Exhibit 10.3
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SIXTH AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
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THIS SIXTH AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND
SECURITY AGREEMENT (this "Amendment") is entered into as of this 12th day of
October, 2000, by and between MONUMENT MORTGAGE, INC., a California corporation
(the "Company") and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender").
WHEREAS, the Company and the Lender have entered into a single family revolving
warehouse facility with a present Commitment Amount of $75,000,000, to finance
the origination and acquisition of Mortgage Loans as evidenced by a First
Amended and Restated Promissory Note in the principal sum of $85,000,000, dated
as of August 22, 2000 (the "Note"), and by a First Amended and Restated
Warehousing Credit and Security Agreement dated as of August 9, 1999, as the
same may have been amended or supplemented (the "Agreement");
WHEREAS, the Company has requested that the Lender extend the period for which
the Commitment under the Agreement has been made, and the Lender has agreed to
such extension subject to the terms and conditions of this Amendment; and
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual
covenants, agreements and conditions hereinafter set forth and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The effective date ("Effective Date") of this Amendment shall be ___________.
2. All capitalized terms used herein that are not otherwise defined below are
defined in the Agreement.
3. Section 1.1 of the Agreement is amended to delete the following definitions
in their entirety, replacing them with the following definitions:
"FISCAL QUARTER" means the three (3) month period beginning on any
January 1, April 1, July 1 or October 1.
"MATURITY DATE" shall mean February 28, 2001.
4. The Guarantor has breached the following covenants of the Agreement:
1. Section 8.1(t), Guarantor's Tangible Net Worth covenant for the month
of August, 2000; and
2. Section 8.1(r), Guarantor's cumulative net loss covenant for the
Fiscal Quarter ending September 30, 2000.
Each of the above breaches are Events of Default under the Agreement
entitling The Lender to exercise all of its rights and remedies under the
Agreement, including the right to cease making Advances to The Company and the
right to accelerate the Obligations. The Lender agrees to forbear from
exercising its rights with respect to the Events of Default described above
until October 31, 2000, as long as no additional Default or Event of Default
(including, without limitation, due to a subsequent violation of the Sections of
the Agreement described above)
occurs, and subject to the receipt from the Company of a revised budget through
December 31, 2001 in form and detail satisfactory to The Lender. This is not an
agreement to forbear any other defaults or Events of Default. The Lender
expressly reserves all rights and remedies available to it under the Loan
Documents.
5. Upon execution of this Amendment, the Company agrees to pay to the Lender the
pro rata Commitment Fee on the Commitment Amount for the time period of October
15, 2000 to and including December 31, 2000.
6. The Company shall deliver to the Lender (a) an executed original of this
Amendment; (b) a Certificate of Secretary with corporate resolutions; (c) the
Commitment Fee for the time period of October 15, 2000 to and including December
31, 2000; and (d) a $350 document production fee.
7. The Company represents, warrants and agrees that (a) except as stated above,
there exists no Default or Event of Default under the Loan Documents, (b) the
Loan Documents continue to be the legal, valid and binding agreements and
obligations of the Company enforceable in accordance with their terms, as
modified herein, (c) the Lender is not in default under any of the Loan
Documents and the Company has no offset or defense to its performance or
obligations under any of the Loan Documents, (d) the representations contained
in the Loan Documents remain true and accurate in all respects and (e) there has
been no material adverse change in the financial condition of the Company from
the date of the Agreement to the date of this Amendment.
8. Except as hereby expressly modified, the Agreement shall otherwise be
unchanged and shall remain in full force and effect, and the Company ratifies
and reaffirms all of its obligations thereunder.
9. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Lender have caused this Amendment to be
duly executed on their behalf by their duly authorized officers as of the day
and year above written.
MONUMENT MORTGAGE, INC.
a California corporation
By: _________________________________
Its: _________________________________
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By: _________________________________
Its: _________________________________
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STATE OF ______________________ )
) ss.
COUNTY OF ______________________ )
On, October ________, 2000 before me, a Notary Public, personally appeared
___________________________________, the ___________________________________ of
MONUMENT MORTGAGE, INC., a California corporation, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name
is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature
on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________________
Notary Public
(SEAL) My Commission Expires:____________
STATE OF ______________________ )
) ss.
COUNTY OF ______________________ )
On, October _____, 2000 before me, a Notary Public, personally appeared
__________________________________________, the ______________________________
of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
___________________________________________
Notary Public
(SEAL) My Commission Expires:____________
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CONSENT OF GUARANTOR
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The undersigned, being the Guarantor under the Guaranty dated as of August 9,
1999, hereby consents to the foregoing Amendment and the transactions
contemplated thereby and hereby modifies and reaffirms its obligations under its
Guaranty so as to include within the term "Guaranteed Debt" the indebtedness,
obligations and liabilities of the Company under this Amendment and the Note.
The Guarantor hereby reaffirms that its obligations under its Guaranty are
separate and distinct from the Company's obligations to The Lender, and that its
obligations under the Guaranty are in full force and effect, and hereby waives
and agrees not to assert any anti-deficiency protections or other rights as a
defense to its obligations under the Guaranty, all as more fully set forth in
the Guaranty, the terms of which are incorporated herein as if fully set forth
herein.
XxXXX.XXX, INC.,
a Delaware corporation
By: ____________________________________
Its: ____________________________________
STATE OF ______________________ )
) ss.
COUNTY OF ______________________ )
On October _____, 2000 before me, a Notary Public, personally appeared
____________________________________, the _________________________________ of
XxXXX.XXX, INC., a Delaware corporation, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
___________________________________________
Notary Public
(SEAL) My Commission Expires:____________
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