SIXTH AMENDMENT TO
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS SIXTH AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT
(this
"Amendment") is entered into as of this 23rd day of July 1997, 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 Warehousing Commitment Amount
of Ten
Million Dollars ($10,000,000), to finance the origination and
acquisition of
Mortgage Loans as evidenced by a First Amended and Restated
Warehousing
Promissory Note in the principal sum of Ten Million Dollars ($10,000,000),
dated
as of February 29, 1996, a First Amended and Restated Sublimit Promissory
Note
in the principal sum of Five Million Dollars ($5,000,000),. dated as of
February
29, 1996, and by a Warehousing Credit and Security Agreement dated as of
March
22, 1995, as the same may have been amended or supplemented (the
"Agreement");
WHEREAS, the Company and the Lender have entered into a term loan
facility,
as evidenced by a Term Loan Promissory Note in the principal amount
of One
Million Dollars ($1,000,000), dated as of March 22, 1995 (the "Term Loan
Note"),
and the Agreement;
WHEREAS, the Company and the Lender have also entered into a
working
capital facility with a present Working Capital Commitment Amount of One
Million
Dollars ($1,000,000), as evidenced by a First Amended and Restated
Working
Capital Promissory Note in the principal sum of One Million
Dollars
($1,000,000), dated as of February 29, 1996 (the "Working Capital Note"),
and
the Agreement (the Warehousing Promissory Note, the Sublimit Promissory
Note,
the Term Loan Promissory Note and the Working Capital Promissory Note
shall
collectively be referred to as the "Notes");
WHEREAS, the Company has requested the Lender to waive certain
covenant
defaults under the Agreement and to 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 shall be
April
30, 1997, provided the Company has complied with all the terms and
conditions of
this Amendment.
3. Section 1.1 of the Agreement shall be amended by adding the
following
definition:
"Parent" shall mean Finet Holdings Corporation, a Delaware
corporation.
4. The definitions of "Warehousing Maturity Date" and "Working
Capital
Maturity Date" in Section 1.1 of the Agreement shall be amended by
inserting the
date "August 31, 1997" in place of "December 31, 1997" wherever it
appears in
such definitions.
5. Section 7.10 of the Agreement shall be deleted in its entirety
and the
following shall be substituted in lieu thereof:
7.10 Minimum Servicing Portfolio. Permit the Adjusted Servicing
Portfolio of the Company to be less than One Million Dollars
($100,000,000).
6. Section 8.1(n) of the Agreement shall be deleted in its entirety
and the
following shall be substituted in lieu thereof:
8.1(n) The Parent shall cease owning, directly or indirectly, all
of the
capital stock of the Company; or
7. On December 31, 1996, the Company merged with Finet
Corporation, a
wholly-owned subsidiary of Finet Holdings Corporation. This merger
violated
Section 7.3 of the Agreement, and thus constituted an Event of Default
under
Section 8.1(c) of the Agreement. In connection with that merger, Xxxxx X.
Xxxxx
and Xxxxx X. Xxxxxxxx ceased owning, directly or indirectly, all of the
capital
stock of the Company. Accordingly, upon the occurrence of such merger an
Event
of Default also occurred under Section 8.1(n) of the Agreement. The
Lender
hereby agrees to waive its default rights with respect to the Company's
failure
to comply with the requirements of Section 7.3 and 8.1(c) of the
Agreement. In
addition, the Lender also agrees to waive its default rights with respect
to the
failure of the Company to comply with the following requirements
of the
Agreement:
a. The Minimum Tangible Net Worth requirement in Section 7.8
of the
Agreement for the period from January 31, 1997 to and including
April
30, 1997.
b. The Minimum Adjusted Tangible Net Worth requirement in
Section 7.9
of the Agreement for the period from January 31, 1997 to and
including
April 30, 1997.
c. The Minimum Servicing Portfolio requirement in Section 7.10
of the
Agreement for the period from January 31, 1997, to and
including the
Effective Date hereof.
The above waivers apply only to the specific instances described herein.
Nothing
in this Amendment shall constitute a waiver of any subsequent breach
of the
provisions of the Agreement described above, or a waiver of any breach
of any
other provision of the Agreement. The Lender reserves all of the rights,
powers
and remedies presently available to the Lender under the Agreement, the
Notes
and the Guaranties, 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 occurs under the Agreement.
8. Please be advised that unless the Agreement is renewed or extended,
all
Obligations shall be due and payable on the Maturity Date. The Lender's
waiver
of certain Defaults under the Agreement is not to be construed as a
promise of
renewal or extension.
9. Upon the Effective Date, each of the Guaranties of XXXXX X.
XXXXX and
XXXXX X. UMPHYRES, dated March 22, 1995, shall be released and of no
further
force and effect and the Guarantors shall have no further liability
thereunder.
10. 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.
11. The Company shall deliver to the Lender (a) an executed
original of
this Amendment; (b) the executed Guaranty in the form of Exhibit B
hereto,
executed by the parent; (c) an executed Certificate of Secretary of the
Parent
with copies of its articles of incorporation, bylaws and good
standing
certificates, an incumbency certificate and corporate resolutions;
(d) an
executed Certificate of Secretary with corporate resolutions; and (e)
a One
Thousand Five Hundred Dollar ($1,500) document production fee.
12. The Company represents, warrants and agrees that (a) there
exists no
Default or Event of Default under the Loan Documents, except as
specified in
this Amendment; (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.
13. Except as hereby expressly modified, the Agreement shall
otherwise be
unchanged and shall remain in full force and effect, and the Company
ratifies
and reaffirms all of its obligations thereunder.
14. This Amendment may be executed in any nurturer 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: Senior Vice President/CFO
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:
Its:
STATE OF California )
) ss
COUNTY OF Contra Costa )
On August 14, 1997, before me, a Notary Public, personally
appeared
Xxxx Xxxxxxxxx, the Senior Vice President/CFO 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
My Commission Expires:
(SEAL)
STATE OF California )
) ss
COUNTY OF Contra Costa )
On , before me, a Notary Public, personally appeared , the
Director of
RESIDENTIAL FUNDING CORPORATION, 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
My Commission Expires:
(SEAL)
EXHIBIT I-SF
OFFICER'S CERTIFICATE
Reference is made to that certain 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 March 22, 1995 (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(c) 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, 7.11 and 7.12, 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, GNMA or
Investor net
worth requirements, and in good standing with VA, HUD, GNMA and
each
Investor.
6. 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 ex:istence
of the
Default and the action the Company has taken, is taking and
proposes to
take with respect thereto.
7. 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 at the Statement Date.
Dated:
MONUMENT MORTGAGE, INC.,
a California corporation
By:
Its:
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: Loan loss reserves:
$________________
Plus: Subordinated Debt not due within
one year of the Statement Date
(or any portion thereof):
$________________
Minus: Advances to owners, officers 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 $1,500,000.
C. Covenant Satisfied:________ Covenant Not Satisfied:_________
II. ADJUSTED TANGIBLE NET WORTH
A. Adjusted Tangible Net Worth of the Company is:
Tangible Net Worth (from IA above)
$_______________
Minus: Capitalized excess servicing fees
$_______________
Minus: Capitalized excess servicing rights
$_______________
Plus: Deferred taxes arising from
capitalized excess servicing fees:
$_______________
Plus: 1% of Adjusted Servicing Portfolio
(from IIIA below):
$_______________
ADJUSTED TANGIBLE NET WORTH
$____________________
B. Requirements of Section 7.9 of the Agreement:
MINIMUM ADJUSTED TANGIBLE NET WORTH OF $4,500,000.
