THIRD AMENDMENT TO
WAREHOUSING CREDIT AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO WAREHOUSING CREDIT AND SECURITY
AGREEMENT
(this "Amendment") is entered into as of this 29th day of February 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 Warehousing Promissory Note in the
principal
sum of Ten Million Dollars ($10,000,000), dated as of March 22, 1995, a
Sublimit
Promissory Note in the principal sum of Six Million Dollars ($6,000,000),
dated
as of March 22, 1995, 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) ("Term Loan Commitment"), 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 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) (reworking Capital Commitment"), as evidenced by a
Working
Capital Promissory Note in the principal sum of One Million
Dollars
($1,000,000), dated as of March 22, 1995 (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 Commitments 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
hand their- respective meanings set forth in the Agreement.
2. The effective date ("Effective Date") of this Amendment
shall be
March 1, 1996 , 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:
"Commitment Amount" means the Warehousing Commitment
Amount, the
Term Loan Commitment Amount or the Working Capital Commitment Amount.
"Eligible Balances" means all funds of or maintained
by the
Company and its Subsidiaries in accounts at a Designated Bank, less
balances to
support fees, interest or other amounts that would otherwise be payable
to the
Designated Bank, float, reserve requirements, Federal Deposit
Insurance
Corporation insurance premiums and such other reductions as may be
imposed by
governmental authorities from time to time.
"HUD 203(K) Mortgage Loan" means an FHA insured Mortgage
Loan
secured by a First Mortgage, of which a portion will be used for the
purpose of
rehabilitating and/or repairing the related single family property, and
which
satisfies the definition of "rehabilitation loan" under 24 C.F.R.
Section
203.50(a).
"Miscellaneous Charges" has the meaning set forth in Section
2.16
hereof.
"Operating Account" means a demand deposit account
maintained at
the Funding Bank in the name of the Company and designated for
funding the
discount portion of each Advance and for returning any excess payment
from an
Investor for a Pledged Mortgage or Pledged Security.
"Rejected Mortgage Loan" means a Mortgage Loan which
was
warehoused by the Lender under the terms of this Agreement and
committed for
purchase under a Purchase Commitment, but which has been rejected for
purchase
by an Investor, or for inclusion in a Mortgage Pool by the pool
custodian and
with respect to which there is a correctible deficiency and which does not
have
a colorable claim of fraud made by any Person involved in the
origination,
servicing or sale of such Mortgage Loan.
"Repurchase Advance" means an Advance made against a
Repurchased
Mortgage Loan or a Rejected Mortgage Loan. The Lender shall pre-approve
each
Repurchase Advance.
"Repurchased Mortgage Loan" means a Mortgage Loan which has
been
repurchased from an investor or a Mortgage Pool pursuant to a
Servicing
Contract, are in the process of foreclosure, with respect to which there
is a
correctible deficiency and does not have a colorable claim of fraud made
by any
Person involved in the origination, servicing or sale of such Mortgage
Loan.
"Repurchase Rate" means a floating rate of interest
equal to
three and one-half percent (3.5%) per annum over LIBOR. The Repurchase
Rate
shall be adjusted on and as of the effective date of each weekly
change in
LIBOR. The Lender's determination of the Repurchase Rate as of any
date of
determination shall be conclusive and binding, absent manifest error.
"Term Loan Commitment Amount" means One Million
Dollars
($l,000,000).
"Warehousing Commitment Amount" means Ten Million
Dollars
($10,000,000).
"Working Capital Commitment Amount" means One Million
Dollars
($1,000,000).
"Miscellaneous Charges" has the meaning set forth in Section
2.16
hereof.
"Title I Mortgage Loan" means an FHA co-insured Mortgage
Loan
secured by a Mortgage which is underwritten in accordance with HUD
underwriting
standards for the Title I Property Improvement Program as set forth in and
which
is reported for insurance under the Mortgage Insurance Program
authorized and
administered under Title I of the National Housing Act of 1934, as
amended and
the regulations promulgated thereunder.
4. Section 1.1 of the Agreement shall be amended to delete
the
definitions of "Adjusted Servicing Portfolio", "Adjusted Tangible Net
Worth",
"Advance," "Approved Custodian," "Conforming Value," "Conforming Mortgage
Loan,"
"Conventional Mortgage Loan", "Investable Balances", "Jumbo Mortgage
Loan",
"Mortgage Loan," "Nonconforming Mortgage Loan," "Ordinary Warehousing
Advances,"
"Second Mortgage Loan" and "Tangible Net Worth" in their entirety,
replacing
them with the following definitions:
"Adjusted Servicing Portfolio" means, for any Person,
the
Servicing Portfolio of such Person, but excluding the
principal
balance of Mortgage Loans included in the Servicing Portfolio at
such
date (a) which are past due for principal or interest for sixty
(60)
days or more, (b) with respect to which such Person is
obligated to
repurchase or indemnify the holder of the Mortgage Loans as a
result
of defaults on the Mortgage Loans at any time during the term of
such
Mortgage Loans, (c) for which the Servicing Contracts are not
owned by
such Person free and clear of all Liens (other than in favor
of the
Lender), or (d) which are serviced by the Company for others
under
subservicing arrangements.
"Advance" means a disbursement by the Lender under
the
Commitment pursuant to Article 2 of this Agreement, including,
without
limitation, Ordinary Warehousing Advances, Wet Settlement
Advances,
Home Equity Advances, Nonconforming Advance, Second Mortgage
Advances,
Repurchase Advances, Working Capital Advances, Term Loan
Advances and
readvances of funds previously advanced to the Company and
repaid to
the Lender.
"Approved Custodian" means a pool custodian or other
Person
which is deemed acceptable to the Lender from time to time in its
sole
discretion to hold a Mortgage Loan for inclusion in a Mortgage
Pool or
to hold a Mortgage Loan as agent for an Investor who has
issued a
Purchase Commitment for such Mortgage Loan.
"Conforming Mortgage Loan" means a First Mortgage Loan
which
is either (a) an FHA insured (other than a Title I Mortgage
Loan or
HUD 203(K) Mortgage Loan) or VA guaranteed Mortgage Loan or
(b) a
Conventional Mortgage Loan which is underwritten
substantially in
accordance with FNMA or FHLMC underwriting standards, and
the
principal amount of which is less than or equal to the maximum
amount
eligible for purchase by FNMA or FHLMC.
"Conventional Mortgage Loan" means a First Mortgage
Loan,
other than an FHA insured or VA guaranteed Mortgage Loan, or a
Home
Equity Loan.
