FIFTH AMENDMENT TO
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO WAREHOUSING CREDIT AND SECURITY AGREEMENT
(this
"Amendment") is entered into as of this 12th day of December 1996,
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
as of February 29, 1996, a First Amended and Restated Sublimit Promissory
Note
in the principal sum of Five Million Dollars ($5,000,000), dated as of
February
29, 1996, and by a Warehousing Credit and Security Agreement dated as of
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
with a present Term Loan Commitment Amount of One Million Dollars
($1,000,000),
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 (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 Sublimit 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 the 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 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
, 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:
"High LTV Mortgage Loan" means a First Mortgage Loan or a
Second
Mortgage Loan, other than a Title I Mortgage Loan, which has a ratio
of the
principal balance of the Mortgage Loan at origination plus, in the
case of
a Second Mortgage Loan, the outstanding principal balance of the
First
Mortgage Loan against the related improved real property, to the
appraised
value of the related improved real property, which exceeds one
hundred
percent (100%).
"RFC Mortgage Loan" means a Mortgage Loan covered by a
Purchase
Commitment issued by RFC.
4. Section 1.1 of the Agreement shall be amended to delete the
definitions
of "Adjusted Tangible Net Worth," "Collateral Value," "Debt," Affair
Market
Value," "Home Equity Advance," "Home Equity Loan," "Nonconforming
Mortgage
Loan," "Purchase Commitment" and "Second Mortgage Loan" in their
entirety,
replacing them with the following definitions:
"Adjusted Tangible Net Worth" means with respect to any Person
at any
date, the Tangible Net Worth of such Person at such date,
excluding
capitalized excess servicing fees and capitalized servicing rights,
plus
one percent (1%) of the Adjusted Servicing Portfolio, and Plus
deferred
taxes arising from capitalized excess servicing fees and
capitalized
servicing rights.
"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 under Section 2.1(c) hereof; or (ii) the
Fair
Market Value of such Mortgage Loan; or (b) in the event Pledged
Mortgages
have been exchanged for Pledged Securities, the Fair Market Value of
such
Pledged Securities; or (c) with respect to cash, the amount of such
cash.
"Debt" means, with respect to any Person, at any date (a)
all
indebtedness or other obligations of such Person which, in accordance
with
GAAP, would be included in determining total liabilities as shown
on the
liabilities side of a balance sheet of such Person at such date;
and (b)
all indebtedness or other obligations of such Person for borrowed
money or
for the deferred purchase price of property or services; provided
that for
purposes of this Agreement, there shall be excluded from Debt at any
date
loan loss reserves, Subordinated Debt not due within one year of such
date,
and deferred taxes arising from capitalized excess servicing
fees and
capitalized servicing rights.
"Fair Market Value" means at any time for a Mortgage Loan
or the
related Mortgage-backed Security (if such Mortgage Loan is to be
used to
back a Mortgage-backed Security), (a) if such Mortgage Loan or the
related
Mortgage-backed Security is covered by a Purchase Commitment, the
Committed
Purchase Price, or (b) otherwise, the market price for such Mortgage
Loan
or Mortgage-backed Security, determined by the Lender based on market
data
for similar Mortgage Loans or Mortgage-backed Securities and such
other
criteria as the Lender deems appropriate.
"Home Equity Advance" means an Advance made against a Home
Equity
Loan.
"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.
"Nonconforming Mortgage Loan" means a Conventional Mortgage Loan
which
is not a Conforming Mortgage Loan or a Jumbo Mortgage Loan, which
has a
credit risk rating B- or better (determined using the
underwriting
standards of the Investor to which such Mortgage Loan is to be sold
under a
Purchase Commitment, provided such underwriting standards comply
with
industry standards in the sole judgment of the Lender), and
which is
underwritten and approved for purchase by an Investor prior to
funding if
its original principal amount exceeds Six Hundred Thousand
Dollars
($600,000).
"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.