C. Covenant Satisfied:______ Covenant Not Satisfied:______
III. ADJUSTED SERVICING PORTFOLIO
A. Adjusted Servicing Portfolio of the Company is:
Servicing Portfolio owned by the Company is:
$_______________
Minus: The unpaid principal balance of
Mortgage Loans:
$_______________
Past due 60 days or more:
$_______________
Sold with recourse:
$_______________
For which the Servicing Contracts
are pledged:
$_______________
Serviced by Company for others under
subservicing arrangements:
$_______________
ADJUSTED SERVICING PORTFOLIO
$____________________
B. Requirements of Section 7.10 of the Agreement:
ADJUSTED SERVICING PORTFOLIO OF $250,000,000.
C. Covenant Satisfied:______ Covenant Not Satisfied:______
IV. DEBT OF THE COMPANY
Total liabilities
$_______________
Minus: Loan loss reserves:
$_______________
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:
$_______________
DEBT
$____________________
V. RATIO OF DEBT TO ADJUSTED TANGIBLE NET WORTH
A. The ratio of Debt to Adjusted Tangible Net Worth (IV to
II.A) is: _____ to 1
B. Requirements of Section 7.7 of the Agreement:
The ratio of Debt to Adjusted Tangible Net Worth shall not
exceed 15
to 1.
C. Covenant Satisfied:_____ Covenant Not Satisfied:______
VI. DIVIDENDS
A. The dividends declared or paid by the Company during the
current
fiscal year was:
$________________
B. Requirements of Section 7.11 of the Agreement:
No dividends shall be declared or paid in excess of twenty-five
percent (25%) of the Company's net after-tax income.
C. Covenant Satisfied:______ Covenant Not Satisfied:______
VII. CURRENT RATIO OF THE COMPANY
A. Consolidated current assets of the Company:
$________________
B. Consolidated current liabilities of the Company:
$________________
C. Consolidated current ratio (VII.A to VII.B) is: ____ to 1.0
D. Requirements of Section 7.6 of the Agreement:
The ratio of consolidated current assets to consolidated
current
liabilities shall not be less than 1.01 to 1.
E. Covenant Satisfied:_____ Covenant Not Satisfied:_____
VIII. 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. Requirements of Section 7.12 of the Agreement:
1. No loans, advances or extensions of credit shall be made by
the Company to Affiliates.
Covenant Satisfied:_____ Covenant Not Satisfied:_____
2. No capital contributions shall be made by the Company to any
Affiliate.
Covenant Satisfied:_____ Covenant Not Satisfied:_____
3. No Management fees shall be paid by the Company to
Affiliates.
Covenant Satisfied:_____ Covenant Not Satisfied:_____
EXHIBIT B
GUARANTY
THIS GUARANTY, made and entered into as of this 23rd day of July,
1997, by
FILET HOLDINGS CORPORATION, a Delaware corporation (the
"Guarantor"), to
RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the "Lender"),
having
its principal office at 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000,
Xxxxxxxxxxx,
Xxxxxxxxx 00000. RECITALS
A. The Lender has extended to MONUMENT MORTGAGE, INC., a
California
corporation ("Company"): (a) a warehouse line of credit in the
present
principal amount of Ten Million Dollars ($10,000,000); (b) a term
loan
facility in the original principal amount of One Million
Dollars
($1,000,000); and (c) a working capital facility in the
present
principal amount of One Million Dollars ($1,000,000)
(collectively,
the "Loan") to finance the making and purchasing of Mortgage
Loans.
B. The Loan is evidenced by a First Amended and Restated
Warehousing
Promissory Note dated February 29, 1996, a First Amended and
Sublimit
Promissory Note dated February 29, 1996, a Term Loan Promissory
Note
dated March 22, 1995, and a Working Capital Promissory Note
dated
February 29, 1996, from the Company to the Lender, as the same
may be
amended, supplemented or otherwise modified from time to
time,
including any other instruments executed and delivered in
renewal,
extension, rearrangement or otherwise in replacement of
such
Promissory Notes (collectively, the "Notes") and by a
Warehousing
Credit and Security Agreement dated March 22, 1995, as the same
may be
amended, supplemented or otherwise modified from time to
time,
including any other instruments executed and delivered in
renewal,
extension, rearrangement or otherwise in replacement of such
agreement
(the "Agreement").
C. The Guarantor is the Parent of the Company and will derive
benefit
from the Loan.
D. In order to educe the Lender to accept the Notes and the
Agreement,
and as additional security for Advances under the Agreement,
the
Guarantor has agreed to give this Guaranty.
E. The Lender has refused to make Advances under the Agreement
unless
this Guaranty is executed by the Guarantor and delivered to
Lender.
[MISSING PAGES 2 AND 3]
and/or the subordination of the payment of the Guaranteed Debt or
any
part thereof to the payment of any other debts or claims which
may at
any time be due and owing to the Lender and/or any other Person;
or
(h) any other action or circumstance which (with or without
notice to
or knowledge of the Guarantor) may or might in any manner or
to any
extent vary the risks of the Guarantor hereunder or
otherwise
constitute a legal or equitable discharge or defense, it
being
understood and agreed by the Guarantor that the obligations under
this
Guaranty shall not be discharged except by the full payment
and
performance of the Guaranteed Debt.
8. The Lender shall have the right to determine how, when and
what
application of payments and credits, if any, whether derived from the
Company or
from any other source, shall be made on the Guaranteed Debt and any
other
indebtedness owed by the Company and/or any other Obligor to the Lender.
The
Lender shall be under no obligation to marshal any assets in favor
of the
Guarantor or in payment of all or any part of the Guaranteed Debt.
9. The obligations of the Guarantor hereunder shall continue
to be
effective, or be automatically reinstated, as the case may be, if at any
time
the performance or the payment, as the case may be, in whole or in part,
of any
of the Guaranteed Debt is rescinded or must otherwise be restored or
returned by
the Lender (as a preference, fraudulent conveyance or otherwise)
upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of
the
Company, the Guarantor or any other person or upon or as a result
of the
appointment of a custodian, receiver, trustee or other officer with
similar
powers with respect to the Company, the Guarantor or any other person,
or any
substantial part of its property, or otherwise, all as though such
payments had
not been made. If an Event of Default shall at any time have occurred
and be
continuing or shall exist and declaration of default or acceleration
under or
with respect to this Guaranty or any Guaranteed Debt shall at such
time be
prevented by reason of the pendency against the Guarantor or the Company
or any
other Person of a case or proceeding under a bankruptcy or insolvency
law, the
Guarantor agrees that, for purposes of this Guaranty and its
obligations
hereunder, this Guaranty and such obligations shall be deemed to have
been
declared in default or accelerated with the same effect as if this
Guaranty and
such obligations had been declared in default and accelerated in accordance
with
their respective terms and the Guarantor shall forthwith perform or pay,
as the
case may be, as required hereunder in accordance with the terms
hereunder
without further notice or demand.
10. The Guarantor hereby irrevocably waives any claim or other rights
that
the Guarantor may now or hereafter acquire against the Company that arises
from
the existence, payment, performance or enforcement of the
Guarantor's
obligations hereunder, including any right of subrogation,
reimbursement,
exoneration, contribution or indemnification, any right to participate
in any
claim or remedy of the Lender against the Company or any collateral
that the
Lender now has or hereafter acquires, whether or not such claim, remedy or
right
arises in equity or under contract, statute or common law, right to
take or
receive from the Company directly in cash or other property or by set-off
or in
any manner, payment or security on account of such claim or other rights.
If any
amount shall be paid to the Guarantor in violation of the preceding
sentence and
the Guaranteed Debt shall not have been paid and performed in full, such
amount
shall be deemed to have been paid to the Guarantor for the benefit of, and
held
in trust for, the Lender and shall forthwith be paid to the Lender
to be
credited and applied to the Guaranteed Debt, whether matured or
unmatured.