"Jumbo Mortgage Loan" means a Conventional Mortgage
Loan
which is underwritten substantially in accordance with FNMA or
FHLMC
underwriting standards, but the principal amount of which is in
excess
of the maximum amount eligible for purchase by FNMA or FHLMC,
and
which meets all eligibility requirements for purchase by an
Investor.
"Mortgage Loan" means any loan evidenced by a Mortgage
Note
and secured by a Mortgage. The term "Mortgage Loan" shall
include
First Mortgage Loans and Second Mortgage Loans unless the
context
otherwise requires.
"Ordinary Warehousing Advances" means Warehousing
Advances
other than Home Equity Advances, Second Mortgage
Advances,
Nonconforming Advances and Repurchase Advances.
"Sublimit Promissory Note" means the promissory
note
evidencing the Company's Obligations with respect to Home
Equity
Advances, Second Mortgage Advances and Repurchase Advances in the
form
of Exhibit A-2 attached hereto.
"Tangible Net Worth" means with respect to any Person
at any
date, the excess of the total assets over total liabilities of
such
Person on such date, each to be determined in accordance with
GAAP
consistent with those applied in the preparation of the
financial
statements referred to in Section 4.1(a)(5) hereof, plus loan
loss
reserves and that portion of Subordinated Debt not due within one
year
of such date, provided that, for purposes of this Agreement,
there
shall be excluded from total assets advances or loans to
shareholders,
officers or Affiliates, investments in Affiliates, assets
pledged to
secure any liabilities not included in the Debt of such
Person,
intangible assets, those other assets which would be deemed by
HUD to
be non-acceptable in calculating adjusted net worth in accordance
with
its requirements in effect as of such date, as such
requirements
appear in the "Audit Guide for Audit of Approved Non-
Supervised
Mortgagees" and other assets deemed unacceptable by the Lender
in its
sole discretion.
"Title I Mortgage Loan" means an FHA co-insured
Mortgage
Loan secured by a Mortgage which is underwritten in accordance
with
HUD underwriting standards for the Title I Property
Improvement
Program as set forth in and which is reported for insurance
under the
Mortgage Insurance Program authorized and administered under
Title I
of the National Housing Act of 1934, as amended and the
regulations
promulgated thereunder.
"Warehousing Maturity Date" shall mend the earlier
of: (a)
the close of business on December 31, 1997, 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 shall
expire of
its own term, and without the necessity of action by the Lender,
and
(b) the date the obligation of the Lender to make further
Warehousing
Advances hereunder is terminated pursuant to Section 8.2 below.
"Working Capital Maturity Date" shall mean the
earlier of:
(a) the close of business on December 31, 1997, as such date
may be
extended from time to time in writing by the Lender, in its
sole
discretion, on which date the Working Capital Commitment shall
expire
of its own term, and without the necessity of action by the
Lender,
and (b) the date the obligation of the Lender to make further
Working
Capital Advances hereunder is terminated pursuant to
Section 8.2
below.
5. All references in the Agreement to "Investable Balances"
shall
hereby be amended to refer to "Eligible Balances."
6. Section 2.1(a) of the Agreement is hereby deleted in its
entirety
and the following section is substituted in lieu thereof:
2.1(a) Subject to the terms and conditions of this
Agreement
and provided no Default or Event of Default has occurred
and is
continuing, the Lender agrees from time to time during the period
from
the Closing Date, to, but not including, the Warehousing Maturity
Date,
to make Warehousing Advances to the Company, provided the
total
aggregate principal amount outstanding at any one time of all
such
Warehousing Advances shall not exceed the Warehousing
Commitment
Amount. The obligation of the Lender to make Warehouse
Advances
hereunder up to the Warehousing Comitment Amount, is
hereinafter
referred to as the "Warehousing Commitment." Within the
Warehousing
Commitment, the Company may borrow, repay and reborrow. All
Warehousing
Advances under this Agreement shall constitute a single
indebtedness,
and all of the Collateral shall be security for the
Warehousing
Promissory Note and the Sublimit Promissory Note and for
the
performance of all the Obligations.
7. Section 2.1(b)(6) of the Agreement shall be deleted in its
entirety
and the following shall be substituted in lieu thereof:
(6) No Advance shall be made against a Mortgage Loan,
other
than a Repurchased Mortgage Loan or a Rejected Mortgage Loan,
which was
closed more than ninety (90) days prior the date of the
requested
Advance.
8. Section 2.1(b) of the Agreement is hereby amended to
add the
following sections immediately after Section 2.1(b)(6):
(8) The aggregate amount of Repurchase Advances
outstanding at
any one time shall not exceed Two Million Dollars ($2,000,000).
9. Section 2.1(c) of the Agreement is hereby amended to
add the
following section immediately after Section 2.1(c)(4):
10. Sections 2.2(a) and (b) of the Agreement shall be deleted in
their
entirety and the following shall be substituted in lieu thereof:
2.2(a) The Company may obtain an Warehousing
Advance
hereunder, subject to the satisfaction of the conditions set
forth in
Sections 4.1 and 4.3 hereof, upon compliance with the
procedures set
forth in this Section 2.2 and in Exhibit D-SF with respect
to all
Warehousing Advances, other than Repurchase Advances, and Exhibit
D-REP
with respect to Repurchase Advances, attached hereto and made a
part
hereof including the delivery of all documents listed in Exhibit
D-SF
(the "Collateral Documents") to the Lender. Requests for
Warehousing
Advances shall be initiated by the Company by delivering to the
Lender,
no later than one (1) Business Day prior to any Business Day
that the
Company desires to borrow hereunder, a completed and signed
request for
an Advance (a "Warehousing Advance Request") on the then current
form
approved by the Lender. The current forms in use by the
Lender are
Exhibit C-SF for all Warehousing Advances, other than
Repurchase
Advances, and Exhibit C-REP for Repurchase Advances, attached
hereto
and made a part hereof. The Lender shall have the right, on not
less
than three (3) Business Days' prior Notice to the Company, to
modify
any of said Exhibits to conform to current legal requirements or
Lender
practices, and, as so modified, said Exhibits shall be deemed a
part
hereof.
2.2(b) In the case of a Wet Settlement Advance, the
Company
shall follow the procedures and, at or prior to the Lender's
making of
such Wet Settlement Advance, shall deliver to the Lender the
documents
set forth in Exhibit D-SF and Exhibit D-REP hereto together
with a
completed and executed Bailee Pledge Agreement in the form of
Exhibit M
hereto. In the case of a Mortgage Loan financed through a
Wet
Settlement Advance, the Company shall cause all Collateral
Documents
required to be delivered to the Lender pursuant to Exhibit D-SF
within
five (5) Business Days after the date of the Wet Settlement
Advance
relating thereto and the Company shall cause all Collateral
Documents
required to be delivered to the Lender pursuant to Exhibit D-REP
with
twenty (20) days after the dates of the Wet Settlement Advance
relating
thereto.
