Exhibit 10.21
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EIGHTH AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
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THIS EIGHTH AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND
SECURITY AGREEMENT (this "Amendment") is entered into as of this 28th day of
February 2001, by and between MONUMENT MORTGAGE, INC., a California corporation
("Borrower") and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
("Lender").
WHEREAS, Borrower and Lender have entered into a single family revolving
warehouse facility with a present Commitment Amount of $60,000,000, to finance
Mortgage Loans as evidenced by a First Amended and Restated Promissory Note in
the principal sum of $85,000,000, dated as of August 22, 2000 (the "Note"), and
by a First Amended and Restated Warehousing Credit and Security Agreement dated
as of August 9, 1999, as the same may have been amended or supplemented (the
"Agreement"); and
WHEREAS, Borrower has requested that Lender reduce the Commitment Amount, extend
the period for which the Commitment under the Agreement has been made and amend
certain other terms of the Agreement, and Lender has agreed to such reduction of
the Commitment Amount, extension of the Commitment and amendment of the
Agreement, subject to the terms and conditions of this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual
covenants, agreements and conditions hereinafter set forth and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The effective date ("Effective Date") of this Amendment is March 1, 2001.
2. All capitalized terms used herein and not otherwise defined have their
respective meanings set forth in the Agreement.
3. Section 1.1 of the Agreement is amended by adding the following definitions
in the appropriate alphabetical order:
"Cash and Cash Equivalents" means, with respect to any person at any date,
the sum of the following unrestricted and unencumbered assets of such
person on such date: cash, funds on deposit in any Bank located in the
United States, investment grade commercial paper, money market funds, and
high grade marketable securities with a maturity of 270 days or less, in
all cases that qualify as "cash or cash equivalents" on a balance sheet of
such Person prepared in accordance with GAAP.
4. Section 1.1 of the Agreement is amended to delete the following definitions
in their entirety, replacing them with the following definitions:
"Commitment Amount" means $25,000,000
"Maturity Date" means the earlier of: (a) the close of business on May 31,
2001 as such date may be extended from time to time in writing by Lender,
in its sole discretion, on which date the Commitment will expire of its own
term, and without the necessity of action by Lender, and (b) the date the
Advances become due and payable pursuant to Section 8.2 below.
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5. Sections 2.8 and 2.9 of the Agreement are deleted in their entirety and the
following is substituted in lieu thereof:
2.8 Commitment Fees: Commitment Fee in the amount of 0.25% per annum
of the Commitment Amount. The Commitment Fee is payable quarterly in
advance. Lender computes the Commitment Fee on the basis of the actual
number of days in each Calendar Quarter and a year of 360 days. Borrower
must pay the Commitment Fee within 10 days after the date of Lender's
invoice or account analysis statement. If the date set forth in clause (a)
of the definition of Maturity Date occurs on a day other than the last day
of a Calendar Quarter, Borrower must pay the prorated portion of the
Commitment Fee due from the beginning of the then current Calendar Quarter
to and including that date. Borrower is not entitled to a reduction in the
amount of the Commitment Fee if (a) the Commitment Amount is reduced or (b)
the Commitment is terminated at the request of Borrower or as a result of
an Event of Default. If the Commitment terminates at the request of
Borrower or as a result of an Event of Default, Borrower must pay, on the
date of termination, a Commitment Fee on the Commitment Amount in effect
immediately prior to termination, for the period from the date of
termination to and including the date set forth in clause (a) of the
definition of Maturity Date on the date of such termination. Lender's
determination of the Commitment Fee for any period is conclusive and
binding, absent manifest error.
2.9 Warehousing Fees: At the time of each Advance against an Eligible
Loan, Borrower must pay Lender a fee ("Warehousing Fee") in the amount of
$25.00. Borrower must pay all Warehousing Fees within 10 days after the
date of Lender's invoice or account analysis statement.
6. Section 6.2 of the Agreement is amended to add the following Section
immediately following Section 6.2(i):
6.2(j) On or before the 4th day of each week, a report describing
the Cash and Cash Equivalents owed and Mortgage Loans and
Mortgage-backed Securities held for sale by the Borrower, in form and
substance satisfactory to Lender.
7. Sections 7.6, 7.8 and 7.9 of the Agreement are deleted in their entirety and
the following is substituted in lieu thereof:
7.6 Current Ratio. Permit the ratio of current assets to current
liabilities of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP, at any time to exceed 1.10 to
1.
7.8 Minimum Tangible Net Worth. Permit Borrower's Tangible Net Worth
at any time to be less than $10,000,000.
7.9 Minimum Cash and Cash Equivalents. Permit the Cash and Cash
Equivalents of Borrower at any time to be less than $5,000,000.
