SEVENTH AMENDMENT TO
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT
(this "Amendment") is entered into as of this 14th day of November 1997,
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 Warehousing Commitment Amount
of Ten
Million Dollars ($10,000,000), to finance the origination and
acquisition of
Mortgage Loans as evidenced by a First Amended and Restated
Warehousing
Promissory Note in the principal sum of Ten Million Dollars ($10,000,000),
dated
February 29, 1996, (the "Warehousing Promissory Note") and by a
Warehousing
Credit and Security Agreement dated March 22, 1995, as the same may have
been
amended or supplemented (the "Agreement");
WHEREAS, the Company and the Lender have entered into a term loan
facility, as evidenced by a Term Loan Promissory Note in the principal
amount of
One Million Dollars ($1,000,000), dated as of March 22, 1995 (the "Term
Loan
Note"), and the Agreement;
WHEREAS, the Company and the Lender have also entered into a
working
capital facility with a present Working Capital Commitment Amount of One
Million
Dollars ($1,000,000), as evidenced by a First Amended and Restated
Working
Capital Promissory Note in the principal sum of One Million
Dollars
($1,000,000), dated as of February 29, 1996 (the "`Working Capital Note"),
and
the Agreement (the Warehousing Promissory Note, the Term Loan Promissory
Note
and the Working Capital Promissory Note shall collectively be referred to
as the
"Notes");
WHEREAS, the Company has requested the Lender to extend the
period for
which the Warehousing Commitment and Working Capital Commitment
under the
Agreement have been made and to amend certain other terms -of the
Agreement and
the Lender has agreed to such extension 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. All capitalized terms used herein and not otherwise defined shall
have
their respective meanings set forth in the Agreement.
2. The effective date ("Effective Date") of this Amendment shall be
November 14, 1997, the date on which the Company has complied with all the
terms
and conditions of this Amendment.
3. Section 1.1 of the Agreement shall be amended by adding the
following
definitions in the appropriate alphabetical order:
"Credit Score" means the process by which the mortgagors
overall
consumer credit is represented by a single numeric credit score as
provided
by an acceptable credit repository.
"Designated Bank Charges" means any fees, interest or other
charges
that would otherwise be payable to a Designated Bank, including
Federal
Deposit Insurance Corporation insurance premiums, service charges and
such
other charges as may be imposed by governmental authorities from
time to
time.
"Long-term Repurchase Advance" means an Advance made
against
Repurchased Mortgage Loans or Rejected Mortgage Loans with respect to
which
the Lender determines that the related deficiency cannot be readily
cured
by the Company within sixty (60) days. The Lender shall determine
whether a
Repurchase Advance is a Long-term Repurchase Advance pursuant to
Section
2.1(c)(5).
"Manufactured Home" means a structure that is built on a
permanent
chassis (steel frame) with the wheel assembly necessary for
transportation
in one or more sections to a permanent site or semi-permanent
site and
which has been built in compliance with the National Manufactured
Housing
Construction and Safety Standards established by HUD.
"Short-term Repurchase Advance" means an Advance made
against
Repurchased Mortgage Loans or Rejected Mortgage Loans with respect to
which
the Lender determines that the related deficiency can be readily
cured by
the Company within sixty (60) days. The Lender shall determine
whether a
Repurchase Advance is a Short-term Repurchase Advance pursuant to
Section
2.1(c)(5).
"Wire Disbursement Account" means a demand deposit account
maintained
at the Funding Bank in the name of the Lender for the clearing of
wire
transfers requested by the Company to fund the closing of
Pledged
Mortgages.
4. Section 1.1 of the Agreement shall be amended to delete the
definitions
of "Conventional Mortgage Loan," "Eligible Balances," "High LTV Mortgage
Loan,"
"Home Equity Loan," "`Maturity Date," "Mortgage," "Mortgage Note Amount'.
and
"Warehousing Promissory Note" in their entirety, replacing them
with the
following definitions:
"Conventional Mortgage Loan" means a closed-end First Mortgage
Loan
other than an FHA insured Mortgage Loan, a VA guaranteed Mortgage Loan
or a
High LTV Mortgage Loan.
