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FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
(SINGLE FAMILY MORTGAGE LOANS)
BETWEEN
MONUMENT MORTGAGE, INC.,
a California corporation
AND
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
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Dated as of August 9, 1999
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions. . . . . . . . . . . . . . . . . . . . . 12
2. THE CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.1 The Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.2 Procedures for Obtaining Advances. . . . . . . . . . . . . . . . . . . 13
2.3 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.4 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.5 Principal Payments . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.6 Expiration of Commitment . . . . . . . . . . . . . . . . . . . . . . . 19
2.7 Method of Making Payments. . . . . . . . . . . . . . . . . . . . . . . 19
2.8 Commitment Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.9 Warehousing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.10 Miscellaneous Charges. . . . . . . . . . . . . . . . . . . . . . . . . 21
2.11 Interest Limitation. . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.12 Increased Costs; Capital Requirements. . . . . . . . . . . . . . . . . 21
3. COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.1 Grant of Security Interest . . . . . . . . . . . . . . . . . . . . . . 22
3.2 Release of Security Interest in Collateral . . . . . . . . . . . . . . 24
3.3 Delivery of Additional Collateral or Mandatory Prepayment. . . . . . . 26
3.4 Release of Collateral. . . . . . . . . . . . . . . . . . . . . . . . . 26
3.5 Collection and Servicing Rights. . . . . . . . . . . . . . . . . . . . 27
3.6 Return of Collateral at End of Commitment. . . . . . . . . . . . . . . 27
i
4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.1 Initial Advance. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
4.2 Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . 32
5.1 Organization; Good Standing; Subsidiaries. . . . . . . . . . . . . . . 32
5.2 Authorization and Enforceability . . . . . . . . . . . . . . . . . . . 32
5.3 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.4 Financial Condition. . . . . . . . . . . . . . . . . . . . . . . . . . 33
5.5 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.6 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.7 Regulation U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.8 Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . 34
5.9 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
5.10 Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.11 Title to Properties. . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.12 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
5.13 Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.14 Place of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5.15 Special Representations Concerning Collateral. . . . . . . . . . . . . 36
5.16 No Adverse Selection . . . . . . . . . . . . . . . . . . . . . . . . . 39
5.17 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . 39
6. AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.1 Payment of Note. . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
6.2 Financial Statements and Other Reports . . . . . . . . . . . . . . . . 39
6.3 Maintenance of Existence; Conduct of Business. . . . . . . . . . . . . 41
6.4 Compliance with Applicable Laws. . . . . . . . . . . . . . . . . . . . 42
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6.5 Inspection of Properties and Books . . . . . . . . . . . . . . . . . . 42
6.6 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.7 Payment of Debt, Taxes, etc. . . . . . . . . . . . . . . . . . . . . . 43
6.8 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.9 Closing Instructions . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.10 Subordination of Certain Indebtedness. . . . . . . . . . . . . . . . . 44
6.11 Other Loan Obligations . . . . . . . . . . . . . . . . . . . . . . . . 44
6.12 Use of Proceeds of Advances. . . . . . . . . . . . . . . . . . . . . . 44
6.13 Special Affirmative Covenants Concerning Collateral. . . . . . . . . . 44
7. NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
7.1 Contingent Liabilities . . . . . . . . . . . . . . . . . . . . . . . . 46
7.2 Sale or Pledge of Servicing Contracts. . . . . . . . . . . . . . . . . 46
7.3 Merger; Sale of Assets; Acquisitions . . . . . . . . . . . . . . . . . 46
7.4 Deferral of Subordinated Debt. . . . . . . . . . . . . . . . . . . . . 46
7.5 Loss of Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.6 Current Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.7 Debt to Tangible Net Worth Ratio of Company. . . . . . . . . . . . . . 46
7.8 Minimum Tangible Net Worth of Company. . . . . . . . . . . . . . . . . 46
7.9 Liability Growth . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
7.10 Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.11 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . 47
7.12 Acquisition of Recourse Servicing Contracts. . . . . . . . . . . . . . 47
7.13 Gestation Facilities . . . . . . . . . . . . . . . . . . . . . . . . . 47
7.14 Sale of Stock of Guarantor . . . . . . . . . . . . . . . . . . . . . . 47
7.15 Special Negative Covenants Concerning Collateral . . . . . . . . . . . 47
8. DEFAULTS; REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
iii
8.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 48
8.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8.3 Application of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . 56
8.4 Lender Appointed Attorney-in-Fact. . . . . . . . . . . . . . . . . . . 57
8.5 Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10. REIMBURSEMENT OF EXPENSES; INDEMNITY . . . . . . . . . . . . . . . . . . . . 58
11. FINANCIAL INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12.1 Terms Binding Upon Successors; Survival of Representations . . . . . . 59
12.2 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
12.3 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.4 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.5 Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
12.6 Relationship of the Parties. . . . . . . . . . . . . . . . . . . . . . 60
12.7 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
12.8 Operational Reviews. . . . . . . . . . . . . . . . . . . . . . . . . . 61
12.9 Consent to Credit References. . . . . . . . . . . . . . . . . . . . . . 61
12.10 Consent to Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . 61
12.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
12.12 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
12.13 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . 62
iv
EXHIBITS
Exhibit A Promissory Note
Exhibit B Guaranty
Exhibit C-SF Request for Advance Against Single Family Mortgage
Loans
Exhibit D-SF Procedures and Documentation for
Warehousing Single Family Mortgage Loans
Exhibit E Schedule of Servicing Contracts
Exhibit F Subordination of Debt Agreement
Exhibit G Subsidiaries
Exhibit H Legal Opinion
Exhibit I-SF Officer's Certificate
Exhibit J Schedule of Existing Warehouse Lines
Exhibit K-1 Funding Bank Agreement (Wire)
Exhibit L Commitment Summary Report
Exhibit M Terms Applicable to Advances Against Eligible
Loans
Exhibit N Fiscal Year 2000 Losses
Exhibit O RFConnects Pledge Agreement
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THIS FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND SECURITY
AGREEMENT, dated as of August 9, 1999 between MONUMENT MORTGAGE, INC., a
California corporation, (the "Company"), having its principal office at 0000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 and RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation (the "Lender"), having its principal office
at 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS, the Company and the Lender have entered into a Warehousing
Credit and Security Agreement (Single Family Mortgage Loans) dated as of March
22, 1995 and amended by a First Amendment to Warehousing Credit and Security
Agreement dated as of July 27, 1995, the Second Amendment to Warehousing Credit
and Security Agreement dated as of December 15, 1995, the Third Amendment to
Warehousing Credit and Security Agreement dated as of February 29, 1996, the
Fourth Amendment to Warehousing Credit and Security Agreement dated as of June
11, 1996, the Fifth Amendment to Warehousing Credit and Security Agreement dated
as of December 12, 1996, the Sixth Amendment to Warehousing Credit and Security
Agreement dated as of July 23, 1997, the Seventh Amendment to Warehousing Credit
and Security Agreement dated as of November 14, 1997, the Eighth Amendment to
Warehousing Credit and Security Agreement dated as of February 20, 1998, the
Ninth Amendment to Warehousing Credit and Security Agreement dated as of March
5, 1998, and the Tenth Amendment to Warehousing Credit and Security Agreement
dated as of April 15 1998 (as so amended, the "Existing Agreement");
WHEREAS, the Company and the Lender desire to set forth herein the terms
and conditions upon which the Lender shall provide warehouse financing to the
Company;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS.
1.1 DEFINED TERMS. Capitalized terms defined below or
elsewhere in this Agreement (including the Exhibits hereto) shall have
the following meanings:
"ADVANCE" means a disbursement by the Lender under the Commitment
pursuant to Section 2.1 of this Agreement.
"ADVANCE REQUEST" has the meaning set forth in Section 2.2(a)
hereof.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the General
Rules and Regulations under the Exchange Act.
"AGENCY SECURITY" means a Mortgage-backed Security issued or
guarantied by Xxxxxx Xxx, Xxxxxxx Mac or Xxxxxx Mae.
1
"AGREEMENT" means this First Amended and Restated Warehousing
Credit and Security Agreement (Single Family Mortgage Loans), either as
originally executed or as it may from time to time be supplemented,
modified or amended.
"APPROVED CUSTODIAN" means a pool custodian or other Person which
is deemed acceptable to the Lender from time to time in its sole
discretion to hold a Mortgage Loan for inclusion in a Mortgage Pool or to
hold a Mortgage Loan as agent for an Investor who has issued a Purchase
Commitment for such Mortgage Loan.
"BUSINESS DAY" means any day excluding Saturday or Sunday and
excluding any day on which national banking associations are closed for
business.
"CALENDAR QUARTER" means the three (3) month period beginning on
any January 1, April 1, July 1 or October 1.
"CASH COLLATERAL ACCOUNT" means a demand deposit account
maintained at the Funding Bank in the name of the Lender and designated
for receipt of the proceeds of the sale or other disposition of the
Collateral.
"CHECK DISBURSEMENT ACCOUNT" means a demand deposit account
maintained at the Funding Bank in the name of the Company and under the
control of the Lender for the clearing of checks written by the Company
to fund Advances.
"CLOSING DATE" means August 9, 1999.
"COLLATERAL" has the meaning set forth in Section 3.1 hereof.
"COLLATERAL DOCUMENTS" means, with respect to each Mortgage Loan:
(a) the Mortgage Note, the Mortgage, and all other documents executed in
connection with or otherwise relating to the Mortgage Loan, (b) as
applicable -- the original lender's ALTA Policy of Title Insurance or its
equivalent, documents evidencing the FHA Commitment to Insure or the VA
Guaranty, the appraisal, Private Mortgage Insurance, the Regulation Z
Statement, certificates of casualty or hazard insurance, credit
information on the maker(s) of the Mortgage Note, the HUD-1 or
corresponding purchase advice, and (c) any other documents that are
customarily desired for inspection or transfer incidental to the purchase
of any Mortgage Note by an Investor or which are customarily executed by
the seller of a Mortgage Note to an Investor.
"COLLATERAL VALUE" means (a) with respect to any Eligible Loan as
of the date of determination, the lesser of (i) the amount of any Advance
made against such Eligible Loan
2
under Section 2.1(c) hereof or (ii) the Fair Market Value of such
Eligible Loan; (b) in the event Pledged Mortgages have been exchanged for
Agency Securities, the lesser of (i) the amount of any Advances
outstanding against the Eligible Loans backing such Agency Securities or
(ii) the Fair Market Value of such Pledged Securities; and (c) with
respect to cash, the amount of such cash.
"COMMITMENT" has the meaning set forth in Section 2.1(a) hereof.
"COMMITMENT AMOUNT" means $75,000,000.
"COMMITMENT FEE" means a fee payable by the Company in
consideration of the Lender's issuance of the Commitment. The amount of
the Commitment Fee, if any, is set forth in Section 2.8 hereof.
"COMMITTED PURCHASE PRICE" means for an Eligible Loan the product
of the Mortgage Note Amount multiplied by (a) the price (expressed as a
percentage) as set forth in a Purchase Commitment for such Eligible Loan
or (b) in the event such Eligible Loan is to be used to back an Agency
Security, the price (expressed as a percentage) as set forth in a
Purchase Commitment for such Agency Security.
"COMPANY" has the meaning set forth in the first paragraph of this
Agreement.
"CREDIT SCORE" means a mortgagor's overall consumer credit rating,
represented by a single numeric credit score calculated using the Fair,
Xxxxx consumer credit scoring system, provided by a credit repository
acceptable to the Lender and the Investor that issued the Purchase
Commitment covering the related Mortgage Loan.
"DEBT" means, with respect to any Person at any date, (a) all
indebtedness or other obligations of such Person which, in accordance
with GAAP, would be included in determining total liabilities as shown on
the liabilities side of a balance sheet of such Person at such date, and
(b) all indebtedness or other obligations of such Person for borrowed
money or for the deferred purchase price of property or services;
provided that for purposes of this Agreement, there shall be excluded
from Debt at any date Subordinated Debt not due within one year of such
date and deferred taxes arising from capitalized excess servicing fees
and capitalized servicing rights.
"DEFAULT" means the occurrence of any event or existence of any
condition which, but for the giving of Notice, the lapse of time, or
both, would constitute an Event of Default.
"DEPOSITORY BENEFIT" shall mean the compensation
3
received by the Lender, directly or indirectly, as a result of the
Company's maintenance of Eligible Balances with a Designated Bank.
"DESIGNATED BANK" means any bank(s) designated from time to time
by the Lender as a Designated Bank, but only for as long as the Lender
has an agreement under which the Lender can receive a Depository Benefit.
"DESIGNATED BANK CHARGES" means any fees, interest or other
charges that would otherwise be payable to a Designated Bank in
connection with Eligible Balances maintained at a Designated Bank,
including Federal Deposit Insurance Corporation insurance premiums,
service charges and such other charges as may be imposed by governmental
authorities from time to time.
"ELECTRONIC ADVANCE REQUEST" means an electronic transmission
through RFConnects Delivery containing the same information as EXHIBIT
C-SF to this Agreement, together with a list of the Mortgage Loans to be
funded with the Advance sent to the Lender by facsimile.
"ELIGIBLE BALANCES" means all funds of or maintained by the
Company and its Subsidiaries in accounts at a Designated Bank, less
balances to support float, reserve requirements, and such other
reductions as may be imposed by governmental authorities from time to
time.
"ELIGIBLE LOAN" means a Single Family Mortgage Loan secured by a
Mortgage on real property located in one of the states of the United
States or the District of Columbia that is designated as such on EXHIBIT
M attached hereto and made a part hereof.
"ELIGIBLE MORTGAGE POOL" means a Mortgage Pool for which (a) an
Approved Custodian has issued its initial certification (on the basis of
which an Agency Security is to be issued), (b) there exists a Purchase
Commitment covering such Agency Security, and (c) such Agency Security
will be delivered to the Lender.
"ERISA" means the Employee Retirement Income Security Act of 1974
and all rules and regulations promulgated thereunder, as amended from
time to time and any successor statute.
"EVENT OF DEFAULT" means any of the conditions or events set forth
in Section 8.1 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
4
"FAIR MARKET VALUE" means at any time for an Eligible Loan or the
related Agency Security (if such Eligible Loan is to be used to back an
Agency Security), (a) if such Eligible Loan or the related Agency
Security is covered by a Purchase Commitment, the Committed Purchase
Price, or (b) otherwise, the market price for such Eligible Loan or
Agency Security, determined by the Lender based on market data for
similar Mortgage Loans or Agency Securities and such other criteria as
the Lender deems appropriate.
"XXXXXX MAE" means Xxxxxx Xxx, a corporation created under the
laws of the United States, and any successor thereto.
"FHA" means the Federal Housing Administration and any successor
thereto.
"FICA" means the Federal Insurance Contributions Act.
"FIRREA" means the Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"FIRST MORTGAGE" means a Mortgage which constitutes a first Lien
on the property covered thereby.
"FIRST MORTGAGE LOAN" means a Mortgage Loan secured by a First
Mortgage.
"FISCAL QUARTER" means the 3 month period beginning on any
February 1, May 1, August 1, or November 1.
"XXXXXXX MAC" means Xxxxxxx Mac, a corporation created under the
laws of the United States, and any successor thereto.
"FUNDING BANK" means The First National Bank of Chicago or any
other bank designated from time to time by the Lender.
"FUNDING BANK AGREEMENT" means the letter agreement substantially
in the form of EXHIBIT K hereto.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession, which are applicable to the
circumstances as of the date of determination.
5
"GESTATION AGREEMENT" means an agreement under which the Company
agrees to sell or finance (a) a Pledged Mortgage prior to the date of
purchase by an Investor, or (b) a Mortgage Pool prior to the date an
Agency Security backed by such Mortgage Pool is issued.
"XXXXXX MAE" means the Government National Mortgage Association,
an agency of the United States government, and any successor thereto.
"GUARANTOR" means XxXXX.XXX, INC., a Delaware corporation and any
other Person that hereafter guarantees all or any portion of the
Company's Obligations. If more than one Person is named as Guarantor,
the term "Guarantor" shall mean each of such Persons and all of them.
"GUARANTY" means a guaranty of all or any portion of the Company's
Obligations. If more than one Guaranty is executed and delivered to the
Lender, the term "Guaranty" shall mean each of such Guaranties and all of
them.
"HEDGING ARRANGEMENTS" means, with respect to any Person, any
agreements or other arrangement (including, without limitation, interest
rate swap agreements, interest rate cap agreements and forward sale
agreements) entered into by such Person to protect itself against changes
in interest rates or the market value of assets.
"HUD" means the Department of Housing and Urban Development and
any successor thereto.
"HUD 203(k) MORTGAGE LOAN" means an FHA insured closed-end First
Mortgage Loan secured by a First Mortgage, of which a portion will be
used for the purpose of rehabilitating and/or repairing the related
single family property, and which satisfies the definition of
"rehabilitation loan" under 24 C.F.R. Section 203.50(a).
"INDEMNIFIED LIABILITIES" has the meaning set forth in Article 10
hereof.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986,
or any subsequent federal income tax law or laws, as any of the foregoing
have been or may from time to time be amended.
"INVESTOR" means Xxxxxx Xxx, Xxxxxxx Mac or a financially
responsible private institution which is deemed acceptable by the Lender
from time to time in its sole discretion with respect to a particular
category of Pledged Mortgages.
"LENDER" has the meaning set forth in the first
6
paragraph of this Agreement.
"LIBOR" means, for each calendar week, the rate of interest per
annum which is equal to the arithmetic mean of the U.S. Dollar London
Interbank Offered Rates for one (1) month periods of certain U.S. banks
as of 11:00 a.m. London time on the first Business Day of each week on
which the London Interbank market is open, as published by Bloomberg L.P.
LIBOR shall be rounded, if necessary, to the next higher one sixteenth of
one percent (1/16%). If such U.S. dollar LIBOR rates are not so offered
or published for any period, then during such period LIBOR shall mean the
London Interbank Offered Rate for one (1) month periods published on the
first Business Day of each week on which the London Interbank market is
open, in the Wall Street Journal in its regular column entitled "MONEY
RATES."
"LIEN" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional
sale or other title retention agreement, any lease in the nature thereof,
and any agreement to give any security interest).
"LOAN DOCUMENTS" means this Agreement, the Note, the Guaranty, any
agreement of the Company relating to Subordinated Debt, and each other
document, instrument or agreement executed by the Company in connection
herewith or therewith, as any of the same may be amended, restated,
renewed or replaced from time to time.
"MANUFACTURED HOME" means a structure that is built on a permanent
chassis (steel frame) with the wheel assembly necessary for
transportation in one or more sections to a permanent site or
semi-permanent site and which has been built in compliance with the
National Manufactured Housing Construction and Safety Standards
established by HUD.
"MARGIN STOCK" has the meaning assigned to that term in Regulation
U of the Board of Governors of the Federal Reserve System as in effect
from time to time.
"MATURITY DATE" shall mean the earlier of: (a) the close of
business on August 8, 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.
"MISCELLANEOUS CHARGES" has the meaning set forth in Section 2.10
hereof.
"MORTGAGE" means a mortgage or deed of trust on improved
7
and substantially completed real property (including, without limitation,
real property to which a Manufactured Home has been affixed in a manner
such that the Lien of a mortgage or deed of trust would attach to such
manufactured home under applicable real property law).
"MORTGAGE-BACKED SECURITIES" means securities that are secured or
otherwise backed by Mortgage Loans.
"MORTGAGE LOAN" means any loan evidenced by a Mortgage Note and
secured by a Mortgage.
"MORTGAGE NOTE" means a promissory note secured by a Mortgage.
"MORTGAGE NOTE AMOUNT" means, as of the date of determination, the
then outstanding unpaid principal amount of a Mortgage Note [or other
note evidencing an Eligible Loan] (whether or not an additional amount is
available to be drawn thereunder).
"MORTGAGE POOL" means a pool of one or more Pledged Mortgages on
the basis of which there is to be issued a Mortgage-backed Security.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is maintained for employees of the
Company or a Subsidiary of the Company.
"NASDAQ" means National Association of Securities Dealers
Automated Quotation system.
"NOTE" has the meaning set forth in Section 2.3 hereof.
"NOTICES" has the meaning set forth in Article 9 hereof.
"OBLIGATIONS" means any and all indebtedness, obligations and
liabilities of the Company to the Lender (whether now existing or
hereafter arising, voluntary or involuntary, whether or not jointly owed
with others, direct or indirect, absolute or contingent, liquidated or
unliquidated, and whether or not from time to time decreased or
extinguished and later increased, created or incurred), whether or not
arising out of or related to the Loan Documents.
"OFFICER'S CERTIFICATE" means a certificate executed on behalf of
the Company by its chief financial officer or its treasurer or by such
other officer as may be designated herein and substantially in the form
of EXHIBIT I-SF attached hereto.
"OPERATING ACCOUNT" means a demand deposit account
8
maintained at the Funding Bank in the name of the Company and designated
for funding that portion of each Eligible Loan not funded by an Advance
made against such Eligible Loan and for returning any excess payment from
an Investor for a Pledged Mortgage or Pledged Security.
"PARTICIPANT" has the meaning set forth in Section 12.5 hereof.
"PERSON" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint
stock companies, joint ventures, associations, companies, trusts, banks,
trust companies, land trusts, business trusts or other organizations,
whether or not legal entities, and governments and agencies and political
subdivisions thereof.
"PLANS" has the meaning set forth in Section 5.12 hereof.
"PLEDGED MORTGAGES" has the meaning set forth in Section 3.1(a)
hereof.
"PLEDGED SECURITIES" has the meaning set forth in Section 3.1(b)
hereof.
"PURCHASE COMMITMENT" means a written commitment, in form and
substance satisfactory to the Lender, issued in favor of the Company by
an Investor pursuant to which that Investor commits to purchase Mortgage
Loans or Mortgage-backed Securities.
"RELEASE AMOUNT" has the meaning set forth in Section 3.2(g)
hereof.
"RFC" means Residential Funding Corporation, a Delaware
corporation, and any successor thereto.
"RFCONNECTS DELIVERY" means the Lender's proprietary service to
support the electronic exchange of information between the Lender and the
Company, including, but not limited to, Advance Requests, shipping
requests, payoff requests, activity reports and exception reports.