Notwithstanding the blanket waiver of subrogation rights as set forth
above, the
Guarantor hereby specifically acknowledges that any subrogation rights
which the
Guarantor may have against the Company or any collateral that the Lender
now has
or hereafter acquires may be destroyed by a nonjudicial foreclosure
of the
collateral. Without limiting the foregoing, the Guarantor waives all
rights and
defenses arising out of an election of remedies by the Lender, even though
that
election of remedies, such as a nonjudicial foreclosure with respect to
security
for any Guaranteed Debt, has destroyed the Guarantor's rights of
subrogation and
reimbursement against the Company by the operation of Section 580d
of the
California Code of Civil Procedure or otherwise. The Guarantor acknowledges
that
the Guarantor will receive direct and indirect benefits from the
arrangements
contemplated by the Agreement and the Notes and that the waivers set
forth in
this Section are knowingly made in contemplation of such benefits.
11. The Guarantor waives any and all rights, benefits and
defenses
available to sureties and creditors which might otherwise be available
to the
Guarantor under Sections 2787 to 2855 inclusive, 2899 and 3433 of the
California
Civil Code, as amended or recodified from time to time, and the benefit
of any
statute of limitations affecting the liability of the Guarantor hereunder
or the
enforcement hereof, including, without limitation any rights arising
under
Section 359.5 of the California Code of Civil Procedure. Additionally,
the
Guarantor waives the right to require the Lender to comply with the
provisions
of Section 9504 of the California Commercial Code, as amended or remodified
from
time to time. The Guarantor also waives all rights and defenses
that the
Guarantor may have because any Guaranteed Debt is secured by real property.
This
means, among other things: (1) the Lender may collect from the Guarantor
without
first foreclosing on any real or personal property collateral pledged
by the
Company or any other Obligor; (2) if the Lender forecloses on any real
property
collateral pledged by the Company or any other Obligor: (a) the amount
of the
Guaranteed Debt may be reduced only by the price for which that
collateral is
sold at the foreclosure sale, even if the collateral is worth more than the
sale
price; and (b) the Lender may collect from the Guarantor even if the
Lender, by
foreclosing on the real property collateral, has destroyed any right
the
Guarantor may have to collect from the Company. This is an unconditional
and
irrevocable waiver of any rights and defenses the Guarantor may have
because the
Guaranteed Debt is secured by real property. These rights and defenses
include,
but are not limited to, any rights or defenses based upon Section 580a,
580b,
580d, or 726 of the California Code of Civil Procedure.
12. No postponement or delay on the part of the Lender in the
enforcement
of any right hereunder shall constitute a waiver of such right and all
rights of
the Lender hereunder shall be cumulative and not alternative and shall
be in
addition to any other rights granted to the Lender in any other agreement
or by
law.
13. If any provision hereof shall be or shall be declared to be
illegal or
unenforceable in any respect, such illegal or unenforceable provision
shall be
and become absolutely null and void and of no force and effect as though
such
provision were not in fact set forth herein, but all other covenants,
terms,
conditions and provisions hereof shall nevertheless continue to be
valid and
enforceable and this Guaranty shall be so construed.
14. This Guaranty shall be governed in all respects by the laws
of the
State of Minnesota, other than its principles of conflicts of law, and
shall be
binding upon and shall inure to the benefit of the parties hereto and
their
respective heirs, executors, administrators, personal
representatives,
successors and assigns.
15. The Guarantor hereby agrees that any action or proceeding under
this
Guaranty may be commenced against the Guarantor in any court of
competent
jurisdiction within the State of Minnesota, by service of process
upon the
Guarantor by first class registered or certified mail, return receipt
requested,
addressed to the Guarantor at the Guarantor's address last known to the
Lender.
The Guarantor agrees that any such suit, action or proceeding arising out
of or
relating to this Guaranty may be instituted in the District Court of
Hennepin
County, Minnesota or in the United States District Court for the
District of
Minnesota, at the option of the Lender; and the Guarantor hereby
waives any
objection to the jurisdiction or venue of any such court with respect to,
or the
convenience of any such court as a forum for, any such suit,
action or
proceeding. Nothing herein shall affect the right of the Lender to
accomplish
service of process in any other manner permitted by law or to commence
legal
proceedings or otherwise proceed against the Guarantor in any other
jurisdiction
or court.
16. The Guarantor hereby represents and warrants to the Lender as
follows:
(a) Organization and Qualification. The Guarantor is a corporation
duly
organized, validly existing and in good standing under the laws
of its
jurisdiction of incorporation. The Guarantor is duly qualified
to do
business as a foreign corporation and in good standing in
all
jurisdictions in which the ownership of its properties or the
nature
of its activities, or both, makes such qualification necessary.
(b) Authority and Authorization. The Guarantor has full corporate
power
and authority to execute, deliver and carry out the provisions of
this
Guaranty and to perform its obligations hereunder, and all such
action
has been duly and validly authorized by all necessary
corporate
proceedings on its part.
(c) Financial Statements. All financial statements and data which
have
heretofore been given to the Lender with respect to the
Guarantor
fairly and accurately represent. the financial condition
of the
Guarantor as of the date hereof, and, since the date thereof,
there
has been no material adverse change in the financial condition
of the
Guarantor. The Guarantor shall promptly deliver to the Lender,
or to
the Company in time for the Company to deliver the same to the
Lender,
all financial statements and tax returns of the Guarantor
required by
the Agreement.
(d) Address. The address of the Guarantor as specified below is
true and
correct and until the Lender shall have actually received a
written
notice specifying a charge of address and specifically requesting
that
notices be issued to such changed address, the Lender may rely
on the
address stated as being accurate.
(e) No Default. The Guarantor is not in default with respect to any
order,
writ, injunction, decree or demand of any court or other
governmental
authority, in the payment of any material debt for borrowed
money or
under any material agreement evidencing or securing any such
debt.
(f) Solvent. The Guarantor is now solvent, and no bankruptcy or
insolvency
proceedings are pending or to the best of the Guarantor's
knowledge
contemplated by or against the Guarantor.
(g) Relationship to the Company. The value of the consideration
received
and to be received by the Guarantor is reasonably worth at
least as
much as the liability and obligation of the Guarantor
incurred or
arising under this Guaranty. The Guarantor has had full and
complete
access to the Agreement and the Notes and all other- loan
documents
relating to the Obligations and the Guaranteed Debt, has reviewed
them
and is fully aware of the meaning and effect of their contents.
The
Guarantor is fully informed of all circumstances which bear
upon the
risks of executing this Guaranty and which a diligent inquiry
would
reveal. The Guarantor has adequate means to obtain from the
Company on
a continuing basis information concerning the Company's
financial
condition, and is not depending on the Lender to provide
such
information, now or in the future. The Guarantor agrees
that the
Lender shall not have any obligation to advise or notify the
Guarantor
or to provide the Guarantor with any data or information.
The
execution and delivery of this Guaranty is not given in
consideration
of (and the Lender has not in any way implied that the
execution of
this Guaranty is given in consideration of) the Lender's
making,
extending or modifying any loan to the Guarantor or to any
other
financial accommodation to or for the Guarantor.
(h) Litigation. There is not now pending against or affecting
the
Guarantor, nor to the knowledge of the Guarantor is there
threatened,
any action, suit or proceeding at law or in equity or by or
before any
administrative agency that, if adversely determined, would
materially
impair or affect the financial condition of the Guarantor.
(i) Taxes. The Guarantor has filed all federal, state, provincial,
county,
municipal and other income tax returns required to have been
filed by
the Guarantor and has paid all taxes that have become due
pursuant to
such returns or pursuant to any assessments received by the
Guarantor,
and the Guarantor does not know of any basis for any
material
additional assessment against it in respect of such taxes.
17. Neither the death nor the release of any person or party to
this
Guaranty or any other guaranties of the Agreement and the Notes shall
affect or
release the liability of the Guarantor. The obligations of the
Guarantor
hereunder shall be in addition to any obligations of the Guarantor
under any
other guaranties of the Guaranteed Debt and/or any obligations of the
Company or
any other Persons heretofore given or hereafter to be given to the Lender,
and
this Guaranty shall not affect or invalidate any such other guaranties.
The
liability of the Guarantor to the Lender shall at all times be deemed to
be the
aggregate liability of the Guarantor under the terms of this Guaranty and
of any
other guaranties heretofore or hereafter given by the Guarantor to the
Lender.