11. Section 2.2(d) of the Agreement shall be amended by
adding the
words "or Exhibit D-REP" after the words "Exhibit D-SF" where they
appear
therein.
12. 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 a Warehousing Advance, the Lender shall
cause
the Funding Bank to credit an account of the Company with the
Funding
Bank, which account shall be under the exclusive control of the
Lender,
upon compliance by the Company with the terms of this Agreement.
The
Lender shall determine in its sole discretion the method by
which a
Warehousing Advance is made.
13. Section 2.3(a) of the Agreement shall be deleted in its
entirety
and the following shall be substituted in lieu thereof:
2.3(a) Subject to the terms and conditions of this
Agreement
and provided no Default or Event of Default has occurred
and is
continuing, the Lender agrees from time to time during the period
from
the Closing Date, to, but not including, the Term Loan
Commitment
Termination Date, to make Term Loan Advances to the Company,
provided
the total aggregate principal amount outstanding at any one time
of all
such Term Loan Advances shall not exceed the Term Loan
Commitment
Amount. The obligation of the Lender to make Term Loan
Advances
hereunder up to the Term Loan Commitment Amount and prior to the
Term
Loan Commitment Termination Date, is hereinafter referred to
as the
"Term Loan Commitment." Within the Term Loan Commitment, the
Company
may borrow, repay and reborrow. All Term Loan Advances under
this
Agreement shall constitute a single indebtedness, and all
of the
Collateral shall be security for the Term Loan Promissory Note
and for
the performance of all the Obligations.
14. Section 2.5(a) of the Agreement shall be deleted in its
entirety
and the following shall be substituted in lieu thereof:
2.5(a) Subject to the terms and conditions of this
Agreement
and provided no Default or Event of Default has occurred
and is
continuing, the Lender agrees from time to time during the period
from
the Closing Date, to, but not including, the Working Capital
Maturity
Date, to make Working Capital Advances to the Company,
provided the
total aggregate principal amount outstanding at any one time
of all
such Working Capital Advances shall not exceed the Working
Capital
Commitment Amount. The obligation of the Lender to make Working
Capital
Advances hereunder up to the Working Capital Commitment
Amount, is
hereinafter referred to as the "Working Capital Commitment."
Within the
Working Capital Commitment, the Company may borrow, repay and
reborrow.
All Working Capital Advances under this Agreement shall
constitute a
single indebtedness, and all of the Collateral shall be
security for
the Working Capital Promissory Note and for the performance of
all the
Obligations.
15. 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 and Nonconforming Advances shall be evidenced
by a
Warehousing Promissory Note of the Company substantially in the
form of
Exhibit A-1 attached hereto. The Company's Obligations in
respect of
Home Equity Advances, Second Mortgage Advances and Repurchase
Advances
shall be evidenced by a Sublimit Promissory Note of the
Company
substantially in the form of Exhibit A-2 attached hereto. 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 hereto. 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 hereto. Each note shall be dated as of the date hereof.
The
Warehousing Promissory Note, the Sublimit 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," "Sublimit 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.
16. Sections 2.8(d), (e), (f), and (g) of the Agreement
shall be
renumbered as Sections 2.8(e), (f), (g) and (h) and the following shall be
added
as Section 2.8(d):
2.8(d) Prior to the occurrence of an Event of Default,
the
unpaid amount of each Repurchase Advance shall bear interest,
from the
date of such Advance until paid in full, at the Repurchase Rate.
17. Section 9.8(e) of the Agreement (as renumbered pursuant
to the
provisions of Section 16 of this Amendment) shall be deleted in their
entirety
and the following shall be substituted in lieu thereof:
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
Inapplicable 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 during the calendar year 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.
18. Section 2.9(b) of the Agreement shall be deleted in its
entirety
and the following shall be substituted in lieu thereof:
2.9(b) The outstanding principal amount of the Term
Loan
Advances as of the Term Loan Commitment Termination Date
shall be
payable in forty-eight (48) equal monthly installments, due
on the
twenty-second (22nd) day of each month beginning on the twenty-
second
(22nd) day of April 1996. Any remaining principal balance of the
Term
Loan Advances shall be payable on the Term Loan Maturity Date.
19. Sections 2.9(f)(4) and (6) of the Agreement shall be
deleted in
their entirety and the following shall be substituted in lieu thereof:
(4) Seven (7) Business Days elapse from the
date a
Wet Settlement Advance was made without receipt by the
Lender
of all Collateral Documents relating to such Pledged
Mortgage,
or such Collateral Documents, upon examination by the
Lender,
are found not to be in compliance with the
requirements of
this Agreement or the related Purchase Commitment;
provided,
however, if the Wet Settlement Advance was made
against a
Repurchased Mortgage Loan, twenty (20) days elapse
from the
date of such Advance without receipt by the Lender
of all
Collateral Documents relating to such Pledged
Mortgage, or
such Collateral Documents, upon examination by the
Lender, are
found not to be in compliance with the requirements of
this
Agreement.
(6) On the date on which a Pledged
Mortgage is
determined to have been originated based on untrue,
incomplete
or inaccurate information, whether or not the Company
had
knowledge of such misrepresentation or incorrect
information,
or the Pledged Mortgage is defaulted and has
remained in
default for a period of thirty (30) days or more.
20. Section 2.9(f) of the Agreement shall be amended to add
the
following sections immediately after Section 2.9(f)(11):
(13) One (1) Business Day immediately
preceding the
date scheduled for the foreclosure or trustee sale
of the
premises securing a Rejected Mortgage Loan or
Repurchased
Mortgage Loan.
21. Section. 2.9(h) shall be amended to add the following
section
immediately after Section 2.9(h)(2):
22. Section 2.11 of the Agreement shall be deleted in its
entirety and
the following shall be substituted in lieu thereof:
2.11 Method of Making Payments.
2.11(a) Except as otherwise specifically provided
herein, all
payments hereunder shall be made to the Lender not later than the
close
of business on the date when due unless such date is a non-
Business
Day, in which case, such payment shall be due on the first
Business Day
thereafter, and shall be made in lawful money of the United
States of
America in immediately available funds transferred via wire to
accounts
designated by the Lender from time to time.