"RFCONNECTS PLEDGE AGREEMENT means a pledge agreement in the form
of EXHIBIT O to the Agreement.
"SECOND MORTGAGE" means a Mortgage which constitutes a second Lien
on the property covered thereby.
"SECOND MORTGAGE LOAN" means a Mortgage Loan secured by a Second
Mortgage.
"SERVICING CONTRACT" means, with respect to any Person,
9
the arrangement, whether or not in writing, pursuant to which such Person
has the right to service Mortgage Loans.
"SERVICING PORTFOLIO" means, as to any Person, the unpaid
principal balance of Mortgage Loans serviced by such Person under
Servicing Contracts.
"SINGLE FAMILY MORTGAGE LOAN" means a Mortgage Loan secured by a
Mortgage covering improved real property containing one to four family
residences.
"STATEMENT DATE" means the date of the most recent financial
statements of the Company (and, if applicable, its Subsidiaries, on a
consolidated basis) delivered to the Lender under the terms of this
Agreement.
"SUBLIMIT" means the aggregate amount of Advances (expressed as a
dollar amount or as a percentage of the Commitment Amount) that is
permitted to be outstanding at any one time against a specific type of
Eligible Loan.
"SUBORDINATED DEBT" means (a) all indebtedness of the Company for
borrowed money which is effectively subordinated in right of payment to
all other present and future Obligations either (i) pursuant to a
Subordination of Debt Agreement in the form of EXHIBIT F hereto or (ii)
otherwise on terms acceptable to the Lender, and (b) solely for purposes
of Section 7.4 hereof, all indebtedness of the Company which is required
to be subordinated by Section 4.1(b) or Section 6.10 hereof.
"SUBSIDIARY" means any corporation, association or other business
entity in which more than fifty percent (50%) of the total voting power
or shares of stock entitled to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly
or indirectly, by any Person or one or more of the other Subsidiaries of
that Person or a combination thereof.
"TANGIBLE NET WORTH" means with respect to any Person at any date,
the excess of the total assets of such Person over total liabilities of
such Person on such date, each to be determined in accordance with GAAP
consistent with those applied in the preparation of the financial
statements referred to in Section 4.1(a)(5) hereof, plus that portion of
Subordinated Debt not due within one year of such date; provided that,
for purposes of calculating Tangible Net Worth, there shall be excluded
from total assets advances or loans to shareholders, officers, employees
or Affiliates, investments in Affiliates, assets pledged to secure any
liabilities not included in the Debt of such Person, intangible assets,
those other assets which would be deemed by HUD to be non-acceptable in
calculating adjusted net worth in accordance with its
10
requirements in effect as of such date, as such requirements appear in
the "Audit Guide for Audit of Approved Non-Supervised Mortgagees," and
other assets deemed unacceptable by the Lender in its sole discretion.
"TITLE I MORTGAGE LOAN" means an FHA co-insured closed-end First
Mortgage Loan or Second Mortgage Loan which is underwritten in accordance
with HUD underwriting standards for the Title I Property Improvement
Program as set forth in and which is reported for insurance under the
Mortgage Insurance Program authorized and administered under Title I of
the National Housing Act of 1934, as amended and the regulations
promulgated thereunder.
"TRUST RECEIPT" means a trust receipt in a form approved by and
pursuant to which the Lender may deliver any document relating to the
Collateral to the Company for correction or completion.
"VA" means the U.S. Department of Veterans Affairs and any
successor thereto.
"WAREHOUSING FEE" has the meaning set forth in Section 2.9 hereof.
"WAREHOUSING PERIOD" means, for any Eligible Loan, the maximum
number of days an Advance against that type of Eligible Loan is permitted
to remain outstanding as set forth on EXHIBIT M attached to this
Agreement.
"WEIGHTED AVERAGE PURCHASE COMMITMENT PRICE" shall mean the
weighted average of the Committed Purchase Prices of the unfilled
Purchase Commitments (expressed as a percentage) for Mortgage Loans or
Mortgage-backed Securities of the same type, interest rate and term.
"WET SETTLEMENT ADVANCE" means an Advance pursuant to Section
2.2(b) of this Agreement in respect of the closing or settlement of a
Mortgage Loan, from the time of such Advance until the time of subsequent
delivery of the Collateral Documents as provided in such Section and the
Exhibit referenced therein.
"WIRE DISBURSEMENT ACCOUNT" means a demand deposit account
maintained at the Funding Bank in the name of the Lender for the clearing
of wire transfers requested by the Company to fund Advances.
"YEAR 2000 PROBLEM" means the risk that computer
11
applications may not be able to properly perform date-sensitive functions
after December 31, 1999.
1.2 OTHER DEFINITIONAL PROVISIONS.
1.2(a) Accounting terms not otherwise defined herein
shall have the meanings given the terms under GAAP.
1.2(b) Defined terms may be used in the singular or the
plural, as the context requires.
1.2(c) All references to time of day shall mean the then
applicable time in Chicago, Illinois, unless expressly provided to
the contrary.
2. THE CREDIT.
2.1 THE COMMITMENT.
2.1(a) Subject to the terms and conditions of this
Agreement and provided no Default or Event of Default has occurred
and is continuing, the Lender agrees from time to time during the
period from the Closing Date to, but not including, the Maturity
Date, to make Advances to the Company, provided the total
aggregate principal amount outstanding at any one time of all such
Advances shall not exceed the Commitment Amount. The obligation
of the Lender to make Advances hereunder up to the Commitment
Amount is hereinafter referred to as the "Commitment." Within the
Commitment, the Company may borrow, repay and reborrow. Effective
as of the date of this Agreement, all outstanding loans made
pursuant to the Warehousing Credit and Security Agreement shall
for all purposes be deemed to be Advances made under this
Agreement. All Advances under this Agreement shall constitute a
single indebtedness, and all of the Collateral shall be security
for the Note and for the performance of all the Obligations.
2.1(b) Advances shall be used by the Company solely for
the purpose of funding the acquisition or origination of Eligible
Loans and shall be made at the request of the Company, in the
manner hereinafter provided in Section 2.2 hereof, against the
pledge of such Eligible Loans as Collateral therefor. The
limitations on the use of Advances set forth on EXHIBIT M attached
hereto and made a part hereof shall be applicable. In addition,
the following limitations on the use of Advances shall be
applicable:
(1) No Advance shall be made against any Mortgage
Loan which was closed more than 90 days
12
prior to the date of the requested Advance.
(2) No Advance shall be made against a Mortgage
Loan other than a Mortgage Loan secured by a Mortgage on
real property located in one of the states of the United
States or the District of Columbia.
2.1(c) No Advance shall exceed the following amount
applicable to the type of Eligible Loan at the time it is pledged
to secure an Advance hereunder:
(1) For an Eligible Loan pledged hereunder, the
amount set forth on EXHIBIT M attached hereto and made a
part hereof.
2.2 PROCEDURES FOR OBTAINING ADVANCES.
2.2(a) To obtain an Advance, the Company must comply with
the conditions set forth in Sections 4.1 and 4.3 of this
Agreement, the procedures set forth in this Section 2.2(a), and
the procedures and documentation required under the EXHIBIT D for
the type of Mortgage Loan for which the Company is requesting the
Advance. The Company will request an Advance either by delivering
to Lender a completed and signed advance request in the applicable
form of EXHIBIT C or by sending to Lender an Electronic Advance
Request, together with a list of Mortgage Loans for which the
request is being made and a completed and signed RFConnects Pledge
Agreement sent by facsimile (each an "Advance Request"), each no
later than 1 Business Day prior to the Business Day the requested
Advance is to be made. The current forms of the EXHIBIT C and
EXHIBIT D referred to above are attached to this Agreement. The
Lender is entitled, upon not less than 3 Business Days' prior
Notice to the Company, to modify any of those Exhibits or the form
of Electronic Advance Request to conform to current legal
requirements or Lender's lending practices. Exhibits and
Electronic Advance Requests so modified automatically become a
part of this Agreement.
2.2(b) In the case of a Wet Settlement Advance, the
Company shall follow the procedures and, at or prior to the
Lender's making of such Wet Settlement Advance, shall deliver to
the Lender the documents set forth in EXHIBIT D-SF hereto. In the
case of a Mortgage Loan financed through a Wet Settlement Advance,
the Company shall cause all Collateral Documents required to be
delivered to the Lender pursuant to EXHIBIT D-SF within 7 Business
Days after the date of the Wet Settlement Advance relating
thereto.
13
2.2(c) Before funding, the Lender shall have a reasonable
time (one (1) Business Day under ordinary circumstances) to
examine such Advance Request and the Collateral Documents to be
delivered prior to such requested Advance, as set forth in the
applicable Exhibit hereto, and may reject such of them as do not
meet the requirements of this Agreement or of the related Purchase
Commitment.
2.2(d) The Company shall hold in trust for the Lender,
and the Company shall deliver to the Lender promptly upon request,
or if the recorded Collateral Documents have not yet been returned
from the recording office, immediately upon receipt by the Company
of such recorded Collateral Documents, and the Pledged Mortgage is
not being held by an Investor for purchase or has not been
redeemed from pledge, the following: (1) the originals of the
Collateral Documents for which copies are required to be delivered
to the Lender pursuant to EXHIBIT D-SF, (2) the original lender's
ALTA Policy of Title Insurance or an equivalent thereto, and (3)
any other documents relating to a Pledged Mortgage which the
Lender may request, including, without limitation, documentation
evidencing the FHA Commitment to Insure or the VA Guaranty of any
Pledged Mortgage which is either FHA insured or VA guaranteed, the
appraisal, Private Mortgage Insurance Certificate, if applicable,
the Regulation Z Statement, certificates of casualty or hazard
insurance, credit information on the maker of each such Mortgage
Note, a copy of a HUD-1 or corresponding purchase advice and other
documents of all kinds which are customarily desired for
inspection or transfer incidental to the purchase of any Mortgage
Note by an Investor and any additional documents which are
customarily executed by the seller of a Mortgage Note to an
Investor.
2.2(e) To make an Advance, the Lender shall cause the
Funding Bank to credit either the Wire Disbursement Account or the
Check Disbursement Account upon compliance by the Company with the
terms of the Loan Documents. The Lender shall determine in its
sole discretion the method by which Advances and other amounts on
deposit in the Wire Disbursement Account are disbursed by the
Funding Bank to or for the account of the Company.
2.2(f) If, pursuant to the authorization given by the
Company in the Funding Bank Agreement, for the purpose of funding
a Mortgage Loan against which the Lender has made an Advance in
accordance with a Request for Advance (i) the Lender debits the
Company's Operating Account at the Funding Bank to the extent
14
necessary to cover a wire to be initiated by the Lender, or (ii)
the Lender directs the Funding Bank to honor a check drawn by the
Company on its Check Disbursement Account at the Funding Bank, and
such debit or direction results in an overdraft, the Lender may
make an additional Advance to fund such overdraft.
2.3 NOTE. The Company's Obligations shall be evidenced by the
promissory note (the "Note") dated as of the date hereof substantially in
the form of EXHIBIT A attached hereto. The term "Note" shall include all
extensions, renewals and modifications of the Note and all substitutions
therefor. All terms and provisions of the Note are hereby incorporated
herein.
2.4 INTEREST.
2.4(a) Except as otherwise provided in Section 2.4(e)
hereof, the unpaid amount of each Advance against an Eligible Loan
shall bear interest at the rate(s) per annum set forth on EXHIBIT
M attached hereto and made a part hereof.
2.4(b) The Company is entitled to receive a benefit in
the form of an "Earnings Credit" on the portion of the Eligible
Balances maintained in time deposit accounts with a Designated
Bank, and the Company is entitled to receive a benefit in the form
of an "Earnings Allowance" on the portion of the Eligible Balances
maintained in demand deposit accounts with a Designated Bank. Any
Earnings Allowance shall be used first and any Earnings Credit
shall be used second as a credit against accrued Designated Bank
Charges, any other Miscellaneous Charges and fees, including, but
not limited to Commitment Fees and Warehousing Fees, and may be
used, at the Lender's option, to reduce accrued interest. Any
Earnings Allowance not used during the month in which the benefit
was received shall be accumulated for use and must be used within
six (6) months of the month in which the benefit was received.
Any Earnings Credit not used during the month in which the benefit
was received shall be used to provide a cash benefit to the
Company. The Lender's determination of the Earnings Credit and
the Earnings Allowance for any month shall be determined by the
Lender in its sole discretion and shall be conclusive and binding
absent manifest error. In no event shall the benefit received by
the Company exceed the Depository Benefit.
Either party hereto may terminate the benefits provided for
in this Section effective immediately upon Notice to the other
party, if the terminating party shall have determined (which
determination shall be
15
conclusive and binding absent manifest error) at any time that any
applicable law, rule, regulation, order or decree or any
interpretation or administration thereof by any governmental
authority charged with the interpretation or administration
thereof, or compliance by such party with any request or directive
(whether or not having the force of law) of any such authority,
shall make it unlawful or impossible for such party to continue to
offer or receive the benefits provided for in this Section.
2.4(c) Interest shall be computed on the basis of a
360-day year and applied to the actual number of days elapsed in
each interest calculation period and shall be payable monthly in
arrears, on the first day of each month, commencing with the first
month following the Closing Date and on the Maturity Date.
2.4(d) If, for any reason, no interest is due on an
Advance, the Company agrees to pay to the Lender an administrative
fee equal to one day of interest on such Advance at the rate of
interest applicable to such Advance, as in effect on the date of
such Advance. Administrative and other fees shall be due and
payable in the same manner as interest is due and payable
hereunder.
2.4(e) Upon Notice to the Company, after the occurrence
and during the continuation of an Event of Default, the unpaid
amount of each Advance shall bear interest until paid in full at a
per annum rate of interest (the "Default Rate") equal to four
percent (4%) in excess of the rate of interest otherwise
applicable to the Advance or, if no rate is applicable, the
highest rate then applicable to any outstanding Advances.
2.4(f) The floating rates of interest provided for in
this Agreement will be adjusted as of the effective date of each
change in the applicable index. The Lender's determination of
such rates as of any date of determination shall be conclusive and
binding, absent manifest error.
2.5 PRINCIPAL PAYMENTS.
2.5(a) The outstanding principal amount of all Advances
shall be payable in full on the Maturity Date.
2.5(b) The Company shall have the right to prepay the
outstanding Advances in whole or in part, from time to time,
without premium or penalty.
2.5(c) The Company shall pay the Lender, without
16
the necessity of prior demand or notice from the Lender, and the
Company authorizes the Lender to cause the Funding Bank to charge
the Company's Operating Account for, the amount of any outstanding
Advance against a specific Pledged Mortgage, upon the earliest
occurrence of any of the following events:
(1) One (1) Business Day elapses from the date an
Advance was made and the Pledged Mortgage which was to have
been funded by such Advance is not closed and funded.
(2) Ten (10) Business Days elapse from the date a
Collateral Document was delivered to the Company for
correction or completion under a Trust Receipt, if such
Collateral Document has not been returned to the Lender.
(3) On the date on which a Pledged Mortgage is
determined to have been originated based on untrue,
incomplete or inaccurate information, whether or not the
Company had knowledge of such misrepresentation or
incorrect information, or the Pledged Mortgage is defaulted
and remains in default for a period of 60 days or more.
(4) If the outstanding Advances against Pledged
Mortgages of a specific Mortgage Loan type exceed the
aggregate Purchase Commitments for such Mortgage Loan type.
(5) For a Mortgage Loan covered by a Purchase
Commitment at the time pledged hereunder, 3 Business Days
after the mandatory delivery date of the related Purchase
Commitment and the specific Pledged Mortgage or the Pledged
Security backed thereby was not delivered under the
Purchase Commitment prior to such mandatory delivery date,
or the Purchase Commitment is terminated; unless in each
case, such Pledged Mortgage or Pledged Security is eligible
for delivery to an Investor under a comparable Purchase
Commitment acceptable to the Lender.
(6) Upon sale or other disposition of the Pledged
Mortgage or, if a Pledged Mortgage is included in an
Eligible Mortgage Pool, upon sale or other disposition of
the related Agency Security.
(7) On the date on which the Company knows, or
has reason to know, or receives notice from the Lender,
that one or more of the representations and warranties set
forth in Section 5.15 were
17
inaccurate or incomplete in any material respect on any
date when made or deemed made.
2.5(d) Upon Notice to the Company by the Lender, the
Company shall pay to the Lender, and the Company authorizes the
Lender to cause the Funding Bank to charge the Company's Operating
Account for, the amount of any outstanding Advance against a
specific Pledged Mortgage upon the earliest occurrence of any of
the following events:
(1) For any Pledged Mortgage, the Warehouse
Period elapses.
(2) On the date the payment of a Lien prior to a
Pledged Mortgage is delinquent for a period of 60 days.
(3) Forty-five (45) days elapse from the date the
Pledged Mortgage was delivered to an Investor or an
Approved Custodian for examination and purchase or
inclusion in a Mortgage Pool, without the purchase being
made or an Eligible Mortgage Pool being initially
certified, or upon rejection of the Pledged Mortgage as
unsatisfactory by an Investor or an Approved Custodian.
(4) Seven (7) Business Days elapse from the date
a Wet Settlement Advance was made without receipt by the
Lender of all Collateral Documents relating to such Pledged
Mortgage, or such Collateral Documents, upon examination by
the Lender, are found not to be in compliance with the
requirements of this Agreement or the related Purchase
Commitment.
(5) With respect to any Pledged Mortgage, any of
the items described in Section 2.2(d), upon examination by
the Lender, are found not to be in compliance with the
requirements of this Agreement or the related Purchase
Commitment.
2.5(e) The outstanding amount of any Advance made
pursuant to Section 2.2(f) shall be payable in full within one (1)
Business Day after the date of such Advance.
2.5(f) In addition to the payments required pursuant to
Sections 2.5(c) and 2.5(d), if the principal amount of any Pledged
Mortgage is prepaid in whole or in part while an Advance is
outstanding against such Pledged Mortgage, the Company shall be
obligated to pay to the Lender, without the necessity of prior
demand or
18
notice from the Lender, and the Company authorizes the Lender to
cause the Funding Bank to charge the Company's Operating Account
for the amount of such prepayment, to be applied to such Advance.
2.5(g) The proceeds of the sale or other disposition of
Pledged Mortgages and Pledged Securities shall be paid directly by
the Investor to the Cash Collateral Account. The Company shall
give Notice to the Lender (telephonically, to be followed by
written notice or via RFConnects Delivery) of the Pledged
Mortgages or Pledged Securities for which proceeds have been
received. Upon receipt of such Notice the Advances against such
Pledged Mortgages or Pledged Securities shall be repaid from such
proceeds and such Pledged Mortgages or Pledged Securities shall be
considered to have been redeemed from pledge. The Lender is
entitled to rely upon the Company's affirmation that deposits in
the Cash Collateral Account represent payment from Investors for
the purchase of Pledged Mortgages or Pledged Securities as
specified by the Company. In the event that the payment from an
Investor for the purchase of Pledged Mortgages or Pledged
Securities is less than the outstanding Advances against such
Pledged Mortgages or the Mortgage Loans backing Pledged
Securities, the Lender is authorized to cause the Funding Bank to
charge the Company's Operating Account for an amount equal to such
deficiency. Provided no Default or Event of Default exists, the
Lender shall return any excess payment from an Investor for
Pledged Mortgages or Pledged Securities to the Company.
2.6 EXPIRATION OF COMMITMENT. The Commitment shall expire on
the Maturity Date.
2.7 METHOD OF MAKING PAYMENTS.
2.7(a) Except as otherwise specifically provided herein,
all payments hereunder shall be made to the Lender not later than
the close of business on the date when due unless such date is a
non-Business Day, in which case, such payment shall be due on the
first Business Day thereafter, and shall be made in lawful money
of the United States of America in immediately available funds
transferred via wire to accounts designated by the Lender from
time to time.
2.7(b) After the occurrence and during the continuance of
an Event of Default, and without the necessity of prior demand or
notice from the Lender, the Company authorizes the Lender to cause
the Funding Bank to charge the Company's Operating Account for any
Obligations due and owing the Lender.
19
2.7(c) All payments of interest and fees
hereunder shall be made by means of a direct debit by the Lender to the
Operations Account, to the extent of funds available therein. The Lender shall
provide the Company with an account analysis statement showing such interest and
fees no later than the date of such debit.
2.8 COMMITMENT FEES. The Company agrees to pay to the Lender a
Commitment Fee in the amount of 0.25% per annum of the Commitment Amount
which Commitment Fee shall be paid quarterly in advance and shall be
computed on the basis of a 365-day year and applied to the actual number
of days elapsed in such Calendar Quarter; provided, that the first eight
(8) payments of the Commitment Fee (if the Commitment is extended for a
sufficient period) shall be reduced by $17,500 each. On the Closing
Date, the Company shall pay the prorated portion of the quarterly
Commitment Fee due from the Closing Date to the last day of the current
Calendar Quarter. Thereafter, the Company shall make quarterly payments
of the Commitment Fee on the first (1st) day of each Calendar Quarter.
If the Maturity Date is other than the last day of a Calendar Quarter,
the Company shall pay the prorated portion of the quarterly Commitment
Fee due from the beginning of the then current Calendar Quarter to and
including the Maturity Date. The Company shall not be entitled to a
reduction in the amount of the Commitment Fee, in the event the
Commitment Amount is reduced or in the event that the Commitment is
terminated at the request of the Company or as a result of an Event of
Default. If the Commitment terminates as a result of an Event of
Default, the unpaid balance of the Commitment Fee shall be due and
payable in full on the date of such termination.
2.9 WAREHOUSING FEES. The Company agrees, at the time of each
Advance, to pay to the Lender a Warehousing Fee in the amount of $20.00
for each Mortgage Loan pledged as Collateral for such Advance.
Warehousing Fees are due when incurred, but shall not be delinquent if
paid within 15 days after receipt of an invoice or an account analysis
statement from the Lender.