"Second Mortgage Loan" means a closed-end Mortgage Loan secured
by a
Second Mortgage, which is not a Title I Mortgage Loan or a High
LTV
Mortgage Loan.
5. The definitions of "Goal Line Commitment," "Goal Line
Program,"
"Long-term Repurchase Advances" and "Short-term Repurchase Advances" in
Section
1.1 of the Agreement shall be deleted in their entirety.
6. The definitions of "Warehousing Maturity Date" and "Working
Capital
Maturity Date" in Section 1.1 of the Agreement shall be amended by
inserting the
date "December 31, 1997" in place of "December 31, 1996" wherever it
appears in
such definitions.
7. Sections 2.1(b)(2), (5) and (7) of the Agreement are hereby
deleted in
their entirety and the following are substituted in lieu thereof:
(2) No Advance, other than a Repurchase Advance, shall be made
against
a Mortgage Loan which is not covered by a Purchase Commitment,
and no
Advance shall be made against a Home Equity Loan which is not
an RFC
Mortgage Loan.
(5) The aggregate amount of Second Mortgage Advances
outstanding at
any one time shall not exceed Three Million Dollars ($3,000,000).
(7) No Advance shall be made against a High LTV Mortgage Loan,
a HUD
203(K) Mortgage Loan or a Title I Mortgage Loan.
8. Section 2.1(c) of the Agreement shall be deleted in its entirety
and the
following shall be substituted in lieu thereof:
2.1(c) No Warehousing Advance shall exceed the following
amount
applicable to the type of Collateral at the time it is pledged:
(1) For a Conforming Mortgage Loan or a Jumbo Mortgage
Loan
pledged hereunder, other than an RFC Mortgage Loan, ninety-
nine
percent (99%) of the lesser of (i) the Mortgage Note Amount or
(ii)
the Weighted Average Purchase Commitment Price multiplied
by the
Mortgage Note Amount.
(2) For a Nonconforming Mortgage Loan pledged hereunder,
other
than an RFC Mortgage Loan, ninety-five percent (95%) of the
lesser of
(i) the Mortgage Note Amount or (ii) the Weighted Average
Purchase
Commitment Price multiplied by the Mortgage Note Amount.
(3) For a Second Mortgage Loan pledged hereunder, other
than an
RFC Mortgage Loan, ninety-five percent (95%) of the lesser of
(i) the
Mortgage Note Amount, or (ii) the Weighted Average Purchase
Commitment
Price multiplied by the Mortgage Note Amount.
(4) For an RFC Mortgage Loan pledged hereunder, one
hundred
percent (100%) of the lesser of (i) the Mortgage Note Amount or
(ii)
the Weighted Average Purchase Commitment Price multiplied
by the
Mortgage Note Amount.
(5) For a Rejected Mortgage Loan or a Repurchased Mortgage
Loan
pledged hereunder, ninety percent (90%) of the Mortgage Note
Amount.
9. Section 2.8(h) of the Agreement shall be deleted in its entirety
and the
following shall be substituted in lieu thereof:
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.
10. Section 2.9(f)(12) of the Agreement shall be deleted in its
entirety
and the following shall be substituted in lieu thereof:
(12) Three hundred sixty-five (365) days elapse from the
date of
the initial Advance made by the Lender against a Repurchased
Mortgage
Loan or a Rejected Mortgage Loan.
11. Section 2.9(f) of the Agreement shall be further amended to
add the
following section immediately after Section 2.9(f)(13):
(14) For any Pledged Mortgage secured by a Second Mortgage,
one
hundred twenty (120) days elapse from the date of the initial
Advance
made by the Lender against such Pledged Mortgage or payment
of any
Lien prior to such Pledged Mortgage is delinquent, and
remains
delinquent for a period of sixty (60) days or more.
