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GESTATION
WAREHOUSING CREDIT AND SECURITY AGREEMENT
(SHIPPED MORTGAGE LOANS)
BETWEEN
MONUMENT MORTGAGE, INC., a California corporation
AND
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
Dated as of March 23 , 1995
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TABLE OF CONTENTS
PAGE
THIS GESTATION WAREHOUSING CREDIT AND SECURITY AGREEMENT (SHIPPED
MORTGAGE
LOANS), dated as of March 23 , 1995, 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 Lender may from time to time, at its discretion, make
one or
more advances to the Company (each an "Advance"), each of which Advances
will be
secured by a first lien single-family residential mortgage loan which has
been
identified and shipped by the Company to an Investor for purchase; and
WHEREAS, if the Lender determines to make any such Advances to the
Company,
the maximum amount of such Advances that would be outstanding at any time
would
be Ten Million Dollars ($10,000,000); and
WHEREAS, the Company and the Lender desire to set forth herein the
terms
and conditions upon which the Lender shall make Advances 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 pursuant to Article
2 of
this Agreement, including, without limitation, readvances of
funds
previously advanced to the Company and repaid to the Lender.
"Affiliate" has the meaning set forth in Rule 12b-2 of the
General
Rules and Regulations under the Exchange Act.
"Agreement" means this Gestation Warehousing Credit and
Security
Agreement (Shipped Mortgage Loans), either as originally executed or
as it
may from time to time be supplemented, modified or amended.
"Approved Custodian" means First Commonwealth Savings Bank,
Chemical
Bank, or any other Person which is deemed acceptable to the Lender
from
time to time in its sole discretion.
"Business Day" means any day excluding Saturday or Sunday
and
excluding any day on which national banking associations are
closed for
business.
"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.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Documents" means those documents evidencing a
Mortgage
Loan which the Company is required to deliver to the Lender prior
to the
Lender making an advance under the Existing Warehousing Agreement.
"Collateral Value" means (a) with respect to any Mortgage Loan
as of
the date of determination, the lesser of (i) the amount of any Advance
made
against such Mortgage Loan; or (ii) the Fair Market Value of such
Mortgage
Loan; or (b) in the event Pledged Mortgages have been exchanged for
Pledged
Securities, the aggregate Fair Market Value of the Mortgage Loans
backing
such Pledged Securities.
"Company" has the meaning set forth in the first paragraph of
this
Agreement.
"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 received
by the
Lender, directly or indirectly, as a result of the Company's
maintenance of
Investable Balances with a Designated Bank.
"Designated Bank" means any bank(s) designated from time to
time by
the Lender to be a Designated Bank with whom the Lender has an
agreement
under which the Lender can receive a Depository Benefit.
"Eligible Mortgage Pool" means a Mortgage Pool for which
(a) an
Approved Custodian has issued its initial certification (on the
basis of
which a Pledged Security is to be issued), (b) there exists a
Purchase
Commitment covering such Pledged Security, and (c) such Pledged
Security
will be delivered to the Lender.
"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.
"Existing Warehousing Advances" means outstanding Warehousing
Advances
made by the Lender to the Company pursuant to the terms of the
Existing
Warehousing Agreement and evidenced by the Existing Warehousing Note.
"Existing Warehousing Agreement" means that certain Warehousing
Credit
and Security Agreement by and between the Company and the Lender,
dated
March 22 , 1995, as such agreement may be or may have been
amended,
restated, modified or extended from time to time.
"Existing Warehousing Note" means collectively that
certain
Warehousing Promissory Note and that certain Sublimit Promissory Note,
each
made by the Company to the order of the Lender, and each dated March
22 ,
1995, as such note notes may be or may have been amended,
restated,
modified or extended from time to time.
"Fair Market Value" means at any date with respect to any
Mortgage
Loan covered by a valid Purchase Commitment, the Committed Purchase
Price,
or in the absence of a valid Purchase Commitment for a Mortgage Loan
or the
related Mortgage-backed Security (if such Mortgage Loan is to be
used to
back a Mortgage-backed Security), the market price (expressed
as a
percentage of the outstanding principal balance) for thirty
(30) day
mandatory future delivery of such Mortgage Loan or Mortgage-backed
Security
published by Xxxxxx-Xxxxxx, Inc. on its MoneyCenter system or, if
not so
published, the average bid price (expressed as a percentage of
the
outstanding principal balance) quoted in writing to the Lender as
of the
computation date by any two nationally recognized dealers selected
by the
Lender who at the time are making a market in similar Mortgage
Loans or
Mortgage-backed Securities, multiplied, in the case of Mortgage
Loans, by
the outstanding principal balance thereof and, in the
case of
Mortgage-backed Securities, by the product of the pool factor of
such
Mortgage-backed Security times the face amount of such Mortgage-
backed
Security.
"FHA" means the Federal Housing Administration and any
successor
thereto.
"FHLMC" means the Federal Home Loan Mortgage Corporation
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.
"Floating Rate" means a floating rate of interest which is
equal to
one percent (1.00%) per annum over the LIBOR. The Floating Rate
will be
adjusted as of the effective date of each change in the LIBOR.
"FNMA" means the Federal National Mortgage Association 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.
"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.
"GNMA" means the Government National Mortgage Association
and any
successor thereto.
"Guarantor" means XXXXX X. XXXXX, XXXXX X. XXXXXXXX and any such
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
Guarantors shall mean each of such Persons and all of them,
and the
obligations of such Persons shall be joint and several.
"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.
"HUD" means the Department of Housing and Urban Development
and any
successor thereto.
"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.
"Investable Balances" means all funds of or maintained by the
Company
and its Subsidiaries in accounts at a Designated Bank, less
balances to
support float, activity charges, reserve requirements, Federal
Deposit
Insurance Corporation insurance premiums and such other reductions
as may
be imposed by governmental authorities from time to time.
"Investor" means FNMA, FHLMC or a financially responsible
private
institution which is deemed acceptable by the Lender from time to
time in
its sole discretion.
"Lender" has the meaning set forth in the first 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 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 Xxxxxx-Xxxxxx, Inc. on its MoneyCenter system.
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
Guaranties 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.
"Mortgage" means a mortgage or deed of trust on improved
real
property. A Mortgage may be a First Mortgage or a Second Mortgage.
"Mortgage-backed Securities" means GNMA, FNMA or FHLMC securities
that
are backed by Mortgage Loans.
"Mortgage Loan" means any loan evidenced by a Mortgage Note. The
term
"Mortgage Loan" shall include First Mortgage Loans and Second
Mortgage
Loans unless the context otherwise requires.
"Mortgage Note Amount" means, as of the date of determination,
the
then outstanding unpaid principal amount of a Mortgage Note.
"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.
"Note" has the meaning set forth in Section 2.2 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), 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 to the Existing Warehousing Agreement.
"Participant" has the meaning set forth in Section 12.5 hereof.
"Person" means and includes natural persons, corporations,
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.
"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.
"Servicing Contract" means, with respect to any Person,
the
arrangement, whether or not in writing, pursuant to which such
Person has
the right to service Mortgage Loans.
"Single-family Mortgage Loan" means a Mortgage Loan secured
by a
Mortgage covering improved real property containing one to four
family
residences.
"Stated Maturity Date", should the Lender in its sole discretion
make
an Advance hereunder, means for all Obligations due under this
Agreement,
and not earlier paid, the "Warehousing Maturity Date" (as defined
in the
Existing Warehousing Agreement).
"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.
"Subordinated Debt" means all indebtedness of the Company,
for
borrowed money, which is, by its terms (which terms shall have
been
approved by the Lender), effectively subordinated in right of
payment to
all other present and future Obligations, and all indebtedness
of the
Company which is required to be subordinated by the Existing
Warehousing
Agreement.
"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.
"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 Department of Veterans Administration and any
successor
thereto.
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. Funding of Advances.
2.1(a) The Lender may from time to time and in its sole
discretion,
choose to make Advances to the Company by causing the proceeds of each
such
Advance to be applied to the outstanding principal balance of the
Existing
Warehousing Note. If any such Advances are made hereunder, each
such
Advance will be made at a time when a Mortgage Loan pledged to the
Lender
under the Existing Warehousing Agreement is shipped to an Investor
for
purchase or to an Approved Custodian for inclusion in an Eligible
Mortgage
Pool. Upon each Advance, each such Mortgage Loan shall be pledged
hereunder
to secure the Note. The Lender's records regarding which Mortgage
Loans are
pledged to secure the Note shall be binding upon the Company. All
Advances
under this Agreement shall constitute a single indebtedness, and all
of the
Collateral shall be security for the Note, the Existing Warehousing
Note
and for the performance of all the Obligations.
2.1(b) The Company shall hold in trust for the Lender, and the
Company
shall deliver to the Lender promptly upon request of the Lender,
any
documents relating to a Pledged Mortgage 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. Note. The Company's Obligations shall be evidenced by the
promissory
note (the Xxxxx) of the Company 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.