2.10 MISCELLANEOUS CHARGES. The Company agrees to reimburse the
Lender for miscellaneous charges and expenses (collectively,
"Miscellaneous Charges") incurred by or on behalf of the Lender in
connection with the handling and administration of Advances, and to
reimburse the Lender for Miscellaneous Charges incurred by or on behalf
of the Lender in connection with the handling and administration of the
Collateral. For the purposes hereof, Miscellaneous Charges shall
include, but not be limited to, costs for UCC, tax lien and judgment
searches conducted by the Lender, filing fees, charges for wire
transfers, check processing charges, charges
20
for security delivery fees, charges for overnight delivery of Collateral
to Investors, the Funding Bank's service fees and overdraft charges and
Designated Bank Charges. Miscellaneous Charges are due when incurred,
but shall not be delinquent if paid within 15 days after receipt of an
invoice or an account analysis statement from the Lender.
2.11 INTEREST LIMITATION. All agreements between the Company and
the Lender are hereby expressly limited so that in no contingency or
event whatsoever, whether by reason of acceleration of maturity of this
Agreement or the Note or otherwise, shall the amount paid or agreed to be
paid to the Lender for the use, forbearance, loaning or retention of the
Advances secured by this Agreement exceed the maximum permissible under
applicable law. If from any circumstances whatsoever, fulfillment of any
provisions hereof or of the Note, or any other document securing this
Agreement at any time given shall involve transcending the limit of
validity prescribed by law, then, the obligation to be fulfilled shall
automatically be reduced to the limit of such validity, and if from any
circumstances the Lender should ever receive as interest an amount which
would exceed the highest lawful rate of interest, such amount which would
be in excess of interest shall be applied to the reduction of the
principal balance secured by the Note and not to the payment of interest
thereunder. This provision shall control every other provision of all
agreements between the Company and Lender and shall also be binding upon
and available to any subsequent holder of the Note.
2.12 INCREASED COSTS; CAPITAL REQUIREMENTS. In the event any
applicable law, order, regulation or directive issued by any governmental
or monetary authority, or any change therein or in the governmental or
judicial interpretation or application thereof, or compliance by the
Lender with any request or directive (whether or not having the force of
law) by any governmental or monetary authority:
2.12(a) Does or shall subject the Lender to any tax of any
kind whatsoever with respect to this Agreement or any Advances
made hereunder, or change the basis of taxation on payments to the
Lender of principal, fees, interest or any other amount payable
hereunder (except for change in the rate of tax on the overall
gross or net income of the Lender by the jurisdiction in which the
Lender's principal office is located);
2.12(b) Does or shall impose, modify or hold applicable
any reserve, capital requirement, special deposit, compulsory loan
or similar requirement against assets held by, or deposits or
other liabilities in or for the account of, advances or loans by,
or other
21
credit extended by, or any other acquisition of funds by, any
office of the Lender which are not otherwise included in the
determination of the interest rate as calculated hereunder;
and the result of any of the foregoing is to increase the cost to the
Lender of making, renewing or maintaining any Advance or to reduce any
amount receivable in respect thereof or to reduce the rate of return on
the capital of the Lender or any Person controlling the Lender as it
relates to credit facilities in the nature of that evidenced by this
Agreement, then, in any such case, the Company shall promptly pay any
additional amounts necessary to compensate the Lender for such additional
cost or reduced amounts receivable or reduced rate of return as
determined by the Lender with respect to this Agreement or Advances made
hereunder. If the Lender becomes entitled to claim any additional
amounts pursuant to this Section, it shall notify the Company of the
event by reason of which it has become so entitled and the Company shall
pay such amount within 15 days thereafter. A certificate as to any
additional amount payable pursuant to the foregoing sentence containing
the calculation thereof in reasonable detail submitted by the Lender to
the Company shall be conclusive in the absence of manifest error. The
obligations of the Company under this Section shall survive the payment
of all other Obligations and the termination of this Agreement.
3. COLLATERAL.
3.1 GRANT OF SECURITY INTEREST. As security for the payment of
the Note and for the performance of all of the Company's Obligations, the
Company hereby assigns and transfers to the Lender all right, title and
interest in and to and grants a security interest to the Lender in the
following described property (the "Collateral"):
3.1(a) All Mortgage Loans, including all Mortgage Notes
and Mortgages evidencing or securing such Mortgage Loans, which
from time to time are delivered or caused to be delivered to the
Lender (including delivery to a third party on behalf of the
Lender), come into the possession, custody or control of the
Lender for the purpose of assignment or pledge or in respect of
which an Advance has been made by the Lender hereunder, including
without limitation all Mortgage Loans in respect of which Wet
Settlement Advances have been made by the Lender (the "Pledged
Mortgages").
3.1(b) All Mortgage-backed Securities which are from time
to time created in whole or in part on the basis of the Pledged
Mortgages or are delivered or caused to be delivered to, or are
otherwise in the possession of the Lender or its agent, bailee or
22
custodian as assignee, or pledged to the Lender, or for such
purpose are registered by book-entry in the name of the Lender
(including delivery to or registration in the name of a third
party on behalf of the Lender) hereunder or in respect of which
from time to time an Advance has been made by the Lender hereunder
(the "Pledged Securities").
3.1(c) All private mortgage insurance and all commitments
issued by the FHA or VA to insure or guarantee any Mortgage Loans
included in the Pledged Mortgages; all Purchase Commitments held
by the Company covering the Pledged Mortgages or the Pledged
Securities and all proceeds resulting from the sale thereof to
Investors pursuant thereto; and all personal property, contract
rights, servicing and servicing fees and income or other proceeds,
amounts and payments payable to the Company as compensation or
reimbursement, accounts, payments, intangibles and other general
intangibles of whatsoever kind relating to the Pledged Mortgages,
the Pledged Securities, said FHA commitments or VA commitments and
the Purchase Commitments, and all other documents or instruments
relating to the Pledged Mortgages and the Pledged Securities,
including, without limitation, any interest of the Company in any
fire, casualty or hazard insurance policies and any awards made by
any public body or decreed by any court of competent jurisdiction
for a taking or for degradation of value in any eminent domain
proceeding as the same relate to the Pledged Mortgages.
3.1(d) All right, title and interest of the Company in
and to all escrow accounts, documents, instruments, files,
surveys, certificates, correspondence, appraisals, computer
programs, tapes, discs, cards, accounting records (including all
information, records, tapes, data, programs, discs and cards
necessary or helpful in the administration or servicing of the
Collateral) and other information and data of the Company relating
to the Collateral.
3.1(e) All right, title and interest of the Company in
and to any Hedging Arrangements entered into to protect the
Company against changes in the value of Pledged Mortgages or
Pledged Securities, including, without limitation, all rights to
payment arising under such Hedging Arrangements.
3.1(f) All now existing or hereafter acquired cash
delivered to or otherwise in the possession of the Lender, the
Funding Bank, or the Lender's agent, bailee or custodian or
designated on the books and records of the Company as assigned and
pledged to the Lender.
23
3.1(g) All cash and non-cash proceeds of the Collateral,
including all dividends, distributions and other rights in
connection with, and all additions to, modifications of and
replacements for, the Collateral, and all products and proceeds of
the Collateral, together with whatever is receivable or received
when the Collateral or proceeds thereof are sold, collected,
exchanged or otherwise disposed of, whether such disposition is
voluntary or involuntary, including, without limitation, all
rights to payment with respect to any cause of action affecting or
relating to the Collateral or proceeds thereof.
3.2 RELEASE OF SECURITY INTEREST IN COLLATERAL.
3.2(a) Pledged Mortgages shall be released from the
Lender's security interest only against payment to the Lender of
the Release Amount in connection with such Pledged Mortgages.
3.2(b) If Pledged Mortgages are to be transferred to a
pool custodian or to Xxxxxxx Mac or Xxxxxx Mae for inclusion in a
Mortgage Pool, the Lender's security interest in such Pledged
Mortgages shall be released only against payment to the Lender of
the Release Amount in connection with such Pledged Mortgages. If
the Lender's security interest in the Pledged Mortgages comprising
the Mortgage Pool is not released prior to the issuance of the
Mortgage-backed Security, then the Mortgage-backed Security, when
issued, shall be a Pledged Security. The Lender's security
interest shall continue in such Pledged Mortgages and the Pledged
Security. The Lender shall be entitled to possession of such
Pledged Security in the manner provided below.
3.2(c) If Pledged Mortgages are transferred to an
Approved Custodian and included in an Eligible Mortgage Pool, the
Lender's security interest in the Pledged Mortgages comprising the
Eligible Mortgage Pool shall be released upon the issuance of the
Agency Security, which shall be a Pledged Security. The Lender's
security interest in such Pledged Security shall be released only
against payment to the Lender of the Release Amount in connection
with the Pledged Mortgages backing such Pledged Security. The
Lender shall be entitled to possession of such Pledged Security in
the manner provided below.
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3.2(d) The Lender shall have the exclusive right to the
possession of the Pledged Securities or, if the Pledged Securities
are issued in book-entry form or issued in certificated form and
delivered to a clearing corporation (as such term is defined in
the Uniform Commercial Code of Minnesota) or its nominee, the
Lender shall have the right to have the Pledged Securities
registered in the name of a securities intermediary (as such term
is defined in the Uniform Commercial Code of Minnesota) in an
account containing only customer securities and credited to an
account of the Lender. The Lender shall have the right to cause
delivery of the Pledged Securities to be made to the Investor or
the Pledged Securities credited to the account of the Investor or
the Investor's designee only against payment therefor. The
Company acknowledges that the Lender may enter into one or more
standing arrangements with other financial institutions with
respect to Pledged Securities issued in book entry form or issued
in certificated form and delivered to a clearing corporation,
pursuant to which such Pledged Securities are registered in the
name of such financial institution, as agent or securities
intermediary for the Lender, and the Company agrees upon request
of the Lender to execute and deliver to such other financial
institutions the Company's written concurrence in any such
standing arrangements.
3.2(e) Prior to the occurrence of an Event of Default,
the Company may redeem a Pledged Mortgage or Pledged Security from
the Lender's security interest by notifying the Lender of its
intention to redeem such Pledged Mortgage or Pledged Security from
pledge and either (a) paying, or causing an Investor to pay, to
the Lender, for application to prepayment of the principal balance
of the Note, the Release Amount in connection with such Pledged
Mortgage or Pledged Security, or (b) delivering substitute
Collateral which, in addition to being acceptable to the Lender in
its sole discretion will, when included with the Collateral,
result in a Collateral Value of all Collateral held by the Lender
which is at least equal to the aggregate outstanding Advances.
3.2(f) Following the occurrence of a Default or Event of
Default, the Lender may, with no liability to the Company or any
Person, continue to release its security interest in any Pledged
Mortgage or Pledged Security against payment of the Release Amount
in connection with such Pledged Mortgage or Pledged Security.
3.2(g) The amount (the "Release Amount") to be
25
paid by the Company to obtain the release of the Lender's security
interest in a Pledged Mortgage shall be (i) prior to the
occurrence of an Event of Default, the principal amount of the
Advances made against such Pledged Mortgage, and (ii) from and
after the occurrence and during the continuance of an Event of
Default, the Committed Purchase Price of such Pledged Mortgage or,
if there is no Purchase Commitment therefor, the amount paid to
the Lender in a commercially reasonable disposition thereof.
3.3 DELIVERY OF ADDITIONAL COLLATERAL OR MANDATORY PREPAYMENT.
At any time that the aggregate Collateral Value of the Pledged Mortgages
and Pledged Securities then pledged hereunder is less than the aggregate
amount of the Advances then outstanding hereunder, the Lender may
request, and the Company shall within 2 Business Days after Notice by the
Lender (a) deliver to the Lender for pledge hereunder additional Mortgage
Loans and/or cash, with a Collateral Value sufficient to cover the
difference between the Collateral Value of the Pledged Mortgages and
Pledged Securities pledged and the aggregate amount of Advances
outstanding hereunder, and/or (b) repay the Advances in an amount
sufficient to reduce the aggregate balance thereof outstanding to or
below the Collateral Value of the Pledged Mortgages and Pledged
Securities pledged hereunder.
3.4 RELEASE OF COLLATERAL.
3.4(a) The Lender may deliver documents relating to the
Collateral to the Company for correction or completion pursuant to
a Trust Receipt.
3.4(b) Prior to the occurrence of a Default or Event of
Default, upon delivery by the Company to the Lender of shipping
instructions pursuant to EXHIBIT D-SF, the Lender will transmit
Pledged Mortgages or Pledged Securities and all related loan
documents or pool documents to the applicable Investor, Approved
Custodian or other party.
3.4(c) Upon receipt of Notice from the Company under
Section 2.5(g) hereof, and repayment of the Release Amount with
respect to a Pledged Mortgage identified by the Company, any
Collateral Documents relating to the redeemed Pledged Mortgage or
Mortgage Loan backing a Pledged Security which have not been
delivered to an Investor or Approved Custodian shall be released
by the Lender to the Company.
26
3.5 COLLECTION AND SERVICING RIGHTS. So long as no Event of
Default shall have occurred and be continuing, the Company shall be
entitled to service and receive and collect directly all sums payable to
the Company in respect of the Collateral other than proceeds of any
Purchase Commitment or proceeds of the sale of any Collateral. Following
the occurrence of any Event of Default, the Lender or its designee shall
thereafter be entitled to service and receive and collect all sums
payable to the Company in respect of the Collateral, and in such case (a)
the Lender or its designee in its discretion may, in its own name, in the
name of the Company or otherwise, demand, xxx for, collect or receive any
money or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to
do so, (b) the Company shall, if the Lender so requests, hold in trust
for the benefit of the Lender and forthwith pay to the Lender at its
office designated by Notice hereunder, all amounts thereafter received by
the Company upon or in respect of any of the Collateral, advising the
Lender as to the source of such funds, and (c) all amounts so received
and collected by the Lender shall be held by it as part of the
Collateral.
3.6 RETURN OF COLLATERAL AT END OF COMMITMENT. If (a) the
Commitment shall have expired or been terminated, and (b) no Advances,
interest or other Obligations shall be outstanding and unpaid, the Lender
shall deliver or release its security interest and shall deliver all
Collateral in its possession to the Company at the Company's expense.
The receipt of the Company for any Collateral released or delivered to
the Company pursuant to any provision of this Agreement shall be a
complete and full acquittance for the Collateral so returned, and the
Lender shall thereafter be discharged from any liability or
responsibility therefor.
4. CONDITIONS PRECEDENT.
4.1 INITIAL ADVANCE. The obligation of the Lender to make the
initial Advance under this Agreement is subject to the satisfaction, in
the sole discretion of the Lender, on or before the date thereof of the
following conditions precedent:
4.1(a) The Lender shall have received the following, all
of which must be satisfactory in form and content to the Lender,
in its sole discretion:
(1) The Note and this Agreement duly executed by
the Company.
(2) The Company's articles or certificate of
incorporation as certified by the Secretary of State of the
Company's incorporation, bylaws
27
certified by the corporate secretary of the Company, or a
Certificate of the Company stating that there has been no
change in either the articles or certificate of
incorporation or bylaws since those delivered in connection
with the Existing Agreement, and certificates of good
standing dated no less recently than 90 days prior to the
date of this Agreement and a certification from the
Franchise Tax Board of the State of California stating that
the Company is in good standing with the Franchise Tax
Board.
(3) A resolution of the board of directors of the
Company, certified as of the date of this Agreement by its
corporate secretary, authorizing the execution, delivery
and performance of this Agreement and the other Loan
Documents, and all other instruments or documents to be
delivered by the Company pursuant to this Agreement.
(4) A certificate of the Company's corporate
secretary as to the incumbency and authenticity of the
signatures of the officers of the Company executing this
Agreement and the other Loan Documents and each Advance
Request and all other instruments or documents to be
delivered pursuant hereto (the Lender being entitled to
rely thereon until a new such certificate has been
furnished to the Lender).
(5) Financial statements of the Company (and, if
applicable, its Subsidiaries, on a consolidated basis)
containing a balance sheet as of April 30, 1999 and related
statements of income, changes in stockholders' equity and
cash flows for the period ended on such date, all prepared
in accordance with GAAP applied on a basis consistent with
prior periods and audited by independent certified public
accountants of recognized standing acceptable to the Lender
and containing a footnote concerning a subsequent cash
equity investment of $6,000,000 or more.
(6) Financial statements of the Company (and, if
applicable, its Subsidiaries, on a consolidated basis)
containing a balance sheet as of May 31, 1999 and June 30,
1999, related statements of income and changes in
stockholders' equity for the period ended on such date
prepared in accordance with GAAP applied on a basis
consistent with the Company's most recent audited financial
statements.
(7) The Guaranty, in the form attached hereto
28
as EXHIBIT B, duly executed by the Guarantor.
(8) Copies of the Guarantor's articles or
certificate of incorporation as certified by the Secretary
of State of the State of Guarantor's incorporation and
bylaws, and certificates of good standing issued by the
Secretary of State dated no less recently than 90 days
prior to the date of this Agreement.
(9) A resolution of the board of directors of the
Guarantor, certified as of the date of the Agreement by its
corporate secretary, authorizing the execution, delivery
and performance of the Guaranty, and all other instruments
or documents to be delivered by the Guarantor pursuant to
this Agreement.
(10) A certificate of the Guarantor's corporate
secretary as to the incumbency and authenticity of the
signatures of the officers of the Guarantor executing the
Guaranty and all other instruments or documents to be
delivered pursuant hereto (the Lender being entitled to
rely thereon until a new such certificate has been
furnished to the Lender).
(11) Financial statements of the Guarantor
containing a balance sheet as of April 30, 1999 and related
statements of income, changes in stockholders' equity and
cash flows for the period ended on the above date, all
prepared in accordance with GAAP applied on a basis
consistent with prior periods and audited by independent
certified public accountants of recognized standing
acceptable to the Lender, and containing a footnote
concerning a subsequent cash equity investment of
$13,000,000 or more.
(12) Financial statements of the Guarantor
containing a balance sheet as of May 31, 1999, and related
statements of income, changes in stockholders' equity and
cash flows for the period ended on the above date, all
prepared in accordance with GAAP applied on a basis
consistent with prior periods and reviewed by independent
certified public accountants of recognized standing
acceptable to the Lender.
(13) A favorable written opinion of counsel to the
Company and the Guarantor (or of separate counsel at the
option of the Company and the Guarantor), dated as of the
date of this Agreement
29
substantially in the form of EXHIBIT H attached hereto,
addressed to the Lender.
(14) Uniform Commercial Code, tax lien and
judgment searches of the appropriate public records for the
Company and the Guarantor, which searches shall not have
disclosed the existence of any prior Lien on the Collateral
other than in favor of the Lender or as permitted
hereunder.
(15) Copies of the certificates, documents or
other written instruments which evidence the Company's
eligibility described in Section 5.13 hereof, all in form
and substance satisfactory to the Lender.
(16) Copies of the Company's errors and omissions
insurance policy or mortgage impairment insurance policy
and blanket bond coverage policy, or certificates in lieu
of policies, all in form and content satisfactory to the
Lender, showing compliance by the Company as of the date of
this Agreement with the related provisions of Section 6.8
hereof.
(17) Executed financing statements in recordable
form covering the Collateral and ready for filing in all
jurisdictions required by the Lender.
(18) Receipt by the Lender of any fees due on the
date hereof, including, but not limited to, Commitment Fees
and document production fees.
(19) Evidence that all accounts necessary into
which Advances will be funded have been established at the
Funding Bank and receipt of a fully executed Funding Bank
Agreement.
4.1(b) All directors, officers and shareholders of the
Company, all Affiliates of the Company or of any Subsidiary of the
Company, and the Guarantor, to whom or to any of whom the Company
shall be indebted as of the date of this Agreement, which
indebtedness has a term of more than one (1) year or is in excess
of $100,000 shall have subordinated such indebtedness to the
Obligations, by executing a Subordination of Debt Agreement, in
the form of EXHIBIT F hereto; and the Lender shall have received
an executed copy of any such Subordination of Debt Agreement,
certified by the corporate secretary of the Company to be true and
complete and in full force and effect as of the date of the
Advance.
30
4.2 EACH ADVANCE. The obligation of the Lender to make the
initial and each subsequent Advance under this Agreement is subject to
the satisfaction, in the sole discretion of the Lender, as of the date of
each such Advance, of the following additional conditions precedent:
4.2(a) The Company shall have delivered to the Lender the
Advance Request, Collateral Documents, and documents relating to
Wet Settlement Advances, called for under, and shall have
satisfied the procedures set forth in, Section 2.2 hereof and the
applicable Exhibits hereto described in that Section, according to
the type of the requested Advance. All items delivered to the
Lender shall be satisfactory to the Lender in form and content,
and the Lender may reject such of them as do not meet the
requirements of this Agreement or of the related Purchase
Commitment.
4.2(b) The Lender shall have received evidence
satisfactory to it as to the making and/or continuation of any
book entry or the due filing and recording in all appropriate
offices of all financing statements and other instruments as may
be necessary to perfect the security interest of the Lender in the
Collateral under the Uniform Commercial Code or other applicable
law.
4.2(c) The representations and warranties of the Company
contained in Article 5 hereof shall be accurate and complete in
all material respects as if made on and as of the date of each
Advance.
4.2(d) The Company shall have performed all agreements to
be performed by it hereunder, and after giving effect to the
requested Advance, there shall exist no Default or Event of
Default hereunder.
4.2(e) The Guarantor shall have performed all agreements
to be performed by the Guarantor under the Guaranty.
4.2(f) The Company shall not have incurred any material
liabilities, direct or contingent, other than in the ordinary
course of its business, since the Statement Date.
4.2(g) The Lender shall have received from counsel for
the Company or for the Guarantor or both, if requested by the
Lender in its sole discretion, an updated opinion, in form and
substance satisfactory to the Lender, addressed to the Lender and
dated as of the date of such Advance, covering such of the matters
as the Lender may reasonably request.
31
Delivery of an Advance Request by the Company shall be deemed a
representation by the Company that all conditions set forth in this
Section 4.2 shall have been satisfied as of the date of such Advance.