2.11(b) Upon an Event of Default, and without the
necessity of
prior demand or notice from the Lender, the Company authorizes
the
Lender to cause the Funding Bank to charge the Company's
account for
any Obligations due and owing the Lender.
23. Section 2.16 of the Agreement shall be deleted in its entirety
and
the following shall be substituted in lieu thereof:
24. Sections 3.2(c) and (e) of the Agreement shall be deleted in
their
entirety and the following shall be substituted in lieu thereof:
3.2(c) If Pledged Mortgages are to be transferred
to an
Approved Custodian and are included in an Eligible Mortgage
Pool, the
Lenders security interest in the Pledged Mortgages comprising
the
Eligible Mortgage Pool shall be released upon the issuance
of the
Mortgage-backed Security, which shall be a Pledged Security.
The
Lender's security interest in such Pledged Security shall be
released
only against payment to the Lender of the Release Amount in
connection
with the Pledged Mortgages backing such Pledged Security. The
Lender
shall be entitled to possession of such Pledged Security in the
manner
provided below.
3.2(e) Prior to the occurrence of an Event of Default,
the
Company may redeem a Pledged Mortgage or Pledged Security
from the
Lender's security interest by notifying the Lender of its
intention to
redeem such Pledged Mortgage or Pledged Security from pledge and
either
(a) paying, or causing an Investor to pay, to the Lender,
for
application to prepayment of the principal balance of the Notes,
the
Release Amount in connection with such Pledged Mortgage or
Pledged
Security, or (b) delivering substitute Collateral which, in
addition to
being acceptable to the Lender in its sole discretion will,
when
included with the Collateral, result in a Collateral Value
of all
Collateral held by the Lender which is at least equal to the
aggregate
outstanding Warehousing Advances.
25. Section 5.15(c)(1) of the Agreement shall be deleted in
its
entirety and the following shall be substituted in lieu thereof:
(1) other than a Repurchased Mortgage Loan
or a
Rejected Mortgage Loan, has been duly executed and
delivered
by the parties thereto at a closing held not more than
ninety
(90) days prior to the date of the Advance Request for
such
Mortgage Loan,
26. Section 5.15(d) of the Agreement shall be deleted in its
entirety
and the following shall be substituted in lieu thereof:
5.15(d) Except as set forth in the loan history
of any
Rejected Mortgage Loan or Repurchaed Mortgage Loan, no
default has
occurred and is continuing for more than thirty (30) days
under any
Mortgage Loan included in the Pledged Mortgages without the
Advance
against such Pledged Mortgage having been repaid in accordance
with
Section 2.9(f)(6) hereof, provided, however, that with
respect to
Pledged Mortgages which have already been pledged as
Collateral
hereunder, if any default has occurred, the Company will
promptly
notify the Lender.
27. Section 5.15(g) of the Agreement shall be amended to
delete the
words "Secretary of HUD" and replace them with the words "Director
of the
Federal Emergency Management Agency" where they appear therein.
28. Sections 7.8 and 7.9 of the Agreement shall be deleted in
their
entirety and the following shall be substituted in lieu thereof:
7.8 Minimum Tangible Net Worth. Permit Tangible Net
Worth of
the Company (and its Subsidiaries, on a consolidated basis) at any
time
to be less than One Million Five Hundred Thousand Dollars
($1,500,000).
29. Sections 8.2(d) and (e) of the Agreement shall be deleted in
their
entirety and the following shall be substituted in lieu thereof:
8.2(d) The Lender shall incur no liability as a result
of the
sale or other disposition of the Collateral, or any part
thereof, at
any public or private sale or disposition. The Company hereby
waives
(to the extent permitted by law) any claims it may have against
the
Lender arising by reason of the fact that the price at which
the
Collateral may have been sold at such private sale was less
than the
price which might have been obtained at a public sale or was less
than
the aggregate amount of the outstanding Advances and the
unpaid
interest accrued thereon, even if the Lender accepts the first
offer
received and does not offer the Collateral to more than one
offeree.
Any sale of Collateral pursuant to the terms of a Purchase
Commitment,
or any other disposition of Collateral arranged by the Company,
whether
before or after the occurrence of an Event of Default, shall be
deemed
to have been made in a commercially reasonable manner.
8.2(e) The Company acknowledges that Mortgage Loans
and
Mortgage-backed Securities are collateral of a type
which is
customarily sold on a recognized market. The Company waives any
right
it may have to prior notice of the sale of any Pledged
Mortgage or
Pledged Security, and agrees that the Lender may purchase any
Pledged
Mortgages or Pledged Securities at a private sale of such
Collateral.
30. Exhibits X-0, X-0 xxx X-0 to the Agreement are hereby
deleted in
their entirety and replaced with the new Exhibits X-0, X-0 and A-3
attached to
this Amendment. All references in the Agreement to Exhibits X-0, X-0
and A-3
shall be deemed to refer to the new Exhibits X-0, X-0 and A-3.
31. Exhibits C-SF and D-SF to the Agreement are hereby deleted in
their
entirety and replaced with the new Exhibits C-SF and D-SF attached to
this
Amendment. All references in the Agreement to Exhibits C-SF and D-SF
shall be
deemed to refer to the new Exhibits C-SF and D-SF.
32. Exhibits C-REP and D-REP are hereby added to the Agreement
in the
forms of Exhibits C-REP and D-REP attached to this Amendment.
33. 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.
34. Upon execution of this Amendment, the Company agrees to pay
to the
Lender the pro rata Commitment Fee on the portion of the Commitment
Amount for
the time period from the Effective Date to and including March 31, 1996.
35. The Warehousing Promissory Note is amended and restated
in its
entirety as set forth in the First Amended and Restated Warehousing
Promissory
Note, in the form of Exhibit A-1 attached to this Amendment. All
references in
this Amendment and in the Agreement to the Warehousing Promissory Note
shall be
deemed to refer to the First Amended and Restated Warehousing Promissory
Note
delivered in connection with this Amendment.
36. The Sublimit Promissory Note is amended and restated
in its
entirety as set forth in the First 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 Warehousing Promissory Note
shall be
deemed to refer to the First mender and Restated Sublimit Promissory
Note
delivered in connection with this Amendment.
37. The Working Capital Promissory Note is amended and restated
in its
entirety as set forth in the First Amended and Restated Working
Capital
Promissory Note, in the form of Exhibit A-3 attached to this Amendment.
All
references in this Amendment and in the Agreement to the Working
Capital
Promissory Note shall be deemed to refer to the First Amended and
Restated
Working Capital Promissory Note delivered in connection with this
Amendment.
