terms, as modified herein, (c) the Lender is not in default under any of
the Loan Documents and the Company has no offset or defense to its performance
or obligations under any of the Loan Documents, (d) the
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representations contained in the Loan Documents remain true and accurate in all
respects, and (e) there has been no material adverse change in the financial
condition of the Company from the date of the Agreement to the date of this
Amendment.
12. Except as hereby expressly modified, the Agreement is otherwise
unchanged and remains in full force and effect, and the Company ratifies and
reaffirms all of its obligations thereunder.
13. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Lender have caused this
Amendment to be duly executed on their behalf by their duly authorized officers
as of the day and year above written.
MONUMENT MORTGAGE, INC.,
a California corporation
By:
Its:
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:
--------------------------------
Its:
-------------------------------
STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _________________, 2000, before me, a Notary Public, personally
appeared ________________________________, the ______________________ of
MONUMENT MORTGAGE, INC., a California corporation, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
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Notary Public
(SEAL) My Commission Expires:
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STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _________________, 2000, before me, a Notary Public, personally
appeared ________________________________, the Director of RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
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Notary Public
(SEAL) My Commission Expires:
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CONSENT OF GUARANTOR
The undersigned, being the Guarantor under the Guaranty dated as of
August 9, 1999, hereby consents to the foregoing Amendment and the transactions
contemplated thereby and hereby modifies and reaffirms his obligations under his
Guaranty so as to include within the term "Guaranteed Debt" the indebtedness,
obligations and liabilities of the Company under this Amendment. The Guarantor
hereby reaffirms that his obligations under his Guaranty are separate and
distinct from the Company's obligations to Lender, and that his obligations
under the Guaranty are in full force and effect, and hereby waives and agrees
not to assert any anti-deficiency protections or other rights as a defense to
his obligations under the Guaranty, all as more fully set forth in the Guaranty,
the terms of which are incorporated herein as if fully set forth herein.
The Guarantor further agrees, upon Lender's request, to execute for the
benefit of Lender an additional guaranty in form and content acceptable to
Lender and conforming to the Guaranty in connection with the foregoing
Amendment.
GUARANTOR:
XxXXX.XXX, INC.,
a Delaware corporation
By:
Its:
STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _________________, 2000, before me, a Notary Public, personally
appeared ________________________________, the ______________________ of
XxXXX.XXX.XXX., a Delaware corporation, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
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Notary Public
(SEAL) My Commission Expires:
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