5. REPRESENTATIONS AND WARRANTIES.
The Company hereby represents and warrants to the Lender, as of
the date of this Agreement and as of the date of each Advance Request and
the making of each Advance, that:
5.1 ORGANIZATION; GOOD STANDING; SUBSIDIARIES. The Company and
each Subsidiary of the Company is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, has the full legal power and authority to own its property
and to carry on its business as currently conducted and is duly qualified
as a foreign corporation to do business and is in good standing in each
jurisdiction in which the transaction of its business makes such
qualification necessary, except in jurisdictions, if any, where a failure
to be in good standing has no material adverse effect on the business,
operations, assets or financial condition of the Company or any such
Subsidiary. For the purposes hereof, good standing shall include
qualification for any and all licenses and payment of any and all taxes
required in the jurisdiction of its incorporation and in each
jurisdiction in which the Company transacts business. The Company has no
Subsidiaries except as set forth on EXHIBIT G hereto. EXHIBIT G sets
forth with respect to each such Subsidiary, its name, address, place of
incorporation, each state in which it is qualified as a foreign
corporation, and the percentage ownership of its capital stock by the
Company.
5.2 AUTHORIZATION AND ENFORCEABILITY. The Company has the
power and authority to execute, deliver and perform this Agreement, the
Note and all other Loan Documents to which the Company is party and to
make the borrowings hereunder. The Guarantor has the power and legal
capacity to execute, deliver and perform the Guaranty. The execution,
delivery and performance by the Company of this Agreement, the Note and
all other Loan Documents to which the Company is party and the making of
the borrowings hereunder and thereunder, have been duly and validly
authorized by all necessary corporate action on the part of the Company
(none of which actions has been modified or rescinded, and all of which
actions are in full force and effect) and do not and will not conflict
with or violate any provision of law, of any judgments binding upon the
Company, or of the articles of incorporation or by-laws of the Company,
conflict with or result in a breach of or constitute a default or require
any consent under, or result in the creation of any Lien upon any
property or assets of the Company other than the Lien on the Collateral
granted
32
hereunder, or result in or require the acceleration of any indebtedness
of the Company pursuant to any agreement, instrument or indenture to
which the Company is a party or by which the Company or its property may
be bound or affected. This Agreement, the Note and all other Loan
Documents contemplated hereby or thereby constitute legal, valid, and
binding obligations of the Company or of the Guarantor, respectively,
enforceable in accordance with their respective terms, except as limited
by bankruptcy, insolvency or other such laws affecting the enforcement of
creditors' rights and by general principles of equity.
5.3 APPROVALS. The execution and delivery of this Agreement,
the Note and all other Loan Documents and the performance of the
Company's obligations hereunder and thereunder and the validity and
enforceability hereof and thereof do not require any license, consent,
approval or other action of any state or federal agency or governmental
or regulatory authority other than those which have been obtained and
remain in full force and effect.
5.4 FINANCIAL CONDITION. The balance sheet of the Company
(and, if applicable, its Subsidiaries, on a consolidated basis) as of the
Statement Date, and the related statements of income and changes in
stockholders' equity for the fiscal period ended on the Statement Date,
heretofore furnished to the Lender, fairly present the financial
condition of the Company (and its Subsidiaries) as of the Statement Date
and the results of its operations for the fiscal period ended on the
Statement Date. The Company had, on the Statement Date, no known
material liabilities, direct or indirect, fixed or contingent, matured or
unmatured, or liabilities for taxes, long-term leases or unusual forward
or long-term commitments not disclosed by, or reserved against in, said
balance sheet and related statements, and at the present time there are
no material unrealized or anticipated losses from any loans, advances or
other commitments of the Company except as heretofore disclosed to the
Lender in writing. Said financial statements were prepared in accordance
with GAAP applied on a consistent basis throughout the periods involved.
Since the Statement Date, there has been no material adverse change in
the business, operations, assets or financial condition of the Company
(and its Subsidiaries), nor is the Company aware of any state of facts
which (with or without notice or lapse of time or both) would or could
result in any such material adverse change.
33
5.5 LITIGATION. There are no actions, claims, suits or
proceedings pending or, to the knowledge of the Company, threatened or
reasonably anticipated against or affecting the Company or any Subsidiary
of the Company in any court or before any arbitrator or before any
government commission, board, bureau or other administrative agency
which, if adversely determined, may reasonably be expected to result in
any material and adverse change in the business, operations, assets or
financial condition of the Company as a whole, or which would affect the
validity or enforceability of this Agreement, the Note or any other Loan
Document.
5.6 COMPLIANCE WITH LAWS. Neither the Company nor any
Subsidiary of the Company is in violation of any provision of any law, or
of any judgment, award, rule, regulation, order, decree, writ or
injunction of any court or public regulatory body or authority which
might have a material adverse effect on the business, operations, assets
or financial condition of the Company as a whole or which would affect
the validity or enforceability of this Agreement, the Note or any other
Loan Document.
5.7 REGULATION U. The Company is not engaged principally, or
as one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no part of
the proceeds of any Advances made hereunder will be used to purchase or
carry any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock.
5.8 INVESTMENT COMPANY ACT. The Company is not an "investment
company" or controlled by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
5.9 PAYMENT OF TAXES. The Company and each of its Subsidiaries
has filed or caused to be filed all federal, state and local income,
excise, property and other tax returns with respect to the operations of
the Company and its Subsidiaries which are required to be filed, all such
returns are true and correct, and the Company and each of its
Subsidiaries has paid or caused to be paid all taxes as shown on such
returns or on any assessment, to the extent that such taxes have become
due, including, but not limited to, all FICA payments and withholding
taxes, if appropriate. The amounts reserved, as a liability for income
and other taxes payable, in the financial statements described in Section
5.4 hereof are sufficient for payment of all unpaid federal, state and
local income, excise, property and other taxes, whether or not disputed,
of the Company and its Subsidiaries accrued for or applicable to the
period and on the dates of such financial statements and all years and
periods prior thereto and for which the Company and its Subsidiaries may
be liable in its
34
own right or as transferee of the assets of, or as successor to, any
other Person. No tax Liens have been filed and no material claims are
being asserted with respect to any such taxes, fees or charges.
5.10 AGREEMENTS. Neither the Company nor any Subsidiary of the
Company is a party to any agreement, instrument or indenture or subject
to any restriction materially and adversely affecting its business,
operations, assets or financial condition, except as disclosed in the
financial statements described in Section 5.4 hereof. Neither the
Company nor any Subsidiary of the Company is in default in the
performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement, instrument, or
indenture which default could have a material adverse effect on the
business, operations, properties or financial condition of the Company as
a whole. No holder of any indebtedness of the Company or of any of its
Subsidiaries has given notice of any asserted default thereunder, and no
liquidation or dissolution of the Company or of any of its Subsidiaries
and no receivership, insolvency, bankruptcy, reorganization or other
similar proceedings relative to the Company or of any of its Subsidiaries
or any of its properties is pending, or to the knowledge of the Company,
threatened.
5.11 TITLE TO PROPERTIES. The Company and each Subsidiary of
the Company has good, valid, insurable (in the case of real property) and
marketable title to all of its properties and assets (whether real or
personal, tangible or intangible) reflected on the financial statements
described in Section 5.4 hereof, except for such properties and assets as
have been disposed of since the date of such financial statements as no
longer used or useful in the conduct of its business or as have been
disposed of in the ordinary course of business, and all such properties
and assets are free and clear of all Liens except as disclosed in such
financial statements.
5.12 ERISA. All plans ("Plans") of a type described in Section
3(3) of ERISA in respect of which the Company or any Subsidiary of the
Company is an "Employer," as defined in Section 3(5) of ERISA, are in
substantial compliance with ERISA, and none of such Plans is insolvent or
in reorganization, has an accumulated or waived funding deficiency within
the meaning of Section 412 of the Internal Revenue Code, and neither the
Company nor any Subsidiary of the Company has incurred any material
liability (including any material contingent liability) to or on account
of any such Plan pursuant to Sections 4062, 4063, 4064, 4201 or 4204 of
ERISA; and no proceedings have been instituted to terminate any such
Plan, and no condition exists which presents a material risk to the
Company or a Subsidiary of the Company of
35
incurring a liability to or on account of any such Plan pursuant to any
of the foregoing Sections of ERISA. No Plan or trust forming a part
thereof has been terminated since September 1, 1974.
5.13 ELIGIBILITY. The Company is approved and qualified and in
good standing as a lender or seller/servicer, as set forth below, and
meets all requirements applicable to its status as such:
5.13(a) Xxxxxx Xxx approved seller/servicer of Mortgage
Loans, eligible to originate, purchase, hold, sell, and service
Mortgage Loans to be sold to Xxxxxx Mae.
5.13(b) Xxxxxxx Mac approved seller/servicer of Mortgage
Loans, eligible to originate, purchase, hold, sell and service
Mortgage Loans to be sold to Xxxxxxx Mac.
5.13(c) HUD approved mortgagee.
5.13(d) RFC approved seller/servicer of Mortgage Loans,
eligible to originate, purchase, hold, sell and service Mortgage
Loans to be sold to RFC.
5.14 PLACE OF BUSINESS. The principal place of business of the
Company is 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000.
5.15 SPECIAL REPRESENTATIONS CONCERNING COLLATERAL. The Company
hereby represents and warrants to the Lender, as of the date of this
Agreement and as of the date of each Advance Request and the making of
each Advance, that:
5.15(a) The Company is the legal and equitable owner and
holder, free and clear of all Liens (other than Liens granted
hereunder), of the Pledged Mortgages and the Pledged Securities.
All Pledged Mortgages, Pledged Securities and Purchase Commitments
have been duly authorized and validly issued to the Company, and
all of the foregoing items of Collateral comply with all of the
requirements of this Agreement, and have been and will continue to
be validly pledged or assigned to the Lender, subject to no other
Liens.
5.15(b) The Company has, and will continue to have, the
full right, power and authority to pledge the Collateral pledged
and to be pledged by it hereunder.
5.15(c) Any Mortgage Loan and any related document
included in the Pledged Mortgages (1) has been duly executed and
delivered by the parties thereto at a
36
closing held not more than 90 days prior to the date of the
Advance Request for such Mortgage Loan, (2) has been made in
compliance with all requirements of the Real Estate Settlement
Procedures Act, Equal Credit Opportunity Act, the federal
Truth-In-Lending Act and all other applicable laws and
regulations, (3) is and will continue to be valid and enforceable
in accordance with its terms, without defense or offset, (4) has
not been modified or amended except in writing, which writing is
part of the Collateral Documents, nor any requirements thereof
waived, (5) has been evaluated or appraised in accordance with
Title XI of FIRREA, and (6) complies and will continue to comply
with the terms of this Agreement and, if applicable, with the
related Purchase Commitment held by the Company. Each Mortgage
Loan, other than an open-ended Pledged Loan secured by a Second
Mortgage, has been fully advanced in the face amount thereof, each
First Mortgage is a first Lien on the premises described therein
and each Second Mortgage is secured by a second Lien on the
premises described therein, and has or will have a title insurance
policy, in American Land Title Association form or equivalent
thereof, from a recognized title insurance company, insuring the
priority of the Lien of the Mortgage and meeting the usual
requirements of Investors purchasing such Mortgage Loans.
5.15(d) No default has occurred and is continuing for more
than 60 days under any Mortgage Loan included in the Pledged
Mortgages without the Advance against such Pledged Mortgage having
been repaid in accordance with Section 2.5(c)(3) hereof, provided,
however, that with respect to Pledged Mortgages which have already
been pledged as Collateral hereunder, if any default has occurred,
the Company will promptly notify the Lender.
5.15(e) The Company has complied and will continue to
comply with all laws, rules and regulations in respect of the FHA
insurance or VA guaranty of each Mortgage Loan included in the
Pledged Mortgages designated by the Company as an FHA insured or
VA guaranteed Mortgage Loan, and such insurance or guarantee is
and will continue to be in full force and effect.
5.15(f) All fire and casualty policies covering the
premises encumbered by each Mortgage included in the Pledged
Mortgages (1) name and will continue to name the Company and its
successors and assigns as the insured under a standard mortgagee
clause, (2) are and will continue to be in full force and effect,
and (3) afford and will continue to afford insurance against fire
and such other risks as are usually insured against in the
37
broad form of extended coverage insurance from time to time
available.
5.15(g) Pledged Mortgages secured by premises located in a
special flood hazard area designated as such by the Director of
the Federal Emergency Management Agency are and shall continue to
be covered by special flood insurance under the National Flood
Insurance Program.
5.15(h) Each Pledged Mortgage, against which an Advance is
made on the basis of a Purchase Commitment, meets all requirements
of such Purchase Commitment. The Company shall assure that
Pledged Mortgages which are intended to be used in the formation
of Mortgage-backed Securities shall comply or, prior to the
formation of any such Mortgage-backed Security, shall comply with
the requirements of the governmental instrumentality, department,
agency or other Person issuing or guaranteeing such
Mortgage-backed Security.
5.15(i) For Pledged Mortgages which will be used to back
Xxxxxx Xxx Mortgage-backed Securities, the Company has received
from Xxxxxx Mae a Confirmation Notice or Confirmation Notices for
Request Additional Commitment Authority and for Request Pool
Numbers, and there remains available thereunder a commitment on
the part of Xxxxxx Xxx sufficient to permit the issuance of Xxxxxx
Mae Mortgage-backed Securities in an amount at least equal to the
amount of such Pledged Mortgages designated by the Company as the
Mortgage Loans to be used to back such Xxxxxx Xxx Mortgage-backed
Securities; each such Confirmation Notice is in full force and
effect; each of such Pledged Mortgages has been assigned by the
Company to one of such Pool Numbers and a portion of the available
Xxxxxx Mae Commitment has been allocated thereto by the Company,
in an amount at least equal to such Pledged Mortgages; and each
such assignment and allocation has been reflected in the books and
records of the Company.
5.15(j) Each Pledged Mortgage secured by real property to
which a Manufactured Home is affixed will create a valid Lien on
such Manufactured Home that will have priority over any other Lien
on such Manufactured Home, whether or not arising under applicable
real property law.
38
5.16 NO ADVERSE SELECTION. The Company has not selected the
Collateral in a manner so as to affect adversely the Lender's interests.
5.17 YEAR 2000 COMPLIANCE. The Company has conducted a
comprehensive review and assessment of the Company's computer
applications and made inquiry of the Company's key suppliers, vendors,
customers, and Investors with respect to the "Year 2000 Problem" and,
based on that review and inquiry, the Company does not believe the Year
2000 Problem will result in a material adverse change in the Company's
business condition (financial or otherwise), operations, properties or
prospects, or ability to repay the credit.
6. AFFIRMATIVE COVENANTS.
The Company hereby covenants and agrees that, so long as the
Commitment is outstanding or there remain any Obligations to be paid or
performed under this Agreement or under any other Loan Document, the
Company shall:
6.1 PAYMENT OF NOTE. Punctually pay or cause to be paid all
Obligations payable hereunder and under the Note in accordance with the
terms hereof and thereof.
6.2 FINANCIAL STATEMENTS AND OTHER REPORTS. Deliver to the
Lender:
6.2(a) As soon as available and in any event within 30
days after the end of each calendar month of the Company,
statements of income and changes in stockholders' equity of the
Company (and, if applicable, its Subsidiaries, on a consolidated
basis) for the immediately preceding month and for the period from
the beginning of the fiscal year to the end of such calendar
month, and the related balance sheet as of the end of the
immediately preceding month, all in reasonable detail and
certified as to the fairness of presentation by the chief
financial officer of the Company, subject, however, to year-end
audit adjustments.
6.2(b) As soon as available and in any event within 30
days after the end of each calendar month, consolidating
statements of income and changes in stockholders' equity of the
Guarantor and its Subsidiaries for the immediately preceding month
and for the period from the beginning of the fiscal year to the
end of such calendar month, and the related balance sheet as at
the end of the immediately preceding month, all in reasonable
detail and certified as to the fairness of presentation by the
chief financial officer of the Guarantor, subject, however, to
year-end audit adjustments and the absence of footnotes.
39
6.2(c) As soon as available and in any event within 90
days after the end of each fiscal year of the Company, statements
of income, changes in stockholders' equity and cash flows of the
Guarantor and its Subsidiaries, the related balance sheets as of
the end of such year (setting forth in comparative form the
corresponding figures for the preceding fiscal year), all in
reasonable detail and accompanied by an opinion in form and
substance satisfactory to the Lender of an accounting firm
reasonably satisfactory to the Lender, or other independent
certified public accountants of recognized standing selected by
the Guarantor and acceptable to the Lender, as to said financial
statements and a certificate signed by the chief financial officer
of the Company stating that said financial statements fairly
present the financial condition and results of operations of the
Company (and, if applicable, its Subsidiaries) as of the end of,
and for, such year.
6.2(d) Together with each delivery of financial
statements required in this Section 6.2, an Officer's Certificate
substantially in the form of EXHIBIT I-SF hereto: (1) setting
forth in reasonable detail all calculations necessary to show that
the Company is in compliance with the requirements of Sections
7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 8.1(r), 8.1(s), 8.1(t) and 8.1(u)
hereof as of the end of such month or year (or, if the Company is
not in compliance, showing the extent of non-compliance and
specifying the period of non-compliance and what actions the
Company has taken, is taking or proposes to take with respect
thereto); (2) certifying that the Company was, as of the end of
the period, in compliance and in good standing with applicable
HUD, Xxxxxx Xxx, or Investor net worth requirements; (3)
certifying that the representation set forth in Section 5.17
hereof is true and correct as of the date of such certificate or,
if such representation is not true and correct as of such date,
specifying the nature of the problem and what action the Company
has taken, is taking and proposes to take with request thereto,
and (4) stating that the signers have reviewed the terms of this
Agreement and have made, or caused to be made under their
supervision, a review in reasonable detail of the transactions and
conditions of the Company (and, if applicable, its Subsidiaries)
during the accounting period covered by such financial statements
and that such review has not disclosed the existence during or at
the end of such accounting period, and that the signers do not
have knowledge of the existence as of the date of the Officer's
Certificate, of any Default or Event of Default, or if any Default
or Event of Default existed
40
or exists, specifying the nature and period of the existence
thereof and what action the Company has taken, is taking and
proposes to take with respect thereto.
6.2(e) Reports in respect of the Pledged Mortgages and
Pledged Securities, in such detail and at such times as the Lender
in its discretion may reasonably request at any time or from time
to time.
6.2(f) Copies of all regular or periodic financial and
other reports, if any, which the Company shall file with the
Securities and Exchange Commission or any governmental agency
successor thereto, copies of any audits completed by Xxxxxx Mae,
Xxxxxx Xxx or Xxxxxxx Mac and copies of the Mortgage Bankers'
Financial Reporting Forms (Xxxxxxx Mac Form 1055/Xxxxxx Xxx Form
1002) which the Company is required to have filed, as the Lender
may reasonably request.
6.2(g) Copies of any and all press releases by the
Company or the Guarantor related to their business activities.
6.2(h) Prior to the beginning of each fiscal year,
projected financial statements of the Guarantor as at the end of
each Fiscal Quarter during such fiscal year, including a balance
sheet and statements of income and cash flow, in reasonable detail
and in form and substance satisfactory to the Lender.
6.2(i) From time to time, with reasonable promptness,
such further information regarding the business, operations,
properties or financial condition of the Company as the Lender may
reasonably request.
6.3 MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS. Preserve
and maintain its corporate existence in good standing and all of its
rights, privileges, licenses and franchises necessary or desirable in the
normal conduct of its business, including, without limitation, its
eligibility as lender, seller/servicer and issuer described under Section
5.13 hereof; conduct its business in an orderly and efficient manner;
maintain a net worth of acceptable assets as required for maintaining the
Company's eligibility as lender, seller/servicer and issuer described
under Section 5.13 hereof; not change the nature or character of its
business or engage in any business in which it was not engaged on the
date of this Agreement; and not change its name, state of incorporation
or principal place of business.
6.4 COMPLIANCE WITH APPLICABLE LAWS. Comply with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, a breach of which could
41
materially adversely affect its business, operations, assets, or
financial condition, except where contested in good faith and by
appropriate proceedings.
6.5 INSPECTION OF PROPERTIES AND BOOKS. Permit authorized
representatives of the Lender or any Participant to discuss the business,
operations, assets and financial condition of the Company and its
Subsidiaries with its officers and employees and to examine its books of
account and make copies or extracts thereof, all at such reasonable times
as the Lender or any Participant may request. The Company will provide
its accountants with a copy of this Agreement promptly after the
execution hereof and will instruct its accountants to answer candidly any
and all questions that the officers of the Lender or any Participant or
any authorized representatives of the Lender or any Participant may
address to them in reference to the financial condition or affairs of the
Company and its Subsidiaries. The Company may have its representatives
in attendance at any meetings between the officers or other
representatives of the Lender or any Participant and the Company
accountants held in accordance with this authorization.
6.6 NOTICE. Give prompt Notice to the Lender of (a) any
action, suit or proceeding instituted by or against the Company or any of
its Subsidiaries in any federal or state court or before any commission
or other regulatory body (federal, state or local, domestic or foreign)
which action, suit or proceeding has at issue in excess of $100,000, or
any such proceedings threatened against the Company or any of its
Subsidiaries in a writing containing the details thereof, (b) the filing,
recording or assessment of any federal, state or local tax Lien against
the Company, or any of its assets or any of its Subsidiaries, (c) the
occurrence of any Event of Default hereunder or the occurrence of any
Default and continuation thereof for 5 days, (d) the suspension,
revocation or termination of the Company's eligibility, in any respect,
as approved lender, seller/servicer or issuer as described under Section
5.13 hereof, (e) the transfer, loss or termination of any Servicing
Contract to which the Company is a party, or which is held for the
benefit of the Company, and the reason for such transfer, loss or
termination, if known to the Company, (f) any asset or stock acquisitions
in excess of $1,000,000 by either the Company or the Guarantor, (g) any
agreements by either the Company or the Guarantor for a committed
warehousing line of credit; or (h) any other action, event or condition
of any nature which may lead to or result in a material adverse effect
upon the business, operations, assets, or financial condition of the
Company and its Subsidiaries or which, with or without notice or lapse of
time or both, would constitute a default under any other agreement,
instrument or indenture to which the Company or any of its
42
Subsidiaries is a party or to which the Company or any of its
Subsidiaries, its properties, or assets may be subject.
