FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED WAREHOUSING CREDIT
AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND
SECURITY AGREEMENT (this "Amendment") is entered into as of this 31st day of
December 1999, 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 and the Lender have agreed to change the Maturity
Date, and the Company has also requested that the Lender waive certain Defaults
and amend certain other terms of the Agreement and the Lender has agreed to such
waivers and 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 October
31, 1999.
"MATURITY DATE" shall mean the earlier of: (a) the close of
business on May 31, 2000, as such date may be extended from time to time
in writing by the Lender, in its sole discretion, on which date the
Commitment shall expire of its own term, and without the necessity of
action by the Lender, and (b) the date the Advances become due and
payable pursuant to Section 8.2 below.
3. Section 5 of the Agreement is amended to add the following section
immediately after Section 5.17:
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5.18 ASSUMED NAMES. The Company does not originate Mortgage
Loans or otherwise conduct business under any names other than its legal
name and the assumed name(s) set forth on EXHIBIT O attached hereto and
made a part hereof. The Company has made all filings and taken all other
action as may be required under the laws of any jurisdiction in which it
originates Mortgage Loans or otherwise conducts business under any
assumed name. The Company's use of assumed name(s) set forth herein does
not conflict with any other Person's legal rights to any such name(s),
nor otherwise give rise to any liability by the Company to any other
Person.
4. Section 8.1(n) of the Agreement is deleted in its entirety and the
following is substituted in lieu thereof:
8.1(n) [INTENTIONALLY OMITTED]
5. The Company is in default under Section 7.9 of the Agreement for
the Fiscal Quarter ending October 31, 1999. The liabilities of the Company for
the Fiscal Quarter ending July 31, 1999 were $4,280,000 as compared to the
liabilities for the next Fiscal Quarter ending October 31, 1999 of $39,810,000,
exceeding the 150% growth permitted in Section 7.9 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 to comply with the Liability Growth
requirement set forth in Section 7.9 of the Agreement as of October 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.
6. The Company informed the Lender that effective January 15, 2000,
Xxxx X. Xxxxxx will no longer be the chairman and chief executive officer of the
Guarantor. This is a Default under Section 8.1(n) of the Agreement. The
Company has requested, and the Lender hereby agrees, to waive its default rights
with respect to the requirement that Xxxx X. Xxxxxx remain as the chairman and
chief executive officer of the Guarantor as set forth in Section 8.1(n) of the
Agreement. The foregoing waiver applies only to the specific instance described
herein. It is not a waiver of any breach of any other provisions of the
Agreement.
7. The Company is in default under Section 8.1(r) of the Agreement
for the Fiscal Quarter ending October 31, 1999. The Company's aggregate net
loss for the Fiscal Quarter ending October 31, 1999 was $14,571,627, exceeding
the Permitted Cumulative Loss of $13,932,000 by $639,627. The Company has
requested, and the Lender hereby agrees, to waive its default rights with
respect to the failure of the Company to comply with the Guarantor's Maximum
Permitted Cumulative Loss requirement set forth in Section 8.1(r)
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of the Agreement as of October 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 three preceding paragraphs, 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 I-SF to the Agreement is deleted in its entirety and
replaced with the new EXHIBIT I-SF attached to this Amendment. All references
in this Amendment and the Agreement to EXHIBIT I-SF shall be deemed to refer to
the new EXHIBIT I-SF.
10. EXHIBIT N to the Agreement is deleted in its entirety and replaced
with the new EXHIBIT N attached to this Amendment. All references in this
Amendment and the Agreement to EXHIBIT N shall be deemed to refer to the new
EXHIBIT I-N.
11. The Agreement is hereby amended to add EXHIBIT O attached hereto
and made a part hereof.
12. The Company must deliver to the Lender (a) an executed original of
this Amendment; (b) an executed Certificate of Secretary with corporate
resolutions; and (c) a $350 document production fee.
13. The Company represents, warrants and agrees that (a) except as
stated above, there exists no Default or Event of Default under the Loan
Documents, (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 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.
14. 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.
15. 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
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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 ___________________, 1999, 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.
-------------------------------------
Notary Public
(SEAL) My Commission Expires:
---------------
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STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _______________________, 1999, 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.
-------------------------------------
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 ______________________, 1999, 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.
-------------------------------------
Notary Public
(SEAL) My Commission Expires:
---------------
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EXHIBIT I-SF
OFFICER'S CERTIFICATE
Reference is made to that certain First Amended and Restated Warehousing
Credit and Security Agreement (Single Family Mortgage Loans) between MONUMENT
MORTGAGE, INC., a California corporation (the "Company") and RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation (the "Lender"), dated as of August 9, 1999
(as the same may be amended, modified, supplemented, renewed or restated from
time to time, the "Agreement"). All capitalized terms used herein and all
Section numbers given herein refer to those terms and Sections set forth in the
Agreement. This Officer's Certificate is submitted to the Lender pursuant to
Section 6.2(d) of the Agreement.