38. The Company shall deliver to the Lender (a) an executed
original of
this Amendment; (b) an executed original of the First Amended and
Restated
Warehousing Promissory Note; (c) an executed original of the First
Amended and
Restated Sublimit Promissory Note; (d) an executed original of the First
Amended
and Restated Working Capital Promissory Note; (e) a current certified tax,
lien
and judgment search of the appropriate public records for the Company
and the
Guarantors, 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;
(f)
current Certificates of Good Standing of the Company; (g) current
insurance
information; (h) the Commitment Fee for the month of March 1996; and (i)
a Two
Hundred Fifty Dollar ($250) document production fee.
39. 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.
40. 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.
41. 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.
42. Governing Law. This Amendment shall be governed by the laws
of the
State of Minnesota, without reference to its principles of conflicts of
laws.
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:____________________________________
Xxxx X. Xxxxxxxxx
Its: Senior Vice President/CFO
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:____________________________________
Its: Director
STATE OF California )
) ss
COUNTY OF Contra Costa )
On March 8, 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 March 13, 1996, 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 a Guarantor under their respective
Guaranty
dated as of March 22, 1995, 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. Each Guarantor hereby reaffirms that
their
obligations under their respective Guaranty are separate and distinct
from the
Company's obligations to the 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 such Guaranty, the terms of each of which are incorporated
herein
as if fully set forth herein.
The Guarantors hereby irrevocably waive any claim or other rights
that
they may now or hereafter acquire against the Company that arises
from the
existence, payment, performance or enforcement of the Guarantor's
obligations
under the Guaranty, including any right of subrogation,.
reimbursement,
exoneration or indemnification, any right to participate in any claim or
remedy
of the Lender against the Company or any collateral that the Lender now
has or
hereafter acquires, whether or not such claim, remedy or right arises in
equity
or under contract, statute or common law, including the right to take or
receive
from the Company directly or indirectly, in cash or other property or by
set-off
or in any manner, payment or security on account of such claim or other
rights.
If any amount shall be paid to the Guarantors in violation of the
preceding
sentence and the Guaranteed Debt shall not have been paid and performed in
full,
such amount shall be deemed to have been paid to the Guarantors for the
benefit
of, and held in trust for, the Lender and shall forthwith be paid to the
Lender
to be credited and applied to the Guaranteed Debt, whether matured or
unmatured.
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 March 8, 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 March 8, 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)
GUARANTORS:
EXHIBIT C-REP
REQUEST FOR ADVANCE REJECTED OR REPURCHASED MORTGAGE LOAN
Mortgage Company: MONUMENT MORTGAGE, INC.
Mortgagor:__________________ Loan Number:_______________________
__________________ Reviewed By:_______________________
Address: __________________ Warehouse Date:____________________
__________________ Effective Date:____________________
Foreclosure Date:__________________
Status: Rejected_________ Loan Type: Conforming____________________
Received_________ Nonconforming_____Alternet____
Repurchased______ VA_____________FHA____________
Wet Settlement Fixed__________Term___________
3rd Party ARM____________Type___________
Originated_____ Balloon________Type___________
Mortgage Note Amount:________ Interest Rate:_____________________
Mortgage Note Date:__________ Requested Warehouse Amt:___________
METHOD OF ADVANCE
( ) Wire Transfer
Amount of Wire:___________ Date of Wire:__________________
Credit Acct. No.__________ Credit Acct. Name:_____________
ABA No.:__________________ Bank Name:_____________________
City & State:
Account to Debit:_________
Ref:_____________ Advise:__________ Phone:________________
REQUIRED DOCUMENTATION
Attached please find the following documents in connection with the
above
request (Please check attached documents below):
Right
( ) *Copy of Mortgage Note (Repurchased Mortgage Loan only)
( ) Original Mortgage Note and one copy of Mortgage Note
( ) Original or certified copy of recorded Mortgage
( ) Original ALTA Mortgagee's Policy of Title Insurance or equivalent
( ) Original VA Loan Guaranty Certificate Commitment
or FHA Mortgage Insurance Certificate (if any),
or copy of PHI Certificate (Conventional Loans, if applicable)
Left
( ) *Request for Advance (original and one (1) copy)
( ) Recordable assignment of Mortgage
( ) Certified copies of interim assignments of Mortgage (if
applicable)
( ) *Bailed Pledge Agreement
( ) *Investor repurchase demand letter (Repurchased Mortgage Loans
only)
( ) *Summary of Mortgage Loan documentation or Investor problems,
expected
cure period and current payment history.
Please Note: Items designated with the "*" are required prior to a Wet
Settlement Advance which is applicable to Repurchased Mortgage Loans only.
Authorized Signature:
____________________________
_______________________________________________________________
[ ]
[ FOR RFC INTERNAL USE ONLY ]
[ ]
[Repetitive Code:________________ Date:____________________ ]
[ ]
[Wire Initiator's Initials:______ Wire Verifier's Initials:___ ]
[_______________________________________________________________]
EXHIBIT C-SF
Mortgage Company: MONUMENT MORTGAGE, INC.
Mortgagor:____________________ Loan Number:___________________________
____________________ Reviewed By:___________________________
Address: ____________________ Warehouse Date:________________________
____________________ Effective Date:________________________
Foreclosure Date:______________________
Status: Rejected___________ Loan Type: Conforming____________________
Received___________ Nonconforming_____Alternet____
Repurchased________ VA___________FHA______________
Wet Settlement_____ Fixed________Term_____________
3rd Party ARM__________Type_____________
Originated____ Balloon______Type_____________
Mortgage Note Amount:______ Interest Rate:________________
Mortgage Note Date:________ Requested Warehouse Amt:______
METHOD OF ADVANCE
( ) Wire Transfer
Amount of Wire:___________ Date of Wire:_____________________
Credit Acct. No.__________ Credit Acct. Name:________________
ABA No.:__________________ Bank Name:________________________
City & State:
Account to Debit:_________
Ref:___________ Advise:______________ Phone:_______________
REQUIRED DOCUMENTATION
Attached please find the following documents in connection with the
above
request (Please check attached documents below):
Right
( ) Original and one copy of Mortgage Note
( ) Certified copy of Mortgage
( ) *Copy of Investor Purchase Commitment(or satisfactory evidence
thereof)
( ) *Copy of D -1 Settlement Statement or equivalent
(Home Equity Loans and Title I Mortgage Loans only)
( ) *HUD 203(K) Maximum Mortgage Worksheet (203(k) Mortgage Loans
only)
Left
( ) *Request for Advance (original and one (1) copy)
( ) *Copy of settlement or funding check (if applicable)
( ) Recordable assignment of Mortgage
( ) Certified copies of interim assignments of Mortgage (if
applicable)
( ) *Bailee Pledge Agreement (only required for Wet Settlement
Advance)
Please Note: Items designated with the "*" are required prior to a Wet
Settlement Advance.