6.7 PAYMENT OF DEBT, TAXES, ETC. Pay and perform all
obligations and indebtedness of the Company, and cause to be paid and
performed all obligations and indebtedness of its Subsidiaries, promptly
and in accordance with the terms thereof and pay and discharge or cause
to be paid and discharged promptly all taxes, assessments and
governmental charges or levies imposed upon the Company or its
Subsidiaries or upon their respective income, receipts or properties
before the same shall become past due, as well as all lawful claims for
labor, materials and supplies or otherwise which, if unpaid, might become
a Lien or charge upon such properties or any part thereof; provided,
however, that the Company and its Subsidiaries shall not be required to
pay taxes, assessments or governmental charges or levies or claims for
labor, materials or supplies for which the Company or its Subsidiaries
shall have obtained an adequate bond or adequate insurance or which are
being contested in good faith and by proper proceedings which are being
reasonably and diligently pursued and for which proper reserves have been
created.
6.8 INSURANCE. Maintain (a) errors and omissions insurance or
mortgage impairment insurance and blanket bond coverage, with such
companies and in such amounts as satisfy prevailing requirements
applicable to a lender, seller/servicer and issuer described under
Section 5.13 hereof, and (b) liability insurance and fire and other
hazard insurance on its properties, with responsible insurance companies
approved by the Lender, in such amounts and against such risks as is
customarily carried by similar businesses operating in the same vicinity;
and (c) within 30 days after Notice from the Lender, obtain such
additional insurance as the Lender shall reasonably require, all at the
sole expense of the Company. Copies of such policies shall be furnished
to the Lender without charge upon request of the Lender.
6.9 CLOSING INSTRUCTIONS. Indemnify and hold the Lender
harmless from and against any loss, including reasonable attorneys' fees
and costs, attributable to the failure of a title insurance company,
agent or approved attorney to comply with the disbursement or instruction
letter or letters of the Company relating to any Mortgage Loan.
43
6.10 SUBORDINATION OF CERTAIN INDEBTEDNESS. Cause any
indebtedness of the Company, incurred after the date of this Agreement,
to any shareholder, director or officer of the Company, or to any
Affiliate of the Company or of any Subsidiary of the Company, or to any
Guarantor, which indebtedness has a term of more than one (1) year or is
in excess of $100,000 to be subordinated to all Obligations by the
execution of a Subordination of Debt Agreement in the form of EXHIBIT F
hereto and deliver to the Lender an executed copy of said Agreement,
certified by the corporate secretary of the Company to be true and
complete and in full force and effect.
6.11 OTHER LOAN OBLIGATIONS. Perform all material obligations
under the terms of each loan agreement, note, mortgage, security
agreement or debt instrument by which the Company is bound or to which
any of its property is subject, and promptly notify the Lender in writing
of a declared default under or the termination, cancellation, reduction
or nonrenewal of any of its other lines of credit or agreements with any
other lender. EXHIBIT J hereto is a true and complete list of all such
lines of credit or agreements as of the date hereof and the Company
hereby agrees to give the Lender at least 10 days Notice before entering
into any additional lines of credit or agreements.
6.12 USE OF PROCEEDS OF ADVANCES. Use the proceeds of each
Advance solely for the purpose set forth in Section 2.1(b) for Advances
of that type.
6.13 SPECIAL AFFIRMATIVE COVENANTS CONCERNING COLLATERAL.
6.13(a) Warrant and defend the right, title and interest
of the Lender in and to the Collateral against the claims and
demands of all Persons whomsoever.
6.13(b) Service or cause to be serviced all Mortgage Loans
in accordance with the standard requirements of the issuers of
Purchase Commitments covering the same and all applicable FHA and
VA requirements, including without limitation taking all actions
necessary to enforce the obligations of the obligors under such
Mortgage Loans. The Company shall service or cause to be serviced
all Mortgage Loans backing Pledged Securities in accordance with
applicable governmental requirements and requirements of issuers
of Purchase Commitments covering the same. The Company shall hold
all escrow funds collected in respect of Pledged Mortgages and
Mortgage Loans backing Pledged Securities in trust, without
commingling the same with non-custodial funds, and apply the same
for the purposes for which such funds were collected.
44
6.13(c) Execute and deliver to the Lender such Uniform
Commercial Code financing statements with respect to the
Collateral as the Lender may request. The Company shall also
execute and deliver to the Lender such further instruments of
sale, pledge or assignment or transfer, and such powers of
attorney, as required by the Lender, and shall do and perform all
matters and things necessary or desirable to be done or observed,
for the purpose of effectively creating, maintaining and
preserving the security and benefits intended to be afforded the
Lender under this Agreement. The Lender shall have all the rights
and remedies of a secured party under the Uniform Commercial Code
of Minnesota, or any other applicable law, in addition to all
rights provided for herein.
6.13(d) Notify the Lender within 2 Business Days of any
default under, or of the termination of, any Purchase Commitment
relating to any Pledged Mortgage, Eligible Mortgage Pool or
Pledged Security.
6.13(e) Promptly comply in all respects with the terms and
conditions of all Purchase Commitments, and all extensions,
renewals and modifications or substitutions thereof or thereto.
The Company will cause to be delivered to the Investor the Pledged
Mortgages and Pledged Securities to be sold under each Purchase
Commitment not later than 3 Business Days prior to the mandatory
delivery date thereof.
6.13(f) Maintain, at its principal office or in a regional
office approved by the Lender, or in the office of a computer
service bureau engaged by the Company and approved by the Lender,
and, upon request, make available to the Lender the originals, or
copies in any case where the originals have been delivered to the
Lender or to an Investor, of its Mortgage Notes and Mortgages
included in Pledged Mortgages, Mortgage-backed Securities
delivered to the Lender as Pledged Securities, Purchase
Commitments, and all related Mortgage Loan documents and
instruments, and all files, surveys, certificates, correspondence,
appraisals, computer programs, tapes, discs, cards, accounting
records and other information and data relating to the Collateral.
7. NEGATIVE COVENANTS.
The Company hereby covenants and agrees that, so long as the
Commitment is outstanding or there remain any Obligations to be paid or
performed, the Company shall not, either directly or indirectly, without
the prior written consent of the Lender:
45
7.1 CONTINGENT LIABILITIES. Assume, guarantee, endorse, or
otherwise become contingently liable for the obligation of any Person
except by endorsement of negotiable instruments for deposit or collection
in the ordinary course of business.
7.2 SALE OR PLEDGE OF SERVICING CONTRACTS. Sell, pledge or
grant a security interest in any existing or future Servicing Contracts
of the Company other than to the Lender, except as otherwise expressly
permitted in this Agreement, or omit to take any action required to keep
all such Servicing Contracts in full force and effect.
7.3 MERGER; SALE OF ASSETS; ACQUISITIONS. Liquidate, dissolve,
consolidate or merge or sell any substantial part of its assets, or
acquire any substantial part of the assets of another.
7.4 DEFERRAL OF SUBORDINATED DEBT. Pay in advance of the
stated maturity thereof any Subordinated Debt of the Company or, if a
Default or Event of Default hereunder shall have occurred, make any
payment of any kind thereafter on such Subordinated Debt until all
Obligations have been paid and performed in full and any applicable
preference period has expired.
7.5 LOSS OF ELIGIBILITY. Take any action that would cause the
Company to lose all or any part of its status as an eligible lender,
seller/servicer and issuer as described under Section 5.13 hereof.
7.6 CURRENT RATIO. Permit the ratio of current assets to
current liabilities of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, at any time to exceed 1.01 to
1.
7.7 DEBT TO TANGIBLE NET WORTH RATIO OF COMPANY. Permit the
ratio of Debt (excluding, for this purpose only, Debt arising under the
Hedging Arrangements, to the extent of assets arising under the same
Hedging Arrangements) to Tangible Net Worth of the Company (and its
Subsidiaries, on a consolidated basis) at any time to exceed 10 to 1.
7.8 MINIMUM TANGIBLE NET WORTH OF COMPANY. Permit Tangible Net
Worth of the Company (and its Subsidiaries, on a consolidated basis) at
any time to be less than $10,000,000, plus at least 37.5% of the net
proceeds of any shares of stock of the Guarantor sold on or after the
Closing Date.
7.9 LIABILITY GROWTH. Permit the liabilities of the Company
and its Subsidiaries determined in accordance with GAAP, at the end of
any Fiscal Quarter to exceed 150% of such
46
liabilities at the end of the preceding Fiscal Quarter.
7.10 DIVIDENDS. For each fiscal year, declare or pay dividends
in excess of 25% of the Company's net income earned in such fiscal year
as determined on a fiscal year-to-date basis, less dividends previously
declared in such fiscal year. Any Dividends declared based on the
Company's net income for any fiscal year must be paid by the end of the
second quarter of the next succeeding fiscal year.
7.11 TRANSACTIONS WITH AFFILIATES. Directly or indirectly (a)
make any loan, advance, extension of credit or capital contribution to
any of its Affiliates, (b) transfer, sell, pledge, assign or otherwise
dispose of any of its assets to or on behalf of such Affiliates, (c)
merge or consolidate with any of its Affiliates, or purchase or acquire
assets from any of its Affiliates other than purchasers of Mortgage Loans
on the date of origination from wholly-owned Subsidiaries in the ordinary
course of business and on terms no less favorable to the Company than
those that could be obtained in a transaction with an unaffiliated
Person, or (d) pay management fees in excess of $1,000,000 per month to
or on behalf of such Affiliates.
7.12 ACQUISITION OF RECOURSE SERVICING CONTRACTS. Acquire
Servicing Contracts under which the Company is obligated to repurchase or
indemnify the holder of the Mortgage Loans as a result of defaults on the
Mortgage Loans at any time during the term of such Mortgage Loans.
7.13 GESTATION FACILITIES. Directly or indirectly sell or
finance Pledged Mortgages under any Gestation Agreements.
7.14 SALE OF STOCK OF GUARANTOR. The Guarantor shall contribute
to the Company in the form of a capital contribution an amount equal to
not less than 37.5% of the net proceeds obtained from the sale of any
shares of stock of the Guarantor.
7.15 SPECIAL NEGATIVE COVENANTS CONCERNING COLLATERAL.
7.15(a) The Company shall not amend or modify, or waive
any of the terms and conditions of, or settle or compromise any
claim in respect of, any Pledged Mortgages or Pledged Securities.
7.15(b) The Company shall not sell, assign, transfer or
otherwise dispose of, or grant any option with respect to, or
pledge or otherwise encumber (except pursuant to this Agreement or
as permitted herein) any of the Collateral or any interest
therein.
7.15(c) The Company shall not make any
47
compromise, adjustment or settlement in respect of any of the
Collateral or accept other than cash in payment or liquidation of
the Collateral.
8. DEFAULTS; REMEDIES.
8.1 EVENTS OF DEFAULT. The occurrence of any of the following
conditions or events shall be an event of default ("Event of Default"):
8.1(a) Failure to pay the principal of any Advance when
due, whether at stated maturity, by acceleration, or otherwise; or
failure to pay any installment of interest on any Advance or any
other amount due under this Agreement within 10 days after the due
date; or failure to pay, within any applicable grace period, any
other Obligations of the Company due the Lender; or
8.1(b) Failure of the Company or any of its Subsidiaries
to pay, or any default in the payment of any principal or interest
on, any other indebtedness or in the payment of any contingent
obligation within any period of grace provided; breach or default
with respect to any other material term of any other indebtedness
or of any loan agreement, mortgage, indenture or other agreement
relating thereto, if the effect of such breach or default is to
cause, or to permit the holder or holders thereof (or a trustee on
behalf of such holder or holders) to cause, indebtedness of the
Company or its Subsidiaries in the aggregate amount of $100,000 or
more to become or be declared due prior to its stated maturity
(upon the giving or receiving of notice, lapse of time, both, or
otherwise); or
8.1(c) Failure of the Company to perform or comply with
any term or condition applicable to it contained in Sections 6.3
(with respect to corporate existence) or 0, or in any Section of
Article 7 of this Agreement; PROVIDED, that if the Company fails
to comply with Section 7.8 hereof at any time solely because of a
determination by the Lender to deem any assets that were
previously included in the calculation of Tangible Net Worth
unacceptable for purposes of such calculating under its
discretionary right to do so, no Event of Default shall occur if
the Company increases its Tangible Net Worth by the value of such
assets within 15 days after the Lender notifies the Company of
such determination; or
8.1(d) Any of the Company's representations or warranties
made or deemed made herein or in any other Loan Document (other
than the representations and
48
warranties set forth in Section 5.15 hereof), or in any statement
or certificate at any time given by the Company in writing
pursuant hereto or thereto shall be inaccurate or incomplete in
any material respect on the date as of which made or deemed made;
or
8.1(e) The Company shall default in the performance of or
compliance with any term contained in this Agreement or any other
Loan Document other than those referred to above in Subsections
8.1(a), 8.1(c) or 8.1(d) and such default shall not have been
remedied or waived within 30 days after the earliest of (i)
receipt by the Company of Notice from the Lender of such default,
(ii) receipt by the Lender of Notice from the Company of such
default, or (iii) the date the Company should have notified the
Lender of such default pursuant to Section 6.6(c); or
8.1(f) (1) A court having jurisdiction shall enter a decree
or order for relief in respect of the Company, any Subsidiary of
the Company or any Guarantor in an involuntary case under any
applicable bankruptcy, insolvency or other similar law in respect
of the Company, any Subsidiary of the Company or any Guarantor now
or hereafter in effect, which decree or order is not stayed; the
Company, any Subsidiary of the Company or any Guarantor shall
consent to the entry of any such decree or order; or a filing of a
voluntary case under any applicable bankruptcy, insolvency or
other similar law in respect of the Company, any Subsidiary of the
Company or any Guarantor has occurred; or any other similar relief
shall be granted under any applicable federal or state law; or (2)
the filing of an involuntary case in respect of the Company, any
Subsidiary of the Company or any Guarantor under any applicable
bankruptcy, insolvency or other similar law; or a decree or order
of a court having jurisdiction for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer
having similar powers over the Company, any Subsidiary of the
Company or of any Guarantor, or over all or a substantial part of
their respective property, shall have been entered; or the
involuntary appointment of an interim or permanent receiver,
trustee or other custodian of the Company, any Subsidiary of the
Company or any Guarantor for all or a substantial part of their
respective property; or the issuance of a warrant of attachment,
execution or similar process against any substantial part of the
property of the Company, any Subsidiary of the Company or any
Guarantor, and the continuance of any such events in Subsection
(2) above for 60 days unless dismissed, bonded off or discharged;
or
49
8.1(g) The Company, any Subsidiary of the Company or any
Guarantor shall consent to the appointment of or taking possession
by a receiver, trustee or other custodian for all or a substantial
part of its property; the making by the Company, any Subsidiary of
the Company or any Guarantor of any assignment for the benefit of
creditors; or the inability or failure of the Company, any
Subsidiary of the Company or any Guarantor, or the admission by
the Company, any Subsidiary of the Company or any Guarantor in
writing of its inability, to pay its debts as such debts become
due; or
8.1(h) Failure of the Company to perform any contractual
obligations which it may have to repurchase Mortgage Loans, if
such obligations in the aggregate exceed $500,000; or
8.1(i) Any money judgment, writ or warrant of attachment,
or similar process involving in any case an amount in excess of
$100,000 shall be entered or filed against the Company or any of
its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period
of 30 days or in any event later than 5 days prior to the date of
any proposed sale thereunder; or
8.1(j) Any order, judgment or decree shall be entered
against the Company decreeing the dissolution or split up of the
Company and such order shall remain undischarged or unstayed for a
period in excess of 20 days; or
8.1(k) Any Plan maintained by the Company or any of its
Subsidiaries shall be terminated within the meaning of Title IV of
ERISA or a trustee shall be appointed by an appropriate United
States District Court to administer any Plan, or the Pension
Benefit Guaranty Corporation (or any successor thereto) shall
institute proceedings to terminate any Plan or to appoint a
trustee to administer any Plan if as of the date thereof the
Company's liability or any such Subsidiary's liability (after
giving effect to the tax consequences thereof) to the Pension
Benefit Guaranty Corporation (or any successor thereto) for
unfunded guaranteed vested benefits under the Plan exceeds the
then current value of assets accumulated in such Plan by more than
$100,000 (or in the case of a termination involving the Company or
any of its Subsidiaries as a "substantial employer" (as defined in
Section 4001(a)(2) of ERISA) the withdrawing employer's
proportionate share of such excess shall exceed such amount); or
50
8.1(l) The Company or any of its Subsidiaries as employer
under a Multiemployer Plan shall have made a complete or partial
withdrawal from such Multiemployer Plan and the plan sponsor of
such Multiemployer Plan shall have notified such withdrawing
employer that such employer has incurred a withdrawal liability in
an annual amount exceeding $100,000; or
8.1(m) The Company or the Guarantor shall purport to
disavow its obligations hereunder or under the Guaranty, as the
case may be, or shall contest the validity or enforceability
hereof or of the Guaranty; or the Lender's security interest on
any portion of the Collateral shall become unenforceable or
otherwise impaired; provided that, subject to the Lender's
approval, no Event of Default shall occur as a result of such
impairment if all Advances made against any such Collateral shall
be paid in full within 10 days of the date of such impairment; or
8.1(n) Xxxx X. Xxxxxx shall cease to be the chairman and
chief executive officer of the Guarantor; or
8.1(o) Any Lien for any taxes, assessments or other
governmental charges (i) is filed against the Company or any of
its property, or is otherwise enforced against the Company or any
of its property, or (ii) obtains priority that is equal or greater
than the priority of the Lender's security interest in any of the
Collateral; or
8.1(p) A material adverse change occurs, or is reasonably
likely to occur, in the business condition (financial or
otherwise), operations, properties or prospects of the Company, or
in the ability of the Company to repay the Obligations; PROVIDED,
that the Company's anticipated losses for its fiscal year ending
April 30, 2000 described on EXHIBIT N hereto shall not constitute
a material adverse change for purposes of this Section 8.1(p); or
8.1(q) The Guarantor is removed from the NASDAQ list of
publicly held corporations; or
8.1(r) The Guarantor has an aggregate net loss for the
portion of any fiscal year ending on the last day of any Fiscal
Quarter greater than the "Permitted Cumulative Loss" for such
portion of such fiscal year, as set forth on EXHIBIT N hereto; or
51
8.1(s) The ratio of Debt (excluding, for this purpose
only, Debt arising under Hedging Arrangements, to the extent of
units arising under the same Hedging Arrangements) to Tangible Net
Worth of the Company (and its Subsidiaries, on a consolidated
basis) at any time exceeds 10 to 1.
8.1(t) The Tangible Net Worth of the Guarantor (and its
Subsidiaries, on a consolidated basis) 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.
8.1(u) The liabilities of the Guarantor (and its
Subsidiaries, on a consolidated basis), determined in accordance
with GAAP at the end of any Fiscal Quarter, exceed 150% of such
liabilities at the end of the preceding Fiscal Quarter.
8.1(v) The Company's approval as an RFC seller is
terminated, or the Company loses any of its other approvals as a
lender or a seller set forth in Section 5.13 of the Agreement; or
8.1(w) Either the Company or the Guarantor receive
outside financing for warehousing Subprime Mortgage Loans.
8.2 REMEDIES.
8.2(a) Upon the occurrence of any Event of Default
described in Sections 8.1(f) or 8.1(g), the Commitment shall be
terminated and the unpaid principal amount of and accrued interest
on the Note and all other Obligations shall automatically become
due and payable, without presentment, demand or other requirements
of any kind, all of which are hereby expressly waived by the
Company.
8.2(b) Upon the occurrence of any Event of Default, other
than those described in Sections 8.1(f) and 8.1(g), the Lender
may, by Notice to the Company, terminate the Commitment and/or
declare all Obligations to be immediately due and payable,
whereupon the same shall forthwith become due and payable,
together with all accrued interest thereon, and the obligation of
the Lender to make any Advances shall thereupon terminate.
8.2(c) Upon the occurrence of any Event of Default, the
Lender may also do any of the following:
(1) Foreclose upon or otherwise enforce its
security interest in and Lien on the Collateral to
52
secure all payments and performance of the Obligations in
any manner permitted by law or provided for hereunder.
(2) Notify all obligors in respect of Collateral
that the Collateral has been assigned to the Lender and
that all payments thereon are to be made directly to the
Lender or such other party as may be designated by the
Lender; settle, compromise, or release, in whole or in
part, any amounts owing on the Collateral, any such obligor
or any Investor or any portion of the Collateral, on terms
acceptable to the Lender; enforce payment and prosecute any
action or proceeding with respect to any and all
Collateral; and where any such Collateral is in default,
foreclose on and enforce security interests in such
Collateral by any available judicial procedure or without
judicial process and sell property acquired as a result of
any such foreclosure.
(3) Act, or contract with a third party to act,
as servicer or subservicer of each item of Collateral
requiring servicing and perform all obligations required in
connection with Servicing Contracts and Purchase
Commitments, such third party's fees to be paid by the
Company.
(4) Require the Company to assemble the
Collateral and/or books and records relating thereto and
make such available to the Lender at a place to be
designated by the Lender.
(5) Enter onto property where any Collateral or
books and records relating thereto are located and take
possession thereof with or without judicial process; and
obtain access to the Company's data processing equipment,
computer hardware and software relating to the Collateral
and to use all of the foregoing and the information
contained therein in any manner the Lender deems necessary
for the purpose of effectuating its rights under this
Agreement and any other Loan Document.
(6) Prior to the disposition of the Collateral,
prepare it for disposition in any manner and to the extent
the Lender deems appropriate.
(7) Exercise all rights and remedies of a secured
creditor under the Uniform Commercial Code of Minnesota or
other applicable law, including,
53
but not limited to, selling or otherwise disposing of the
Collateral, or any part thereof, at one or more public or
private sales, whether or not such Collateral is present at
the place of sale, for cash or credit or future delivery,
on such terms and in such manner as the Lender may
determine, including, without limitation, sale pursuant to
any applicable Purchase Commitment. If notice is required
under such applicable law, the Lender will give the Company
not less than 10 days' notice of any such public sale or of
the date after which any private sale may be held. The
Company agrees that 10 days' notice shall be reasonable
notice. The Lender may, without notice or publication,
adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any
time or place to which the same may be so adjourned. In
case of any sale of all or any part of the Collateral on
credit or for future delivery, the Collateral so sold may
be retained by the Lender until the selling price is paid
by the purchaser thereof, but the Lender shall not incur
any liability in case of the failure of such purchaser to
take up and pay for the Collateral so sold and, in case of
any such failure, such Collateral may again be sold upon
like notice. The Lender may, however, instead of
exercising the power of sale herein conferred upon it,
proceed by a suit or suits at law or in equity to collect
all amounts due upon the Collateral or to foreclose the
pledge of and sell the Collateral or any portion thereof
under a judgment or decree of a court or courts of
competent jurisdiction, or both.