"Eligible Balances" means all funds of or maintained by the
Company
and its Subsidiaries in accounts at a Designated Bank, less
balances to
support float, reserve requirements, and such other reductions as
may be
imposed by governmental authorities from time to time.
"High LTV Mortgage Loan" means a Mortgage Loan made to a
mortgagor,
with a Credit Score of 630 or better, of which the sum of the
maximum
amount available to be borrowed thereunder (whether or not borrowed)
at the
time of origination plus the Mortgage Note Amounts of all other
Mortgage
Loans secured by the related improved real property exceeds one
hundred
percent (100%) and is less than or equal to one hundred twenty-five
percent
(125%) of the appraised value of such related improved real property.
"Home Equity Loan" means an open-ended revolving line of credit
that
is a Mortgage Loan secured by either a First Mortgage or a Second
Mortgage,
which is not a High LTV Mortgage Loan or a Title I Mortgage Loan.
"Maturity Date" shall mean the earlier of: (a) the close of
business
on December 31, 1998 as such date may be extended from time to
time in
writing by the Lender, in its sole discretion, on which date
the
Warehousing Commitment and Working Capital Commitment shall expire of
their
own term, and without the necessity of action by the Lender, and
(b) the
date the Advances become due and payable pursuant to Section 8.2
below.
"Mortgage" means a mortgage or deed of trust on improved real
property
(including, without limitation, real property to which a Manufactured
Home
has been affixed in a manner such that the Lien of a mortgage or
deed of
trust would attach to such manufactured home under applicable real
property
law). A Mortgage may be a First Mortgage or a Second Mortgage.
"Mortgage Note Amount" means, as of the date of determination,
the
then outstanding unpaid principal amount of a Mortgage Note (whether
or not
an additional amount is available to be drawn thereunder).
"Nonconforming Rate" means a floating rate of interest per annum
equal
to two and one-quarter percent (2.251) over LIBOR. The Nonconforming
Rate
shall be adjusted on and as of the effective date of any change in
LIBOR.
The Lender's determination of the Nonconforming Rate as of any
date of
determination shall be conclusive and binding, absent manifest error.
"Ordinary Warehousing Rate" means a floating rate of interest
per
annum equal to two percent (2.00%) over LIBOR. The Ordinary
Warehousing
Rate shall be adjusted on and as of the effective date of any
change in
LIBOR. The Lenders determination of the Ordinary Warehousing Rate as
of any
date of determination shall be conclusive and binding, absent
manifest
error.
"Warehousing Promissory Note" means the promissory note
evidencing the
Company's Obligations with respect to Ordinary Warehousing
Advances,
Nonconforming Advances, Home Equity Advances, Second Mortgage
Advances and
Repurchase Advances.
5. The definition of "Sublimit Promissory Note" in Section 1.1
of the
Agreement shall be deleted in its entirety.
6. Section 2.1(b)(4) of the Agreement is hereby deleted in its
entirety and
the following section is substituted in lieu thereof:
(4) The aggregate amount of Nonconforming Advances outstanding
at any
one time shall not exceed Five Million Dollars ($5,000,000).
7. Section 2.1(c)(5) of the Agreement is hereby deleted in its
entirety and
the following section is substituted in lieu thereof:
(5) For a Mortgage Loan pledged to secure a Repurchase Advance,
(i) if
the Lender determines (which determination shall in all events be
binding)
that the deficiency which caused such Mortgage Loan to become a
Repurchased
Mortgage Loan or Rejected Mortgage Loan can be readily cured by the
Company
so as to permit the Mortgage Loan to be sold within sixty (60) days,
ninety
percent (90%) of the Mortgage Note Amount, and (ii) in all other
cases,
sixty percent (60%) of the Mortgage Note Amount.
8. Section 2.2(e) of the Agreement shall be deleted in its entirety
and the
following shall be substituted in lieu thereof:
2.2(e) To make an Warehousing Advance, the Lender shall
cause the
Funding Bank to credit the Wire Disbursement Account upon compliance
by the
Company with the terms of the Loan Documents. The Lender shall
determine in
its sole discretion the method by which Advances and other
amounts on
deposit in the Wire Disbursement Account are disbursed by the Funding
Bank
to or for the account of the Company.