Authorized Signature:
_____________________________
___________________________________________________________
[ FOR RFC INTERNAL USE ONLY ]
[ ]
[ Repetitive Code:_____________ Date:_______________________]
[ ]
[ Wire Initiator's Initials:___ Wire Verifier's Initials:___]
[___________________________________________________________]
EXHIBIT D-REP
PROCEDURES AND DOCUMENTATION FOR WAREHOUSING
REJECTED OR REPURCHASED MORTGAGE LOANS
The following procedures and documentation requirements must be
observed in
all respects by the Company. All documents must be satisfactory to the
Lender in
its sole discretion. Terms used below, which are not otherwise defined,
shall
have the meanings given them in the Agreement. The HUD, FNMA and FHLMC
form
numbers referred to herein are for convenience only and the Company
shall use
the equivalent forms required at the time of delivery of the Mortgage
Loans or
Mortgage-backed Securities. All Requests for Advance (Exhibit C-REP)
and
Collateral Documents, should be submitted to the Lender in a top tabbed,
legal
size manila file folder, hole-punched and acco-fastened in the order
specified
in the Request for Advance (Exhibit C-REP). Each folder should be labelled
with
the mortgagor name(s), Company loan number and Company name. If a Wet
Settlement
Advance is being requested, the Request for Advance (Exhibit C-REP) and
required
Collateral Documents should be submitted in accordance with the
above
instructions. The remaining Collateral Documents should be submitted
with a
cover letter identifying the mortgagor name(s) and Company loan number.
I. Prior to making a Wet Settlement Advance against a Repurchased Mortgage
Loan,
the Lender must receive the following:
(1) Estimate of the amount of the requested Repurchase Advance
one (1)
Business Day prior to such Repurchase Advance.
(2) Original Request for Advance against Rejected or Repurchased
Mortgage
Loans (Exhibit C-REP) and one (1) copy of same.
(3) Copy of Mortgage Note (Repurchased Mortgage Loan only).
(4) Bailee Pledge Agreement (Exhibit M).
(5) Investor repurchase demand letter (Repurchased Mortgage Loan
only).
(6) Summary of Mortgage Loan documentation or Investor problems,
expected
cure period, and current payment history.
The following must be received by the Lender within twenty (20) days
of the
date of the Wet Settlement Advance:
(7) Original signed Mortgage Note, endorsed by the Company in blank
with
corresponding interim endorsements, if, applicable, and one
copy of
same.
(8) Original or certified true (by recorder's office) copy of
the
Mortgage.
(9) Original or certified true (by recorder's officer) copies
of all
interim assignments of the Mortgage. (If an interim assignment
has not
been recorded or sent for recordation, such original
interim
assignment). Mortgage Note must bear corresponding endorsements.
(10) An assignment of the Mortgage to the Lender in recordable
form but
unrecorded.
(11) Original ALTA Mortgagee's Policy of Title Insurance or
equivalent
thereto.
(12) Original VA Loan Guaranty Certificate, FHA Mortgage
Insurance
Certificate, or copy of Private Mortgage Insurance
Certificate
(Conventional Loans, if applicable).
II. Prior to the making of a Repurchase Advance (other than a Wet
Settlement
Advance against a Repurchased Mortgage Loan), the Lender must receive
all
of the Collateral Documents listed in Section I above.
III. The Lender exclusively shall deliver the Mortgage Notes and other
original
Collateral Document evidencing Pledged Mortgages or Pledged
Securities and
related pool documents to the Investor, pool custodian or attorneys
conducting foreclosure sales, unless otherwise agreed in writing.
A. The following procedures are to be followed for deliveries of Pledged
Mortgages:
No later than one (1) Business Day prior to the requested shipment
date and
no later than one (1) Business Day prior to the expiration date
of the
Purchase Commitment, the Lender must receive the following:
(1) Signed shipping instructions for the delivery of the Pledged
Mortgages
including the following:
(a) Name and address of the office of the Investor to which the
loan
documents are to be shipped, the desired shipping date
and the
preferred method of delivery;
(b) Instructions for endorsement of the Mortgage Note;
(c) Names of mortgagor(s), Mortgage Note Amounts of Pledged
Mortgages
to be shipped and the Company's loan number; and
(d) Commitment number and expiration date of the Purchase
Commitment.
(2) For deliveries of Pledged Mortgages to FNMA for cash purchase,
the
following additional documents are required:
(a) Copy of Loan Schedule (FNMA Form 1068 or 1069) showing
the
Lender's designated FNMA payee code as recipient of the
loan
purchase proceeds.
(3) For deliveries of Pledged Mortgages to FHLMC for cash purchase,
the
following additional documents are required:
(a) Original completed Warehouse Lender Release of Security
Interest
(FHLMC Form 996) to be executed by the Lender, designating
the
Lender as the Warehouse Lender and showing the Cash
Collateral
Account designated by the Lender as the receiving
account for
loan purchase proceeds.
(b) Copy of Wire Transfer Authorization for a Cash Warehouse
Delivery
(FHLMC Form 987), designating the Lender as the Warehouse
Lender
and showing the Cash Collateral Account designated by the
Lender
as the receiving account for loan purchase proceeds.
B. In the event Pledged Mortgages are delivered to a pool custodian,
other
than an Approved Custodian, payment of the related Advance is
required
within two (2) Business Days of shipment.
The following procedures are to be followed for deliveries of
Pledged
Mortgages to Approved Custodians:
No later than one (1) Business Day prior to the requested shipment
date and
no later than one (1) Business Day prior to required delivery date
to the
Approved Custodian, the Lender must receive the following:
(1) Signed shipping instructions for the delivery of the Pledged
Mortgages
to the Approved Custodian including the following:
(a) Name and address of the office of the Approved Custodian to
which
the loan documents are to be shipped, the desired shipping
date
and the preferred method of delivery;
(b) Instructions for endorsement of the Mortgage Note;
(c) Names of mortgagor(s) and Mortgage Note Amounts of
Pledged
Mortgages to be shipped and the Company's loan number; and
(d) Commitment number and expiration date of the Purchase
Commitment
for the Pledged Securities.
(2) For FMMA Mortgage-backed Securities issuance, the following
additional
documents are required:
(a) Copy of Schedule of Mortgages (FNMA Form 2005 or 2025).