The undersigned hereby certifies to the Lender that as of the close of
business on , 19 ("Statement Date",) and with respect
to the Company and its Subsidiaries on a consolidated basis:
1. As illustrated in the attached calculations supporting this Officer's
Certificate, the Company met the covenants set forth in Sections 7.6,
7.7, 7.8, 7.9, 7.10 and 7.11 and the Guarantor satisfied the requirements
of Sections 8.1(r), 8.1(s), 8.1(t) and 8.1(u), or if the Company did not
meet any of such covenants, a detailed explanation is attached setting
forth the nature and period of the existence of the Default and the
action the Company has taken, is taking, and proposes to take with
respect thereto.
2. No Servicing Contracts have been sold or pledged by the Company except as
permitted under the terms of the Agreement.
3. No recourse Servicing Contracts have been acquired by the Company.
4. No payments in advance of the scheduled maturity date have been made with
respect to any Subordinated Debt. The Company has incurred no Debt
required to be subordinated pursuant to Section 6.10.
5. The Company was in compliance with the applicable HUD, Xxxxxx Xxx or
Investor net worth requirements, and in good standing with VA, HUD,
Xxxxxx Mae and each Investor.
6. The representation set forth in Section 5.17 of the Agreement is true and
correct as of the date of this Officer's Certificate or, if such
representation is not true and correct as of such date, the nature of the
problem and the action the
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Company has taken, is taking and proposes to take with respect thereto
are described in the statement attached hereto.
7. I have reviewed the terms of the Agreement and have made, or caused to be
made under my supervision, a review in reasonable detail of the
transactions and conditions of the Company (and, if applicable, its
Subsidiaries) and such review has not disclosed the existence, and I have
no knowledge of the existence, of any Default or Event of Default, or if
any Default or Event of Default existed or exists, a detailed explanation
is attached specifying the nature and period of the existence of the
Default and the action the Company has taken, is taking and proposes to
take with respect thereto.
8. Pursuant to Section 6.2 of the Agreement, enclosed are the financial
statements of the Company as of the Statement Date. The financial
statements for the period ending on the Statement Date fairly present the
financial condition and results of operations of the Company (and, if
applicable, its Subsidiaries) as of the Statement Date.
Dated:
-----------------------------
MONUMENT MORTGAGE, INC.,
a California corporation
By:
----------------------------------
Its:
---------------------------------
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CALCULATIONS SUPPORTING OFFICER'S CERTIFICATE
Company Name: MONUMENT MORTGAGE, INC. and its Subsidiaries
Statement Date:____________________________________
All financial calculations set forth herein are as of the Statement Date.
I. TANGIBLE NET WORTH
A. Tangible Net Worth of the Company is:
Excess of total assets over total liabilities: $________
Plus: Subordinated Debt not due within one year
of the Statement Date (or any portion thereof): $________
Minus: Advances to owners, officers,
employees or Affiliates: $________
Minus: Investments in Affiliates: $________
Minus: Assets pledged to secure liabilities
not included in Debt: $________
Minus: Intangible assets: $________
Minus: Any other HUD nonacceptable assets: $________
Minus: Other assets unacceptable to the
Lender: $________
TANGIBLE NET WORTH $________________
B. Requirements of Section 7.8 of the Agreement:
MINIMUM TANGIBLE NET WORTH OF $10,000,000.
C. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
II. DEBT OF THE COMPANY
Total liabilities $________
Minus: Debt arising under Hedging Arrangements
(to the extent of offsetting assets) $________
Minus: Subordinated Debt not due within one year
of the Statement Date (or any portion
thereof): $________
Minus: Deferred taxes arising from capitalized
excess servicing fees and
capitalized servicing rights: $________
DEBT $________________
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III. RATIO OF DEBT TO TANGIBLE NET WORTH
A. The ratio of Debt to Tangible Net Worth (II to I.A.) is:
________ to 1
B. Requirements of Section 7.7 of the Agreement:
The ratio of Debt to Tangible Net Worth shall not
exceed 10 to 1.
C. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
IV. DIVIDENDS
A. The dividends declared or paid by the Company with respect to the
current fiscal year was: $________
B. Net Income of the Company with respect to the current fiscal year
was: $________
C. Requirements of Section 7.10 of the Agreement:
No dividends shall be declared or paid in excess of 25% of the
Company's net income.
D. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
V. CURRENT RATIO
A. Current assets of the Company was: $________
B. Current liabilities of the Company was: $________
C. Ratio of current assets to current liabilities
was: _____ to 1.0
D. Requirements of Section 7.6 of the Agreement:
The current ratio shall not be less than 1.01 to 1.00.
E. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
VI. LIABILITY GROWTH
A. Liabilities at end of most recent Fiscal
Quarter was: $________
B. Liabilities at the end of prior Fiscal
Quarter was: $________
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C. Requirements of Section 7.9 of the Agreement:
Liabilities at the end of the most recent Fiscal Quarter shall not
exceed 150% of liabilities at the end of the prior Fiscal Quarter.
D. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
VII. TRANSACTIONS WITH AFFILIATES
A. Loans, advances, and extensions of credit made by the Company to
its Affiliates total: $________
B. Capital contributions made by the Company to its Affiliates total:
$________
C. Management fees paid to Affiliates during the current fiscal year
total: $________
D. Transfers, sales, pledges, assignments or other dispositions of
assets made by the Company to its Affiliates total: $________
E. Requirements of Section 7.11 of the Agreement:
1. Loans, advances, extensions of credit or capital
contributions shall not exceed $1,000,000.
COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
2. No transfers, sales, pledges assignments or other
dispositions of assets by the Company to Affiliates.
COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
3. No merger, consolidation, purchase or acquisition of assets
by the Company to Affiliates.
COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
4. Management fees paid by the Company to Affiliates shall not
exceed $1,000,000 per month.
COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
VIII. GUARANTOR'S NET LOSS
A. Guarantor's net loss through the end of the most recently
completed Fiscal Quarter was: $________
B. Guarantor's Permitted Cumulative Loss was: $________
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C. Requirements of Section 8.1(r) of the Agreement:
Guarantor's Net Loss shall not exceed the Permitted Cumulative
Loss.
D. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
IX. GUARANTOR'S TANGIBLE NET WORTH
A. Tangible Net Worth of the Guarantor is:
Excess of total assets over total liabilities: $________
Plus: Subordinated Debt not due within one year
of the Statement Date (or any portion
thereof): $________
Minus: Advances to owners, officers,
employees or Affiliates: $________
Minus: Investments in Affiliates: $________
Minus: Assets pledged to secure liabilities
not included in Debt: $________
Minus: Intangible assets: $________
Minus: Any other HUD nonacceptable assets: $________
Minus: Other assets unacceptable to the
Lender: $________
TANGIBLE NET WORTH $________________
B. Requirements of Section 8.1(t) of the Agreement:
THE TANGIBLE NET WORTH OF THE GUARANTOR IS AT ANY TIME LESS THAN
$13,000,000 PLUS 75% OF THE NET PROCEEDS OF ANY SHARES OF STOCK OF
THE GUARANTOR SOLD ON OR AFTER THE CLOSING DATE.
C. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
X. DEBT OF THE GUARANTOR
Total liabilities $________
Minus: Debt arising under Hedging Arrangements
(to the extent of offsetting assets) $________
Minus: Subordinated Debt not due within one year
of the Statement Date (or any portion
thereof): $________
Minus: Deferred taxes arising from capitalized
excess servicing fees and
capitalized servicing rights: $________
DEBT $________________
XI. RATIO OF DEBT TO TANGIBLE NET WORTH OF GUARANTOR
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A. The ratio of Debt to Tangible Net Worth (X. to IX.A) is:
________ to 1
B. Requirements of Section 8.1(s) of the Agreement:
THE RATIO OF DEBT TO TANGIBLE NET WORTH OF GUARANTOR SHALL NOT
EXCEED 10 TO 1.
C0 COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
XII LIABILITY GROWTH OF GUARANTOR
A0 Liabilities of Guarantor at end of most recent Fiscal
Quarter was: $________
B0 Liabilities of Guarantor at the end of prior Fiscal
Quarter was: $________
C0 Requirements of Section 8.1(u) of the Agreement:
Liabilities of Guarantor at the end of the most recent Fiscal
Quarter shall not exceed 150% of liabilities at the end of the
prior Fiscal Quarter.
D0 COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
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EXHIBIT N
FISCAL YEAR 2000 LOSSES
Permitted
Fiscal Quarter Ending Anticipated Loss Cumulative Loss
--------------------- ---------------- ----------------
December 31, 1999 $22,342,000 $27,927,500
March 31, 2000 $ 6,338,000 $ 8,873,200
June 30, 2000 $11,574,000 $16,203,000
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EXHIBIT O
ASSUMED NAMES
(if none, state "none")
Monument Mortgage, Inc. dba XxXxx.xxx
Monument Mortgage, Inc. dba Xxxxxxxxx.xxx
Monument Mortgage, Inc. dba Finet Direct