9. Section 2.7 of the Agreement shall be deleted in its entirety
and the
following shall be substituted in lieu thereof:
2.7 Notes. The Company's Obligations in respect of
Ordinary
Warehousing Advances, Nonconforming Advances, Home Equity Advances,
Second
Mortgage Advances and Repurchase Advances shall be evidenced
by a
Warehousing Promissory Note of the Company substantially in the
form of
Exhibit A-1 attached to the Third Amendment of the Agreement. The
Company's
Obligations in respect of Working Capital Advances shall be evidenced
by a
Working Capital Promissory Note of the Company substantially in the
form of
Exhibit A-3 attached to the Third Amendment of the Agreement. The
Company's
Obligations in respect of Term Loan Advances shall be evidenced by a
Term
Loan Promissory Note of the Company substantially in the form of
Exhibit
A-4 attached to the Agreement. Each note shall be dated as of the
date
hereof. The Warehousing Promissory Note, the Working Capital
Promissory
Note and the Term Loan Promissory Note are collectively referred to
as the
"Notes". The terms "Warehousing Promissory Note," "Working
Capital
Promissory Note," "Term Loan Promissory Note," "Note" or "Notes"
shall
include all extensions, renewals and modifications of the Notes
and all
substitutions therefor. All terms and provisions of the Notes are
hereby
incorporated herein.
10. Section 2.8 of the Agreement shall be deleted in their entirety
and the
following shall be substituted in lieu thereof:
2.8. Interest.
2.8(a) Except as otherwise provided in Section 2.8(h)
hereof, the
unpaid amount of each Ordinary Warehousing Advance, Home
Equity
Advance or Second Mortgage Advance shall bear interest, from the
date
of such Advance until paid in full, at the Ordinary Warehousing
Rate.
2.8(b) Except as otherwise provided in Section 2.8(h)
hereof, the
unpaid amount of each Nonconforming Advance shall bear interest,
from
the date of such Nonconforming Advance until paid in Full,
at the
Nonconforming Rate.
2.8(c) Except as otherwise provided in Section 2.8(h)
hereof, the
unpaid amount of each Working Capital Advance and each Term
Loan
Advance shall bear interest, from the date of such Advance, until
paid
in full, at the Term/Working Capital Rate.
2.8(d) Except as otherwise provided in Section 2.8(h)
hereof, the
unpaid amount of each Repurchase Advance shall bear interest,
from the
date of such Advance until paid in full, at the Repurchase Rate.
2.8(e) The Company shall be entitled to receive certain
benefits
based on the average monthly Eligible Balances of the
Company
maintained at a Designated Bank.
For the purposes hereof, all Advances shall be called
the
"Applicable Advances". After the end of each calendar month,
the
Lender will calculate the interest due for the applicable
month, by
electing a portion ("Balance Funded Portion") of the
Applicable
Advances which is equal to the lesser of (a) the Applicable
Advances
outstanding during such month or (b) the average amount of
Eligible
Balances on deposit with a Designated Bank during such month.
The
Balance Funded Portion of the Applicable Advances shall bear
interest
at a balance funded rate of two percent (2.00%).
The Balance Funded Portion of the Applicable Advances
outstanding
for a month shall be determined by (a) first, deducting the
average
amount of Repurchase Advances outstanding for a month from the
average
amount of Eligible Balances during such month, but only to the
extent
of the average amount of Eligible Balances, (b) second, to the
extent
Eligible Balances remain for such month, deducting the average
amount
of Nonconforming Advances outstanding for a month from the
remaining
average amount of Eligible Balances during such month, but only
to the
extent of the remaining average amount of Eligible Balances
and (c)
third, to the extent Eligible Balances remain for such
month,
deducting the average aggregate amount of Ordinary
Warehousing
Advances, Home Equity Advances and Second Mortgage
Advances
outstanding for a month from the remaining average amount of
Eligible
Balances during such month, but only to the extent of the
remaining
average amount of Eligible Balances.