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 more
than
sixty (60) days after the date a Repurchase Advance is made,
unless
the Repurchased Mortgage Loan or the Rejected Mortgage Loan
against
which such 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 2.16 of the Agreement shall be deleted in its entirety
and the
following shall be substituted in lieu thereof:
2.16 Miscellaneous Charges. The Company agrees to reimburse the
Lender
for miscellaneous charges and expenses (collectively,
"Miscellaneous
Charges") 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 incurred by or on behalf of the Lender in
connection
with the handling and administration of the Collateral. For the
purposes
hereof, Miscellaneous Charges shall include, but not be limited to,
charges
for wire transfers, check processing charges, charges for security
delivery
fees, charges for overnight delivery of Collateral to Investors,
Funding
Bank's service charges and Designated 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.
14. Section 7.9 of the Agreement shall be deleted in its entirety
and the
following shall be substituted in lieu thereof:
7.9 Minimum Adjusted Tangible Net Worth. Permit Adjusted
Tangible Net
Worth of the Company (and its Subsidiaries, on a consolidated basis)
at any
time to be less than Three Million Five Hundred Thousand
Dollars
($3,500,000).
15. The Lender hereby agrees to waive its default rights with
respect to
the failure of the Company to comply with the Minimum Adjusted Tangible
Net
Worth requirement of the Agreement as of August 31, 1996, and each
date
thereafter through but excluding the Effective Date. This waiver applies
only to
the specific instance described herein. It is not a waiver of any
subsequent
breach of the same provision of the Agreement, nor is it a waiver of any
breach
of any other provision 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 Notes and the Guaranties, 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 occurs
under
the Agreement.
16. The Sublimit Promissory Note is amended and restated in its
entirety as
set forth in the Second Amended and Restated Sublimit Promissory Note,
in the
form of Exhibit A-2 attached to this Amendment. All references in this
Amendment
and in the Agreement to the Sublimit Promissory Note shall be deemed to
refer to
the Second Amended and Restated Sublimit Promissory Note delivered in
connection
with this Amendment.
17. Exhibits C-SF, D-REP and D-SF to the Agreement are hereby
deleted in
their entirety and replaced with the new Exhibits C-SF, D-REP and D-SF
attached
to this Amendment. All references in the Agreement to Exhibits C-SF, D-
REP and
D-SF shall be deemed to refer to the new Exhibits C-SF, D-REP and D-SF.
18. 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 shall be deemed to refer to
the new
Exhibit I-SF.
19. The Company shall deliver to the Lender (a) an executed
original of
this Amendment; (b) an executed original of the Second Amended and
Restated
Sublimit Promissory Note; (c) an executed Certificate of Secretary
with
corporate resolutions; (d) 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; (e) current Certificates of
Good
Standing of the Company; (f) current insurance information; and (g)
a Two
Hundred Fifty Dollar($250) document production fee.
20. 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.
21. 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.
22. 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 December 30, 1996, before me, a Notary Public, personally appeared
Xxxx
Xxxxxxxxx, the Senior Vice President/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 January 8, 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 GUARANTORS
The undersigned, being the Guarantors under their respective Guaranty
dated
as of March 22, 1996, hereby consent to the foregoing Amendment
and the
transactions contemplated thereby and hereby modify and reaffirm
their
obligations under their respective Guaranty so as to include within the
term
"Guaranteed Debt" the indebtedness, obligations and liabilities of the
Company
under this Amendment and the Notes. The Guarantors hereby reaffirm that
their
obligations under their respective Guaranty are separate and distinct
from the
Company's obligations to Lender, and that their obligations under
their
respective Guaranty are in full force and effect, and each hereby
waives and
agrees not to assert any anti-deficiency protections or other rights
as a
defense to their obligations under their respective Guaranty, all as more
fully
set forth in each Guaranty, the terms of each of which are incorporated
herein
as if fully set forth herein.
Each 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 their respective Guaranty in connection
with the
foregoing Amendment.