8. Sections 8.1(f), 8.1(g), 8.1(s) and 8.1(t) of the Agreement are deleted in
their entirety and the following are substituted in lieu thereof:
8.1(f) (1) A case (whether voluntary or involuntary) is filed by
or against Borrower or any Subsidiary or any Guarantor under any
applicable bankruptcy, insolvency or other similar federal or state
law now or hereafter in effect; or (2) a court of competent
jurisdiction appoints a receiver (interim or permanent), liquidator,
sequestrator, trustee, custodian or the officer having similar powers
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over Borrower or any Subsidiary or any Guarantor or over all or a
substantial part of their respective properties; or (3) Borrower or
any Subsidiary or any Guarantor consent or the appointment or
possession by a receiver (interim or permanent), liquidator,
sequestrator, trustee, custodian or other officer having similar
powers over Borrower or any Subsidiary or any Guarantor, or over all
or a substantial part of their respective properties; or (4) Borrower
or any Subsidiary or any Guarantor makes an assignment for the benefit
of creditors; or (5) Borrower or any Subsidiary or any Guarantor
fails, or admits in writing its inability, to pay its debts as those
debts become due; or
8.1(g) (INTENTIONALLY OMITTED.)
8.1(s) [INTENTIONALLY OMITTED.]
8.1(t) [INTENTIONALLY OMITTED.]
9. Section 8.2(e) of the Agreement is deleted in its entirety and the following
is substituted in lieu thereof:
8.2(e) Borrower acknowledges that Mortgage Loans are collateral
of a type that is the subject of widely distributed standard price
quotations and that Mortgage-backed Securities are collateral of a
type that is customarily sold on a recognized market. Borrower waives
any right it may have to prior notice of the sale of Pledged
Securities, and agrees that Lender may purchase Pledged Loans and
Pledged Securities at a private sale of such Collateral.
10. The Lender hereby agrees to waive its default rights with respect to the
failure of the Guarantor to comply with the Minimum Tangible Net Worth
requirement of Section 8.1(t) of the Agreement at any time during the period
from August 1, 2000 to and including December 31, 2000. The Lender hereby also
waives its default rights with respect to the failure of the Guarantor to comply
with the Permitted Cumulative Loss requirement in Section 8.1(r) of the
Agreement for the Calendar Quarters ending September 30, 2000, and December 31,
2000. These waivers apply only to the specific instances described herein. They
are not waivers of any subsequent breach of the same provisions of the
Agreement, nor are they waivers of any breach of any other provisions of the
Agreement. Notwithstanding the foregoing, the Lender reserves all of the rights,
powers and remedies presently available to the Lender under the Agreement, the
Note and the Guaranty, including the right to cease making Advances to the
Company and the right to accelerate any of the indebtedness owing under the
Agreement if any other Default or Event of Default occurs under the Agreement.
11. Upon execution of this Amendment, Borrower agrees to pay to Lender a
Commitment Fee for the time period from the March 1, 2001, to and including
March 31, 2001.
12. Exhibit I-SF to the Agreement is deleted in its entirety and replaced with
the new Exhibit I-SF attached to this Amendment. All references in this
Amendment and the Agreement to Exhibit I-SF will be deemed to refer to the new
Exhibit I-SF.
13. Exhibit M to the Agreement is hereby deleted in its entirety and replaced
with the new Exhibit M attached to this Amendment. All references in the
Agreement to Exhibit M will be deemed to refer to the new Exhibit M.
14. Exhibit N to the Agreement is hereby deleted in its entirety and replaced
with the new Exhibit N attached to this Amendment. All references in the
Agreement to Exhibit N shall be deemed to refer to the new Exhibit N
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15. Borrower must deliver to Lender (a) an executed original of this Amendment;
(b) an executed Certificate of Secretary with corporate resolutions; (c) current
insurance information; (d) the Commitment Fee for the month of March 2001; (e) a
$5,000 extension fee; and (f) a $750 document production fee.
16. Borrower 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 Borrower enforceable in accordance with their terms, as modified
herein, (c) Lender is not in default under any of the Loan Documents and
Borrower has no offset or defense to its performance or obligations under any of
the Loan Documents, (d) the representations contained in the Loan Documents
remain true and accurate in all material respects, and (e) there has been no
material adverse change in the financial condition of Borrower from the date of
the Agreement to the date of this Amendment.
17. Except as hereby expressly modified, the Agreement is otherwise unchanged
and remains in full force and effect, and Borrower ratifies and reaffirms all of
its obligations thereunder.
18. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered will be an original, but all of which will together
constitute one and the same instrument.
IN WITNESS WHEREOF, Borrower and Lender have caused this Amendment to be duly
executed on their behalf by their duly authorized officers as of the day and
year above written.
MONUMENT MORTGAGE, INC.,
a California corporation
By:_______________________________
Its:______________________________
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:_______________________________
Its:______________________________
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STATE OF ____________________ )
) ss.
COUNTY OF ___________________ )
On, _____________________________, 2001, 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, _____________________________, 2001, 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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