If, for any month, a portion of the average amount of
Eligible
Balances remains (Remainder) after the Balance Funded
Portion has
been deducted, the Lender shall provide a benefit in the form
of an
"Earnings Credit" on the Remainder portion of the Eligible
Balances
maintained in time deposit accounts with the Designated Bank,
and the
Lender shall provide a benefit in the form of an "Earnings
Allowance"
on the Remainder portion of the Eligible Balances maintained in
demand
deposit accounts with the Designated Bank. Any Earnings
Allowance
shall be used first and any Earnings Credit shall be used second
as a
credit against accrued Miscellaneous Charges and fees, including,
but
not limited to Commitment Fees and Warehousing Fees, and may be
used,
at the Lender's option, to reduce accrued interest. Any
Earnings
Allowance not used during the month in which the benefit was
received
shall be accumulated for use and must be used within six (6)
months of
the month in which the benefit was received. Any Earnings
Credit not
used during the month in which the benefit was received shall be
used
to provide a cash benefit to the Company.
The Lender's determination of the Balance Funded Portion,
the
Earnings Credit and the Earnings Allowance for any month
shall be
determined by the Lender in its sole discretion and
shall be
conclusive and binding absent manifest error. In no event
shall the
benefit received by the Company exceed the Depository Benefit.
Either party hereto may terminate the benefits provided
for in
this Section, effective immediately upon Notice to the other
party, if
the terminating party shall have determined (which determination
shall
be conclusive and binding absent manifest error) at any time
that any
applicable law, rule, regulation, order or decree or
any
interpretation or administration thereof by any governmental
authority
charged with the interpretation or administration thereof,
or
compliance by such party with any request or directive (whether
or not
having the force of law) of any such authority, shall make it
unlawful
or impossible for such party to continue to offer or receive
the
benefits provided for in this Section.
2.8(f) 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 and 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 applicable Maturity Date.
2.8(g) If, for any reason, no interest is due on an Advance,
the
Company agrees to pay to the Lender an administrative fee equal
to one
day of interest on such Advance at the applicable rate of
interest as
in effect on the date of such Advance. Administrative and other
fees
shall be due and payable in the same manner as interest is
due and
payable hereunder.
2.8(h) Upon demand of the Lender and upon Notice to the
Company,
after the occurrence and during the continuation of an
Event of
Default, the unpaid amount of each Advance shall bear interest
until
paid in full at a per annum rate of interest (the "Default
Rate")
equal to four percent (4%) in excess of the rate of interest
otherwise
applicable to such Advance pursuant to any other subsection of
this
Section 2.8 or, if no rate is applicable, the highest rate
then
applicable to any outstanding Advances.
11. Sections 2.9(f)(1), (2) and (12) of the Agreement shall be deleted
in
their entirety and the following shall be substituted in lieu thereof:
(1) For a Pledged Mortgage with respect to which a
shorter or
longer period is not prescribed elsewhere in this Section
2.5(d), one
hundred twenty (120) days elapse from the date of the initial
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 or an Approved Custodian
for
examination and purchase or inclusion in an Eligible Mortgage
Pool,
without the purchase being made or the Eligible Mortgage Pool
being
initially certified, or upon rejection of the Pledged
Mortgage as
unsatisfactory by an Investor or an Approved Custodian.
(12) In the case of (i) a Long-term Repurchase Advance,
one
hundred eighty (180) days elapse from the date of the initial
Advance,
and (ii) a Short-term Repurchase Advance, sixty (60) days elapse
from
the date of the initial Advance, whether or not the Pledged
Mortgage
is included in an Eligible Mortgage Pool; provided, however,
that a
Short-term Repurchase Advance may be converted into a Long-
term
Repurchase Advance, and may remain outstanding for an
additional one
hundred twenty (120) days, upon the following condition: on the
date a
Short-term Repurchase Advance made against a Pledged
Mortgage is
redesignated as a Long-term Mortgage Advance ("Conversion
Date"), the
Company shall reduce the outstanding amount of such
Advance to
forty-five percent (45%) of the Mortgage Note Amount of such
Pledged
Mortgage.