2.3. Interest.
2.3(a) The unpaid principal amount of each Advance hereunder
shall
bear interest from the date of such Advance until paid in full
at the
Floating Rate.
2.3(b) 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. Such interest shall be payable monthly in arrears, on the
first day
of each month, commencing with the first month following the date of
this
Agreement, and on the Stated Maturity Date, or, if earlier, on the
date to
which the maturity of an Advance is accelerated pursuant to the
provisions
of this Agreement.
2.3(c) Any Obligations not paid when due (whether at the
Stated
Maturity Date, upon acceleration following the occurrence of an
Event of
Default or otherwise) shall bear interest, from the date due until
paid in
full, at a per annum rate of interest equal to the Floating Rate plus
four
percent (4%) (the "Default Rate"), said interest to be payable on
demand of
the Lender.
2.4. Principal Payments.
2.4(a) The outstanding principal amount of all Advances
shall be
payable in full upon the Stated Maturity Date.
2.4(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.
2.4(c) All payments of outstanding Advances from 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
to be
applied against the Obligations.
2.4(d) The Company shall be obligated to pay to the Lender,
without
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
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 hundred eighty (180) days elapse from the
date of
the Existing Warehousing Advance made by the Lender against
such
Pledged Mortgage, whether or not such Pledged
Mortgage is
included in an Eligible Mortgage Pool.
(2) Forty-five (45) days elapse from the date the
Pledged
Mortgage was delivered to an Investor for examination
and
purchase, without the purchase being made, or upon
rejection of
the Pledged Mortgage as unsatisfactory by an Investor.
(3) Ten (10) Business Days elapse from the date a
Collateral
Document was delivered to the Company for
correction or
completion under a Trust Receipt, without being returned
to the
Lender.
(4) The Mortgage Loan is defaulted and remains in
default
for a period of thirty (30) days or more.
(5) Three (3) Business Days after the mandatory
delivery
date of the related Purchase Commitment and the specific
Pledged
Mortgage was not delivered under the Purchase Commitment
prior to
such mandatory delivery date, or the Purchase
Commitment is
terminated; unless in either case, such Pledged
Mortgage 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.
(7) If the Pledged Mortgage is included in a Mortgage
Pool,
then, if the Mortgage Pool is an Eligible Mortgage Pool,
upon
sale of the Mortgage-backed Security, or if the Mortgage
Pool is
not an Eligible Mortgage Pool, within two (2) Business Days
after
delivery of the Pledged Mortgages to the pool custodian.
2.4(e) The Company shall then give Notice to the
Lender
(telephonically, to be followed by written notice) 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 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 sank to
charge
the Company~s 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.
2.5. Method of Making Payments. 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.
2.6. Miscellaneous Charges. The Company agrees to reimburse the
Lender for
miscellaneous charges and expenses 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 and expenses incurred by or on
behalf of
the Lender in connection with the handling and administration of the
Collateral.
For the purposes hereof, miscellaneous charges and expenses shall
include, but
not be limited to, charges for wire transfers, charges for security
delivery
fees, charges for overnight delivery of Collateral to Investors,
charges for
overnight delivery of Collateral to Investors, and the Funding Bank's
service
charges. Miscellaneous charges are due when incurred, but shall
not be
delinquent if paid within fifteen (15) days after receipt of an invoice
or an
account analysis statement from the Lender.
2.7. 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
"hall
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.
2.8. 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:
2.8(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 basin 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
jurisdictions in which the Lender'g principal office is located);
2.8(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 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 cage, the Company "hall promptly pay any additional
amounts
necessary to compensate the Lender for such additional cost or
reduced
amount" 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 amount" 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 fifteen (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,
the Existing Warehousing 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 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 (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 its agent, bailee or 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
Securitiesn).
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 guaranties related to Pledged Securities;
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
and 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 now existing or hereafter acquired cash delivered
to or
otherwise in the possession of the Lender or its agent, bailee or
custodian
or designated on the books and records of the Company as assigned
and
pledged to the Lender.
3.l(f) 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 FHLMC for inclusion in a Mortgage Pool, the Lenders 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 Mortgace-
backed
Security, then the Mortgage-backed Security, when issued, shall
be a
Pledged Security. The Lenders 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 to be transferred to an
Approved
Custodian and are included in an Eligible Mortgage Pool, the
Lenders
security interest in the Pledged Mortgages comprising the Eligible
Mortgage
Pool shall be released upon the issuance of the 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.
3.2(d) The Lender shall have the exclusive right to the
possession of
the Pledged Securities or, if the Pledged Securities are not to be
issued
in certificated form or are to be issued in certificated form
and
registered exclusively with the name of, and held by, a clearing
agency or
its nominee, shall have the right to have the book entries for the
Pledged
Securities issued in the Lenders name or the name or names
of its
designees, and the Lender shall have the right to cause delivery
of the
Pledged Securities to be made to the Investor or the book
entries
registered in the name of the Investor or the Investors designee
only
against payment therefor. The Company acknowledges that the
Lender may
enter into one or more standing arrangements with other
financial
institutions for the issuance of Pledged Securities in book entry
form in
the name of such other financial institutions, as agent or
financial
intermediary for the Lender, and the Company agrees upon request
of the
Lender, to execute and deliver to such other financial institutions
the
Company' 9 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 Lenders
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 it. 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 Release Amount in connection with any 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 Collateral then pledged
hereunder is
less than the aggregate amount of the Advances then outstanding hereunder,
the
Lender may request, and the Company shall within two (2) Business Days
after
Notice by the Lender (a) deliver to the Lender for pledge hereunder
additional
Mortgage Loans and/or cash, in aggregate amounts sufficient to
cover the
difference between the Collateral Value of the Collateral pledged
and the
aggregate amount of Advances outstanding hereunder, or (b) repay the
Advances in
an amount sufficient to reduce the aggregate balance thereof outstanding
to or
below the Collateral Value of the Collateral pledged hereunder.
3.4. Collection and Servicing Rights. So long as no Event of Default
shall
have occurred and is 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
or 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 90 requests, hold in trust for the
benefit
of the Lender and forthwith pay to the Lender at its office designated by
Notice
hereunder, all amount" 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 amount" so received and collected by the Lender shall be held by
it as
part of the Collateral.
3.5. Return of Collateral at Expiration of Agreement. If (a) this
Agreement
or the Existing Warehousing Agreement shall have expired or been
terminated, and
(b) no Advances, interest or other Obligations shall be outstanding and
unpaid
hereunder or under the Existing Warehousing Agreement, 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. As a condition precedent to the Lender
making an
initial Advance under this Agreement, the Lender shall have received
the
following, all of which must be satisfactory in form and content to the
Lender,
in its sole discretion:
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) An original 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.
(3) The Guaranties, in the form attached hereto as
Exhibit B.
duly executed by the Guarantors.
(4) Evidence that all accounts necessary into which Advances
will
be funded and proceeds from the sale or disposition of the
Pledged
Mortgages and Pledged Securities will be deposited have
been
established at the Funding Bank.
4.2. Each Advance. The making of 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 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(b) 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(c) The Guarantor shall have performed all agreements
to be
performed by the Guarantor under the Guaranty.
4.2(d) 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.
5. REPRESENTATIONS AND PARTIES.
The Company hereby represents and warrants to the Lender, as of the
date of
this Agreement and as of 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 in the Existing Warehousing Agreement.
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 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 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.
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. 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
would
affect the validity or enforceability of this Agreement or the Note.
5.5. 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
would affect the validity or enforceability of this Agreement or the Note.
5.6. Eligibility. The Company is approved and qualified and in
good
standing as a lender or seller/servicer, as set forth in the
Existing
Warehousing Agreement and meets all requirements applicable to its
status as
such.
5.7. Place of Business. The principal place of business of the
Company is
0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000.
5.8. Special Representations Concerning Collateral. The Company
hereby
represents and warrants to the Lender, as of the date of this Agreement
and as
of the making of each Advance, that:
5.8(a) The Company is the legal and equitable owner and holder,
free
and clear of all Liens (other than Liens granted hereunder and
under the
Existing Warehousing Agreement), 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.
5.8(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.
5.8(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 closing held not more than ninety (90) days prior to the
date
of the Existing Warehousing Advance 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 requirement"
thereof
waived, (5) is supported by an underlying appraisal in compliance
with the
requirements 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 has been fully
advanced
in the face amount thereof and each Mortgage is a first Lien
on the
premises described therein, and has or will have a title insurance
policy,
in American Land Title Association form or the 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.
5.8(d) No default has occurred and is continuing for more than
thirty
(30) days under any Mortgage Loan included in the Pledged
Mortgages,
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.
5.8(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.
All such FHA insured and VA guaranteed Mortgage Loans comply and
will
continue to comply in all respects with all applicable requirements
for
purchase under the FNMA standard form of selling contract for FHA
insured
and Vet guaranteed loans and any supplement thereto then in effect.
5.8(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
broad form of extended coverage insurance from time to time available.
5.8(g) Pledged Mortgages secured by premises located in a
special
flood hazard area designated as such by the Secretary of HUD are and
shall
continue to be covered by special flood insurance under the National
Flood
Insurance Program.