18. No amendment or waiver of any provision of this Guaranty nor
consent to
any departure by the Guarantor therefrom shall in any event be effective
unless
the same shall be in writing and signed by the Lender, and then such
waiver or
consent shall be effective only in the specific instance and for the
specific
purpose for which given. Nor Notice to or demand on the Guarantor shall
in any
case entitle it to any other or further notice or demand in similar or
other
circumstances.
19. All notices that may be required o- otherwise provided
for or
contemplate under the terms of this Guaranty for any party to serve upon or
give
to any other shall, whether or not so state, be in writing, and if not
so in
writing shall not be deemed to have been given, and be either personally
served,
sent by reputable overnight courier service, or sent with return
receipt
requested by registered or certified mail with postage (including
registration
or certification charges) prepaid, sent to the following address:
(a) If to the Guarantor, addressed to the address indicated
immediately
following the Guarantor's signature;
(b) If to the Lender, addressed to the Lender at its address at 0000
Xxxxx
Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx
00000,
Attention: Xxxxxx Xxxxxxx, Director.
Such addresses may be changed from time to time by written notice to the
other
parties given in the same manner. Any matter so served upon or sent
to the
Guarantor or the Lender in the manner aforesaid shall be deemed
sufficiently
given for all purposes hereunder (i) upon personal delivery, if
personally
delivered, (ii) on the date following delivery to the courier service, if
sent
by courier service, (iii) upon electronic confirmation of receipt, if
sent by
telecopier, and (iv) on the date of receipt as noted on the return
receipt, if
sent by registered or certified mail, except that notices of changes of
address
shall not be effective until actual receipt.
20. Any indebtedness of the Company now or hereafter held by the
Guarantor
is hereby subordinated to the indebtedness of the Company to the Lender,
and
such indebtedness of the Company to the Guarantor shall, if the
Lender so
requests, be collected, enforced and received by the Guarantor as
trustee for
the Lender and be paid over to the Lender on account of the indebtedness
of the
Company to the Lender, but without reducing or limiting in any
manner the
liability of the Guarantor under the other provisions of the Guaranty.
The
Guarantor acknowledges that, with respect to the indebtedness
guaranteed
hereunder, the Guarantor has irrevocably waived all rights to
subrogation,
reimbursement, and/or indemnification against the Company.
21. This Guaranty is intended as a final expression of this
agreement of
guaranty and is intended also as a complete and exclusive statement of the
terms
of this agreement. No agreement or understanding entered into prior to the
date
hereof with respect to the subject matter hereof shall be binding
upon the
Guarantor unless expressed herein. No course of prior dealings
between the
Guarantor and the Lender, no usage or the trade, and no parole or
extrinsic
evidence of any nature, shall be used or be relevant to supplement,
explain,
contradict or modify the terms and/or provisions of this Guaranty.
22. Time is of the essence hereof.
23. THE GUARANTOR, BY ITS EXECUTION AND DELIVERY HEREOF, AND THE
LENDER, BY
ITS ACCEPTANCE HEREOF, HEREBY (i) COVENANTS AND AGREES NOT TO ELECT A
TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii) WAIVES ANY RIGHT TO
TRIAL
BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST.
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN, KNOWINGLY
AND
VOLUNTARILY, BY THE GUARANTOR AND BY THE LENDER, AND THIS WAIVER IS
INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT
OF A
JURY TRIAL WOULD OTHERWISE ACCRUE. THE LENDER IS HEREBY AUTHORIZED AND
REQUESTED
TO SUBMIT THIS WAIVER TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT
MATTER
AND THE PARTIES HERETO, SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF THE
FOREGOING
WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, THE GUARANTOR HEREBY CERTIFIES
THAT
NO REPRESENTATIVE OR AGENT OF THE LENDER, INCLUDING THE LENDER'S COUNSEL,
HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, TO THE GUARANTOR OR ITS
REPRESENTATIVES OR
AGENTS THAT THE LENDER WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY
TRIAL PROVISION.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty
with the
intent to be legally bound as of the date first above written.
FINET HOLDINGS CORPORATION,
a Delaware corporation
By:______________________________
Its:_____________________________
Address:_________________________
Telephone No.:___________________
Telecopier No.___________________
STATE OF California )
) ss
COUNTY OF Contra Costa )
On , 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
My Commission Expires:
(SEAL)
CERTIFICATE
OF
SECRETARY OF
MONUMENT MORTGAGE. INC.
I, the undersigned, hereby certify that I am the Secretary of
MONUMENT
MORTGAGE, INC. , a California corporation (the "Company" ), and have
knowledge
of the matters contained in this Certificate and hereby certify that:
1. The Company is a corporation duly organized, validly existing
and in
good standing under the laws of the State of California
and has
complied with all certifications, filings and requirements
necessary
to continue as a corporation in the State of California and for
each
state where the Company is transacting business as a
foreign
corporation.
2. In connection with the single family revolving warehouse facility
made
to the Company by RESIDENTIAL FUNDING CORPORATION, a
Delaware
corporation (the "Lender" ) pursuant to the terms of a
Warehousing
Credit and Security Agreement dated as of March 22, 1995, as the
same
may have been amended or supplemented (the "Agreement"), the
Company
has the valid power and authority to execute and deliver to the
Lender
the Sixth Amendment to Warehousing Credit and Security Agreement.
3. The resolutions attached to this Certificate as Exhibit A were
duly
adopted by either: (a) by unanimous written action of the
Board of
Directors of the Company; or (b) at a meeting of the
Board of
Directors of the Company held on the day of _____, , 19___, at
which
meeting a quorum was present. I am the keeper of the Minute
Book of
the Company and said resolutions have been entered therein,
have not
been altered, amended, repealed or rescinded, and are now in
full
force and effect .
4. There have been no amendments to the Articles of
Incorporation or
Bylaws of the Company since the date of the most recent
certified
copies thereof delivered to the Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of this
corporation this 14th day of August, 1997.
________________________________
Secretary
EXHIBIT A
RESOLUTIONS OF BOARD OF DIRECTORS
WHEREAS, MONUMENT MORTGAGE, INC., a California corporation (the
"Company"),
has entered into a single family revolving warehouse facility (the
"Warehousing
Commitment"), with a present commitment amount of Ten Million
Dollars
($10,000,000) (the `"Warehousing Commitment Amount"), with RESIDENTIAL
FUNDING
CORPORATION, a Delaware corporation (the "Lender"), as evidenced by a
First
Amended and Restated Warehousing Promissory Note in the principal sum
of Ten
Million Dollars ($10,000,000), dated as of February 29, 1996, a First
Amended
and Restated Sublimit Promissory Note in the principal sum of Five
Million
Dollars ($5,000,000), dated as of February 29, 1996, and by a Warehousing
Credit
and Security Agreement dated as of March 22, 1995, as the same may have
been
amended or supplemented (the "Agreement"); and
WHEREAS, the Company and the Lender have entered into a term loan
facility
with a present Term Loan Commitment Amount of One Million Dollars
($1,000,000),
as evidenced by a Term Loan Promissory Note in the principal amount
of One
Million Dollars $1,000,000), dated as of March 2-, 1995, and the Agreement;
WHEREAS, the Company and the Lender have also entered into a
working
capital facility with a present Working Capital Commitment Amount of One
Million
Dollars ($1,000,000) (the "Working Capital Commitment"), as evidenced by a
First
Amended and Restated Working Capital Promissory Note in the principal sum
of One
Million Dollars ($1,000,000), dated as of February 29, 1996, and the
Agreement;
WHEREAS, the Company has requested the Lender to waive certain
covenant
defaults under the Agreement and to amend certain other terms of the
Agreement;
and
WHEREAS, to evidence such amendment of the Agreement, the Company
proposes
to execute and deliver a Sixth Amendment to Warehousing Credit and
Security
Agreement (the "Amendment"), a copy of which has been presented to the
Board of
Directors of this Company; and
WHEREAS, the Board of Directors of this Company has determined that it
will
be in the best interests of this Company for the Company to amend the
Agreement.