12. Section 2.9(h)(3) of the Agreement shall be deleted in its
entirety and
the following shall be substituted in lieu thereof:
(3) On the fifteenth (15) day of each month occurring
after the
date a Long-term Repurchase Advance is made, unless the
Repurchased
Mortgage Loan or the Rejected Mortgage Loan against which
such
Long-term Repurchase Advance was made is included in an
Eligible
Mortgage Pool, the Company shall reduce the outstanding
Advance
against such Mortgage Loan by five percent (5%) of the original
face
amount of the Mortgage Note evidencing such Repurchased Mortgage
Loan
or the Rejected Mortgage Loan.
13. Section 3.2(d) of the Agreement shall be deleted in its
entirety and
the following shall be substituted in lieu thereof:
3.2(d) The Lender shall have the exclusive right to
the
possession of the Pledged Securities or, if the Pledged
Securities are
issued in book-entry form or issued in certificated form and
delivered
to a clearing corporation (as such term is defined in the
Uniform
Commercial Code of Minnesota) or its nominee, the Lender shall
have
the right to have the Pledged Securities registered in the name
of a
securities intermediary (as such term is defined in the
Uniform
Commercial Code of Minnesota) in an account containing only
customer
securities for the account of the Lender, 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 Investor's 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 securities
intermediary for
the Lender, and the Company agrees upon request of the
Lender, to
execute and deliver to such other financial institutions the
Company's
written concurrence in any such standing arrangements.
14. Section 5.15 of the Agreement is hereby amended to add the
following
section immediately after Section 5.15(i):
5.15(j) Each Pledged Mortgage secured by real property to
which a
Manufactured Home is affixed will create a valid Lien on
such
manufactured Home that will have priority over ai.y other Lien on
such
Manufactured Home, whether or not arising under applicable
real
property law.
15. Upon execution of this Amendment, the Company agrees to pay
to the
Lender the pro rata Warehousing Commitment Fee on the Warehousing
Commitment
Amount, the pro rata Working Capital Commitment Fee on the Working
Capital
Commitment Amount, and the pro rata Term Loan Commitment Fee on the
outstanding
principal balance of the Term Loan Advances for the time period
from the
November 15, 1997, to and including December 31, 1997.
16. Upon execution and delivery of this Amendment, all obligations
owed by
the Company under the First Amended and Restated Sublimit Promissory Note,
dated
as of February 29, 1996, (including, without limitation, the unpaid
principal
thereunder, interest accrued thereon and fees accrued under the
Agreement,
whether or not yet due and owing) as of the date hereof, shall be owed
under the
First Amended and Restated Warehousing Promissory Note which shall be
deemed to
replace the Sublimit Promissory Note.
17. Exhibits C-SF and K to the Agreement are hereby deleted in
their
entirety and replaced with the new Exhibits C-SF and K attached to
this
Amendment. All references in the Agreement to Exhibits C-SF and K
shall be
deemed to refer to the new Exhibits C-SF and K.
18. The Company shall deliver to the Lender (a) an executed
original of
this Amendment; (b) an executed Certificate of Secretary with
corporate
resolutions; (c) a current certified tax, lien and judgment search
of the
appropriate public records for the Company and the Guarantor, including a
search
of Uniform Commercial Code financing statements, which search shall not
have
disclosed the existence of any prior Lien on the Collateral other than in
favor
of the Lender or as permitted hereunder; (d) current Certificates of
Good
Standing of the Company; (e) current insurance information; (f) the
Commitment
Fees described in paragraph 14 above; and (g) a Two Hundred Fifty Dollar
($250)
document production fee.
19. The Company represents, warrants and agrees that (a) there
exists no
Default or Event of Default under the Loan Documents, (b) the Loan
Documents
continue to be the legal, valid and binding agreements and obligations
of the
Company enforceable in accordance with their terms, as modified herein,
(c) the
Lender is not in default under any of the Loan Documents and the Company
has no
offset or defense to its performance or obligations under any of the
Loan
Documents, (d) the representations contained in the Loan Documents remain
true
and accurate in all respects, and (e) there has been no material adverse
change
in the financial condition of the Company from the date of the Agreement
to the
date of this Amendment.