5.8 (h) Each FHA insured Mortgage Loan pledged hereunder
meets all
applicable governmental requirements for such insurance. 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 or
agency
guaranteeing such Mortgage-backed Security.
5.8(i) For Pledged Mortgages which will be used to back
GNMA
Mortgage-backed Securities, the Company has received from
GNMA 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 GNMA sufficient to
permit
the issuance of GNMA 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 GNMA 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 GNMA 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.
5.9. Servicing. All of the Company's Servicing Contracts are in full
force
and effect and, except as otherwise indicated, are unencumbered by
Liens. No
default or event which, with notice or lapse of time or both, would
become a
default, exists under any such Servicing Contract.
6. AFFIRMATIVE COVENANTS.
The Company hereby covenants and agrees that, so long as 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. Existing Warehousing Agreement Covenants. Comply with each
affirmative
covenant set forth in Article 6 of the Existing Warehousing Agreement.
6.3. Use of Proceeds of Advances. Use the proceeds of each Advance
solely
for the purpose of financing Pledged Mortgages, including the
issuance of
Mortgage-backed Securities based thereon.
6.4. Special Affirmative Covenants Concerning Collateral.
6.4(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.
6.4(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 obligers 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
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.
6.4(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.
6.4(d) Notify the Lender within two (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.
6.4(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 the expiration thereof.
6.4(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,
shall
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 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:
7.1. Existing Warehousing Agreement Covenants. Breach any negative
covenant
set forth in Article 7 of the Existing Warehousing Agreement.
7.2. Special Negative Covenants Concerning Collateral.
7.2(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.
7.2(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.
7.2(c) The Company shall not make any 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 (6 Event of Defaults):
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 ten (10) days after the due date; or failure to
pay,
within any applicable grace period, the principal or interest on any
other
indebtedness due the Lender; or
8.1(b) Failure of the Company to perform or comply with any
term or
condition applicable to it contained in Section 6.3 of the
Existing
Warehousing Agreement, Sections 6.3 and 6.4 of this Agreement or
in any
Section of Article 7 of the Existing Warehousing Agreement or
this
Agreement; or
8.1(c) Any of the Company's representations or warranties
made or
deemed made herein or in any other Loan Document, 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(d) The Company shall default in the performance of or
compliance
with any term contained in this Agreement other than those
referred to
above in Subsections 8.1(a), 8.1(b) or 8.1(c) and such default
shall not
have been remedied or waived within thirty (30) days after
receipt of
Notice from the Lender of such default; 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(b) or
8.1(c) and
such default shall not have been remedied or waived within thirty (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 ?(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 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 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 sixty (60) days unless dismissed, bonded
off or
discharged; or
8.1(g) 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
8.1(h) The Lenders security interest on any portion of the
Collateral
shall become unenforceable or otherwise impaired; provided that,
subject to
the Lenders 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 ten (10) days of the date of such impairment; or
8.1(i) There shall be an Event of Default under the
Existing
Warehousing Agreement.
8.2. Remedies.
8.2(a) Upon the occurrence of any Event of Default
described in
Sections 8.1(e) or 8.1(f), this Agreement 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(e) and 8.1(f), the Lender may, by written
notice
to the Company, terminate this Agreement 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 secure all payments and
performance of
the Obligations in any manner permitted by law or provided
for
hereunder.
(2) Notify all obligers 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.
(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, 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 ten (10) days' notice of any such public sale or
of the
date after which any private sale may be held. The Company agrees
that
ten (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 Commitment 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.
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.
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.
8.3. 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:
First, to the payment of the costs and expenses of such sale or
enforcement
of this Agreement, 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 interest accrued and unpaid on the Note;
Third, to the payment of any other Obligations due (other than
principal
and interest) under thin Agreement and the Loan Documents;
Fourth, to the payment of the outstanding principal balance of the
Note;
and
Fifth, to the payment of the amounts due under the Existing
Warehousing
Note and the Existing Warehousing Agreement, in the order set forth
therein; 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 such sale, disposition or other enforcement
are
insufficient to cover the costs and expenses of such sale, as aforesaid,
and the
payment in full of all Obligations, the Company shall 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 a" 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 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 third Business Day after being
deposited
in the mails, addressed as follows:
if to the Company: Monument Mortgage, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx,
SVP/CFO
Telecopier No.:
if to the Lender: Residential Funding Corporation
0000 Xxxxx Xxxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx,
Vice President
Telecopier No.: (000) 000-0000
with a copy to: Residential Funding Corporation
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Cakes,
Esq.
Telecopier No.: (000) 000-0000
10. REIMBURSEMENT OF EXPENSES; INDEMNITY.
The Company shall: (a) pay all out-of-pocket costs and expenses
of the
Lender, including, without limitation, reasonable attorneys, fees, court
costs
and all other litigation expenses, including, but not limited to, expert
witness
fees, document copying expenses, exhibit preparation, courier expenses,
postage
expenses and communication expenses, in connection with the
preparation,
negotiation, documentation, 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; (b) 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; (c) 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 "Indemnities")
from
and against any and all liabilities, 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
gross 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 (c)
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 there remain any Obligations
to be
paid or performed.
12.2. Assignment. This Agreement may not be assigned by the Company.
This
Agreement and the Note, along with the Lenders security interest in any
or all
of the Collateral, 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 such security interest.
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 n
Participant n
), 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 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, including,
without
limitation, the provision for waiver of trial by jury. 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 get forth herein, but all
other
covenants, term", 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 access to its premises and records by the Lender or
its
representative, 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 9 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 venue, or any claim as to inconvenient forum, of 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.
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. AS TO THIS AGREEMENT 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) 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 COMPANY AND 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 AND THE COMPANY IS 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
THE FOREGOING WAIVER OF THE RIGHT TO JURY TRIAL. FURTHER, THE COMPANY
AND THE
LENDER EACH HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF
EITHER THE
COMPANY OR THE LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, TO ANY
OF THE
UNDERSIGNED THAT EITHER THE COMPANY OR THE LENDER WILL NOT SEER 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:
----------------------------------
Xxxx X. Xxxxxxxxx
Its: Senior VP/Chief Financial
Officer
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:
-----------------------------------
-
Its: Vice President
STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 29, 1995, before me, a Notary Public personally appeared
Xxxx
X. Xxxxxxxxx , the Senior VP CFO of MONUMENT MORTGAGE, INC., a
California
corporation, personally known to me (or proved to me on the
basis of
satisfactory evidence) to be the person whose name is subscribed to the
within
instrument and acknowledged to me that he/she executed the same in
his/her
authorized capacity, and that by his/her signature on the instrument the
person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
----------------------------------------
---
Notary Public
My Commission Expires:
----------------
---
(SEAL)
STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 30, 1995, before me, a Notary Public personally
appeared D.
Xxxxxx Xxxxxxx, the Vice President 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
My Commission Expires:
-----------------
--
(SEAL)
EXHIBIT A
PROMISSORY NOTE
Date: March 23 , 1995
$10,000,000
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 Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx
00000, or at such other place as the Holder may designate from time to
time, the
principal sum of Ten Million Dollars ($10,000,000) or so much thereof as
may be
outstanding from time to time pursuant to the Gestation 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 rate 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 gestation warehouse
facility in
the above amount and is the Note referred to in that certain
Gestation
Warehousing Credit and Security Agreement (Shipped Mortgage Loans)
(the
"Agreements) 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, and all costs of collecting this Note,
including
reasonable attorneys' fees and expenses .
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 California )
) ss
COUNTY OF Contra Costa )
On , before me, a Notary Public personally appeared , the of
MONUMENT
MORTGAGE, INC., a California corporation, personally known to me (or
proved to
me on the basis of satisfactory evidence) to be the person whose
name is
subscribed to the within instrument and acknowledged to me that he/she
executed
the same in his/her authorized capacity, and that by his/her signature
on the
instrument the person, or the entity upon behalf of which the person
acted,
executed the instrument.
WITNESS my hand and official seal.
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Notary Public
My Commission Expires:
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(SEAL)
EXHIBIT
B-1
GUARANTY
THIS GUARANTY, made and entered into as of 23 day of March 1995, by
XXXXX
X. XXXXX (the Guarantor), to RESIDENTIAL FUNDING CORPORATION, a
Delaware
corporation (the blenders), having its principal office at 0000 Xxxxxxxxxx
Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
RECITALS
A. MONUMENT MORTGAGE, INC., a California corporation (the
"Company"),
and the Lender have agreed that the Lender may, in its discretion,
from
time to time make loans to the Company (each a "Loan") in up
to the
aggregate principal amount of Ten Million Dollars ($10,000,000) to
finance
the making and purchasing of Mortgage Loans.
B. The Loans will be evidenced by a 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
Gestation 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
"Agreements).
C. The Guarantor is a shareholder and the President of the
Company and
will derive benefit from the Loans.
D. In order to induce the Lender to make Loans under the
Agreement, to
accept the Note and the Agreement, and as additional security for
Loans
under the Agreement, the Guarantor has agreed to give this Guaranty.