(b) Copy of Delivery Schedule (FNMA Form 2014), instructing
FNMA to
issue the Mortgage-backed Securities in the name of the
Company
with the Lender as pledges and to deliver the Mortgage-
backed
Securities to the Lender's custody account at Chemical
Bank NY
(CHEMICAL NYC/GEOCUST/XX0000000) and bearing the
following
instructions: "These instructions may not be changed
without the
prior written consent of Residential Funding Corporation,
Xxxxxxx
X. Xxxxxx, Director or Xxxxxxx Xxxxxxxxx, Director."
(3) For FHLMC Mortgage-backed Securities issuance, the
following
additional documents are required:
(a) Copy of Settlement Information and Delivery Authorization
(FHLMC
Form 939), designating the Lender as the Warehouse
Lender and
instructing FHLMC to deliver the Mortgage-backed
Securities to
the Lender's custody account at Chemical Bank NY
(CHEMICAL
NYC/GEOCUST/XX0000000).
(b) Original Warehouse Lender Release of Security Interest
(FHLMC
Form 996) to be executed by the Lender, designating the
Lender as
the Warehouse Lender and instructing FHLMC to deliver
the
Mortgage-backed Securities to the Lender's custody
account at
Chemical Bank NY (CHEMICAL NYC/GEOCUST/XX0000000).
(4) For GNMA Mortgage-backed Securities issuance, the following
additional
documents are required:
(a) Signed original Schedule of Mortgages (HUD Form 11706).
(b) Signed original Schedule of Subscribers (HUD Form
11705)
instructing GNMA to issue the Mortgage-backed Securities
in the
name of the Company and designating Chemical Bank as
Agent for
the Lender as the subscriber, using the following
language:
CHEMICAL BANK AS AGENT FOR RESIDENTIAL FUNDING
CORPORATION SEG
ACCT MANUF/CUST/XX0000000). The following instructions must
also
be included on the form: "These instructions may not be
changed
without the prior written consent of Residential
Funding
Corporation, Xxxxxxx X. Xxxxxx, Director or Xxxxxxx
Xxxxxxxxx,
Director."
(c) Completed original Release of Security Interest (HUD Form
11711A)
to be executed by the Lender.
(5) No later than two (2) Business Days prior to the Settlement
Date for
the Mortgage-backed Securities, the Lender must receive
signed
Securities Delivery Instructions form attached hereto as Schedule
I.
C. The following procedures are to be followed for deliveries of
Pledged
Mortgages to attorneys conducting a foreclosure sale:
No later than one (1) Business Day prior to the requested shipment
date and
no later than one (1) Business Day prior to required delivery date
to the
Attorney conducting the foreclosure sale, the Lender must receive
signed
shipping instructions for the delivery of the Pledged Mortgages
including
the following:
(1) Name and address of the office of the attorney to which the
Collateral
Documents are to be shipped, the desired shipping date and
the
preferred method of delivery;
(2) Names of Mortgagor and Mortgage Note Amounts of Pledged
Mortgages to
be shipped; and
(3) Confirmation that the attorney will execute and return the
bailee
letter (acknowledged instructions from the Company to do so).
Upon instruction by the Company, the Lender will complete the
endorsement
of the Mortgage Note and make arrangements for the delivery of the
original
Collateral Documents evidencing Pledged Mortgages or Pledged
Securities and
related original pool documents with the appropriate bailee letter
to the
Investor, Approved Custodian, other pool custodian or attorney
conducting a
foreclosure sale. Upon receipt of Mortgage-backed Securities, the
Lender
will cause such Mortgage-backed Securities to be delivered to the
Investor
which issued the Purchase Commitment. Mortgage-backed Securities
will be
released to the Investor only upon payment of the purchase proceeds
to the
Lender. Cash proceeds of sales of Pledged Mortgages and Pledged
Securities
shall be applied to related Repurchase Advances outstanding
under the
Commitment. Provided no Default exists, the Lender shall return any
excess
proceeds of the sale of Mortgage Loans or Mortgage-backed Securities
to the
Company, unless otherwise instructed in writing.
SCHEDULE I
RESIDENTIAL FUNDING CORPORATION
WAREHOUSING LENDING DIVISION
Security Delivery Instructions
INSTRUCTIONS MUST BE RECEIVED TWO (2) BUSINESS DAYS IN ADVANCE OF
PICK-UP/DELIVERY
BOOK-ENTRY DATE:_____________ SETTLEMENT DATE:_______________________
ISSUER:______________________ SECURITY: $____________________________
NO. OF CERTIFICATES:_________ 1)_____________________________________
2)_____________________________________
3)_____________________________________
CUSIP #________________
Pool #_________________ MI#________ Coupon Rate:______________________
Issue Date:(M/D/Y)__________________ Maturity Date: (M/D/Y)____________
POOL TYPE (circle one):
GNMA: GNMA I GNMA II
FHLMC: FIXED ARM DISCOUNT NOTE
FNMA: FIXED ARM DISCOUNT NOTE DEBENTURES REMIC
-----------------------------------------------------------------------
DELIVER TO:_______________________ ( ) Versus Payment
_______________________ DVP AMT. $__________________________
_______________________ ( ) Free Delivery
DELIVER TO:_______________________ ( ) Versus Payment
_______________________ DVP AMT. $_________________________
_______________________ ( ) Free Delivery
DELIVER TO:_______________________ ( ) Versus Payment
_______________________ DVP AMT. $__________________________
_______________________ ( ) Free Delivery
-----------------------------------------------------------------------
AUTHORIZED SIGNATURE:__________________________________________________
TITLE:_________________________________________________________________
EXHIBIT D-SF
PROCEDURES AND DOCUMENTATION FOR WAREHOUSING
SINGLE FAMILY MORTGAGE LOANS
The following procedures and documentation requirements
must be
observed in all respects by the Company. All documents must be
satisfactory to
the Lender in its sole discretion. Terms used below, which are not
otherwise
defined, shall have the meanings given them in the Agreement. The HUD,
FNMA and
FHLMC form numbers referred to herein are for convenience only and the
Company
shall use the equivalent forms required at the time of delivery of the
Mortgage
Loans or Mortgage-backed Securities. All Requests for Advance and
Collateral
Documents, should be submitted to the Lender in a top tabbed, legal size
manila
file folder, hole-punched and acco-fastened in the order specified
in the
Request for Advance. Each folder should be labelled with the mortgagor
name(s),
Company loan number and Company name. If a Wet Settlement Advance is
being
requested, the Request for Advance and required Collateral Documents
should be
submitted in accordance with the above instructions. The remaining
Collateral
Documents should be submitted with a cover letter identifying the mortgagor
name
(A) and Company loan number.