20. 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.
21. 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: Senior Vice President/CFO
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:____________________________
Its:___________________________
STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 17, 1997, before me, a Notary Public, personally
appeared
Xxxx Xxxxxxxxx, the Senior Vice President 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 18, 1997, before me, a Notary Public, personally
appeared
D. Xxxxxx Xxxxxxx, the Director of RESIDENTIAL FUNDING CORPORATION, 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)
CONSENT OF GUARANTOR
The undersigned, being the Guarantor under the Guaranty dated as of
July
23, 1997, hereby consents to the foregoing Amendment and the
transactions
contemplated thereby and hereby modifies and reaffirms his obligations
under his
Guaranty so as to include within the term "Guaranteed Debt" the
indebtedness,
obligations and liabilities of the Company under this Amendment. The
Guarantor
hereby reaffirms that his obligations under his Guaranty are
separate and
distinct from the Companies obligations to Lender, and that his
obligations
under the Guaranty are in full force and effect, and hereby waives and
agrees
not to assert any anti-deficiency protections or other rights as a
defense to
his obligations under the Guaranty, all as more fully set forth in the
Guaranty,
the terms of which are incorporated herein as if fully set forth herein.
The Guarantor further agrees, upon Lender's request, to execute
for the
benefit of Lender an additional guaranty in form and content
acceptable to
Lender and conforming to the Guaranty in connection with the
foregoing
Amendment.
FINET HOLDINGS CORPORATION,
a Delaware corporation
By:_______________________________
Its: President
STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 17, 1997, before me, a Notary Public, personally
appeared
Xxx Xxxxxxx, the President of FINET HOLDINGS CORPORATION, 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)
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 Company is a corporation duly organized, validly existing
and in
good standing under the laws of the State of California
and has
complied with all certifications, filings and requirements
necessary
to continue as a corporation in the State of California and for
each
state where the Company is transacting business as a
foreign
corporation.
2. In connection with the single family revolving warehouse facility
made
to the Company by RESIDENTIAL FUNDING CORPORATION, a
Delaware
corporation (the "Lender") pursuant to the terms of a
Warehousing
Credit and Security Agreement dated as of March 22, 1995, as the
same
may have been amended or supplemented (the `"Warehousing
Agreement"),
the Company has the valid power and authority to execute and
deliver
to the Lender the Seventh Amendment to Warehousing Credit and
Security
Agreement.
3. In connection with the gestation facility made to the Company
by the
Lender pursuant to the terms of a Gestation Warehousing
Credit and
Security Agreement dated as of March 23, 1995, as the same may
have
been amended or supplemented (the "Gestation Agreement"), the
Company
has the valid power and authority to execute and deliver to the
Lender
the First Amendment to Gestation Warehousing Credit and
Security
Agreement (the terms Warehousing Agreement and Gestation
Agreement
shall be referred to as the "Agreements").
4. The resolutions attached to this Certificate as Exhibit A were
duly
adopted by 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 _____ day of , 19___, 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.
5. Any Certificates of Incumbency delivered in connection
with the
Agreements are hereby deleted in their entirety and replaced
with the
new Certificate of Incumbency attached to this
Certificate of
Secretary as Exhibit B.
6. There have been no amendments to the Articles of
Incorporation or
Bylaws of the Company since the date of the most recent
certified
copies thereof delivered to the Lender.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal of
this
corporation this 14th day of November, 1997.