This Consent of Guarantors may be executed in any number of
counterparts,
and by the parties hereto in separate counterparts, each of which,
when so
executed, shall be an original, but all such counterparts shall
together
constitute one and the same instrument.
GUARANTORS:
----------------------------------------
XXXXX X. XXXXX
---------------------------------------
XXXXX X. XXXXXXXX
STATE OF California )
) ss
COUNTY OF Contra Costa )
On December 30, 1996, 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/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 December 30, 1996, before me, a Notary Public, personally appeared
XXXXX
X. XXXXXXXX, 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-2
SECOND AMENDED AND RESTATED SUBLIMIT PROMISSORY NOTE
$10,000,000 Date: December 12,
1996
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 Xxxx., 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 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 warehouse facility in the
above
amount and is the Sublimit Promissory Note referred to in that
certain
Warehousing Credit and Security Agreement (the "Agreement") dated
March 22,
1995, 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 is given in replacement for, and not in satisfaction of,
that
certain First Amended and Restated Sublimit Promissory Note dated
February 29,
1996, and issued by the Company to evidence its Obligations under the
Agreement
(the "Existing Note"). All amounts owed by the Company under the Existing
Note
(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 hereunder.
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, any 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.
-----------------------------------------
Notary Public
My Commission Expires:___________________
(SEAL)
EXHIBIT
I-SF
OFFICER'S CERTIFICATE
Reference is made to that certain Warehousing Credit and Security
Agreement
(Single Family Mortgage Loans) between MONUMENT MORTGAGE, INC., a
California
corporation (the "Company") and RESIDENTIAL FUNDING CORPORATION, a
Delaware
corporation (the "Lender"), dated as of March 22, 1995 (as the same
may be
amended, modified, supplemented, renewed or restated from time to time,
the
"Agreement"). All capitalized terms used herein and all Section numbers
given
herein refer to those terms and Sections set forth in the Agreement.
This
Officer's Certificate is submitted to the Lender pursuant to Section
6.2(c) of
the Agreement.
The undersigned hereby certifies to the Lender that as of the close of
business on , 19____ ("Statement Date",) and with respect to the Company
and its
Subsidiaries on a consolidated basis:
1. As illustrated in the attached calculations supporting this
Officer's
Certificate, the Company met the covenants set forth in Sections
7.6,
7.7, 7.8, 7.9, 7.10, 7.11 and 7.12, or if the Company did not
meet any
of such covenants, a detailed explanation is attached setting
forth
the nature and period of the existence of the Default and the
action
the Company has taken, is taking, and proposes to take with
respect
thereto.
2. No Servicing Contracts have been sold or pledged by the Company
except
as permitted under the terms of the Agreement.
3. No recourse Servicing Contracts have been acquired by the
Company.
4. No payments in advance of the scheduled maturity date have been
made
with respect to any Subordinated Debt. The Company has
incurred no
Debt required to be subordinated pursuant to Section 6.10.
5. The Company was in compliance with the applicable HUD,
GNMA or
Investor net worth requirements, and in good standing with VA,
HUD,
GNMA and each Investor.
6. I have reviewed the terms of the Agreement and have made, or
caused to
be made under my supervision, a review in reasonable detail
of the
transactions and conditions of the Company (and, if applicable,
its
Subsidiaries) and such review has not disclosed the existence,
and I
have no knowledge of the existence, of any Default or
Event of
Default, or if any Default or Event of Default existed or
exists, a
detailed explanation is attached specifying the nature and
period of
the existence of the Default and the action the Company has
taken, is
taking and proposes to take with respect thereto.
7. Pursuant to Section 6.2 of the Agreement, enclosed are the
financial
statements of the Company as of the Statement Date. The
financial
statements for the period ending on the Statement Date fairly
present
the financial condition and results of operations of the Company
(and,
if applicable, its Subsidiaries) as at the Statement Date.
Dated:
-------------------
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 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 "Agreement"), the
Company
has the valid power and authority to execute and deliver to the
Lender
the Fifth Amendment to Warehousing Credit and Security
Agreement and
the Second Amended and Restated Sublimit Promissory Note.