(8) Proceed against the Company on the Note or
against the Guarantor under the Guaranty or both.
8.2(d) The Lender shall incur no liability as a result of
the sale or other disposition of the Collateral, or any part
thereof, at any public or private sale or disposition. The
Company hereby waives (to the extent permitted by law) any claims
it may have against the Lender arising by reason of the fact that
the price at which the Collateral may have been sold at such
private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of
the outstanding Advances and the unpaid interest accrued thereon,
even if the Lender accepts the first offer received and does not
offer the Collateral to more than one offeree. Any sale of
Collateral pursuant to the terms of a Purchase
54
Commitment, or any other disposition of Collateral arranged by the
Company, whether before or after the occurrence of an Event of
Default, shall be deemed to have been made in a commercially
reasonable manner.
8.2(e) The Company acknowledges that Mortgage Loans and
Mortgage-backed Securities are collateral of a type which is
customarily sold on a recognized market. The Company waives any
right it may have to prior notice of the sale of any Pledged
Mortgage or Pledged Security, and agrees that the Lender may
purchase any Pledged Mortgages or Pledged Securities at a private
sale of such Collateral.
8.2(f) The Company specifically waives and releases (to
the extent permitted by law) any equity or right of redemption,
all rights of redemption, stay or appraisal which the Company has
or may have under any rule of law or statute now existing or
hereafter adopted, and any right to require the Lender to (1)
proceed against any Person, (2) proceed against or exhaust any of
the Collateral or pursue its rights and remedies as against the
Collateral in any particular order, or (3) pursue any other remedy
in its power. The Lender shall not be required to take any steps
necessary to preserve any rights of the Company against holders of
mortgages prior in lien to the Lien of any Mortgage included in
the Collateral or to preserve rights against prior parties.
8.2(g) The Lender may, but shall not be obligated to,
advance any sums or do any act or thing necessary to uphold and
enforce the Lien and priority of, or the security intended to be
afforded by, any Mortgage included in the Collateral, including,
without limitation, payment of delinquent taxes or assessments and
insurance premiums. All advances, charges, costs and expenses,
including reasonable attorneys' fees and disbursements, incurred
or paid by the Lender in exercising any right, power or remedy
conferred by this Agreement, or in the enforcement hereof,
together with interest thereon, at the Default Rate, from the time
of payment until repaid, shall become a part of the principal
balance outstanding hereunder and under the Note.
55
8.2(h) No failure on the part of the Lender to exercise,
and no delay in exercising, any right, power or remedy provided
hereunder, at law or in equity shall operate as a waiver thereof;
nor shall any single or partial exercise by the Lender of any
right, power or remedy provided hereunder, at law or in equity
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy. Without intending to limit the
foregoing, all defenses based on the statute of limitations are
hereby waived by the Company to the extent permitted by law. The
remedies herein provided are cumulative and are not exclusive of
any remedies provided at law or in equity.
8.2(i) The Lender is hereby granted a license or other
right to use, without charge, the Company's computer programs,
other programs, labels, patents, copyrights, rights of use of any
name, trade secrets, trade names, trademarks, service marks and
advertising matter, or any property of a similar nature, as it
pertains to the Collateral, in advertising for sale and selling
any Collateral, and the Company's rights under all licenses and
all other agreements related to the foregoing shall inure to the
Lender's benefit until the Obligations are paid in full.
8.2(j) The Company acknowledges that the Company and the
Lender have entered into, and may from time to time hereafter
enter into, agreements ("Acknowledgment Agreements") with Xxxxxx
Mae, Xxxxxxx Mac or any other Investor in order to obtain the
consent of Xxxxxx Mae, Xxxxxxx Mac or any other Investor to the
assignment of and security interest granted in the Servicing
Contracts pursuant to Section 3 hereof, as the same may be amended
from time to time. The Company further acknowledges that the
Acknowledgment Agreements may contain certain provisions
concerning the enforcement by the Lender of the security interest
of the Secured Parties in the Servicing Contracts subject thereto.
The Company agrees that the disposition of its rights in any
Servicing Contract pursuant to the terms of the applicable
Acknowledgment Agreement shall be deemed commercially reasonable
within the meaning of Section 9-504(3) of the Uniform Commercial
Code of Minnesota. The Company hereby waives any claims it might
otherwise have against the Lender as a result of the Lender's
compliance with the terms of any Acknowledgment Agreement.
8.3 APPLICATION OF PROCEEDS. The proceeds of any sale,
disposition or other enforcement of the Lender's security interest in all
or any part of the Collateral shall be applied by the Lender to the
Obligations in such order as the Lender, in its sole and absolute
discretion, shall determine from and
56
after the indefensible payment to the Lender of all of the Obligations,
any remaining proceeds shall be paid:
FIRST, to the payment of the costs and expenses of such sale or
enforcement, including reasonable compensation to the Lender's agents and
counsel, and all expenses, liabilities and advances made or incurred by
or on behalf of the Lender in connection therewith;
SECOND, to the payment of the Obligations in such order as the
Lender, in its sole discretion, determines; and
FINALLY, to the payment to the Company, or to its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
If the proceeds of any sale, disposition or other enforcement are
insufficient to cover the costs and expenses of the sale, and the payment
in full of all Obligations, the Company will remain liable for any
deficiency.
8.4 LENDER APPOINTED ATTORNEY-IN-FACT. The Lender is hereby
appointed the attorney-in-fact of the Company, with full power of
substitution, for the purpose of carrying out the provisions hereof and
taking any action and executing any instruments which the Lender may deem
necessary or advisable to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, the Lender
shall have the right and power to give notices of its security interest
in the Collateral to any Person, either in the name of the Company or in
its own name, to endorse all Pledged Mortgages or Pledged Securities
payable to the order of the Company, to change or cause to be changed the
book-entry registration or name of subscriber or Investor on any Pledged
Security, or to receive, endorse and collect all checks made payable to
the order of the Company representing any payment on account of the
principal of or interest on, or the proceeds of sale of, any of the
Pledged Mortgages or Pledged Securities and to give full discharge for
the same.
8.5 RIGHT OF SET-OFF. If the Company shall default in the
payment of the Note, any interest accrued thereon, or any other sums
which may become payable hereunder when due, or in the performance of any
of its other obligations or liabilities under this Agreement, the Lender
shall have the right, at any time and from time to time, without notice,
to set-off and to appropriate or apply any and all property or
indebtedness of any kind at any time held or owing by the Lender to or
for the credit or the account of the Company against and on account of
the Obligations of the Company under the Note and this Agreement,
irrespective of whether or not the Lender shall have made any demand
hereunder and whether or not said
57
Obligations shall have matured.
9. NOTICES.
All notices, demands, consents, requests and other communications
required or permitted to be given or made hereunder (collectively, "Notices")
shall, except as otherwise expressly provided hereunder, be in writing and shall
be delivered in person or telecopied or mailed, first class or delivered by
overnight courier, return receipt requested, postage prepaid, addressed to the
respective parties hereto at their respective addresses hereinafter set forth
or, as to any such party, at such other address as may be designated by it in a
Notice to the other. All Notices shall be conclusively deemed to have been
properly given or made when duly delivered, in person, by telecopy or by
overnight courier, or if mailed, on the date of receipt as noted on the return
receipt, addressed as follows:
if to the Company: Monument Mortgage, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Telecopier No.: (000) 000-0000
if to the Lender: Residential Funding Corporation
0000 Xxxxx Xxxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Director
Telecopier No.: (000) 000-0000
10. REIMBURSEMENT OF EXPENSES; INDEMNITY.
The Company shall: (a) pay a documentation production fee of $5,000 in
connection with the preparation and negotiation of this Agreement; (b) pay such
additional documentation production fees as the Lender may require and all
out-of-pocket costs and expenses of the Lender, including, without limitation,
reasonable fees, service charges and disbursements of counsel (including
allocated costs of internal counsel), in connection with the amendment,
enforcement and administration of this Agreement, the Note, and other Loan
Documents and the making and repayment of the Advances and the payment of
interest thereon; (c) indemnify, pay, and hold harmless the Lender and any
holder of the Note from and against, any and all present and future stamp,
documentary and other similar taxes with respect to the foregoing matters and
save the Lender and the holder or holders of the Note harmless from and against
any and all liabilities with respect to or resulting from any delay or omission
to pay such taxes; and (d) indemnify, pay and hold harmless the Lender and any
of its officers, directors, employees or agents and any subsequent holder of the
Note (collectively called the "Indemnitees") from and against any and all
liabilities,
58
obligations, losses, damages, penalties, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever (including without limitation,
the reasonable fees and disbursements of counsel of the Indemnitees (including
allocated costs of internal counsel) in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees shall be
designated a party thereto) which may be imposed upon, incurred by or asserted
against such Indemnitees in any manner relating to or arising out of this
Agreement, the Note, or any other Loan Document or any of the transactions
contemplated hereby or thereby (the "Indemnified Liabilities"); provided,
however, that the Company shall have no obligation hereunder with respect to
Indemnified Liabilities arising from the xxxx negligence or willful misconduct
of any such Indemnitees. To the extent that the undertaking to indemnify, pay
and hold harmless as set forth in the preceding sentence may be unenforceable
because it is violative of any law or public policy, the Company shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all Indemnified Liabilities
incurred by the Indemnitees or any of them. The agreement of the Company
contained in this Subsection (d) shall survive the expiration or termination of
this Agreement and the payment in full of the Note. Attorneys' fees and
disbursements incurred in enforcing, or on appeal from, a judgment pursuant
hereto shall be recoverable separately from and in addition to any other amount
included in such judgment, and this clause is intended to be severable from the
other provisions of this Agreement and to survive and not be merged into such
judgment.
11. FINANCIAL INFORMATION.
All financial statements and reports furnished to the Lender hereunder
shall be prepared in accordance with GAAP, applied on a basis consistent with
that applied in preparing the financial statements as at the end of and for the
last fiscal year ended (except to the extent otherwise required to conform to
good accounting practice).
12. MISCELLANEOUS.
12.1 TERMS BINDING UPON SUCCESSORS; SURVIVAL OF REPRESENTATIONS.
The terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and assigns. All representations, warranties, covenants and
agreements herein contained on the part of the Company shall survive the
making of any Advance and the execution of the Note, and shall be
effective so long as the Commitment is outstanding or there remain any
Obligations to be paid or performed.
12.2 ASSIGNMENT. This Agreement cannot be assigned by the
Company. This Agreement and the Note, along with the Lender's security
interest in any or all of the Collateral,
59
may, at any time, be transferred or assigned, in whole or in part, by the
Lender, and any assignee thereof may enforce this Agreement, the Note and
its security interest in the Collateral so assigned.
12.3 AMENDMENTS. Except as otherwise provided in this
Agreement, this Agreement may not be amended, modified or supplemented
unless such amendment, modification or supplement is set forth in a
writing signed by the parties hereto.
12.4 GOVERNING LAW. This Agreement and the other Loan Documents
shall be governed by the laws of the State of Minnesota, without
reference to its principles of conflicts of laws.
12.5 PARTICIPATIONS. The Lender may at any time sell, assign or
grant participations in, or otherwise transfer to any other Person (a
"Participant"), all or part of the Obligations. Without limitation of
the exclusive right of the Lender to collect and enforce such
Obligations, the Company agrees that each disposition will give rise to a
debtor-creditor relationship of the Company to the Participant, and the
Company authorizes each Participant, upon the occurrence of an Event of
Default, to proceed directly by right of setoff, banker's lien, or
otherwise, against any assets of the Company which may be in the hands of
such Participant. The Company authorizes the Lender to disclose to any
prospective Participant and any Participant any and all information in
the Lender's possession concerning the Company, this Agreement and the
Collateral.
12.6 RELATIONSHIP OF THE PARTIES. This Agreement provides for
the making of Advances by the Lender, in its capacity as a lender, to the
Company, in its capacity as a borrower, and for the payment of interest,
repayment of principal by the Company to the Lender, and for the payment
of certain fees by the Company to the Lender. The relationship between
the Lender and the Company is limited to that of creditor/secured party,
on the one hand, and debtor, on the other hand. The provisions herein
for compliance with financial covenants and delivery of financial
statements are intended solely for the benefit of the Lender to protect
its interests as lender in assuring payments of interest and repayment of
principal and payment of certain fees, and nothing contained in this
Agreement shall be construed as permitting or obligating the Lender to
act as a financial or business advisor or consultant to the Company, as
permitting or obligating the Lender to control the Company or to conduct
the Company's operations, as creating any fiduciary obligation on the
part of the Lender to the Company, or as creating any joint venture,
agency, or other relationship between the parties hereto other than as
explicitly and specifically stated in this Agreement. The Company
acknowledges that it
60
has had the opportunity to obtain the advice of experienced counsel of
its own choosing in connection with the negotiation and execution of this
Agreement and to obtain the advice of such counsel with respect to all
matters contained herein. The Company further acknowledges that it is
experienced with respect to financial and credit matters and has made its
own independent decisions to apply to the Lender for credit and to
execute and deliver this Agreement.
12.7 SEVERABILITY. If any provision of this Agreement 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.
12.8 OPERATIONAL REVIEWS. From time to time upon request, the
Company shall permit the Lender or its representative access to its
premises and records, for the purpose of conducting a review of the
Company's general mortgage business methods, policies, and procedures,
auditing loan files and reviewing financial and operational aspects of
the Company's business.
12.9 CONSENT TO CREDIT REFERENCES. The Company hereby consents to
the disclosure of information regarding the Company and its relationships
with the Lender to Persons making credit inquiries to the Lender. This
consent is revocable by the Company at any time upon Notice to the Lender
as provided in Section 0 hereof.
12.10 CONSENT TO JURISDICTION. The Company hereby agrees that any
action or proceeding under the Loan Documents, the Note or any document
delivered pursuant hereto may be commenced against it in any court of
competent jurisdiction within the State of Minnesota, by service of
process upon the Company by first class registered or certified mail,
return receipt requested, addressed to the Company at its address last
known to the Lender. The Company agrees that any such suit, action or
proceeding arising out of or relating to this Agreement or any other such
document may be instituted in the Hennepin County State District Court or
in the United States District Court for the District of Minnesota at the
option of the Lender; and the Company hereby waives any objection to the
jurisdiction or venue of any such court with respect to, or the
convenience of any 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 Company in
any other jurisdiction or court.
61
12.11 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute but one and the same instrument.
12.12 ENTIRE AGREEMENT. This Agreement, the Note and the other
Loan Documents represent the final agreement among the parties hereto and
thereto with respect to the subject matter hereof and thereof, and may
not be contradicted by evidence of prior or contemporaneous oral
agreements among such parties. There are no oral agreements among the
parties with respect to the subject matter hereof and thereof.
12.13 WAIVER OF JURY TRIAL. THE COMPANY AND THE LENDER EACH
HEREBY (a) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY A JURY, AND (b) FULLY WAIVES ANY RIGHT TO TRIAL BY
JURY TO THE EXTENT THAT ANY SUCH RIGHT NOW EXISTS OR HEREAFTER ARISES.
THE LENDER AND THE COMPANY EACH GIVES THIS WAIVER OF RIGHT TO JURY TRIAL
KNOWINGLY AND VOLUNTARILY. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY, BY THE COMPANY AND THE
LENDER, AND THIS WAIVER IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE FOR WHICH THE RIGHT OF A JURY TRIAL WOULD
OTHERWISE ACCRUE. THE LENDER AND THE COMPANY ARE EACH HEREBY AUTHORIZED
AND REQUESTED TO SUBMIT THIS AGREEMENT TO ANY COURT HAVING JURISDICTION
OVER THE SUBJECT MATTER AND THE PARTIES HERETO, SO AS TO SERVE AS
CONCLUSIVE EVIDENCE OF THIS WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER,
THE COMPANY AND THE LENDER EACH HEREBY CERTIFIES THAT NO REPRESENTATIVE
OR AGENT OF THE OTHER PARTY, INCLUDING THE OTHER PARTY'S COUNSEL, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY OF ITS REPRESENTATIVES OR
AGENTS THAT THE OTHER PARTY WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT
TO JURY TRIAL PROVISION.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
MONUMENT MORTGAGE, INC.,
a California corporation
By:
----------------------------------
Its:
----------------------------------
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:
----------------------------------
62
Its: Director
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:
---------------
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:
---------------
63
EXHIBIT A
PROMISSORY NOTE
$75,000,000 Date: June 30, 1999
FOR VALUE RECEIVED, the undersigned, MONUMENT MORTGAGE, INC., a
California corporation (herein called the "Company"), hereby promises to pay to
the order of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender" or, together with its successors and assigns, the "Holder") whose
principal place of business is 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxxx 00000, or at such other place as the Holder may
designate from time to time, the principal sum of $75,000,000 or so much thereof
as may be outstanding from time to time pursuant to the First Amended and
Restated Warehousing Credit and Security Agreement described below, and to pay
interest on said principal sum or such part thereof as shall remain unpaid from
time to time, from the date of each Advance until repaid in full, and all other
fees and charges due under the Agreement, at the rates and at the times set
forth in the Agreement. All payments hereunder shall be made in lawful money of
the United States and in immediately available funds.
This Note is given to evidence an actual warehouse line of credit in the
above amount and is the Note referred to in that certain First Amended and
Restated Warehousing Credit and Security Agreement (the "Agreement") dated the
date hereof between the Company and the Lender, as the same may be amended or
supplemented from time to time, and is entitled to the benefits thereof.
Reference is hereby made to the Agreement (which is incorporated herein by
reference as fully and with the same effect as if set forth herein at length)
for a description of the Collateral, a statement of the covenants and
agreements, a statement of the rights and remedies and securities afforded
thereby and other matters contained therein. Capitalized terms used herein,
unless otherwise defined herein, shall have the meanings given them in the
Agreement.
This Note may be prepaid in whole or in part at any time without premium
or penalty.
Should this Note be placed in the hands of attorneys for collection, the
Company agrees to pay, in addition to principal and interest, fees and charges
due under the Agreement, any and all costs of collecting this Note, including
reasonable attorneys' fees and expenses.
1
The Company hereby waives demand, notice, protest and presentment.
This Note shall be construed and enforced in accordance with the laws of
the State of Minnesota, without reference to its principles of conflicts of law.
IN WITNESS WHEREOF, the Company has executed this Note as of the day and
year first above written.
MONUMENT MORTGAGE, INC.,
a California corporation
By:
---------------------------------
Its:
--------------------------------
STATE OF _______________ )
) ss
COUNTY OF ______________ )
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
(SEAL) My Commission Expires:
--------------
2
EXHIBIT B
GUARANTY
THIS GUARANTY, made and entered into as of this 30th day of June 1999, by
XxXXX.XXX, INC., 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. MONUMENT MORTGAGE, INC., a California corporation (the "Company")
and the Lender have agreed that the Lender will extend a warehouse
line of credit to the Company in the principal amount of
$75,000,000 (the "Loan") to finance the making and purchasing of
Mortgage Loans.
B. The Loan is evidenced by a Warehousing Promissory Note dated of
even date herewith 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 Note (the "Note") and by a First Amended and Restated
Warehousing Credit and Security Agreement of even date herewith,
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 sole shareholder of the Company and will
derive benefit from the Loan.
D. As a condition to making the Loan, the Lender has required that
the Guarantor execute and deliver this Guaranty. In order to
induce the Lender to make Advances under the Agreement, to accept
the Notes and 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 of
1
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 payment
of such Guaranteed Debt.
6. The Guarantor does hereby (a) agree to any modifications of any
terms or conditions of any Guaranteed Debt
2
and/or to any extensions or renewals of time of payment or performance by the
Company; (b) that it shall not be necessary for the Lender to 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
3
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 bythe 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
4
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 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 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
5
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:
6
(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
7
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.
8
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. No 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 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
facsimile, 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.
9
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 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.
10
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty with the
intent to be legally bound as of the date first above written.
XxXXX.XXX, INC.,
a Delaware corporation
By:
---------------------------------
Its:
--------------------------------
Address: 0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.:
---------------------
STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _________________, 1999 before me, a Notary Public, personally
appeared ____________________________, the __________________of XxXXX.XXX, INC.,
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:
--------------
11
EXHIBIT C-SF
REQUEST FOR ADVANCE SINGLE FAMILY MORTGAGE LOAN
Mortgage Company: MONUMENT MORTGAGE, INC.
Mortgagor: ________________________ Loan Number: ___________________________
________________________ Reviewed By: ___________________________
Address: ________________________ Warehouse Date: ___________________________
________________________ Effective Date: ___________________________
Status: Committed _______________ Loan Type: Prime _______FHA_____ VA_______
Uncommitted _____________ Subprime ___________ Grade_____
Wet Settlement __________ "D" ___________________________
Received ________________ High LTV ____ Credit Score ____
Open-end Second _________ Title I _______________________
Closed-end Second _______ HUD 203(K) ____________________
3rd Party Originated ____ RFC ___________________________
Section 32 ______________ Fixed _________ Term___________
ARM ___________ Type __________
Balloon ________ Type _________
Mortgage Note Amount: _______________ Interest Rate: __________________________
Mortgage Note Date: _________________ Requested Warehouse Amt: ________________
Investor: ___________________________ Expiration Date: ________________________
Purchase Commitment No: _____________ Title Company: __________________________
Committed Purchase Price: ___________ Address: _____________________________
Phone No.: ____________________________
METHOD OF ADVANCE
( ) Check Funding/Disbursement
Check No: ________________________ Amount: ___________________________
Checking Account No: _____________
( ) Wire Transfer
Amount of Wire: __________________ Date of Wire: __________________
Credit Acct. No.: ________________ Credit Acct. Name: ________________
ABA No.: _________________________ Bank Name: _______________________
Account to Debit: ________________ City & State: ________________
Ref: ________________ Advise: ___________________ Phone: _______________
REQUIRED DOCUMENTATION
Attached please find the following documents in connection with the above
request (Please check attached documents below):
Right
( ) Original and 1 copy of Mortgage Note
( ) Certified copy of Mortgage
( ) Section 32 Compliance Documents (if applicable)
( ) *Copy of Investor Purchase Commitment (or satisfactory evidence thereof)
( ) *HUD 203(K) Maximum Mortgage Worksheet (HUD 203(K) Mortgage Loans only)
( ) *Evidence of initial Advance amount (open-end Second Mortgage Loans)
( ) *Copy of EquityWise Certificate (Required for High LTV Loans)
( ) *Copy of HUD-1 Settlement Statement or equivalent
(Title I Mortgage Loans only)
Left
( ) *Request for Advance (original and 1 copy)
( ) *Copy of settlement or funding check (if applicable)
( ) Recordable assignment of Mortgage
( ) Certified copies of interim assignments of Mortgage (if applicable)
Please Note: Items designated with the "*" are required prior to a Wet
Settlement Advance.