E. The Lender has refused to make Loans under the Agreement
unless
this Guaranty is executed by the Guarantor and delivered to Lender.
NOW, THEREFORE, in consideration of the recitals and other
good and
valuable consideration, the receipt and sufficiency of 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 under the Agreement.
2. The Note and the Agreement are hereby made a part of this
Guaranty by
reference thereto with the same force and effect as if fully set forth
herein
and all representations and warranties made by the Company therein are,
to the
best of Guarantor's knowledge, true and correct.
3. The Guarantor hereby irrevocably, unconditionally and
absolutely
guarantees to Lender the due and prompt payment, and not just
the
collectibility, of the principal of, and interest and late charges and all
other
indebtedness, if any, on the Note 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 Note and the Agreement, whether
now
existing or hereafter created or arising.
4. The Guarantor further hereby irrevocably, unconditionally and
absolutely
guarantees to Lender the due and prompt performance by the Company
of all
duties, agreements and obligations of the Company contained in the Note
and the
Agreement, and the due and prompt payment of all costs incurred,
including
attorneys' fees, in enforcing the payment and performance of the Note
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").
5. For the purposes of this Guaranty and notwithstanding anything
to the
contrary contained herein or in any of the Loan Documents, the
Guarantors
liability for payment of the Guaranteed Debt shall be limited to the sum
of (a)
Five Million Dollars ($5,000,000), (b) interest on such amount from the
date
demanded until the date paid at the highest rate applicable to any
of the
Guaranteed Obligations under the Agreement, and (c) all costs and
expenses
incurred by the Lender (including reasonable attorneys' fees) in enforcing
this
Guaranty, which amount may be comprised of any portion of the Guaranteed
Debt,
to be determined at the sole discretion of the Lender.
6. 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 reasonable attorneys' fees.
7. Upon occurrence of any Event of Default, all Guaranteed Debt
shall at
the option of the Lender immediately become due and payable, and in any
such
event the Guarantor authorizes the Lender, 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.
8. The Guarantor does hereby (a) agree to any modifications of any
terms or
conditions of any Guaranteed Debt and/or to any extensions or renewals of
time
of payment or performance by the Company; 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;
and
that no release of any other guarantor, whether by operation of law or
by any
act of the Lender, with or without notice to the Guarantor, shall
release the
Guarantor; (b) waive notice of demand, dishonor, notice of dishonor,
protest,
and notice of protest and 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; and (c) agree,
if the
Guaranteed Debt in not paid in accordance with the terms thereof, to
pay, in
addition to all principal and interest due, all costs of collection
including
reasonable attorneys' fees.
9. 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, enforceability, amendment or change in the Agreement or the
Note, 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 Note, 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
Note; (c)
any impairment, modification, change, release or 1 imitation 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; te) any
claim the
Guarantor may have against any other Obligor, including any
claim of
contribution; (f) the release, in whole or in part, of the Guarantor
or any
other guarantor (if more than one), the Company or any other Obligor;
(g) any
other action or circumstance which (with or without notice to or
knowledge of
the Guarantor) may or might in any manner or to any extent vary the risks
of the
Guarantor hereunder or otherwise constitute a legal or equitable
discharge or
defense, it being understood and agreed by the Guarantor that the
obligations
under this Guaranty shall not be discharged except by the full payment
and
performance of the Guaranteed Debt.
10. 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.
11. The obligations of the Guarantor hereunder shall continue
to be
effective, or be automatically reinstated, as the cane 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.
12. The Guarantor hereby irrevocably waives any claim or other rights
that
he may now or hereafter acquire against the Company that arises
from the
existence, payment, performance or enforcement of the Guarantor's
obligation"
hereunder, including any right of subrogation, reimbursement,
exoneration or
indemnification, any right to participate in any claim or remedy of the
Lender
against the Company or any collateral that the Lender now has or
hereafter
acquires, whether or not such claim, remedy or right arises in equity or
under
contract, statute or common law, 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
until
the Guaranteed Debt shall have been paid and performed in full. If any
amount
shall be paid to the Guarantor in violation of the preceding sentence,
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.
The Guarantor hereby specifically acknowledges that any subrogation rights
which
he 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. This may give the Guarantor a defense to a deficiency
judgment
against the Guarantor. The Guarantor hereby irrevocably waives such
defense. The
Guarantor acknowledges that he will receive direct and indirect benefits
from
the arrangements contemplated by the Agreement and the Note and that the
waivers
set forth in this Section are knowingly made in contemplation of such
benefits.
13. The Guarantor waives any and all benefits available to
sureties and
creditors which might otherwise be available to the Guarantor under
Section
2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and 3433 of the California
Code
of Civil Procedure, as amended or remodified from time to time.
Additionally,
the Guarantor waives the right to require the Lender to comply
with the
provisions of Section 9504 of the California Commercial Code.
14. 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.
15. 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.
16. 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.
17. The Guarantor does hereby agree 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 Guarantors 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 venue of 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.
18. The Guarantor hereby represents and warrants to the Lender as
follows:
(a) Financial Statements. Any 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 the
Company in time for the Company to deliver the same to the
Lender, all
financial statements of the Guarantor required by the Agreement.
(b) 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.
(c) 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.
(d) Solvent. The Guarantor is now solvent, and no
bankruptcy or
insolvency proceedings are pending or to the best of the
Guarantors
knowledge contemplated by or against the Guarantor.
(e) Relationship to the Company. The value of the
consideration
received and to be received by the Guarantor is reasonably
worth at
least as much as the liability and obligation of the
Guarantor
incurred or arising under this Guaranty. The Guarantor has had
full
and complete access to the Agreement and the Note 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 a condition
precedent
(and the Lender has not in any way implied that the execution of
this
Guaranty is a condition precedent) to the Lender's making,
extending
or modifying any loan to the Guarantor or to any other
financial
accommodation to or for the Guarantor.
(f) 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.
(g) 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.
19. The promises and agreements herein and in any other guaranties
of the
Agreement and the Note shall be construed to be and are hereby declared
to be
joint and several in each and every particular and shall be fully binding
upon
and enforceable against any or all of such parties or persons
guaranteeing the
Agreement and the Note herein or in a separate guaranty, and neither the
death
nor the release of any person or party to this Guaranty or any other
guaranties
of the Agreement and the Note shall affect or release the joint and
several
liability of any other person or party to this Guaranty or any other
guaranties
of the Agreement and the Note. 20. THE GUARANTOR AND THE LENDER
HEREBY (i)
COVENANT AND AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY
A JURY, AND (ii) WAIVE 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,
PURSUANT
TO THE AGREEMENT, 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 ANY OF THE UNDERSIGNED THAT THE
LENDER
WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty
with the
intent to be legally bound as of the date first above written.
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XXXXX X. XXXXX
Address:
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Telephone No.
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STATE OF )
) ss
COUNTY OF )
On , 1995, before me, a Notary Public, personally appeared XXXXX X.
XXXXX,
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 executed the same in his authorized capacity,
and
that by his 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.
---------------------------------
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Notary Public
My Commission Expires:
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(SEAL)
EXHIBIT "B"
CERTIFICATE AS TO INCUMBENCY
TO: RESIDENTIAL FUNDING CORPORATION
I hereby certify to you that I am the duly elected and qualified
Secretary
of MONUMENT MORTGAGE, INC., a California corporation ("Company"), and
that, as
such, I am authorized to execute this Certificate on behalf of the
Company. I
further certify that the persons named below are duly elected,
qualified and
acting officers of the Company, holding on the date hereof the respective
titles
set forth opposite their respective names, and that the respective
signatures
set forth opposite their names are their true and genuine signatures:
Name Title Signature
SEE EXHIBIT "E" ON FILE WITH MONUMENT:3/17/95.
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EXHIBIT B-2
GUARANTY
THIS GUARANTY, made and entered into as of 23 day of March 1995, by
XXXXX
X. XXXXXXXX (the "Guarantor"), to RESIDENTIAL FUNDING CORPORATION, a
Delaware
corporation (the "Lender"), having its principal office at 0000 Xxxxxxxxxx
Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
RECITALS
A. MONUMENT MORTGAGE, INC., a California corporation (the
"Company"), and
the Lender have agreed that the Lender may, in its discretion,
from
time to time make loans to the Company (each a Loan n ) in up
to the
aggregate principal amount of Ten Million Dollars
($10,000,000) to
finance the making and purchasing of Mortgage Loans.
B. The Loans will be evidenced by a 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 Gestation 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 a shareholder and the Executive Vice President
of the
Company and will derive benefit from the Loans.
D. In order to induce the Lender to make Loans under the
Agreement, to
accept the Note and the Agreement, and as additional security
for
Loans under the Agreement, the Guarantor has agreed to give
this
Guaranty.
E. The Lender has refused to make Loans under the Agreement unless
this
Guaranty is executed by the Guarantor and delivered to Lender.
NOW, THEREFORE, in consideration of the recitals and other
good and
valuable consideration, the receipt and sufficiency of 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 under the Agreement.