3. 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 9th day of Dece,ber.
1996, 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.
4. Any Certificates of Incumbency delivered in connection
with the
Agreement are hereby deleted in their entirety and replaced
with the
new Certificate of Incumbency attached to this
Certificate of
Secretary as Exhibit B.
5. 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 30th day of December, 1996.
----------------------------------------
-
Secretary
EXHIBIT A
RESOLUTIONS 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, a First
Amended
and Restated Sublimit Promissory Note in the principal sum of Five
Million
Dollars ($5,000,000), dated as of February 29, 1996, and by a Warehousing
Credit
and Security Agreement dated as of March 22, 1995, as the same may have
been
amended or supplemented (the "Agreement"); and
WHEREAS, the Company and the Lender have entered into a term loan
facility
with a present Term Loan Commitment Amount of One Million Dollars
($1,000,000),
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
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
Agreement;
WHEREAS, the Company proposes to extend the period for which
the
Warehousing Commitment and the Working Capital Commitment under the
Agreement
have been made and to amend certain other terms of the Agreement; and
WHEREAS, to evidence such extension and amendment, the Company
proposes to
execute and deliver a Fifth Amendment to Warehousing Credit and
Security
Agreement (the "Amendment"), and a Second Amended and Restated
Sublimit
Promissory Note ("Amended Note"), 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 the Working Capital Commitment and to amend
certain
terms of the Agreement.
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 to amend the Agreement to be evidenced
by the
Amendment and the Amended Note.
FURTHER RESOLVED, that the Amendment and Amended Note in the
forms
presented to the Board of Directors of this Company are hereby
approved and
copies thereof are Pled 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,
Vice
President, Executive Vice President, Secretary, Assistant Vice President,
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
Amendment and the Amended Note 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, Executive Vice President, Senior Vice President, Assistant
Vice
President, Secretary, Assistant Seccretary, or Vice President
(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 Commitment
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. Xxxxxxxx Executive Vice Pres. ----------------------
----
Xxxxx X. Xxxxx President ----------------------
----
Xxxx Xxxxxxxxx Chief Financial Officer ----------------------
----
Sr. Vice Pres.
Xxx Xxxxxx Xx. Vice Pres. ----------------------
----
Xxxxx Xxxxxx Secretary ----------------------
----
Xxxx Xxxxx Asst. Sec. ----------------------
----
Xxxxxx X. Xxxxxx Asst. Sec. ----------------------
----
Xxxxxxx X. Xxxxxx Asst. Sec. ----------------------
----
Xxxxx Xxxxxxx Vice President ----------------------
----
Xxxx Xxxxxx Asst. Sec. ----------------------
----
Xxxxxxxx Xxxxxxx Vice President ----------------------
----
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
30th
day of December, 1996.
-------------------------------------
-
Secretary
SECOND AMENDED AND RESTATED SUBLIMIT PROMISSORY NOTE
$10,000,000 Date: December 12,
1996
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 Xxxx., 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 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 warehouse facility in the
above
amount and is the Sublimit Promissory Note referred to in that
certain
Warehousing Credit and Security Agreement (the "Agreement") dated
March 22,
1995, 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 is given in replacement for, and not in satisfaction of,
that
certain First Amended and Restated Sublimit Promissory Note dated
February 29,
1996, and issued by the Company to evidence its Obligations under the
Agreement
(the "Existing Note"). All amounts owed by the Company under the Existing
Note
(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 hereunder.
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 attorney. for collection,
the
Company agrees to pay, in addition to principal and interest, fees and
charges
due under the Agreement, any 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: Senior VP / CFO
STATE OF California )
) ss
COUNTY OF Contra Costa )
On December 30, 1996, before me, a Notary Public, personally appeared
Xxxx
Xxxxxxxxx, the CFO-SVP 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)