For the new value this day received, MONUMENT MORTGAGE, INC. (the "Company"),
hereby creates and grants in favor and for the benefit of RESIDENTIAL FUNDING
CORPORATION (the "Lender"), a security interest in and to the Mortgage Loan
described above, together with all related Collateral, as more particularly
described in the First Amended and Restated Warehousing Credit and Security
Agreement (as amended, supplemented or otherwise modified) between the Company
and the Lender.
MONUMENT MORTGAGE, INC.
Authorized Signature:
---------------------------------
EXHIBIT D-SF
PROCEDURES AND DOCUMENTATION FOR
WAREHOUSING SINGLE FAMILY MORTGAGE LOANS
The Company must satisfy the following procedures and documentation
requirements for Advances under the Agreement. All documents must be
satisfactory to the Lender in its sole discretion. The HUD, Xxxxxx Xxx and
Xxxxxxx Mac form numbers referred to in this Exhibit are for convenience only.
The Company must use the equivalent forms required at the time of delivery of
the Mortgage Loans or Mortgage-backed Securities. All Advance Requests and
Collateral Documents must be submitted to the Lender in a top tabbed, legal size
manila file folder, hole-punched and acco-fastened in the order specified in the
Advance Request. Each folder must be labelled with the mortgagor name(s),
Company loan number and Company name. If a Wet Settlement Advance is being
requested, the Advance Request and required Collateral Documents should be
submitted in accordance with the above instructions. The remaining Collateral
Documents must be submitted with a cover letter identifying the mortgagor
name(s) and Company loan number.
I. Prior to making a Wet Settlement Advance, the Lender must receive the
following:
(1) Estimate of the amount of the requested Advance 1 BUSINESS DAY
prior to the date the requested Advance is to be made.
(2) Copy of settlement or funding check issued to the escrow/title
company, if applicable.
(3) Either an Electronic Advance Request (including RFConnects Pledge
Agreement and list of Mortgage Loans) or an original, written
Advance Request against Single Family Mortgage Loans (Exhibit
C-SF) and 1 copy of same.
(4) Copy of the Purchase Commitment or satisfactory evidence thereof
and, for each High LTV Mortgage Loan, a copy of the EquityWise
Certificate.
(5) Evidence of initial Advance amount (open-end Second Mortgage Loans
only).
(6) A copy of the HUD-1 Settlement Statement or equivalent (Title I
Mortgage Loans only).
(7) A copy of HUD 203(K) Maximum Mortgage Worksheet (HUD 203(K)
Mortgage Loans only).
1
The following must be received by the Lender within 7 BUSINESS DAYS of
the date the Wet Settlement Advance is to be made:
(8) Original signed Mortgage Note, endorsed by the Company in blank
with corresponding interim endorsements, if applicable, and 1 copy
of same.
(9) Copy of the Mortgage certified true by the escrow/title company.
(10) Copies of all interim assignments of the Mortgage certified true
by the escrow/title company (recorded or sent for recordation).
Mortgage Note must bear corresponding endorsements.
(11) An assignment of the Mortgage, endorsed by the Company in blank,
in recordable form but unrecorded.
(12) Completed Company Worksheet Concerning Applicability of Section 32
of Regulation Z (12 CFR Section 226.32) and, if Section 32
applies, copies of the disclosure and other related documentation
delivered to the mortgagor, or executed by the mortgagor,
evidencing compliance with Section 32 (if applicable).
II. Prior to the making of an Advance (other than a Wet Settlement Advance),
the Lender must receive all of the Collateral Documents listed in Section
I above.
III. Only the Lender will deliver the Mortgage Notes and other original
Collateral Documents evidencing Pledged Mortgages or Pledged Securities
and related pool documents to the Investor or pool custodian, unless
otherwise agreed in writing.
A. The following procedures must be followed for deliveries of Pledged
Mortgages:
No later than 1 BUSINESS DAY prior to the requested shipment date, the
Lender must receive the following:
(1) Signed shipping instructions or authenticated shipping
instructions sent via RFConnects Delivery for the delivery of the
Pledged Mortgages including the following:
(a) Name and address of the office of the Investor to which the
loan documents are to be shipped, the desired shipping date
and the preferred method of delivery;
(b) Instructions for endorsement of the Mortgage Note;
2
(c) Names of mortgagor(s), Mortgage Note Amounts of Pledged
Mortgages to be shipped and the Company's loan number; and
(d) Commitment number and expiration date of the Purchase
Commitment.
(2) For deliveries of Pledged Mortgages to Xxxxxx Mae for cash
purchase, the following additional documents are required:
(a) Copy of Loan Schedule (Xxxxxx Xxx Form 1068 or 1069)
showing the Lender's designated Xxxxxx Mae payee code as
recipient of the loan purchase proceeds.
(3) For deliveries of Pledged Mortgages to Xxxxxxx Mac for cash
purchase, the following additional documents are required:
(a) Original completed Warehouse Lender Release of Security
Interest (Xxxxxxx Mac Form 996) to be executed by the
Lender, designating the Lender as the Warehouse Lender and
showing the Cash Collateral Account designated by the
Lender as the receiving account for loan purchase proceeds.
(b) Copy of Wire Transfer Authorization for a Cash Warehouse
Delivery (Xxxxxxx Mac Form 987), designating the Lender as
the Warehouse Lender and showing the Cash Collateral
Account designated by the Lender as the receiving account
for loan purchase proceeds.
B. In the event Pledged Mortgages are delivered to a pool custodian, other
than an Approved Custodian, payment of the related Advance is required
within 2 BUSINESS DAYS of shipment.
The following procedures are to be followed for deliveries of Pledged
Mortgages to Approved Custodians:
No later than 1 BUSINESS DAY prior to the requested shipment date and no
later than 1 BUSINESS DAY prior to required delivery date to the Approved
Custodian, the Lender must receive the following:
(1) Signed shipping instructions or authenticated shipping
instructions sent via RFConnects Delivery for the delivery of the
Pledged Mortgages to the Approved Custodian including the
following:
(a) Name and address of the office of the Approved Custodian to
which the loan documents are to be shipped, the desired
shipping date and the preferred method of delivery;
(b) Instructions for endorsement of the Mortgage Note;
(c) Names of mortgagor(s) and Mortgage Note Amounts of
3
Pledged Mortgages to be shipped and the Company's loan
number; and
(d) Commitment number and expiration date of the Purchase
Commitment for the Pledged Securities.
(2) For Xxxxxx Mae Mortgage-backed Securities issuance, the following
additional documents are required:
(a) Copy of Schedule of Mortgages (Xxxxxx Xxx Form 2005 or
2025).
(b) Copy of Delivery Schedule (Xxxxxx Mae Form 2014),
instructing Xxxxxx Xxx to issue the Mortgage-backed
Securities in the name of the Company with the Lender as
pledgee and to deliver the Mortgage-backed Securities to
the Lender's custody account at The Chase Manhattan Bank
(CHASE NYC/CUST/G55026) and bearing the following
instructions: "These instructions may not be changed
without the prior written consent of Residential Funding
Corporation, Xxxxxxx X. Xxxxxx, Managing Director or
Xxxxxxx Xxxxxxxxx, Director."
(3) For Xxxxxxx Mac Mortgage-backed Securities issuance, the following
additional documents are required:
(a) Copy of Settlement Information and Delivery Authorization
(Xxxxxxx Mac Form 939), designating the Lender as the
Warehouse Lender and instructing Xxxxxxx Mac to deliver the
Mortgage-backed Securities to the Lender's custody account
at The Chase Manhattan Bank (CHASE NYC/CUST/G55026).
(b) Original Warehouse Lender Release of Security Interest
(Xxxxxxx Mac Form 996) to be executed by the Lender,
designating the Lender as the Warehouse Lender and
instructing Xxxxxxx Mac to deliver the Mortgage-backed
Securities to the Lender's custody account at The Chase
Manhattan Bank (CHASE NYC/CUST/G55026).
(4) For Xxxxxx Xxx Mortgage-backed Securities issuance, the following
additional documents are required:
(a) Signed original Schedule of Mortgages (HUD Form 11706).
(b) Signed original Schedule of Subscribers (HUD Form 11705)
instructing Xxxxxx Mae to issue the Mortgage-backed
Securities in the name of the Company and designating The
Chase Manhattan Bank as Agent for the Lender as the
subscriber, using the following language: THE CHASE
MANHATTAN BANK AS AGENT FOR RESIDENTIAL FUNDING CORPORATION
SEG ACCT MANUF/CUST/G55026). The following instructions
must also be included on the form: "These instructions may
not be changed without the prior written consent of
Residential Funding Corporation, Xxxxxxx X. Xxxxxx,
Managing Director or Xxxxxxx Xxxxxxxxx, Director."
4
(c) Completed original Release of Security Interest (HUD Form
11711A) to be executed by the Lender.
(5) No later than 2 BUSINESS DAYS prior to the Settlement Date for the
Mortgage-backed Securities, the Lender must receive signed
Securities Delivery Instructions form attached hereto as Schedule
I.
Upon instruction by the Company, the Lender will complete the endorsement of the
Mortgage Note and make arrangements for the delivery of the original Collateral
Documents evidencing Pledged Mortgages or Pledged Securities and related
original pool documents with the appropriate bailee letter to the Investor,
Approved Custodian, or other pool custodian. Upon receipt of Mortgage-backed
Securities, the Lender will cause those Mortgage-backed Securities to be
delivered to the Investor which issued the Purchase Commitment. Mortgage-backed
Securities will be released to the Investor only upon payment of the purchase
proceeds to the Lender. Cash proceeds of sales of Pledged Mortgages and Pledged
Securities will be applied to related Advances outstanding under the Commitment.
Provided no Default exists, the Lender will return any excess proceeds of the
sale of Mortgage Loans or Mortgage-backed Securities to the Company, unless
otherwise instructed in writing.
5
SCHEDULE I
RESIDENTIAL FUNDING CORPORATION
WAREHOUSING LENDING DIVISION
SECURITY DELIVERY INSTRUCTIONS
INSTRUCTIONS MUST BE RECEIVED 2 BUSINESS DAYS IN ADVANCE OF
PICK-UP/DELIVERY
BOOK-ENTRY DATE: ______________________ SETTLEMENT DATE: ____________
ISSUER:________________________________ SECURITY: $__________________
NO. OF CERTIFICATES: __________________ 1) __________
2) __________
3) __________
CUSIP #______________
Pool #_______________ MI#_________________ Coupon Rate: ________________
Issue Date:(M/D/Y) _________________________ Maturity Date:(M/D/Y)_________
POOL TYPE (circle one):
Xxxxxx Xxx: Xxxxxx Xxx I Xxxxxx Xxx XX
Xxxxxxx Mac: FIXED ARM DISCOUNT NOTE
Xxxxxx Mae: FIXED ARM DISCOUNT NOTE DEBENTURES REMIC
DELIVER TO:_______________________________ ( ) Versus Payment
_______________________________ DVP AMT. $___________________
_______________________________ ( ) Free Delivery
DELIVER TO:_______________________________ ( ) Versus Payment
_______________________________ DVP AMT. $___________________
_______________________________ ( ) Free Delivery
DELIVER TO:_______________________________ ( ) Versus Payment
_______________________________ DVP AMT. $___________________
_______________________________ ( ) Free Delivery
------------------------------------------------------------------------------
AUTHORIZED SIGNATURE:
---------------------------------------------------------
TITLE:
----------------------------------------------------------------
EXHIBIT E
SCHEDULE OF SERVICING PORTFOLIO
UNPAID PRINCIPAL BALANCE
OF LOANS SERVICED AS OF
INVESTOR NAME DATE OF THIS AGREEMENT
------------- -----------------------
(to be completed by Company)
RFC $34,639,571.61
FNMA 35,189,947.98
FNMA MBS $109,620,085.60
GE CAPITAL $5,992,431.98
INDYMAC 00.00
FHLMC $147,252,197.05
TOTAL $332,694,234.22
EXHIBIT F
RESIDENTIAL FUNDING CORPORATION
SUBORDINATION OF DEBT AGREEMENT
_______________, 19____
To: Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
(hereinafter referred to as the "Lender")
The undersigned (hereinafter referred to as the "Creditor"), creditor of
MONUMENT MORTGAGE, INC., a California corporation (hereinafter referred to as
the "Company"), desires that the Lender extend or continue to extend such
financial accommodations to the Company as the Company may require and as the
Lender may deem proper. For the purpose of inducing the Lender to grant,
continue or renew such financial accommodations, and in consideration thereof,
the Creditor agrees as follows:
1. That at the present time the Company is indebted to the Creditor in the
principal amounts set forth below:
PRINCIPAL AMOUNT
TYPE OF FACILITY OF DEBT FROM THE
OR LOAN COMPANY
----------------------------- -----------------------------
----------------------------- -----------------------------
----------------------------- -----------------------------
----------------------------- -----------------------------
(Notes, if any, are to be delivered to the Lender)
2. That all claims of the Creditor against the Company now or hereafter
existing are and shall be at all times subject and subordinate to any and all
claims now or hereafter which the Lender may have against the Company (and all
extensions, renewals, modifications, replacements and substitutions of or for
the same), for so long as any such claim or claims of the Lender shall exist.
3. That the Creditor shall not (a) except to the extent expressly permitted
in Section 4 hereof, receive payment of or collect, in whole or in part, or xxx
upon, any claim or claims now
1
or hereafter existing which the Creditor may hold against the Company; (b) sell,
assign, transfer, pledge, hypothecate or encumber such claim or claims except
subject expressly to this Agreement; (c) enforce any lien the Creditor may now
or in the future have on any debt owing by the Company to the Creditor; and/or
(d) join in any petition in bankruptcy, assignment for the benefit of creditors
or creditors' agreement, except as directed by the Lender, so long as any claim
of the Lender against the Company, or commitment of the Lender to extend credit
to the Company, is in existence.
4. So long as no event described in clauses (a) through (d) of Section 6
below (a "Liquidation Event") shall have occurred and no default shall have
occurred in payment or performance of any obligation of the Company to the
Lender, regularly scheduled payments of interest and principal on the claims of
the Creditor may be made as and when the same become due and payable (it being
understood that no prepayment shall be made of such claims and no modification
or acceleration, for default or otherwise, of such maturity dates shall be
permitted). After the occurrence of a Liquidation Event or of default in
payment or performance of any obligation of the Company to the Lender, no
interest and no principal payments on the claims of the Creditor shall be made
without the prior written consent of the Lender. The subordination of claims of
the Creditor hereunder shall remain in effect so long as there shall be
outstanding any obligation of the Company to the Lender (for this purpose, the
Company shall be deemed obligated to the Lender so long as the Lender shall have
outstanding any commitment to make any loan to the Company, whether or not any
such loan shall have been made or advanced).
5. In the event that any Creditor receives a payment from the Company in
violation of the terms of this Agreement, such Creditor (a) shall hold such
money in trust for the benefit of Lender, (b) shall segregate such payment from
(and shall not commingle such payment with any of) the other funds of such
Creditor, and (c) shall forthwith remit such payment to Lender in the exact form
received (but with any necessary endorsement).
6. In case of (a) any assignment by the Company for the benefit of
creditors, (b) any bankruptcy proceedings instituted by or against the Company,
(c) the appointment of any receiver for the Company's business or assets, or (d)
any dissolution or winding up of the affairs of the Company, the Company and any
assignee, trustee in bankruptcy, receiver, or other person or persons in charge,
are hereby directed to pay to the Lender the full amount of the Lender's claim
against the Company before making any payment of principal or interest to the
Creditor and the Creditor hereby sells, transfers, sets over and assigns to the
Lender all claims the Creditor may now or hereafter have against the Company and
in any security therefor, and the proceeds thereof, and all
2
rights to any payments, dividends or other distributions arising therefrom. If
the Creditor does not file a proper claim or proof of debt in the form required
in such proceeding prior to thirty (30) days before the expiration of the time
to file such claim in such proceedings, then the Lender has the right (but no
obligation) to do so and is hereby authorized to file an appropriate claim or
claims for and on behalf of the Creditor.
7. For violation of this Agreement, the Creditor shall be liable to the
Lender for all loss and damage sustained by reason of such breach, and upon any
such violation, the Lender may accelerate the maturity of its claims against the
Company, at the Lender's option.
8. The Creditor will, at any time and from time to time, promptly execute
and deliver all further instruments and documents, and take all further action,
that may be reasonably necessary in order to protect any right or interest
granted hereby or to enable the Lender to exercise and enforce its rights and
remedies hereunder.
9. The Creditor will not amend, extend or in any way modify the terms of its
claims against the Company, as such terms exist as of the date of this
Agreement, without the prior written consent of the Lender. The Creditor agrees
to provide to the Lender, upon the occurrence thereof, notice of the existence
of any event of default (however defined or described) under any document or
agreement relating to its claims against the Company, or any condition, act or
event, which with the giving of notice or the passage of time or both would
constitute an event of default (however defined or described) thereunder.
10. All rights and interest of the Lender hereunder, and all agreements and
obligations of the Creditor hereunder, shall remain in full force and effect
irrespective of:
(a) any sale, assignment, pledge, encumbrance or other disposition of
the claims of the Lender against the Company (the "Senior Claims") and/or any
document or instrument executed in connection therewith;
(b) any change in the time, manner or place of payment of, or in any
other terms of, all or any of the Senior Claims, or any refinancing thereof, or
any other amendment, modification, extension or renewal of or waiver of or any
consent to departure from any document or instrument relating thereto,
including, without limitation, changes in the terms of the repayment of loan
proceeds, modifications, extensions or renewals of payment dates, changes in
interest rate or the advancement of additional funds by the Lender in its
discretion; or
3
(c) any exchange, release or nonperfection of any collateral, or any
release or amendment or waiver of or consent to departure from any guaranty, for
all or any of the Senior Claims.
11. This Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment or performance of all or any portion of
the Senior Claims is rescinded or must otherwise be returned by the Lender or
any other party to the documents relating thereto upon the insolvency,
bankruptcy or reorganization of any such party or otherwise, all as though such
payment had not been made.
12. The Creditor hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to this Agreement and any requirement that the
Lender protect, secure, perfect or insure any security interest or lien or any
property subject thereto or exhaust any right or take any action against the
Creditor or any other person or entity or any collateral.
13. No failure on the part of the Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
14. No amendment or waiver of any provision of this Agreement nor consent to
any departure by the Creditor 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.
15. The Creditor agrees to pay upon demand, to the Lender the amount of any
and all expenses, including the reasonable fees and expenses of its counsel and
all court costs and other reasonable litigation expenses, including but not
limited to expert witness fees, document copying expenses, exhibit preparation
costs, and courier, postage and communication expenses, which the Lender may
incur in connection with the exercise or enforcement of any of its rights or
interest hereunder.
16. All notices, request and demands that may be required or otherwise
provided for or contemplated under the terms of this Agreement shall, whether or
not so stated, be in writing, and shall be given by any of the following means:
(a) personal delivery; (b) reputable overnight courier service; or (c)
registered or certified first class mail, return receipt requested. Any notice,
request or demand sent pursuant to clause (a) above shall be deemed received
upon personal delivery, and if sent pursuant to clause (b) shall be deemed
received on the next
4
business day following delivery to the courier service, and if sent pursuant to
clause (c) shall be deemed received three (3) days following deposit in the
mail.
The addresses for notices are as follows:
If to the Creditor, addressed to:
If to the Lender, addressed to :
Residential Funding Corporation
0000 Xxxxx Xxxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Director
Telecopier No.: (000) 000-0000
Such addresses may be changed by written notice to the other
parties given in the manner provided above.
17. This Agreement shall be governed in all respects by the laws of the State
of Minnesota and shall be binding upon and shall inure to the benefit of the
Creditor, the Lender and the Company, and their respective heirs, executors,
administrators, personal representatives, successors and assigns. This
Agreement and any claim or claims of the Lender pursuant hereto may be assigned
by the Lender, in whole or in part, at any time, without notice to the Creditor
or the Company.
(Creditor)
5
[THE FOLLOWING ACKNOWLEDGEMENT IS TO BE USED FOR A CORPORATION.]
STATE OF _______________ )
) ss
COUNTY OF ______________ )
On _______________, 19___ before me, a Notary Public, personally appeared
_____________________, the ____________ of _________________________, 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:
[THE FOLLOWING ACKNOWLEDGEMENT IS TO BE USED FOR AN INDIVIDUAL.]
STATE OF _______________ )
) ss
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this _____ day of
_________________, 19__, by .
Notary Public
My Commission Expires:
6
ACCEPTANCE OF SUBORDINATION OF DEBT
AGREEMENT BY THE COMPANY
The Company named in the Subordination of Debt Agreement set forth
hereinbefore, hereby (i) represents and warrants to the Lender that it is
presently indebted to the Creditor executing said Subordination of Debt
Agreement in the aggregate principal amount of
Dollars ($ ); and (ii) accepts and consents to the
Subordination of Debt Agreement, and agrees to be bound by all of the provisions
thereof and to recognize all priorities and other rights granted thereby to
RESIDENTIAL FUNDING CORPORATION, a Delaware corporation, its successors and
assigns, and to perform in accordance therewith.