___________________________
Secretary
EXHIBIT A
RESOLUTION OF BOARD OF DIRECTORS
WHEREAS, MONUMENT MORTGAGE, INC., a California corporation (the
"Company"),
has entered into a single family revolving warehouse facility (the
`Warehousing
Commitment"), with a present commitment amount of Ten Million
Dollars
($10,000,000) (the "Warehousing Commitment Amount"), with RESIDENTIAL
FUNDING
CORPORATION, a Delaware corporation (the "Lender"), as evidenced by a
First
Amended and Restated Warehousing Promissory Note in the principal sum
of Ten
Million Dollars ($10,000,000), dated as of February 29, 1996, and
by a
Warehousing Credit and Security Agreement (the "Warehousing Agreement")
dated as
of March 22, 1995, as the same may have been amended or supplemented; and
WHEREAS, the Company and the Lender have entered into a term loan
facility
with a present outstanding principal balance of Six Hundred Twenty-Five
Thousand
Dollars ($625,000), as evidenced by a Term Loan Promissory Note in the
principal
amount of One Million Dollars ($1,000,000), dated as of March 22, 1995,
and the
Warehousing Agreement;
WHEREAS, the Company and the Lender have also entered into a
working
capital facility with a present Working Capital Commitment Amount of One
Million
Dollars ($1,000,000) (the "Working Capital Commitment"), as evidenced by a
First
Amended and Restated Working Capital Promissory Note in the principal sum
of One
Million Dollars ($1,000,000), dated as of February 29, 1996, and the
Warehousing
Agreement;
WHEREAS, the Company and the Lender have entered into a
discretionary
gestation facility, as evidenced by a First Amended and Restated Promissory
Note
in the principal amount of Twenty-Five Million Dollars ($25,000,000),
dated as
of February 29, 1996, and a Gestation Warehousing Credit and Security
Agreement
(the "Gestation Agreement") dated as of March 23, 1995 (the terms
Warehousing
Agreement and Gestation Agreement shall be referred to as the
"Agreements");
WHEREAS, the Company proposes to extend the period for which
the
Warehousing Commitment and the Working Capital Commitment under the
Warehousing
Agreement have been made and amend certain terms of the Agreements; and
WHEREAS, to evidence such extension and amendment of the Agreements,
the
Company proposes to execute and deliver a Seventh Amendment to
Warehousing
Agreement and a First Amendment to the Gestation Agreement (the
"Amendments"),
copies of which have been presented to the Board of Directors of this
Company;
and
WHEREAS, the Board of Directors of this Company has determined that it
will
be in the best interests of this Company for the Company to extend
the
Warehousing commitment and Working Capital Commitment and amend the
Agreements.
WHEREAS, the Board of Directors of the Company has determined that it
will
be in the best interests of the Company to restate the authority of
certain
officers and employees to execute and deliver documents in connection
with the
Loan.
RESOLVED, that these resolutions are enacted by the Board of
Directors of
this Company on its behalf and on behalf of the Company.
FURTHER RESOLVED, that the Company shall extend the Warehousing
Commitment
and Working Capital Commitment and amend the Agreements to be evidenced
by the
Amendments.
FURTHER RESOLVED, that the Amendments in the forms presented to the
Board
of Directors of this Company are hereby approved and copies thereof are
filed in
the records of this Company with these Resolutions.
FURTHER RESOLVED, that any One (insert minimum number required to
sign) of
the following titles or positions of officers of the Company: President,
Chief
Financial Officer Senior Vice President (list titles/positions of
officers
authorized, do not list individual names), shall be and are
authorized,
empowered and directed in the name of and on behalf of this Company, to
execute,
acknowledge and deliver the Amendments in the forms approved by the
Board of
Directors of this Company as aforesaid, with such changes therein as
may be
acceptable to such officers, as conclusively evidenced by their
execution
thereof.
FURTHER RESOLVED, that any One (insert minimum number required to
sign) of
the following titles or positions of officers and employees of the
Company:
President, Chief Financial Officer, Secretary, Senior Vice President,
Vice
President. Assistant Vice President, Assistant Secretary (list
titles/positions
of officers and employees authorized, do not list individual names),
shall be
and are authorized, empowered and directed in the name of and on behalf
of the
Company, to execute, acknowledge and deliver any bailee pledge
agreements,
advance 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 such officers and employees 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 this Company
as may
be necessary or desirable to enable this Company to amend the Commitments
and to
carry out the purport and intent of the foregoing Resolutions.
