Exhibit 10.2
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FIFTH AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
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THIS FIFTH AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND
SECURITY AGREEMENT (this "Amendment") is entered into as of this 22nd day of
August, 2000, by and between MONUMENT MORTGAGE, INC., a California corporation
(the "Company") and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender").
WHEREAS, the Company and the Lender have entered into a single family revolving
warehouse facility with a present Commitment Amount of $75,000,000, to finance
the origination and acquisition of Mortgage Loans as evidenced by a Promissory
Note in the principal sum of $75,000,000, dated as of August 9, 1999 (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");
WHEREAS, the Company has requested the Lender to temporarily increase the
Commitment Amount, and the Lender has agreed to such increase subject to the
terms and conditions of this Amendment; and
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. The effective date ("Effective Date") of this Amendment shall be ___________.
2. All capitalized terms used herein that are not otherwise defined below are
defined in the Agreement.
3. Section 1.1 of the Agreement is hereby amended to delete the definition of
"Commitment Amount" in its entirety and to substitute the following in lieu
thereof:
"COMMITMENT AMOUNT" means $75,000,000. Notwithstanding the foregoing,
during the period from August 22, 2000, to and including September 15,
2000, the Commitment Amount will be temporarily increased to
$85,000,000. On the first Business Day following the expiration of the
temporary increase of the Commitment Amount, the Company will repay to
the Lender the amount by which the outstanding Advances exceed the
Commitment Amount.
4. Upon execution of this Amendment, the Company agrees to pay to the Lender
(a) the pro rata Commitment Fee on the increased portion of the Commitment
Amount for the time period from the Effective Date to and including September
15, 2000, and (b) a $6,500 increase fee.
5. The Promissory Note is amended and restated in its entirety as set forth in a
First Amended and Restated Promissory Note. All references in this Amendment and
in the Agreement to the Promissory Note shall be deemed to refer to the First
Amended and Restated Promissory Note delivered in connection with this
Amendment.
6. The Company shall deliver to the Lender (a) an executed original of this
Amendment; (b) an executed original of the First Amended and Restated Promissory
Note; (c) a Certificate of Secretary with corporate resolutions; (d) the
Commitment Fee on the increased portion of the Commitment Amount; (e) the
$6,500 increase fee; and (f) a $350 document production fee.
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7. The Company represents, warrants and agrees that (a) there exists no Default
or Event of Default under the Loan Documents, (b) the Loan Documents continue to
be the legal, valid and binding agreements and obligations of the Company
enforceable in accordance with their terms, as modified herein, (c) the Lender
is not in default under any of the Loan Documents and the Company has no offset
or defense to its performance or obligations under any of the Loan Documents,
(d) the representations contained in the Loan Documents remain true and accurate
in all respects and (e) there has been no material adverse change in the
financial condition of the company from the date of the Agreement to the date of
this Amendment.
8. Except as hereby expressly modified, the Agreement shall otherwise be
unchanged and shall remain in full force and effect, and the Company ratifies
and reaffirms all of its obligations thereunder.
9. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Lender have caused this Amendment to be
duly executed on their behalf by their duly authorized officers as of the day
and year above written.
MONUMENT MORTGAGE, INC.
a California corporation
By: __________________________
Its: __________________________
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: __________________________
Its: __________________________
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STATE OF ______________________ )
)
COUNTY OF ______________________ )
On, August _____, 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 ______________________ )
)
COUNTY OF ______________________ )
On, August _____, 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.
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 his obligations under his
Guaranty so as to include within the term "Guaranteed Debt" the indebtedness,
obligations and liabilities of the Company under this Amendment and the Note.
The Guarantor hereby reaffirms that his obligations under his Guaranty are
separate and distinct from the Company's obligations to Lender, and that his
obligations under the Guaranty are in full force and effect, and hereby waives
and agrees not to assert any anti-deficiency protections or other rights as a
defense to his obligations under the Guaranty, all as more fully set forth in
the Guaranty, the terms of which are incorporated herein as if fully set forth
herein.
XxXXX.XXX, INC.,
a Delaware corporation
By: ____________________________________
Its: ____________________________________
STATE OF ______________________ )
)
COUNTY OF ______________________ )
On August _____, 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:____________
