Exhibit 10.20
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SEVENTH AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
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THIS SEVENTH AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND
SECURITY AGREEMENT (this "Amendment") is entered into as of this 28th day of
December 2000, by and between MONUMENT MORTGAGE, INC., a California corporation
("Borrower") and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
("Lender").
WHEREAS, Borrower and Lender have entered into a single family revolving
warehouse facility with a present Commitment Amount of $75,000,000, to finance
Mortgage Loans as evidenced by a First Amended and Restated Promissory Note in
the principal sum of $85,000,000, dated as of August 22, 2000 (the "Note"), and
by a First Amended and Restated Warehousing Credit and Security Agreement dated
as of August 9, 1999, as the same may have been amended or supplemented (the
"Agreement"); and
WHEREAS, Borrower has requested that Lender reduce the Commitment Amount and
amend certain other terms of the Agreement, and Lender has agreed to such
reduction of the Commitment Amount and amendment of the Agreement, subject to
the terms and conditions of this Amendment.
WHEREAS, certain Events of Default have occurred and are continuing under the
Agreement and Borrower has requested Lender to forbear from exercising its
rights and remedies with respect thereto, and Lender is willing to forbear,
subject to the terms and conditions of the Amendment.
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual
covenants, agreements and conditions hereinafter set forth and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Subject to compliance by Borrower with the provisions of Section 6 below, the
effective date ("Effective Date") of this Amendment is January 5, 2001.
2. All capitalized terms used herein and not otherwise defined herein have their
respective meanings set forth in the Agreement.
3. All references to "The First National Bank of Chicago" are amended to refer
to "Bank One, NA."
4. All references to the "Company" are amended to refer to the "Borrower."
5. Section 1.1 of the Agreement is amended to delete the following definition in
its entirety, replacing it with the following definition:
"Commitment Amount" means $60,000,000
6. Borrower must deliver to Lender a) an executed original of this Amendment, b)
a Consent of Guarantor in form and substance acceptable to Lender, and c) a
$1,000 document production fee.
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7. Borrower represents, warrants and agrees that (a) except as described in
Section 8 below, there exists no Default or Event of Default under the Loan
Documents, (b) the Loan Documents continue to be the legal, valid and binding
agreements and obligations of Borrower enforceable in accordance with their
terms, as modified herein, (c) Lender is not in default under any of the Loan
Documents and Borrower has no offset or defense to its performance or
obligations under any of the Loan Documents, (d) the representations contained
in the Loan Documents remain true and accurate in all material respects, and (e)
there has been no material adverse change in the financial condition of Borrower
from the date of the Agreement to the date of this Amendment.
8. Borrower represents that the only Events of Default that have occurred under
the Agreement and that are continuing are the following:
(a) Events of Default of the type described in Section 8.1(r) of the
Agreement have occurred and are continuing in that for the Fiscal Quarters
ending on September 30, 2000 and December 31, 2000 the Guarantor's aggregate net
loss for each such Fiscal Quarter exceeded the Permitted Cumulative Loss for
each such Fiscal Quarter.
(b) An Event of Default of the type described in Section 8.1(t) of the
Agreement has occurred and is continuing in that the Guarantor and its
Subsidiaries, on a consolidated basis, have failed to maintain Tangible Net
Worth in the amount specified in Section 8.1(t).
9. From and after the date on which this Amendment becomes effective until
January 17, 2001 or such earlier date on which a "Forbearance Termination Event"
occurs, Lender will forbear from exercising its rights and remedies under the
Agreement, the other Loan Documents and applicable law. A Forbearance
Termination Event includes any of the following events:
(a) The occurrence after the effective date of this Amendment, or the
existence as of the date of this Amendment, of any Default or Event of Default
other than the Events of Default described in Section 8 of this Amendment.
(b) Failure by the Guarantor and its Subsidiaries, on a consolidated basis,
to maintain at all times a Tangible Net Worth that is not less than $10,000,000.
(c) Failure by Borrower by January 16, 2001 to pay, in full, all Advances
and accrued interest thereon related to all Pledged Mortgages that have been
pledged to Lender for 120 days or more.