2. The Note and the Agreement are hereby made a part of this
Guaranty by
reference thereto with the same force and effect as if fully set forth
herein
and all representations and warranties made by the Company therein are,
to the
best of Guarantor's knowledge, true and correct.
3. The Guarantor hereby irrevocably, unconditionally and
absolutely
guarantees to Lender the due and prompt payment, and not just
the
collectibility, of the principal of, and interest and late charges and all
other
indebtedness, if any, on the Note 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 Note and the Agreement, whether
now
existing or hereafter created or arising.
4. The Guarantor further hereby irrevocably, unconditionally and
absolutely
guarantees to Lender the due and prompt performance by the Company
of all
duties, agreements and obligations of the Company contained in the Note
and the
Agreement, and the due and prompt payment of all costs incurred,
including
attorneys' fees, in enforcing the payment and performance of the Note
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 Debts).
5. For the purposes of this Guaranty and notwithstanding anything
to the
contrary contained herein or in any of the Loan Documents, the
Guarantors
liability for payment of the Guaranteed Debt shall be limited to the sum
of (a)
Five Million Dollars ($5,000,000), (b) interest on such amount from the
date
demanded until the date paid at the highest rate applicable to any
of the
Guaranteed Obligations under the Agreement, and (c) all costs and
expenses
incurred by the Lender (including reasonable attorneys' fees) in enforcing
this
Guaranty, which amount may be comprised of any portion of the Guaranteed
Debt,
to be determined at the sole discretion of the Lender.
6. 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 reasonable attorneys' fees.
7. Upon occurrence of any Event of Default, all Guaranteed Debt
shall at
the option of the Lender immediately become due and payable, and in any
such
event the Guarantor authorizes the Lender, 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.
8. The Guarantor does hereby (a) agree to any modifications of any
terms or
conditions of any Guaranteed Debt and/or to any extensions or renewals of
time
of payment or performance by the Company; 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;
and
that no release of any other guarantor, whether by operation of law or
by any
act of the Lender, with or without notice to the Guarantor, shall
release the
Guarantor; (b) waive notice of demand, dishonor, notice of dishonor,
protest,
and notice of protest and 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; and (c) agree,
if the
Guaranteed Debt is not paid in accordance with the terms thereof, to
pay, in
addition to all principal and interest due, all costs of collection
including
reasonable attorneys' fees.
9. 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, enforceability, amendment or change in the Agreement or the
Note, 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 Note, 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
Note; (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 the Guarantor
or any
other guarantor (if more than one), the Company or any other Obligor;
(g) any
other action or circumstance which (with or without notice to or
knowledge of
the Guarantor) may or might in any manner or to any extent vary the risks
of the
Guarantor hereunder or otherwise constitute a legal or equitable
discharge or
defense, it being understood and agreed by the Guarantor that the
obligations
under this Guaranty shall not be discharged except by the full payment
and
performance of the Guaranteed Debt.
10. 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.
11. The obligations of the Guarantor hereunder shall continue
to be
effective, or be automatically reinstated, as the cane 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.
12. The Guarantor hereby irrevocably waives any claim or other rights
that
he may now or hereafter acquire against the Company that arises
from the
existence, payment, performance or enforcement of the Guarantor' g
obligations
hereunder, including any right of subrogation, reimbursement,
exoneration or
indemnification, any right to participate in any claim or remedy of the
Lender
against the Company or any collateral that the Lender now has or
hereafter
acquires, whether or not such claim, remedy or right arises in equity or
under
contract, statute or common law, 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
until
the Guaranteed Debt shall have been paid and performed in full. If any
amount
shall be paid to the Guarantor in violation of the preceding sentence,
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.
The Guarantor hereby specifically acknowledges that any subrogation rights
which
he 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. This may give the Guarantor a defense to a deficiency
judgment
against the Guarantor. The Guarantor hereby irrevocably waives such
defense. The
Guarantor acknowledges that he will receive direct and indirect benefits
from
the arrangements contemplated by the Agreement and the Note and that the
waivers
set forth in this Section are knowingly made in contemplation of such
benefits.
13. The Guarantor waives any and all benefits available to
sureties and
creditors which might otherwise be available to the Guarantor under
Section
2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and 3433 of the California
Code
of Civil Procedure, as amended or remodified from time to time.
Additionally,
the Guarantor waives the right to require the Lender to comply
with the
provisions of Section 9504 of the California Commercial Code.
14. 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.
15. 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.
16. 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 .
17. The Guarantor does hereby agree 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 lest 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 venue of 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.
18. The Guarantor hereby represents and warrants to the Lender as
follows:
(a) Financial Statements. Any 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 the
Company in time for the Company to deliver the same to the
Lender, all
financial statements of the Guarantor required by the Agreement.
(b) 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.
(c) 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.
(d) 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.
(e) Relationship to the Company. The value of the consideration
received
and to be received by the Guarantor is reasonably worth at
least as
much as the liability and obligation of the Guarantor
incurred or
arising under this Guaranty. The Guarantor has had full and
complete
access to the Agreement and the Note and all other loan
documents
relating to the Obligations and the Guaranteed Debt, hag 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 a condition
precedent
(and the Lender has not in any way implied that the execution of
this
Guaranty is a condition precedent) to the Lender's making,
extending
or modifying any loan to the Guarantor or to any other
financial
accommodation to or for the Guarantor.
(f) 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.
(g) Taxes. The Guarantor hag 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.
19. The promises and agreements herein and in any other guaranties
of the
Agreement and the Note shall be construed to be and are hereby declared
to be
joint and several in each and every particular and shall be fully binding
upon
and enforceable against any or all of such parties or persons
guaranteeing the
Agreement and the Note herein or in a separate guaranty, and neither the
death
nor the release of any person or party to this Guaranty or any other
guaranties
of the Agreement and the Note shall affect or release the joint and
several
liability of any other person or party to this Guaranty or any other
guaranties
of the Agreement and the Note. 20. THE GUARANTOR AND THE LENDER
HEREBY (i)
COVENANT AND AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF
RIGHT BY
A JURY, AND (ii) WAIVE 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,
PURSUANT
TO THE AGREEMENT, 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 ANY OF THE UNDERSIGNED THAT THE
LENDER
WILL NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty
with the
intent to be legally bound as of the date first above written.
-----------------------------------
---
XXXXX X. XXXXXXXX
Address
-----------------------------------
---
-----------------------------------
---
Telephone No.:
-------------------------
---
STATE OF )
) ss
COUNTY OF )
On , 1995, before me, a Notary Public, personally appeared
XXXXX X.
XXXXXXXXX, 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 executed the same in his authorized capacity,
and
that by his signature on the instrument the person, or the entity upon
behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
---
Notary Public
My Commission Expires:
--------------------
---
(SEAL)
EXHIBIT C
ADVANCE REQUEST FOR ELIGIBLE MORTGAGE POOL
Reference is hereby made to that Gestation Warehousing Credit and
Security
Agreement (Pooled Mortgage Loans), dated as of March , 1995 (the
"Agreement"),
by and between MONUMENT MORTGAGE, INC., a California corporation (the
"Company")
and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender").
Capitalized terms which are used herein and are not otherwise defined
herein
shall have the meanings assigned to them in the Agreement.
The Company hereby requests that the Lender make an Advance to the
Company
for the Eligible Mortgage Pool comprise of the Pledged Mortgages listed
on the
attached Schedule of Mortgage Loans and against which a Mortgage-backed
Security
will be issued. Receipt of the following information is a prerequisite to
such
Advance.
Requested Advance amount for the Eligible Mortgage Pool (99% of
Committed
Purchase Price (in dollars)" as set forth below: $
-------------------------
---
Identity of Investor:
--------------------------------------------------
---
Information Concerning Eligible Mortgage Pool:
Issuer of Mortgage-backed Security:
------------------------------
---
Pool Number:
------------------------------------------------------
---
Scheduled delivery and settlement date of Mortgage-
backed Security:
--------------------------------------------------
---
Total initial principal amount of Pledged Mortgages comprising
Eligible Mortgage Pool:
$
-------------------------------------------------------
---
Committed Purchase Price (as a percentage):
-----------------------
--%
Committed Purchase Price (in dollars): $
-------------------------
---
Identity of Approved Custodian:
----------------------------------------
---
Attached hereto is a true and correct Schedule of Mortgage Loans
included
in the Eligible Mortgage Pool (For GNMA: Schedule of Pooled Mortgages HUD
Form
11706; For FNMA: Schedule of Mortgages FNMA Form 2005 or 2025; For
FHLMC:
Security Settlement Information and Delivery Authorization FHLMC Form 939).
Such
Mortgage Loans will constitute the Pledged Mortgages for such Advance;
the
Eligible Mortgage Pool identified above will constitute the Pledged
Securities;
and the Purchase Commitment referred to above will be included in the
Collateral
for such Advance.