RESOLVED, that these resolutions are enacted by the Board of
Directors of
this Company on its behalf and on behalf of the Company.
FURTHER RESOLVED, that the Company shall amend the Agreement
to be
evidenced by the Amendment.
FURTHER RESOLVED, that the Amendment in the form presented to the
Board of
Directors of this Company are hereby approved and copies thereof are
filed in
the records of this Company with these Resolutions.
FURTHER RESOLVED, that any One (insert minimum number required to
sign) of
the following rifles or positions of offers of the Company: President.
Executive
Vice President, Senior Vice President, Assistant Vice President,
Secretary, or
Assistant Secretary (list titles/positions of officers authorized, do not
list
individual names), shall be and are authorized, empowered and directed
in the
name of and on behalf of this Company, to execute, acknowledge and
deliver the
Amendment in the form approved by the Board of Directors of this
Company as
aforesaid, with such changes therein as may be acceptable to such
officers, as
conclusively evidenced by their execution thereof.
FURTHER RESOLVED, that such Oscars and employees shall be and are
hereby
authorized, empowered and directed to do and perform each and every
act and
execute any and all documents and instruments in the name of this Company
as may
be necessary or desirable to enable this Company to amend the Commitment
and to
carry out the purport and intent of the foregoing Resolutions.
GUARANTY
THIS GUARANTY, made and entered into as of this 23rd day of July,
1997, by
FINET HOLDINGS CORPORATION, a Delaware corporation (the
"Guarantor"), to
RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the "Lender"),
having
its principal office at 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000,
Xxxxxxxxxxx,
Xxxxxxxxx 00000.
RECITALS
A. The Lender has extended to MONUMENT MORTGAGE, INC., a
California
corporation ("Company"): (a) a warehouse line of credit in the
present
principal amount of Ten Million Dollars ($10,000,000); (b) a term
loan
facility in the original principal amount of One Million
Dollars
($1,000,000); and (c) a working capital facility in the
present
principal amount of One Million Dollars ($1,000,000)
(collectively,
the "Loan") to finance the making and purchasing of Mortgage
Loans.
B. The Loan is evidenced by a First Amended and Restated
Warehousing
Promissory Note dated February 29, 1996, a First Amended and
Sublimit
Promissory Note dated February 29, 1996, a Term Loan Promissory
Note
dated March 22, 1995, and a Working Capital Promissory Note
dated
February 29, 1996, from the Company to the Lender, as the same
may be
amended, supplemented or otherwise modified from time to
time,
including any other instruments executed and delivered in
renewal,
extension, rearrangement or otherwise in replacement of
such
Promissory Notes (collectively, the "Notes ") and by a
Warehousing
Credit and Security Agreement dated March 22, 1995, as the same
may be
amended, supplemented or otherwise modified from time to
time,
including any other instruments executed and delivered in
renewal,
extension, rearrangement or otherwise in replacement of such
agreement
(the "Agreement").
C. The Guarantor is the Parent of the Company and will derive
benefit
from the Loan.
D. In order to induce the Lender to accept the Notes and the
Agreement,
and as additional security for Advances under the Agreement,
the
Guarantor has agreed to give this Guaranty.
E. The Lender has refused to make Advances under the Agreement
unless
this Guaranty is executed by the Guarantor and delivered to
Lender.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals and other
good and
valuable consideration, the receipt and sufficiency or which is
hereby
acknowledged, the Guarantor hereby covenants and agrees with the
Lender as
follows:
1. Unless otherwise defined herein, all capitalized terms used herein
shall
have the meanings ascribed to such terms in the Agreement.
2. The Guarantor hereby irrevocably, unconditionally and
absolutely
guarantees to the Lender the due and prompt payment, and not just
the
collectibility, of the principal of, and interest, fees and late charges
and all
other indebtedness, if any, on the Notes when due, whether at
maturity, by
acceleration or otherwise all at the times and places and at the rates
described
in, and otherwise according to the terms of the Notes and the Agreement,
whether
now existing or hereafter created or arising.
3. The Guarantor further hereby irrevocably, unconditionally and
absolutely
guarantees to the Lender the due and prompt performance by the Company
of all
duties, agreements and obligations of the Company contained in the Notes
and the
Agreement, and the due and prompt payment of all costs and expenses
incurred,
including, without limitation, attorneys' fees, court costs and all
other
litigation expenses (including but not limited to expert witness fees,
exhibit
preparation, and courier, postage, communication and document copying
expenses),
in enforcing the payment and performance of the Notes and the Agreement and
this
Guaranty (the payment and performance of the items set forth in Paragraphs
2 and
3 of this Guaranty are collectively referred to as the "Guaranteed Debt").
4. In the event the Company shall at any time fail to pay the
Lender any
principal of or interest on or other sums constituting any Guaranteed Debt
when
due, whether by acceleration or otherwise, the Guarantor promises to pay
such
amount to the Lender forthwith, together with all collection costs and
expenses,
including, without limitation, attorneys' fees, court costs and all
other
litigation expenses (including but not limited to expert witness fees,
exhibit
preparation, and courier, postage, communication and document copying
expenses).
Any sum required to be paid by the Guarantor to the Lender pursuant to
this
Guaranty shall bear interest from the date such sum becomes due until paid
at a
per annum rate equal to the Default Rate.
5. The Guarantor hereby authorizes the Lender, following the
occurrence of
an Event of Default, without notice or demand, to apply any property,
balances,
credits, accounts or moneys of the Guarantor then in the possession of
Lender,
or standing to the credit of the Guarantor, to the extent of such
Guaranteed
Debt.
6. The Guarantor does hereby (a) agree to any modifications of any
terms or
conditions of any Guaranteed Debt and/or to any extensions or renewals of
time
of payment or performance by the Company; (by that it shall nor be
necessary for
the Lender Lo resort to legal remedies against the Company before
proceeding
hereunder, nor to take any action against any other Person obligated
(an
"Obligor") for payment or performance of the Guaranteed Debt or
against any
collateral for the Guaranteed Debt before proceeding against the Guarantor;
(c)
agree that no release of the Company or any other guarantor or Obligor,
and no
release, exchange or nonperfection of any collateral for the Guaranteed
Debt,
whether by operation of law or by any act or failure to act by the Lender,
with
or without notice to the Guarantor, shall release the Guarantor; (d)
waive
presentment, demand, notice of demand, dishonor, notice of dishonor,
protest,
and notice of protest and any other notice with respect to any Guaranteed
Debt
and this Guaranty, and promptness in commencing suit against any party
thereto
or liable thereon and/or in giving any notice to or making any claim or
demand
hereunder upon the Guarantor; (e) waive any defense arising by reason
of any
disability or other defense of the Company for payment of the Guaranteed
Debt or
any part thereof or by reason of the cessation from any cause whatsoever
of the
liability of the Company therefor other than full payment of the
Guaranteed
Debt; or (f) waive, to the extent permitted by law, all benefit of
valuation,
appraisement, and exemptions under the laws of the State of Minnesota
or any
other state or territory of the United States.