Lender's forbearance is limited to the express terms hereof, and nothing herein
shall be deemed a waiver of, or an agreement by Lender to forbear with respect
to, any other term, condition, representation or covenant applicable to Borrower
or the Guarantor under the Agreement (including but not limited to any future
occurrence similar to the Events of Default described herein) or any of the
other agreements, documents or instruments executed and delivered in connection
therewith, or of the covenants described therein. The forbearance granted herein
shall not constitute a waiver of, or agreement by Lender to forbear with respect
to, any other Default or Event of Default, if any, under the Agreement, and
shall not be, and shall not be deemed to be, a course of action with respect
thereto upon which Borrower may rely in the future, and Borrower hereby
expressly waives any claim to such effect.
10. Except as hereby expressly modified, the Agreement is otherwise unchanged
and remains in full force and effect, and Borrower ratifies and reaffirms all of
its obligations thereunder.
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11. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered will be an original, but all of which will together
constitute one and the same instrument.
IN WITNESS WHEREOF, Borrower and Lender have caused this Amendment to be duly
executed on their behalf by their duly authorized officers as of the day and
year above written.
MONUMENT MORTGAGE, INC.,
a California corporation
By:_______________________________
Its:______________________________
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:_______________________________
Its:______________________________
STATE OF ____________________ )
) ss.
COUNTY OF ___________________ )
On, _____________________, 2000, before me, a Notary Public, personally appeared
_________________________________ the ___________________________________ of
MONUMENT MORTGAGE, INC., a California corporation, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________
Notary Public
(SEAL) My Commission Expires:______
STATE OF ____________________ )
) ss.
COUNTY OF ___________________ )
On, _____________________, 2000, before me, a Notary Public, personally appeared
__________________________________ the _________________________________ 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.
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WITNESS my hand and official seal.
___________________________________
Notary Public
(SEAL) My Commission Expires:______
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CONSENT OF GUARANTOR
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The undersigned, being the Guarantor under the Guaranty dated as of August 9,
1999, hereby consents to the foregoing Amendment and the transactions
contemplated thereby and hereby modifies and reaffirms its obligations under its
Guaranty so as to include within the term "Guaranteed Debt" the indebtedness,
obligations and liabilities of Borrower under this Amendment and the Note. The
Guarantor hereby reaffirms that its obligations under its Guaranty are separate
and distinct from Borrower's obligations to Lender, and that its obligations
under the Guaranty are in full force and effect, and hereby waives and agrees
not to assert any anti-deficiency protections or other rights as a defense to
his obligations under the Guaranty, all as more fully set forth in the Guaranty,
the terms of which are incorporated herein as if fully set forth herein.
The Guarantor hereby irrevocably waives any claim or other rights that the
Guarantor may now have or hereafter acquire against Borrower 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 and any right to participate in any
claim or remedy of Lender against Borrower or any collateral that 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 Borrower 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
right, until the Guaranteed Debt has been paid and performed in full. If any
amount will be paid to the Guarantor in violation of the preceding sentence,
such amount will be deemed to have been paid to the Guarantor for the benefit
of, and held in trust for, Lender and will forthwith be paid to Lender to be
credited and applied to the Guaranteed Debt, whether matured or unmatured. In
addition, to the extent permitted by law, the Guarantor irrevocably releases and
waives any such subrogation rights or rights of reimbursement, exoneration,
contribution or indemnity if and to the extent any such right or rights would
give rise to a claim under the U.S. Bankruptcy Code that payments or transfers
to Lender with respect to the Guaranteed Debt constitute a preference in favor
of the Guarantor or a claim under the U.S. Bankruptcy Code that the preference
is recoverable from Lender.
Dated: ______________
XXXXX.XXX, INC.,
a Delaware corporation
By:_______________________________
Its:______________________________
STATE OF ____________________ )
) ss.
COUNTY OF ___________________ )
On _________________, 2000, before me, a Notary Public, personally appeared
___________________________ the _________________________ of XXXXX.XXX, 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:______