Dated:
----------------------
MONUMENT MORTGAGE, INC.,
a California corporation
By:
------------------------------------------
Its:
------------------------------------------
Attachment: Schedule of Mortgage Loans
SCHEDULE OF MORTGAGE LOANS
EXHIBIT D
FORM FOR PENDING BANK
LETTER AGREEMENT
(Letterhead of the Company)
March ___,
1995
The First National Bank of Chicago
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Gentlemen:
The undersigned, MONUMENT MORTGAGE, INC. (the "Companyn), hereby
authorizes
The First National Bank of Chicago (the Funding Bank n) 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
Accounts) 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 Warehousing
Credit and
Security Agreement (Agreements) by and between the Company and the
Lender; and
(b) for 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
hereby
authorizes the Lender to close the Operating Account and any other
accounts
which have been established by the Company and the Lender to
facilitate
transaction" under the Agreement, and the Company directs the Funding
Bank to
follow the directions of the Lender in closing such accounts. 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:
------------------------------------------
CERTIFICATE OF SECRETARY
OF
MONUMENT MORTGAGE, INC.
I, the undersigned, hereby certify that I am the Secretary of
MONUMENT
MORTGAGE, INC., a California corporation (the Company), and have
knowledge of
the matters contained in this Certificate and hereby certify that:
1. The Articles of Incorporation of the Company and the Bylaws
of the
Company submitted to the Lender in connection with the
Warehousing
Credit and Security Agreement ("Existing Credit Agreement")
dated as
of March 22 , 1995, by and between RESIDENTIAL FUNDING
CORPORATION, a
Delaware corporation (the Blenders), are true and correct
copies of
the current Articles of Incorporation and Bylaws, and have not
been
altered, modified or amended and are still in full force and
effect.
2. The Certificates of Good Standing of the Company and the
Certificate
of the Franchise Tax Board of the State of California for the
Company
submitted to the Lender in connection with the Existing
Credit
Agreement, are true and correct copies of the current
Certificates of
Good Standing and Certificate of the Franchise Tax Board of the
State
of California of the Company, and have not been altered,
modified or
amended and are still in full force and effect.
3. The Company is a corporation duly organized, validly existing
and in
good standing under the laws of the State of California
(the
jurisdiction where it is incorporated) and has complied
with all
certifications, filings and requirements necessary to continue
as a
corporation in the State of California and is qualified to do
business
as a foreign corporation and in good standing in all
jurisdictions
where the conduct of its business makes such qualification
necessary.
4. In connection with a Ten Million Dollar ($10,000,000) single
family
revolving warehouse facility made to the Company by the Lender,
the
Company has the valid power and authority to execute and
deliver to
the Lender the Promissory Note, the Gestation Warehousing
Credit and
Security Agreement (Shipped Mortgage Loans) and such other
security
documents as required by the Lender.
5. The resolutions attached to this Certificate as Exhibit "A" were
duly
adopted either: (a) by unanimous written action of the
Board of
Directors of the Company; or (b) at a meeting of the
Board of
Directors of the Company held on the 8th day of November, 1995
, at
which meeting a quorum was present. I am the keeper of the Minute
Book
of the Company and said resolutions have been entered therein,
have
not been altered, amended, repealed or rescinded, and are now in
full
force and effect.
6. The names of the officers of the Company and any other
persons
authorized to act under the resolutions attached hereto and
their
official signatures are as shown on the Certificate of
Incumbency
attached hereto as Exhibit "B".
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the
Company
as of this 29th day of November 1995.
----------------------------------------
--
Secretary
[SEAL]
ACKNOWLEDGED AND AGREED THIS
_____ DAY OF ______________, 1995.
THE FIRST NATIONAL BANK OF CHICAGO
By:
---------------------------------
Its:
---------------------------------
EXHIBIT "A"
MONUMENT MORTGAGE, INC.
RESOLUTIONS OF BOARD OF DIRECTORS
WHEREAS, MONUMENT MORTGAGE, INC., a California corporation (the
"Company"),
proposes to borrow from RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation
(the "Lender"), a Ten Million Dollar ($10,000,000) single family
revolving
warehouse facility (the "Loan"); and
WHEREAS, to evidence the Loan, the Company proposes to execute and
deliver
the following instruments, each dated as of March ___, 1995, unless
otherwise
indicated (herein collectively referred to as the "Loan Documents"):
(a) A Promissory Note in the principal sum of Ten Million
Dollars
($10,000,000) payable to the order of Lender; and
(b) A Gestation Warehousing Credit and Security Agreement
(Shipped
Mortgage Loans) evidencing the Loan and creating a security
interest
in the Collateral defined therein in favor of the Lender;
copies of which have been presented to the Board of Directors of the
Company; and
WHEREAS, the Board of Directors of the Company have determined that it
will
be in the best interests of the Company for the Company to borrow the Loan.
RESOLVED, that these resolutions are enacted by the Board of
Directors of
the Company on their behalf and on behalf of the Company.
FURTHER RESOLVED, that the Company shall borrow the Loan to be
evidenced
and secured by the Loan Documents.
FURTHER RESOLVED, that the Loan Documents in the form presented
to the
Board of Directors of the Company are hereby approved and copies
thereof are
filed in the records of the Company with these Resolutions.
FURTHER RESOLVED, that any one (insert minimum number required to
sign) of
the following officers of the Company: President, Executive Vice
President,
Senior Vice President, Vice President, Secretary, Assistant Secretary,
Assistant
Vice President (list titles of officers authorized), shall be and
are
authorized, empowered and directed in the name of and on behalf of the
Company,
to execute, acknowledge and deliver the Loan Documents, and each of them,
in the
form approved by the Board of Directors of the Company as aforesaid, with
such
changes therein as may be acceptable to such officers, as conclusively
evidenced
by their execution thereof.
FURTHER RESOLVED, that such officers shall be and are hereby
authorized,
empowered and directed to do and perform each and every act and execute
any and
all documents and instruments in the name of the Company as may be
necessary or
desirable to enable the Company to borrow the Loan and to carry out the
purpose
and intent of the foregoing Resolutions.
FURTHER RESOLVED, that any one (insert minimum number required to
sign) of
the following officers of the Company: President, Executive Vice
President,
Senior Vice President, Vice President, Assistant Vice President,
Secretary,
Assistant Secretary (list titles of officers authorized), shall be
and are
authorized, empowered and directed in the name of and on behalf of the
Company,
to execute, acknowledge and deliver any loan requests, shipping requests,
wire
transfer instructions, assignments, security delivery instructions and
trust
receipts and to endorse notes in the name of the Company, in any form
prescribed
by the Lender.
FURTHER RESOLVED, that these Resolutions shall remain in full
force and
effect and the Lender shall be fully protected in acting thereon until
written
notice of their change or revocation has been duly given to and received
by the
Lender, and the Lender is authorized to accept, and the Secretary of the
Company
shall from time to time provide, signed certificates of the Secretary
setting
forth any change of names of officers and other persons authorized
to act
hereunder on behalf of the Company, which certificates shall become a
part of
these Resolutions.
GUARANTY
THIS GUARANTY, made and entered into as of 23 day of March 1995, by
XXXXX
X. XXXXX (the "Guarantor"), to RESIDENTIAL FUNDING CORPORATION, a
Delaware
corporation (the "Lender"), having its principal office at 0000 Xxxxxxxxxx
Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
RECITALS
A. MONUMENT MORTGAGE, INC., a California corporation the "Company"),
and
the Lender have agreed that the Lender may, in its discretion,
from
time to time make loans to the Company (each a "Loan") in up
to the
aggregate principal amount of Ten Million Dollars
($10,000,000) to
finance the making and purchasing of Mortgage Loans.
B. The Loans will be evidenced by a 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 Gestation 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 a shareholder and the President of the
Company and
will derive benefit from the Loans.
D. In order to induce the Lender to make Loans under the
Agreement, to
accept the Note and the Agreement, and as additional security
for
Loans under the Agreement, the Guarantor has agreed to give
this
Guaranty.
E. The Lender has refused to make Loans under the Agreement unless
this
Guaranty is executed by the Guarantor and delivered to Lender.
NOW, THEREFORE, in consideration of the recitals and other
good and
valuable consideration, the receipt and sufficiency of 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 under the Agreement.
2. The Note and the Agreement are hereby made a part of this
Guaranty by
reference thereto with the same force and effect as if fully set forth
herein
and all representations and warranties s de by the Company therein are,
to the
best of Guarantor's knowledge, true and correct.
3. The Guarantor hereby irrevocably, unconditionally and
absolutely
guarantees to Lender the due and prompt payment, and not just
the
collectibility, of the principal of, and interest and late charges and all
other
indebtedness, if any, on the Note 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 Note and the Agreement, whether
now
existing or hereafter created or arising.
4. The Guarantor further hereby irrevocably, unconditionally and
absolutely
guarantees to Lender the due and prompt performance by the Company
of all
duties, agreements and obligations of the Company contained in the Note
and the
Agreement, and the due and prompt payment of all costs incurred,
including
attorneys' fees, in enforcing the payment and performance of the Note
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").