7. The obligations of the Guarantor hereunder shall be primary,
absolute
and unconditional, and shall remain in full force and effect without
regard to,
and shall not be impaired or affected by: (a) the genuineness,
validity,
regularity or enforceability of, or any amendment or change in the
Agreement or
the Notes, or any change in or extension of the manner, place or
terms of
payment of, all or any portion of the Guaranteed Debt; (b) the taking or
failure
to take any action to enforce the Agreement or the Notes, or the
exercise or
failure to exercise any remedy, power or privilege contained
therein or
available at law or otherwise, or the waiver by the Lender of any
provisions of
the Agreement or the Notes; (c) any impairment, modification, change,
release or
limitation in any manner of the liability of the Company or its
estate in
bankruptcy, or of any remedy for the enforcement of the Company's
liability,
resulting from the operation of any present or future provision
of the
bankruptcy laws or any other statute or regulation, or the
dissolution,
bankruptcy, insolvency, or reorganization of the Company; (d) the
merger or
consolidation of the Company, or any sale or transfer by the Company of
all or
part of its assets or property; (e) any claim the Guarantor may have
against any
other Obligor, including any claim of contribution; (f) the release, in
whole or
in part, of any other guarantor (if more than one), the Company or any
other
Obligor; (g) any settlement or compromise with any Obligor with respect
to any
Guaranteed Debt and/or the subordination of the payment of the Guaranteed
Debt
or any part thereof to the payment of any other debts or claims which may
at any
time be due and owing to the Lender and/or any other Person; or (h) any
other
action or circumstance which (with or without notice to or knowledge
of the
Guarantor) may or might in any manner or to any extent vary the risks
of the
Guarantor hereunder or otherwise constitute a legal or equitable
discharge or
defense, it being understood and agreed by the Guarantor that the
obligations
under this Guaranty shall not be discharged except by the full payment and
performance of the Guaranteed Debt.
8. The Lender shall have the right to determine how, when and
what
application of payments and credits, if any, whether derived from the
Company or
from any other source, shall be made on the Guaranteed Debt and any
other
indebtedness owed by the Company and/or any other Obligor to the Lender.
The
Lender shall be under no obligation to marshal any assets in favor
of the
Guarantor or in payment of all or any part of the Guaranteed Debt.
9. The obligations of the Guarantor hereunder shall continue
to be
effective, or be automatically reinstated, as the case may be, if at any
time
the performance or the payment, as the case may be, in whole or in part,
of any
of the Guaranteed Debt is rescinded or must otherwise be restored or
returned by
the Lender (as a preference, fraudulent conveyance or otherwise)
upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of
the
Company, the Guarantor or any other person or upon or as a result
of the
appointment of a custodian, receiver, trustee or other officer with
similar
powers with respect to the Company, the Guarantor or any other person,
or any
substantial part of its property, or otherwise, all as though such
payments had
not been made. If an Event of Default shall at any time have occurred
and be
continuing or shall exist and declaration of default or acceleration
under or
with respect to this Guaranty or any Guaranteed Debt shall at such
time be
prevented by reason of the pendency against the Guarantor or the Company
or any
other Person of a case or proceeding under a bankruptcy or insolvency law,
the
Guarantor agrees that, for purposes of this Guaranty and its
obligations
hereunder, this Guaranty and such obligations shall be deemed to have
been
declared in default or accelerated with the same effect as if this
Guaranty and
such obligations had been declared in default and accelerated in accordance
with
their respective terms and the Guarantor shall forthwith perform or pay,
as the
case may be, as required hereunder in accordance with the terms
hereunder
without further notice or demand.
10. The Guarantor hereby irrevocably waives any claim or other rights
tha.
the Guarantor may now or hereafter acquire against the Company that arises
from
the existence, payment, performance or enforcement of the
Guarantor's
obligations hereunder, including any right of subrogation,
reimbursement,
exoneration contribution, indemnification, any right to participate in any
claim
or remedy of the Lender against the Company or any collateral that the
Lender
now has or hereafter acquires, whether or not such claim, remedy or right
arises
in equity or under contract, statute or common law, including the right to
take
or receive from the Company directly or indirectly, in cash or other
property or
by set-off or in any manner, payment or security on account of such
claim or
other rights. If any amount shall be paid to the Guarantor in violation
of the
preceding sentence and the Guaranteed Debt shall not have been
paid and
performed in full, such amount shall be deemed to have been paid
to the
Guarantor for the benefit of, and held in trust for, the Lender and
shall
forthwith be paid to the Lender to be credited and applied to the
Guaranteed
Debt, whether matured or unmatured. Notwithstanding the blanket
waiver of
subrogation rights as set forth above, the Guarantor hereby
specifically
acknowledges that any subrogation rights which the Guarantor may have
against
the Company or any collateral that the Lender now has or hereafter
acquires may
be destroyed by a nonjudicial foreclosure of the collateral. Without
limiting
the foregoing, the Guarantor waives all rights and defenses arising out
of an
election of remedies by the Lender, even though that election of remedies,
such
as a nonjudicial foreclosure with respect to security for any Guaranteed
Debt,
has destroyed the Guarantor's rights of subrogation and reimbursement
against
the Company by the operation of Section 580d of the California Code of
Civil
Procedure or otherwise. The Guarantor acknowledges that the Guarantor
will
receive direct and indirect benefits from the arrangements contemplated
by the
Agreement and the Notes and that the waivers set forth in this Section
are
knowingly made in contemplation of such benefits.
11. The Guarantor waives any and all rights, benefits and
defenses
available to sureties and creditors which might otherwise be available
to the
Guarantor under Sections 2787 to 2855 inclusive, 2899 and 3433 of the
California
Civil Code, as amended or remodified from time to time, and the benefit
of any
statute of limitations affecting the liability of the Guarantor hereunder
or the
enforcement hereof, including, without limitation any rights arising
under
Section 3s9.5 of the California Code of Civil Procedure. Additionally,
the
Guarantor waives the right to require the Lender to comply with the
provisions
of Section 9504 of the California Commercial Code, as amended or recodified
from
time to time. The Guarantor also waives all rights and defenses
that the
Guarantor may have because any Guaranteed Debt is secured by real property.
This
means, among other things: (1) the Lender may collect from the Guarantor
without
first foreclosing on any real or personal property collateral pledged
by the
Company or any other Obligor; (2) if the Lender forecloses on any real
property
collateral pledged by the Company or any other Obligor: (a) the amount
of the
Guaranteed Debt may be reduced only by the price for which that
collateral is
sold at the foreclosure sale, even if the collateral is worth more than the
sale
price; and (b) the Lender may collect from the Guarantor even if the
Lender, by
foreclosing on the real property collateral, has destroyed any right
the
Guarantor may have to collect from the Company. This is an unconditional
and
irrevocable waiver of any rights and defenses the Guarantor may have
because the
Guaranteed Debt is secured by real property. These rights and defenses
include,
but are not limited to, any rights or defenses based upon Section 580a,
580b,
580d, or 726 of the California Code of Civil Procedure.
12. No postponement or delay on the part of the Lender in the
enforcement
of any right hereunder shall constitute a waiver of such right and all
rights of
the Lender hereunder shall be cumulative and not alternative and shall
be in
addition to any other rights granted to the Lender in any other agreement
or by
law.
13. If any provision hereof shall be or shall be declared to be
illegal or
unenforceable in any respect, such illegal or unenforceable provision
shall be
and become absolutely null and void and of no force and effect as though
such
provision were not in fact set forth herein, but all other covenants,
terms,
conditions and provisions hereof shall nevertheless continue to be
valid and
enforceable and this Guaranty shall be so construed.
14. This Guaranty shall be governed in all respects by the laws
of the
State of Minnesota, other than its principles of conflicts of law, and
shall be
binding upon and shall inure to the benefit of the parties hereto and
their
respective heirs, executors, administrators, personal
representatives,
successors and assigns.
15. The Guarantor hereby agrees that any action or proceeding under
this
Guaranty may be commenced against the Guarantor in any court of
competent
jurisdiction within the State of Minnesota, by service of process
upon the
Guarantor by first class registered or certified mail, return receipt
requested,
addressed to the Guarantor at the Guarantor's address last known to the
Lender.
The Guarantor agrees that any such suit, action or proceeding arising out
of or
relating to this Guaranty may be instituted in the District Court of
Hennepin
County, Minnesota or in the United States District Court for the
District of
Minnesota, at the option of the Lender; and the Guarantor hereby
waives any
objection to the jurisdiction or venue of any such court with respect to,
or the
convenience of any such court as a forum for, any such suit,
action or
proceeding. Nothing herein shall affect the right of the Lender to
accomplish
service of process in any other manner permitted by law or to commence
legal
proceedings or otherwise proceed against the Guarantor in any other
jurisdiction
or court.