MONUMENT MORTGAGE, INC.,
a California corporation
By:
Its:
Dated:
7
EXHIBIT G
SUBSIDIARIES
States
Qualified
to do
Name Incorporated Business Owned (%)
---- ------------ ---------- ---------
(to be completed by Company)
None
EXHIBIT H
FORM OF OPINION OF COUNSEL
Residential Funding Corporation
Attention: Xxxxxx X. Xxxxx
0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: $75,000,000 Loan (the "Loan") under Warehousing Credit and Security
Agreement (the "Agreement") by and between RESIDENTIAL FUNDING
CORPORATION, a Delaware corporation (the "Lender") and MONUMENT MORTGAGE,
INC., a California corporation (the "Company"), guaranteed by XxXXX.XXX,
INC., a Delaware corporation (the "Guarantor") and secured by the
"Collateral" (as defined in the Agreement).
Gentlemen:
We are special counsel to the Company and to the Guarantor in connection
with the Loan.(1) As counsel, we have prepared and/or examined the following
documents:
1. Executed copy of the Promissory Note, dated June 30, 1999, made by the
Company payable to the order of the Lender, in the principal amount of
$75,000,000.
2. Executed copy of the First Amended and Restated Warehousing Credit and
Security Agreement by and between the Company and the Lender, dated June
30, 1999 (the "Agreement").
3. Undated UCC Financing Statements perfecting a security interest in
collateral, tangible and intangible.
4. Executed copy of the Guaranty, dated June 30, 1999 (the "Guaranty"), made
by the Guarantor to the Lender.
5. The Articles of Incorporation of the Company, together with amendments
thereto, as certified by the Secretary of State of the State of
California.
6. The Bylaws of the Company, as certified on ___________________, 19___ by
the Secretary of the Company as then being complete, accurate and in
effect.
-----------------------
(1) The form of opinion should be modified as necessary if separate
counsel is employed for Company and for Guarantor.
1
7. Resolutions of the Board of Directors of the Company, adopted at a
meeting held on ____________________, 19____, as certified by the
Secretary of the Company on __________________, 19____ as then being
complete, accurate and in effect, authorizing the borrowing of the Loan
and the execution and delivery of and performance under the Agreement.
8. Certificate of Good Standing for the Company, dated __________________,
19____, issued by the Secretary of State of the State of California.(2)
9. The Articles of Incorporation of the Guarantor, together with amendments
thereto, as certified by the Secretary of State of the State of
California.
10. The By-laws of the Guarantor, as certified on __________________, 19____
by the Secretary of the Guarantor as then being complete, accurate and in
effect.
11. Resolutions of the Board of Directors of the Guarantor, adopted at a
meeting held on __________________, 19____, as certified by the Secretary
of the Guarantor on __________________, 19____ as then being complete,
accurate and in effect, authorizing the execution and delivery of and
performance under the Guaranty.
12. Certificate of Good Standing for the Guarantor, dated _________________,
19____, issued by the Secretary of State of the State of California.(3)
The above enumerated items, numbered 1, 2 and 3 are collectively referred
to as the "Loan Documents."
The opinions which follow are subject to the following assumptions,
limitations and qualifications:
A. We have assumed the genuineness of all signatures, other than
------------------
(2) A certificate of good standing, dated as of a date within ninety
(90) days of the date of the Agreement, for the state where the Company is
incorporated and for each state where the Company is transacting business as a
foreign corporation should be listed.
(3) A certificate of good standing, dated as of a date within ninety
(90) days of the date of the Agreement, for the state where the Guarantor is
incorporated and for each state where the Guarantor is transacting business as a
foreign corporation should be listed.
2
of the Company and the Guarantor, the authenticity of all documents
submitted to us as originals, and the conformity with the original
documents of all documents submitted to us as reproduced copies, and
the authenticity of all such latter documents.
B. We have assumed the organization, existence, good standing and capacity
of all persons and entities other than the Company and the Guarantor, and
that such parties, other than the Company and the Guarantor, have the
right, power and authority to execute and deliver the Loan Documents and
to perform thereunder.
C. We have assumed that the Lender's obligations under the Agreement are
within the powers of the Lender and have been duly and validly authorized
and that the Agreement has been duly executed and validly delivered by
the Lender.
D. As to various questions of fact material to this opinion, we have made
such factual inquiries of the Company and the Guarantor, and have
examined such other documents and made such examinations of applicable
laws, as we have deemed necessary for purposes of the opinions expressed
herein. However, where we state that a matter is to the best of our
knowledge, we have relied upon the written statements of the Guarantor
and the officers of the Company, with no inquiry as to the facts other
than as necessary to establish that such reliance was reasonable on our
part.
Based upon such examinations and investigations, and such other
investigations and examinations as we have deemed necessary for the purposes of
the opinions expressed herein, and subject to the assumptions stated above in
paragraphs A through D, inclusive, and in our capacity as special counsel for
the Company and the Guarantor, we are of the opinion that:
[OPINIONS CONCERNING COMPANY]
1. The Company AND EACH SUBSIDIARY OF THE COMPANY(4) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated and has the full legal power and
authority to own its property and to carry on its business as currently
conducted.
2. The Company AND EACH SUBSIDIARY OF THE COMPANY is duly
-------------------------
(4) In the alternative, state that the Company has no Subsidiaries.
3
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 Company has the power and authority to execute, deliver and perform
the Loan Documents. The execution, delivery and performance of the Loan
Documents by the Company, including without limitation, the borrowings
under the Agreement and the pledge of the Collateral, have been duly and
validly authorized by all necessary actions on the part of the Company.
4. The Loan Documents have been duly executed and delivered by the Company.
The Loan Documents constitute the legal, valid and binding obligations of
the Company and are enforceable in accordance with their respective terms
against the Company, except that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the rights of creditors, and general principles of equity.
5. Upon delivery to the Lender of those items of Collateral, consisting of
promissory notes secured by mortgages or deeds of trust ("Pledged
Mortgages") or mortgage-backed securities ("Pledged Securities"), or in
the case of Pledged Securities issued in book-entry form or issued in
certificated form and delivered to a clearing corporation (as such term
is defined in the Uniform Commercial Code) or its nominee, upon (a)
registration of such Pledged Securities in the name of a securities
intermediary (as such term is defined in the Uniform Commercial Code) in
an account containing only customer securities, (b) the notation of
Lender's security interest in such Pledged Securities on the records of
such securities intermediary, by book entry or otherwise, and (c) the
sending by such securities intermediary to the Lender of confirmation of
such notation, the Lender will have a valid and perfected security
interest therein. We assume, in giving this opinion, that such items of
Collateral will be owned by the Company and that, at the time the
Lender's security interest is noted on the records of any securities
intermediary, such Pledged Securities will be free of any interest
created through the Federal Reserve Bank, clearing corporation and/or
securities intermediary. With respect to Pledged Mortgages, the laws of
certain jurisdictions may require the recordation of an assignment of
such deeds of trust or mortgages in order to perfect a security interest
in the deed of trust or mortgage (as opposed to the notes secured
thereby). If the Lender does not record its assignment of deeds of trust
or mortgages in such jurisdictions, we express no opinion as to the
Lender's
4
perfected security interest in such deeds of trust and mortgages (as
opposed to the notes secured thereby) constituting part of the
Collateral.
6. The execution, delivery and performance by the Company of the Loan
Documents, will not (i) conflict with or violate any provision of the
Articles of Incorporation or By-laws of the Company; (ii) require any
license, approval or other action by any governmental authority that has
not been obtained; (iii) to the best of our knowledge, result in the
creation of any lien, charge or encumbrance upon any property or assets
of the Company other than in favor of the Lender; (iv) to the best of our
knowledge, result in a violation or breach of any term or provision,
constitute a default under, or result in or require the acceleration of
any indebtedness of the Company pursuant to, any agreement or other
instrument to which the Company may be bound or to which the Company or
any of its property may be subject; or (v) result in any violation of the
provisions of any law or, to the best of our knowledge, any order of any
court or any governmental agency, to which the Company may be bound or to
which the Company or any of its property may be subject.
7. To the best of our knowledge, there are no actions, suits, or proceedings
pending or threatened against or affecting the Company, in any court or
before any arbitrator or governmental authority which, if adversely
determined, may reasonably be expected to result in any material and
adverse change in the business, operations, assets or financial condition
of the Company as a whole.
8. The making of the Advances as contemplated by the Agreement will not
violate Regulation U of the Board of Governors of the Federal Reserve
System.
9. The Company is not an "investment company" or "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
[OPINIONS CONCERNING THE GUARANTOR]
10. The Guarantor has the power and authority to execute, deliver and perform
the Guaranty. The execution, delivery and performance of the Guaranty
have been duly and validly authorized by all necessary actions on the
part of the Guarantor.
11. The Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it is
incorporated; has the full legal power and authority to own its property
and to carry on its
5
business as currently conducted; and 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.
12. The Guaranty has been duly executed and delivered by the Guarantor. The
Guaranty constitutes the legal, valid and binding obligation of the
Guarantor and is enforceable in accordance with its terms against the
Guarantor, except that enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting
the rights of creditors, and general principles of equity.
13. The execution, delivery and performance by the Guarantor of the Guaranty
will not (a) conflict with or violate any provision of the Articles of
Incorporation or Bylaws of the Guarantor; (b) require any license,
approval or other action by any governmental authority that has not been
obtained; (c) to the best of our knowledge, result in the creation of any
lien, charge or encumbrance upon any property or assets of the Guarantor
other than in favor of the Lender; (d) result in a violation or breach of
any term or provision, constitute a default under, or result in or
require the acceleration of any indebtedness of the Guarantor pursuant
to, any agreement or other instrument to which the Guarantor may be bound
or to which the Guarantor or any of its respective property may be
subject; or (e) result in any violation of the provisions of any law or,
to the best of our knowledge, any order of any court or any governmental
agency, to which the Guarantor may be bound or to which the Guarantor or
any of its respective property may be subject.
14. To the best of our knowledge, there are no actions, suits, or proceedings
pending or threatened against or affecting the Guarantor, in any court or
before any arbitrator or governmental authority which, if adversely
determined, may reasonably be expected to result in any material adverse
change in the financial condition of the Guarantor.
This opinion may be relied upon by you and your successors and assigns
and by any participant in the Loan.
All capitalized terms used herein, not otherwise defined herein, shall
have the meanings given such terms in the Agreement.
Very truly yours,
------------------------------------
By:
---------------------------------
6
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 0.
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.
1
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 Company has taken, is taking and proposes to
take with respect thereto are specified 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:
----------------------------------
2
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 0 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 $________________
3
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 0 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: $________
4
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 0 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: $________
5
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 $________________
6
XI. RATIO OF DEBT TO TANGIBLE NET WORTH OF GUARANTOR
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.
C. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
XII. LIABILITY GROWTH OF GUARANTOR
A. Liabilities of Guarantor at end of most recent Fiscal
Quarter was: $________
B. Liabilities of Guarantor at the end of prior Fiscal
Quarter was: $________
C. 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.
D. COVENANT SATISFIED:____ COVENANT NOT SATISFIED:____
7
EXHIBIT J
SCHEDULE OF EXISTING LINES OF CREDIT
LENDER NAME COMMITMENT AMOUNT EXPIRATION DATE
----------- ----------------- ---------------
(to be completed by Company)
FNMA ASAP UNCOMMITTED NONE
EXHIBIT K
FORM FOR FUNDING BANK
LETTER AGREEMENT
(Letterhead of the Company)
June 30, 1999
The First National Bank of Chicago
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Gentlemen:
The undersigned, MONUMENT MORTGAGE, INC. (the "Company"), hereby
authorizes The First National Bank of Chicago (the "Funding Bank") to permit
Residential Funding Corporation (the "Lender") to debit and access information
on the Company's accounts held by the Funding Bank as outlined below. The
Company hereby directs and authorizes the Funding Bank to follow the directions
of the Lender in debiting such accounts.
The Company authorizes the Lender to access account information from time
to time for the Company's operating account no. ___________________________ (the
"Operating Account") for the purpose of verifying balance information. In
addition, the Company requests that the Lender, and the Company hereby
authorizes the Lender, to debit the Operating Account to the extent necessary to
cover (a) wires to be initiated by the Lender in accordance with the Company's
instructions as set forth in the Request for Advance for the purposes permitted
in the First Amended and Restated Warehousing Credit and Security Agreement (the
"Agreement") by and between the Company and the Lender; and (b) amounts due and
owing to the Lender, including but not limited to principal, interest and fees.
Upon the termination or expiration of the Agreement, the Company requests
that the Lender, and the Company hereby authorizes the Lender to (a) close the
Operating Account and any other accounts which have been established by the
Company and the Lender to facilitate transactions under the Agreement, and (b)
withdraw any funds remaining in the Operating Account and remit such funds to
the Company after all amounts due and owing the Lender have been paid.
The Company hereby directs and authorizes the Funding Bank to follow all
of the foregoing instructions of the Lender.
Very truly yours,
MONUMENT MORTGAGE, INC.,
a California corporation
By:
---------------------------------
Its:
--------------------------------
ACKNOWLEDGED AND AGREED THIS
_____ DAY OF ____________, 19___.
THE FIRST NATIONAL BANK OF CHICAGO
By:
-------------------------------
Its:
------------------------------
FORM OF COMMITMENT SUMMARY REPORT
Loan or Unfilled
Issue or Security Security Rate/ Mandatory/ Commitment Commitment Delivery/Settlement
Investor Comm. No. Trade Date Type Loan Term Net Yield Optional Amount Remaining Expiration Date Price
-------- --------- ---------- -------- --------- ---------- -------- ------- --------- ---------------- ------
TOTAL ------ ---------
Wtd. Avg. Price of Unfilled Commitments: ------
CERTIFICATION
The undersigned hereby certifies to Residential Funding Corporation that as of
the date set forth below:
1 The Company has the foregoing Purchase Commitments (as defined in the
Agreement); and
2. The Weighted Average Purchase Commitment Price for all unfilled Purchase
Commitments as set forth above.
MONUMENT MORTGAGE, INC.,
a California corporation
By:
------------------------------------
Its:
-----------------------------------
Date: , 19
------------------ ----
EXHIBIT L
Page 2
MORTGAGE POSITION REPORT Report Date: _______________
Total Locked and Unfilled
Loan Type Applications Locked Pipeline Closed Warehouse Closed Loans Commitments Net Position
---------- ------------- --------------- ---------------- -------------- ------------ -------------
EXHIBIT M
ELIGIBLE LOANS
For the purposes hereof, the following terms shall have the following meanings:
"APPRAISED VALUE" means, with respect to an interest in real
property, the then current fair market value of the real property and any
improvements thereon as of a recent date determined in accordance with
accepted methods of appraising by qualified appraiser who is a member of
the American Institute of Real Estate Appraisers or other group of
professional appraisers.
"CREDIT SCORE" means a mortgagor's overall consumer credit rating,
represented by a single numeric credit score using the Fair, Xxxxx
consumer credit scoring system, provided by a credit repository
acceptable to the Lender and the Investor that issued the Purchase
Commitment covering the related Mortgage Loan.
"GMAC LOAN" means a Mortgage Loan covered by a Purchase Commitment
issued by GMAC Mortgage Corporation.
"GMAC-RFC CLIENT GUIDE" means the applicable loan purchase guide
issued by RFC, as the same may be amended or replaced.
"GOVERNMENT LOAN" means a closed-end First Mortgage Loan that is
either HUD/FHA insured (other than a HUD 203(k) Loan or a Title I Loan)
or VA guaranteed.
"LOAN-TO-VALUE RATIO" means, for any Mortgage Loan, the ratio of
(a) the maximum amount available to be borrowed thereunder (whether or
not borrowed) at the time of origination PLUS the Mortgage Note Amounts
of all other Mortgage Loans secured by the related improved real
property, to (b) the Appraised Value of the related improved real
property.
"RFC LOAN" means a Mortgage Loan covered by a Purchase Commitment
issued by RFC.
"THIRD PARTY ORIGINATED" means a Mortgage Loan that was purchased
by the Company from a third party originator.
"WEIGHTED AVERAGE PURCHASE COMMITMENT PRICE" shall mean the
weighted average of the Committed Purchase Prices of the unfilled
Purchase Commitments (expressed as a percentage) for Mortgage Loans or
Mortgage-backed Securities of the same type, interest rate and term.
SUBLIMITS:
The following aggregate limitations shall apply to Advances against Eligible
Loans:
1. Wet Settlement Advances: 30% of the Commitment Amount.
2. Advances against Second Mortgage
Loans (either closed-end or
open-end): 5% of the Commitment Amount
(Purchase
Commitment from RFC required).
3. Third Party Originated: Not Permitted.
ELIGIBLE MORTGAGE LOANS:
The following specified types of Single Family Mortgage Loans are Eligible Loans
provided they conform in all respects with the terms of the Warehousing
Agreement:
1. PRIME MORTGAGE LOAN
a. DEFINITION: A First Mortgage Loan with the following
characteristics:
(i) For a First Mortgage Loan:
A. Underwritten substantially in accordance with Xxxxxx
Mae or Xxxxxxx Mac underwriting standards (except as
to maximum amount); and
B. Loan-to-Value Ratio not to exceed 80% or, if the
Loan-to-Value Ratio exceeds 80%, the amount by which
such Prime Mortgage Loan exceeds 80% is insured by
or subject to a commitment for mortgage insurance.
C. Is a Government Mortgage Loan.
(ii) For a Second Mortgage Loan:
A. The credit of the obligor has been underwritten
substantially in accordance with Xxxxxx Mae or
Xxxxxxx Mac underwriting standards;
B. Loan-to-Value Ratio not more than 100%; and
C. Committed for purchase by RFC.
b. INTEREST RATE: 1.75% over LIBOR (Advances outstanding up to
60 days)
2.125% over LIBOR (Advances outstanding 61
days or more)
c. PRIME SUBLIMIT: No limit.
d. COMMITTED/UNCOMMITTED: Purchase Commitment required.
e. COMMITTED FIRST MORTGAGE 95% of the lesser of (i) the Mortgage
LOAN ADVANCE RATE: Note Amount or (ii) the Weighted
Average Purchase Commitment Price.
f. RFC LOAN FIRST MORTGAGE 98% of the lesser of (i) the Mortgage
LOAN ADVANCE RATE: Note Amount or (ii) the Committed
Purchase Price.
g. GMAC FIRST MORTGAGE 98% of the lesser of (i) the Mortgage
LOAN ADVANCE RATE: Note Amount or (ii) the Committed
Purchase Price.
h. RFC LOAN SECOND MORTGAGE 98% of the lesser of (i) the Mortgage
LOAN ADVANCE RATE: Note Amount or (ii) the Committed
Purchase Price.
i. WAREHOUSING PERIOD
FIRST MORTGAGE LOAN: 120 days.*
j. WAREHOUSING PERIOD
SECOND MORTGAGE LOAN: 90 days.*
*For Advances outstanding against Mortgage Loans, other than RFC Mortgage Loans
or GMAC Mortgage Loans, for more than 60 days, the amount of the Advance shall
be reduced on the 61st day to 80% of the lesser of (i) the Mortgage Note Amount
or (ii) the Committed Purchase Price.
-2-
2. SUBPRIME MORTGAGE LOAN
a. DEFINITION: A First Mortgage Loan or a Second Mortgage Loan that
meets either the Credit Gap program eligibility criteria or the
AlterNet Loan Program eligibility criteria as set forth in
Sections 528 or 530, respectively, of the GMAC-RFC Client Guide.
b. INTEREST RATE: 1.75% over LIBOR.
c. SUBPRIME SUBLIMIT: 10% of Commitment Amount.
d. COMMITTED/UNCOMMITTED: Purchase Commitment required.
e. COMMITTED FIRST MORTGAGE 95% of the lesser of (i) the
LOAN ADVANCE RATE: Mortgage Note Amount or (ii)
the Committed Purchase Price.
f. RFC LOAN FIRST MORTGAGE 98% of the lesser of (i) the
LOAN ADVANCE RATE: Mortgage Note Amount or (ii)
the Committed Purchase Price.
g. RFC LOAN SECOND MORTGAGE 98% of the lesser of (i) the
LOAN ADVANCE RATE: Mortgage Note Amount or (ii)
the Committed Purchase Price.
h. WAREHOUSING PERIOD
FIRST/SECOND MORTGAGE LOANS: 60 days.
-3-
EXHIBIT N
FISCAL YEAR 2000 LOSSES
Permitted
Fiscal Quarter Anticipated Loss Cumulative Loss
--------------- ---------------- ---------------
1 $ 4,999,000 $ 7,498,500
2 $ 4,289,000 $13,932,000
3 $ 3,380,000 $19,002,000
4 $ 2,583,000 $22,876,500
-----------
TOTAL $15,251,000
EXHIBIT O
RFCONNECTS PLEDGE AGREEMENT
FOR VALUABLE CONSIDERATION, MONUMENT MORTGAGE, INC., a California
corporation (the "Company") grants to RESIDENTIAL FUNDING CORPORATION (the
"Lender") a security interest in the Mortgage Loans described on the list
attached to this Pledge Agreement and all notes and documents evidencing,
creating or securing the same (the "Pledged Loans") to secure the payment of all
of the Obligations of the Company, including, without limitation, all
Obligations of the Company under that First Amended and Restated Warehousing
Credit and Security Agreement dated August 9, 1999, between the Company and the
Lender (as amended or supplemented, the "Agreement").
The Company will deliver the Pledged Loans to the Lender as required by
the Agreement.
The Company agrees that this Agreement is binding upon and will inure to
the benefit of the legal representatives, successors and assigns of the Lender.
All rights, interests, duties and liabilities of the Company and the
Lender under this Pledge Agreement will be determined according to the laws of
the State of Minnesota.
All capitalize terms used in this Pledge Agreement that are not otherwise
defined above are defined in the Agreement.
IN WITNESS WHEREOF, the Company has caused this Pledge Agreement to be
executed by its duly authorized officers or agents as of this _______________day
of ___________________, 1999,
MONUMENT MORTGAGE, INC.,
a California corporation
By:
---------------------------------
Its:
--------------------------------