5. For the purposes of this Guaranty and notwithstanding anything
to the
contrary contained herein or in any of the Loan Documents, the
Guarantors
liability for payment of the Guaranteed Debt shall be limited to the sum
of (a)
Five Million Dollars ($5,000,000), (b) interest on such amount from the
date
demanded until the date paid at the highest rate applicable to any
of the
Guaranteed Obligations under the Agreement, and (c) all costs and
expenses
incurred by the Lender (including reasonable attorneys' fees) in enforcing
this
Guaranty, which amount may be comprised of any portion of the Guaranteed
Debt,
to be determined at the sole discretion of the Lender.
6. 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 reasonable attorneys' fees.
7. Upon occurrence of any Event of Default, all Guaranteed Debt
shall at
the option of the Lender immediately become due and payable, and in any
such
event the Guarantor authorizes the Lender, 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.
8. The Guarantor does hereby (a) agree to any modifications of any
terms or
conditions of any Guaranteed Debt and/or to any extensions or renewals of
time
of payment or performance by the Company; 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
Obliger) for payment or performance of the Guaranteed Debt or against
any
Collateral for the Guaranteed Debt before proceeding against the Guarantor;
and
that no release of any other guarantor, whether by operation of law or
by any
act of the Lender, with or without notice to the Guarantor, shall
release the
Guarantor; (b) waive notice of demand, dishonor, notice of dishonor,
protest,
and notice of protest and 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; and (c) agree,
if the
Guaranteed Debt is not paid in accordance with the terms thereof, to
pay, in
addition to all principal and interest due, all costs of collection
including
reasonable attorneys' fees.
9. 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, enforceability, amendment or change in the Agreement or the
Note, 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 Note, 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
Note; (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 the Guarantor
or any
other guarantor (if more than one), the Company or any other Obligor;
(g) any
other action or circumstance which (with or without notice to or
knowledge of
the Guarantor) may or might in any manner or to any extent vary the risks
of the
Guarantor hereunder or otherwise constitute a legal or equitable
discharge or
defense, it being understood and agreed by the Guarantor that the
obligation"
under this Guaranty shall not be discharged except by the full payment
and
performance of the Guaranteed Debt.
10. 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.
11. 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.
12. The Guarantor hereby irrevocably waives any claim or other rights
that
he may now or hereafter acquire against the Company that arises
from the
existence, payment, performance or enforcement of the Guarantors
obligation"
hereunder, including any right of subrogation, reimbursement,
exoneration or
indemnification, any right to participate in any claim or remedy of the
Lender
against the Company or any collateral that the Lender now has or
hereafter
acquires, whether or not such claim, remedy or right arises in equity or
under
contract, statute or common law, 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
until
the Guaranteed Debt shall have been paid and performed in full. If any
amount
"hall be paid to the Guarantor in violation of the preceding sentence,
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.
The Guarantor hereby specifically acknowledges that any subrogation rights
which
he 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. This may give the Guarantor a defense to a deficiency
judgment
against the Guarantor. The Guarantor hereby irrevocably waives such
defense. The
Guarantor acknowledges that he will receive direct and indirect benefits
from
the arrangements contemplated by the Agreement and the Note and that the
waivers
set forth in this Section are knowingly made in contemplation of such
benefits.
13. The Guarantor waives any and all benefits available to
sureties and
creditors which might otherwise be available to the Guarantor under
Section
2809, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and 3433 of the California
Code
of Civil Procedure, as amended or remodified from time to time.
Additionally,
the Guarantor waives the right to require the Lender to comply
with the
provisions of Section 9504 of the California Commercial Code.
14. 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.
15. 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,
xxxxx,
conditions and provisions hereof shall nevertheless continue to be
valid and
enforceable and this Guaranty shall be so construed.
16. This Guaranty shall be governed in all respects by the lawn
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 .
17. The Guarantor does hereby agree 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 venue of 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.
18. The Guarantor hereby represents and warrants to the Lender as
follows:
(a) Financial Statements. Any 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 the
Company in time for the Company to deliver the same to the
Lender, all
financial statements of the Guarantor required by the Agreement.
(b) 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.
(c) 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.
(d) 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.
(e) Relationship to the Company. The value of the consideration
received
and to be received by the Guarantor is reasonably worth at
least as
much as the liability and obligation of the Guarantor
incurred or
arising under this Guaranty. The Guarantor has had full and
complete
access to the Agreement and the Note 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
rinks 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 a condition
precedent
(and the Lender has not in any way implied that the execution of
this
Guaranty is a condition precedent) to the Lender's making,
extending
or modifying any loan to the Guarantor or to any other
financial
accommodation to or for the Guarantor.
(f) 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.
(g) 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.
19. The promises and agreements herein and in any other guaranties
of the
Agreement and the Note shall be construed to be and are hereby declared
to be
joint and several in each and every particular and shall be fully binding
upon
and enforceable against any or all of such parties or persons
guaranteeing the
Agreement and the Note herein or in a separate guaranty, and neither the
death
nor the release of any person or party to this Guaranty or any other
guaranties
of the Agreement and the Note shall affect or release the joint and
several
liability of any other person or party to this Guaranty or any other
guaranties
of the Agreement and the Note.
20. THE GUARANTOR AND THE LENDER HEREBY (i) COVENANT AND AGREE NOT TO
ELECT
A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii)
WAIVE 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, PURSUANT TO THE
AGREEMENT, 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 ANY OF THE UNDERSIGNED THAT THE LEADER WILL NOT SEEK TO ENFORCE THIS
WAIVER
OF RIGHT TO JURY TRIAL PROVISION.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty
with the
intent to be legally bound as of the date first above written.
XXXXX X. XXXXX
Address:
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Telephone No.
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STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 29, 1995, before me, a Notary Public, personally appeared
XXXXX
X. XXXXX, 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 executed the same in his authorized capacity,
and
that by his signature on the instrument the person, or the entity upon
behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
-------------------------------------
---
Notary Public
My Commission Expires:
---------------
---
(SEAL)
EXHIBIT "E"
CERTIFICATE AS TO INCUMBENCY
TO: RESIDENTIAL FUNDING CORPORATION
I hereby certify to you that I am the duly elected and qualified
Secretary
of MONUMENT MORTGAGE, INC., a California corporation ("Company") and
that, as
such, I am authorized to execute this Certificate on behalf of the
Company. I
further certify that the persons named below are duly elected,
qualified and
acting officers of the Company, holding on the date hereof the respective
titles
set forth opposite their respective names, and that the respective
signatures
set forth opposite their names are their true and genuine signatures:
Name Title Signature
Xxxxx X. Umphrves Executive Vice Pres. --------------
----
Xxxxx X. Xxxxx President --------------
----
Xxxx Xxxxxxxxx Chief Financial Officer --------------
----
Sr. Vice Pres.
Xxx Xxxxxx Xx. Vice Pres. --------------
----
Xxxxxx Xxxx Xx. Vice Pres. --------------
----
Xxxxx Xxxxxx Secretary --------------
----
Xxxxxxxx Xxxxxxx Asst. Sec. --------------
----
Xxxxxx Xxxxxxxx Asst. Sec. --------------
----
Xxxx Xxxxx Asst. Sec. --------------
----
Xxxxxxxx X. Xxxxxxx Asst. Sec. --------------
----
Xxxxxx X. Xxxxxx Asst. Sec. --------------
----
Xxxxxxx X. Bally Asst. Sec. --------------
----
You may conclusively rely on this Certificate until formally advised
by a
like Certificate of any changes herein.
IN WITNESS WHEREOF, I have hereunto executed this Certificate on this
29th
day of November , 1995.
----------------------------------
Secretary
GUARANTY
THIS GUARANTY, made and entered into as of 23 day of March 1995, by
XXXXX
X. XXXXXXXX (the "Guarantor"), to RESIDENTIAL FUNDING CORPORATION, a
Delaware
corporation (the "Lender"), having its principal office at 0000 Xxxxxxxxxx
Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
RECITALS
A. MONUMENT MORTGAGE, INC., a California corporation (the
"Company"), and
the Lender have agreed that the Lender may, in its discretion,
from
time to time make loans to the Company (each a "Loan") in up
to the
aggregate principal amount of Ten Million Dollars
($10,000,000) to
finance the making and purchasing of Mortgage Loans.
B. The Loans will be evidenced by a Promissory Note dated of even
date
herewith from the Company to the Lender, as the same may be
amended,
supplemented or from time to time, including any executed
and
delivered in renewal, extension, rearrangement or
otherwise in
replacement of such Promissory Note (the "Note") and by a
Gestation
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 a shareholder and the Executive Vice President
of the
Company and will derive benefit from the Loans.
D. In order to induce the Lender to make Loans under the
Agreement, to
accept the Note and the Agreement, and as additional security
for
Loans under the Agreement, the Guarantor has agreed to give
this
Guaranty.
E. The Lender hag refused to make Loans under the Agreement unless
this
Guaranty is executed by the Guarantor and delivered to Lender.
NOW, THEREFORE, in consideration of the recitals and other
good and
valuable consideration, the receipt and sufficiency of 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 under the Agreement.