16. The Guarantor hereby represents and warrants to the Lender as
follows:
(a) Organization and Qualification. The Guarantor is a
corporation
duly organized, validly existing and in good standing
under the
laws of its jurisdiction of incorporation. the Guarantor is
duly
qualified to do business as a foreign corporation and in
good
standing in all jurisdictions In which the ownership
of its
properties or the nature of its activities, or both, makes
such
qualification necessary.
(b) Authority and Authorization. The Guarantor has full
corporate
power and authority to execute, deliver and carry
out the
provisions of this Guaranty and to perform its
obligations
hereunder, and all such action has been duly and
validly
authorized by all necessary corporate proceedings on its
part.
(c) Financial Statements. All financial statements and data
which
have heretofore been given to the Lender with respect
to the
Guarantor fairly and accurately represent the financial
condition
of the Guarantor as of the date hereof, and, since the
date
thereof, there has been no material adverse change
in the
financial condition of the Guarantor. The Guarantor
shall
promptly deliver to the Lender, or to the Company in time
for the
Company to deliver the same to the Lender, all
financial
statements and tax returns of the Guarantor required
by the
Agreement.
(d) Address. The address of the Guarantor as specified below is
true
and correct and until the Lender shall have actually
received a
written notice specifying a change of address and
specifically
requesting that notices be issued to such changed address,
the
Lender may rely on the address stated as being accurate.
(e) No Default. The Guarantor is not in default with respect
to any
order, writ, injunction, decree or demand of any court or
other
governmental authority, in the payment of any material
debt for
borrowed money or under any material agreement
evidencing or
securing any such debt.
(f) Solvent. The Guarantor is now solvent, and no
bankruptcy or
insolvency proceedings are pending or to the best of
the
Guarantor's knowledge contemplated by or against the
Guarantor.
(g) Relationship to the Company. The value of the
consideration
received and to be received by the Guarantor is reasonably
worth
at least as much as the liability and obligation of the
Guarantor
incurred or arising under this Guaranty. The Guarantor
has had
full and complete access to the Agreement and the Notes
and all
other loan documents relating to the Obligations and
the
Guaranteed Debt, has reviewed them and is fully aware
of the
meanings and effect of their contents. The Guarantor is
fully
informed or all circumstances which bear upon the
risks of
executing this Guaranty and which a diligent inquiry
would
reveal. The Guarantor has adequate means to obtain
from the
Company on a continuing basis information concerning
the
Company's financial condition, and is not depending on the
Lender
to provide such information, now or in the future. The
Guarantor
agrees that the Lender shall not have any obligation to
advise or
notify the Guarantor or to provide the Guarantor with any
data or
information. The execution and delivery of this Guaranty
is not
given in consideration of (and the Lender has not in
any way
implied that the execution of this Guaranty is
given in
consideration of) the Lender's making, extending or
modifying any
loan to the Guarantor or to any other financial
accommodation to
or for the Guarantor.
(h) Litigation. There is not now pending against or affecting
the
Guarantor, nor to the knowledge of the Guarantor is
there
threatened, any action, suit or proceeding at law or in
equity or
by or before any administrative agency that, if
adversely
determined, would materially impair or affect the
financial
condition of the Guarantor.
(i) Taxes. The Guarantor has filed all federal, state,
provincial,
county, municipal and other income tax returns required to
have
been filed by the Guarantor and has paid all taxes that
have
become due pursuant to such returns or pursuant to
any
assessments received by the Guarantor, and the Guarantor
does not
know of any basis for any material additional assessment
against
it in respect of such taxes.
17. Neither the death nor the release of any person or party to
this
Guaranty or any other guaranties of the Agreement and the Notes shall
affect or
release the liability of the Guarantor. The obligations of the
Guarantor
hereunder shall be in addition to any obligations of the Guarantor
under any
other guaranties of the Guaranteed Debt and/or any obligations of the
Company or
any other Persons heretofore given or hereafter to be given to the Lender,
and
this Guaranty shall not affect or invalidate any such other guaranties.
The
liability of the Guarantor to the Lender shall at all times be deemed to
be the
aggregate liability of the Guarantor under the terms of this Guaranty and
of any
other guaranties heretofore or hereafter given by the Guarantor to the
Lender.
18. No amendment or waiver of any provision of this Guaranty nor
consent to
any departure by the Guarantor therefrom shall in any event be effective
unless
the same shall be in writing and signed by the Lender, and then such
waiver or
consent shall be effective only in the specific instance and for the
specific
purpose for which given. Nor notice no or demand on the Guarantor shall
in any
case entitle it to any other or further notice or demand in similar or
other
circumstances.
19. All notices that may be required or otherwise provided
for or
contemplated under the terms of this Guaranty for any party to serve
upon or
give to any other shall, whether or not so state, be in writing, and if
not so
in writing shall not be deemed to have been given, and be either
personally
served, sent by reputable overnight courier service, or sent with return
receipt
requested by registered or certified mail with postage (including
registration
or certification charges) prepaid, sent to the following address:
(a) If to the Guarantor, addressed to the address
indicated
immediately following the Guarantor's signature;
(b) If to the Lender, addressed to the Lender at its address at
0000
Xxxxx Xxxxxxxxxx Xxxx., Xxxxx 000, Xxxxxx Xxxxx,
Xxxxxxxxxx
00000, Attention: Xxxxxx Xxxxxxx, Director.
Such addresses may be changed from time to time by written notice to the
other
parties given in the same manner. Any matter so served upon or sent
to the
Guarantor or the Lender in the manner aforesaid shall be deemed
sufficiently
given for all purposes hereunder (i) upon personal delivery, if
personally
delivered, (ii) on the date following delivery to the courier service, if
sent
by courier service, (iii) upon electronic confirmation of receipt, if
sent by
telecopier, and (iv) on the date of receipt as noted on the return
receipt, if
sent by registered or certified mail, except that notices of changes of
address
shall not be effective until actual receipt.
20. Any indebtedness of the Company now or hereafter held by the
Guarantor
is hereby subordinated to the indebtedness of the Company to the Lender,
and
such indebtedness of the Company to the Guarantor shall, if the
Lender so
requests, be collected, enforced and received by the Guarantor as
trustee for
the Lender and be paid over to the Lender on account of tne indebtedness
of the
Company to the Lender, but without reducing or limiting in any
manner the
liability of the Guarantor under the other provisions of the Guaranty.
The
Guarantor acknowledges that, with respect to the indebtedness
guaranteed
hereunder, the Guarantor has irrevocably waived all rights to
subrogation,
reimbursement, and/or indemnification against tee Company.
21. This Guaranty is intended as a final expression of this agreement
of guaranty and is intended also as a complete and exclusive statement
of the
terms of this agreement. No agreement or understanding entered into Prior
to the
date hereof with respect to the subject matter hereof shall be binding
upon the
Guarantor unless expressed herein. No course or prior dealings
between the
Guarantor and the Lender, no usage of the trade, and no parole or
extrinsic
evidence of any nature, shall be used or be relevant to supplement,
explain,
contradict or modify the terms and/or provisions of this Guaranty.
22. Time is of the essence hereof.
23. THE GUARANTOR, BY ITS EXECUTION AND DELIVERY HEREOF, AND THE
LENDER, BY
ITS ACCEPTANCE HEREOF, HEREBY (i) COVENANTS AND AGREES NOT TO ELECT A
TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii) WAIVES ANY RIGHT TO
TRIAL
BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST.
THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN, KNOWINGLY
AND
VOLUNTARILY, BY THE GUARANTOR AND BY THE LENDER, AND THIS WAIVER IS
INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT
OF A
JURY TRIAL WOULD OTHERWISE ACCRUE. THE LENDER IS HEREBY AUTHORIZED AND
REQUESTED
TO SUBMIT THIS WAIVER TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT
MATTER
AND THE PARTIES HERETO, SO AS TO SERVE AS CONCLUSIVE EVIDENCE OF THE
FOREGOING
WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, THE GUARANTOR HEREBY CERTIFIES
THAT
NO REPRESENTATIVE OR AGENT OF THE LENDER, INCLUDING THE LENDER'S COUNSEL,
HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, TO THE GUARANTOR OR ITS
REPRESENTATIVES OR
AGENTS THAT THE LENDER WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO
JURY
TRIAL PROVISION.
FINET HOLDINGS CORPORATION,
a Delaware corporation
By:__________________________________
Its: President
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No. (000) 000-0000
STATE OF California )
) ss
COUNTY OF Contra Costa )
On August 14, 1997, before me, a Notary Public, personally
appeared Xxx
Xxxxxxx, the President of FINET HOLDINGS CORPORATION, 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
My Commission Expires:
(SEAL)
CERTIFICATE OF SECRETARY
OF
FINET HOLDINGS CORPORATION
I, the undersigned, hereby certify that I am the Secretary of
FINET
HOLDINGS CORPORATION, a Delaware corporation (hereinafter referred to
as the
"Corporation" ), and have knowledge of the matters contained in this
Certificate
and hereby certify that:
1. The Articles of Incorporation of the Corporation attached to
this
Certificate as Exhibit "A", the Bylaws of the Corporation
attached to
this Certificate as Exhibit "B", and the Certificate of Good
Standing
of the Corporation attached to this Certificate as Exhibit
"C" are
true and correct copies of the current Articles of
Incorporation,
Bylaws, and Certificate of Good Standing of the Corporation,
have not
been altered, modified or amended and are still in full
force and
effect.
2. The Corporation is a corporation duly organized, validly
existing and
in good standing under the laws of the State of Delaware
and has
complied with all certifications, filings and requirements
necessary
to continue as a corporation in the State of Delaware. The
Corporation
is duly qualified to do business as a foreign corporation and
is in
good standing in all jurisdictions where the ownership of its
property
or the conduct of its business makes such qualification
necessary.
3. The Corporation is the sole shareholder of MONUMENT MORTGAGE,
INC., a
California corporation (hereinafter referred to as the
"Company"). In
connection with a Ten Million Dollar ($10,000,000) single
family
revolving warehouse facility, a One Million Dollar ($1,000,000)
term
loan facility and a One Million Dollar ($1,000,000) working
capital
facility (collectively, the "Loan") being made to the
Company by
RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
(the
"Lender"), the Corporation has the valid power and
authority to
execute and deliver to the Lender, a Guaranty (hereinafter
referred to
as the "Guaranty") of the Loan as required by the Lender
pursuant to
the terms of that certain Warehousing Credit and Security
Agreement
(Single-Family Mortgage Loans) dated March 22, 1995
(hereinafter
referred to as the "Agreement").
4. Xxx Xxxxxxx, the President, has the requisite authority on
behalf of
the Corporation to execute and deliver to the Lender the
Guaranty as
required by the Lender pursuant to the Agreement.
5. The guaranteeing of the Loan by the Corporation, and the
execution,
acknowledgment and delivery of the Guaranty required by the
Lender
pursuant to the Agreement and the compliance by the Corporation
with
the terms thereof, do not and will not violate,
contravene, or
constitute or result in a default under any provision of law,
the
Articles of Incorporation or By-Laws of the Corporation,
or any
agreement with the shareholders of the Corporation, any
creditors of
the Corporation, or any mortgage, indenture or other
agreement to
which the Corporation or its properties are subject.
6. The names of the officers of the Corporation authorized to act
under
the resolutions attached hereto and their official signatures
are as
shown on the Certificate of Incumbency attached hereto as Exhibit
"D".
7. The resolutions attached to this Certificate as Exhibit "E" were
duly
adopted either: (a) by unanimous written action of the
Board of
Directors of the Corporation; or (b) at a meeting of the
Board of
Directors of the Corporation held on the 28th day of August,
1997, at
which meeting a quorum was present. I am the keeper of the Minute
Book
of the Corporation and said resolutions have been entered
therein,
have not been altered, amended, repealed or rescinded, and are
now in
full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal
of the
Corporation as of this 18 day of August, 1997.
______________________________
Secretary
[SEAL]
EXHIBIT "A"
ARTICLES OF INCORPORATION
EXHIBIT "B"
BY-LAWS
EXHIBIT "C"
CERTIFICATE OF GOOD STANDING
EXHIBIT "D"
CERTIFICATE AS TO INCUMBENCY
TO: RESIDENTIAL FUNDING CORPORATION
I hereby certify to you that I am the duly elected and qualified
Secretary
of FINET HOLDINGS CORPORATION, a Delaware corporation (the "Corporation"),
and
that, as such, I am authorized to execute this Certificate on behalf
of the
Corporation. I further certify that the persons named below are duly
elected,
qualified and acting officers of the Corporation, holding on the date
hereof the
respective titles set forth opposite their respective names, and
that the
respective signatures set forth opposite their names are their true and
genuine
signatures:
Name Title Signature
L. Xxxxxx Xxxxxxx C.E.O.
________________________
Xxx Xxxxxxx President, Secretary
________________________
You may conclusively rely on this Certificate until formally advised
by a
like Certificate of any changes herein.
IN WITNESS WHEREOF, I have hereunto executed this Certificate on this
18th day of August, 1997.
_________________________________
Secretary
EXHIBIT "E"
FINET HOLDINGS CORPORATION
RESOLUTIONS OF BOARD OF DIRECTORS
WHEREAS, FINET HOLDINGS CORPORATION, a Delaware corporation
(hereinafter
referred to as the "Corporation"), is the sole shareholder of MONUMENT
MORTGAGE,
INC., a California corporation (hereinafter referred to as the "Company);
and
WHEREAS, the Company has requested the Lender to waive certain
covenant
defaults under the Agreement and to amend certain other terms of the
Agreement;
and
WHEREAS, to evidence such amendment of the Agreement, the Company
proposes
to execute and deliver a Sixth Amendment to Warehousing Credit and
Security
Agreement, a copy of which has been presented to the Board of Directors of
this
Company; and
WHEREAS, the Board of Directors of the Corporation have determined
that it
will be in the best interests of the Corporation for the Company to
amend the
Agreement.
WHEREAS, in order to induce the Lender to amend the Agreement,
the
Corporation proposes to execute and deliver a Guaranty (hereinafter
referred to
as the "Guaranty"), a copy of which has been presented to the Board of
Directors
of this Corporation; and
RESOLVED, that these resolutions are enacted by the Board of
Directors of
this Corporation on its behalf and on behalf of the Corporation.
FURTHER RESOLVED, that the Guaranty in the form presented to the
Board of
Directors of this Corporation is hereby approved and a copy thereof is
filed in
the records of this Corporation with these Resolutions.
FURTHER RESOLVED, that any One (insert minimum number required to
sign) of
the following positions or titles of officers of the Corporation:
President.
Senior Vice President, Senior Vice President, Secretary or Vice President
(list
titles/positions of officers authorized, do not list individual name-),
shall be
and are authorized, empowered and directed in the name of and on behalf
of the
Corporation, to execute, acknowledge and deliver the Guaranty in the
form
approved by the Board of Directors of the Corporation as aforesaid, with
such
changes therein as may be acceptable to such officers, as conclusively
evidenced
by their execution thereof.
FURTHER RESOLVED, that these Resolutions shall remain in full force
and
erect and the Lender shall be fully protected in acting thereon until
written
notice of their change or revocation has been duly given to and received
by the
Lender, and the Lender is authorized to accept, and the Secretary
of the
Corporation shall from time to time provide, signed certificates
of the
Secretary setting forth any change of names of officers and other
persons
authorized to act hereunder on behalf of the Corporation, which
certificates
shall become a part of these Resolutions.