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
get forth opposite their names are their true and genuine signatures:
Name Title Signature
Xxxxx X. Xxxxx President ________________________
Xxxx Xxxxxxxxx Xx. Vice Pres. ________________________
Xxx Xxxxxx Xx. Vice Pres. ________________________
Xxxxxx X. Xxxxxx Chief Financial Officer ________________________
Xxxxx Xxxxxxx Vice President ________________________
Xxxx Xxxxx Assistant Vice Pres. ________________________
Xxxxx Xxxx Secretary ________________________
Xxxxxxxx Xxxxxxx Assistant Secretary ________________________
Xxxxxxx X. Xxxxxx Assistant Secretary ________________________
Xxxxxxxx X. Xxxx Assistant Secretary ________________________
Xxxxx Xxxxxxx Assistant Secretary ________________________
Xxxx Xxxxxx Assistant Secretary ________________________
Xxxxxx X. Xxxxxx Assistant Secretary ________________________
Xxxx Xxxxxx Assistant Secretary ________________________
Xxxxx Xxxxx Assistant Secretary ________________________
This Certificate replaces any existing Certificates of Incumbency.
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
14th
day of November, 1997.
_____________________________
Secretary
FIRST AMENDMENT TO
GESTATION WAREHOUSING CREDIT AND SECURITY AGREEMENT
(SHIPPED MORTGAGE LOANS)
THIS FIRST AMENDMENT TO GESTATION WAREHOUSING CREDIT AND SECURITY
AGREEMENT
(SHIPPED MORTGAGE LOANS) (this "Amendment") is entered into as of this
17th day
of November 1997, 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 gestation
warehouse
facility pursuant to which the Lender may, in its sole discretion, make
Loans in
an amount not to exceed in the aggregate Twenty-Five Million
Dollars
($25,000,000), to finance Mortgage Loans which have been shipped to an
Investor
for purchase, as evidenced by a Promissory Note in the principal
sum of
Twenty-Five Million Dollars ($25,000,000), dated as of February 29, 1996
(the
"Note"), and by a Gestation Warehousing Credit and Security Agreement
(Shipped
Mortgage Loans) dated as of March 23, 1995, as the same may have been
amended or
supplemented (the "Gestation Agreement"); and
WHEREAS, in connection with an extension of the Existing
Warehousing
Agreement (as defined in the Gestation Agreement) requested by the
Company, the
Lender has requested an increase in the interest rate, and the
Company has
agreed to such increase 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. All capitalized terms used herein and not otherwise defined shall
have
their respective meanings set forth in the Gestation Agreement.
2. Section 1.1 of the Gestation Agreement shall be amended to
delete the
definition of "Floating Rate" in its entirety, replacing it with the
following
definition:
"Floating Rate" means a floating rate of interest which is
equal to
1.25% per annum over LIBOR. The Floating Rate will be adjusted as
of the
effective date of each change in LIBOR. .
3. As a condition precedent to the effectiveness of this Amendment,
the
Company shall deliver to the Lender an executed original of this Amendment.
4. The Company represents, warrants and agrees that (a) there
exists no
Default or Event of Default under the Loan Documents, (b) the Loan
Documents
continue to be the legal, valid and binding agreements and obligations
of the
Company enforceable in accordance with their terms, as modified herein,
(c) the
Lender is not in default under any of the Loan Documents and the Company
has no
offset or defense to its performance or obligations under any of the
Loan
Documents, (d) the representations contained in the Loan Documents remain
true
and accurate in all respects, and (e) there has been no material adverse
change
in the financial condition of the Company from the date of the
Gestation
Agreement to the date of this Amendment.
5. Except as hereby expressly modified, the Gestation Agreement
shall
otherwise be unchanged and shall remain in full force and effect,
and the
Company ratifies and reaffirms all of its obligations thereunder.
6. 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: Senior Vice President/CFO
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:______________________________
D. XXXXXX XXXXXXX
Its: Director
STATE OF California )
) ss
COUNTY OF Contra Costa )
On November 17, 1997, before me, a Notary Public, personally
appeared
Xxxx Xxxxxxxxx, the Senior Vice President 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 18, 1997, before me, a Notary Public, personally
appeared
D. Xxxxxx Xxxxxxx, the Vice President of RESIDENTIAL FUNDING
CORPORATION, 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)