2. The Note and the Agreement are hereby made a part of this
Guaranty by
reference thereto with the same force and effect as if fully set forth
herein
and all representations and warranties made by the Company therein are,
to the
best of Guarantor's knowledge, true and correct.
3. The Guarantor hereby irrevocably, unconditionally and
absolutely
guarantees to Lender the due and prompt payment, and not just
the
collectibility, of the principal of, and interest and late charges and all
other
indebtedness, if any, on the Note 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 Note and the Agreement, whether
now
existing or hereafter created or arising.
4. The Guarantor further hereby irrevocably, unconditionally and
absolutely
guarantees to Lender the due and prompt performance by the Company
of all
duties, agreements and obligations of the Company contained in the Note
and the
Agreement, and the due and prompt payment of all costs incurred,
including
attorneys' fees, in enforcing the payment and performance of the Note
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").
5. For the purposes of this Guaranty and notwithstanding anything
to the
contrary contained herein or in any of the Loan Documents, the
Guarantors
liability for payment of the Guaranteed Debt shall be limited to the sum
of (a)
Five Million Dollars ($5,000,000), (b) interest on such amount from the
date
demanded until the date paid at the highest rate applicable to any
of the
Guaranteed Obligations under the Agreement, and (c) all costs and
expenses
incurred by the Lender (including reasonable attorneys' fees) in enforcing
this
Guaranty, which amount may be comprised of any portion of the Guaranteed
Debt,
to be determined at the sole discretion of the Lender.
6. 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 reasonable attorneys' fees.
7. Upon occurrence of any Event of Default, all Guaranteed Debt
shall at
the option of the Lender immediately become due and payable, and in any
such
event the Guarantor authorizes the Lender, 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.
8. The Guarantor does hereby (a) agree to any modifications of any
terms or
conditions of any Guaranteed Debt and/or to any extensions or renewals of
time
of payment or performance by the Company; 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;
and
that no release of any other guarantor, whether by operation of law or
by any
act of the Lender, with or without notice to the Guarantor, shall
release the
Guarantor; (b) waive notice of demand, dishonor, notice of dishonor,
protest,
and notice of protest and 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; and (c) agree,
if the
Guaranteed Debt is not paid in accordance with the terms thereof, to
pay, in
addition to all principal and interest due, all costs of collection
including
reasonable attorneys' fees.
9. 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, enforceability, amendment or change in the Agreement or the
Note, 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 Note, 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
Note; (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 the Guarantor
or any
other guarantor (if more than one), the Company or any other Obligor;
(g) any
other action or circumstance which (with or without notice to or
knowledge of
the Guarantor) may or might in any manner or to any extent vary the risks
of the
Guarantor hereunder or otherwise constitute a legal or equitable
discharge or
defense, it being understood and agreed by the Guarantor that the
obligations
under this Guaranty shall not be discharged except by the full payment
and
performance of the Guaranteed Debt.
10. 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.
11. 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.
12. The Guarantor hereby irrevocably waives any claim or other rights
that
he may now or hereafter acquire against the Company that arises
from the
existence, payment, performance or enforcement of the Guarantors
obligations
hereunder, including any right of subrogation, reimbursement,
exoneration or
indemnification, any right to participate in any claim or remedy of the
Lender
against the Company or any collateral that the Lender now has or
hereafter
acquires, whether or not such claim, remedy or right arises in equity or
under
contract, statute or common law, 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
until
the Guaranteed Debt shall have been paid and performed in full. If any
amount
shall be paid to the Guarantor in violation of the preceding sentence,
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.
The Guarantor hereby specifically acknowledges that any subrogation rights
which
he 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. This may give the Guarantor a defense to a deficiency
judgment
against the Guarantor. The Guarantor hereby irrevocably waives such
defense. The
Guarantor acknowledges that he will receive direct and indirect benefits
from
the arrangements contemplated by the Agreement and the Note and that the
waivers
set forth in this Section are knowingly made in contemplation of such
benefits.
13. The Guarantor waives any and all benefits available to
sureties and
creditors which might otherwise be available to the Guarantor under
Section
2309, 2810, 2819, 2839, 2845, 2849, 2850, 2899 and 3433 of the California
Code
of Civil Procedure, as amended or recodified from time to time.
Additionally,
the Guarantor waives the right to require the Lender to comply
with the
provisions of Section 9504 of the California Commercial Code.
14. 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.
15. 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.
16. 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.
17. The Guarantor does hereby agree 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 venue of 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.
18. The Guarantor hereby represents and warrants to the Lender as
follows:
(a) Financial Statements. Any 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 the Company in time
for the
Company to deliver the same to the Lender, all
financial
statements of the Guarantor required by the Agreement.
(b) 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.
(c) No Default. The Guarantor in 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.
(d) 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.
(e) Relationship to the Company. The value of the
consideration
received and to be received by the Guarantor is reasonably
worth
at least as much as the liability and obligation of the
Guarantor
incurred or arising under this Guaranty. The Guarantor
has had
full and complete access to the Agreement and the Note
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 a
condition precedent (and the Lender has not in any way
implied
that the execution of this Guaranty is a condition
precedent) to
the Lender's making, extending or modifying any loan
to the
Guarantor or to any other financial accommodation to or
for the
Guarantor.
(f) 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.
(g) 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.
19. The promises and agreements herein and in any other guaranties
of the
Agreement and the Note shall be construed to be and are hereby declared
to be
joint and several in each and every particular and shall be fully binding
upon
and enforceable against any or all of such parties or persons
guaranteeing the
Agreement and the Note herein or in a separate guaranty, and neither the
death
nor the release of any person or party to this Guaranty or any other
guaranties
of the Agreement and the Note shall affect or release the joint and
several
liability of any other person or party to this Guaranty or any other
guaranties
of the Agreement and the Note.
20. THE GUARANTOR AND THE LENDER HEREBY (i) COVENANT AND AGREE NOT TO
ELECT
A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND (ii)
WAIVE 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, PURSUANT TO THE
AGREEMENT, 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 ANY OF THE UNDERSIGNED THAT THE LENDER WILL NOT SEEK TO ENFORCE THIS
WAIVER
OF RIGHT TO JURY TRIAL PROVISION.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty
with the
intent to be legally bound as of the date first above written.
----------------------------------------
---
XXXXX X. XXXXXXXX
Address:
---------------------------------
---
----------------------------------------
---
Telephone No.:
---------------------------------
---
STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 29, 1995, before me, a Notary Public, personally appeared
XXXXX
X. XXXXXXXXX, 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 executed the same in his
authorized
capacity, and that by his signature on the instrument the person, or the
entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
---
Notary Public
My Commission Expires:
--------------------
---
(SEAL)
PROMISSORY NOTE
$10,000,000 Date: March 23,
1995
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 holders) whose principal
place of
business is 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx
00000, or at such other place as the Holder may designate from time to
time, the
principal sum of Ten Million Dollars ($10,000,000) or so much thereof as
may be
outstanding from time to time pursuant to the Gestation 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 rate 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 gestation warehouse
facility in
the above amount and is the Note referred to in that certain
Gestation
Warehousing Credit and Security Agreement (Shipped Mortgage Loans)
(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, and all costs of collecting this Note,
including
reasonable attorneys' fees and expenses .
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:
---------------------------------------------
--
Xxxx X. Xxxxxxxxx
Its: Senior VP / Chief Financial Officer
STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 29, 1995, before me, a Notary Public personally appeared
Xxxx
X. Xxxxxxxxx, the of MONUMENT MORTGAGE, INC., a California
corporation,
personally known to me (or proved to me on the basis of satisfactory
evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her authorized
capacity,
and that by his/her signature on the instrument the person, or the entity
upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
--
Notary Public
My Commission Expires:
---------------
--
(SEAL)
PROMISSORY NOTE
$10,000,000 Date: March 23 , 1995
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 holders) whose principal
place of
business is 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx
00000, or at such other place as the Holder may designate from time to
time, the
principal sum of Ten Million Dollars ($10,000,000) or so much thereof as
may be
outstanding from time to time pursuant to the Gestation 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 rate 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 gestation warehouse
facility in
the above amount and is the Note referred to in that certain
Gestation
Warehousing Credit and Security Agreement (Shipped Mortgage Loans)
(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, and all costs of collecting this Note,
including
reasonable attorneys' fees and expenses.
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:
----------------------------------------
---
Xxxx X. Xxxxxxxxx
Its: Senior VP/Chief Financial Officer
STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 29, 1995, before me, a Notary Public personally appeared
Xxxx
X. Xxxxxxxxx, the of MONUMENT MORTGAGE, INC., a California
corporation,
personally known to me (or proved to me on the basis of satisfactory
evidence)
to be the person whose name is subscribed to the within instrument
and
acknowledged to me that he/she executed the same in his/her authorized
capacity,
and that by his/her signature on the instrument the person, or the entity
upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
----------------------------------------
--
Notary Public
My Commission Expires:
--------------------
--
(SEAL)