I. Prior to making a Wet Settlement Advance, the Lender must receive the
following:
(1) Estimate of the amount of the requested Advance one (1)
Business Day
prior to such Advance.
(2) Copy of settlement or funding check issued to the
escrow/title
company, if applicable.
(3) Original Request for Advance against Single Family Mortgage
Loans
(Exhibit C-SF) and one (1) copy of same.
(4) Copy of the Purchase Commitment or satisfactory evidence thereof.
(5) Bailee Pledge Agreement (only required for Wet Settlement
Advance)
(Exhibit M).
(6) A copy of the HUD-1 Settlement Statement or equivalent (Home
Equity
Mortgage Loans and Title I Mortgage Loans only).
(7) A copy of HUD 203(K) Maximum Mortgage Worksheet (203(k) Mortgage
Loans
only).
The following must be received by the Lender within five (5) Business
Days
of the date of the Wet Settlement Advance:
(8) Original signed Mortgage Note, endorsed by the Company in blank
with
corresponding interim endorsements, if applicable, and one
copy of
same.
(9) Copy of the Mortgage certified true by the escrow/title company.
(10) Copies of all interim assignments of the Mortgage certified
true by
the escrow/title company (recorded or sent for recordation).
Mortgage
Note must bear corresponding endorsements.
(11) An assignment of the Mortgage to the Lender in recordable
form but
unrecorded.
II. Prior to the making of an Advance (other than a Wet Settlement
Advance),
the Lender must receive all of the Collateral Documents listed in
Section I
above.
III. The Lender exclusively shall deliver the Mortgage Notes and other
original
Collateral Documents evidencing Pledged Mortgages or Pledged
Securities and
related pool documents to the Investor or pool custodian, unless
otherwise
agreed in writing.
A. The following procedures are to be followed for deliveries of
Pledged
Mortgages:
No later than one (1) Business Day prior to the requested shipment
date and
no later than one (1) Business Day prior to the expiration date
of the
Purchase Commitment, the Lender must receive the following:
(1) Signed shipping instructions for the delivery of the Pledged
Mortgages including the following:
(a) Name and address of the office of the Investor to which the
loan
documents are to be shipped, the desired shipping date
and the
preferred method of delivery;
(b) Instructions for endorsement of the Mortgage Note;
(c) Names of mortgagor(s), Mortgage Note Amounts of Pledged
Mortgages
to be shipped and the Company's loan number; and
(d) Commitment number and expiration date of the Purchase
Commitment.
(2) For deliveries of Pledged Mortgages to FNMA for cash purchase,
the
following additional documents are required:
(a) Copy of Loan Schedule (FNMA Form 106B or 1069) showing
the
Lender's designated FNMA payee code as recipient of the
loan
purchase proceeds.
(3) For deliveries of Pledged Mortgages to FHLMC for cash purchase,
the
following additional documents are required:
(a) Original completed Warehouse Lender Release of Security
Interest
(FHLMC Form 996) to be executed by the Lender, designating
the
Lender as the Warehouse Lender and showing the Cash
Collateral
Account designated by the Lender as the receiving
account for
loan purchase proceeds.
(b) Copy of Wire Transfer Authorization for a Cash Warehouse
Delivery
(FHLMC Form 987), designating the Lender as the Warehouse
Lender
and showing the Cash Collateral Account designated by the
Lender
as the receiving account for loan purchase proceeds.
B. In the event ledged Mortgages are delivered to a pool custodian,
other
than an Approved Custodian, payment of the related Advance is
required
within two (2) Business Days of shipment.
The following procedures are to be followed for deliveries of
Pledged
Mortgages to Approved Custodians:
No later than one (1) Business Day prior to the requested shipment
date
and no later than one (1) Business Day prior to required delivery
date
to the Approved Custodian, the Lender must receive the following:
(1) Signed shipping instructions for the delivery of the Pledged
Mortgages
to the Approved Custodian including the following:
(a) Name and address of the office of the Approved Custodian to
which
the loan documents are to be shipped, the desired shipping
date
and the preferred method of delivery;
(b) Instructions for endorsement of the Mortgage Note;
(c) Names of mortgagor(s) and Mortgage Note Amounts of
Pledged
Mortgages to be shipped and the Company's loan number; and
(d) Commitment number and expiration date of the Purchase
Commitment
for the Pledged Securities. For FNMA Mortgage-backed
Securities
issuance, the following additional documents are required:
(a)
Copy of Schedule of Mortgages (FNMA Form 2005 or 2025).
(e) Copy of Delivery Schedule (XXXX Form 2014), instructing
FNMA to
issue the Mortgage-backed Securities in the name of the
Company
with the Lender as pledges and to deliver the Mortgage-
backed
Securities to the Lender's custody account a t Chemical
Bank NY
(CHEMICAL NYC/GEOCUST/XX0000000) and bearing the
following
instructions: "These instructions may not be changed
without the
prior written consent of Residential Funding Corporation,
Xxxxxxx
X. Xxxxxx, Vice President or Xxxxxxx Xxxxxxxxx, Assistant
Vice
President."
(2) For FLHMC Mortgage-backed Securities issuance, the lowing
additional
documents are required:
(a) Copy of Settlement Information and Delivery Authorization
(FHLMC
Form 939), designating the Lender as the Warehouse
Lender and
instructing FHLMC to deliver the Mortgage-backed
Securities to
the Lender's custody account at Chemical Bank NY
(CHEMICAL
NYC/GEOCUST/XX0000000)
(b) Original Warehouse Lender Release of Security Interest
(FHLMC
Form 996) to be executed by the Lender, designating the
Lender as
the Warehouse Lender and instructing FHLMC to deliver
the
Mortgage-backed Securities to the Lender's custody
account at
Chemical Bank NY (CHEMICAL NYC/GEOCUST/XX0000000).
(3) For GNMA Mortgage-backed Securities issuance, the following
additional
documents are required:
(a) Signed original Schedule of Mortgages (HUD Form 11706).
(b) Signed original Schedule of Subscribers (HUD Form
11705)
instructing GNMA to issue the Mortgage-backed Securities
in the
name of the Company and designating Chemical Bank as
Agent for
the Lender as the subscriber, using the following
language:
CHEMICAL BANK AS AGENT FOR RESIDENTIAL FUNDING
CORPORATION SEG
ACCT MANUF/CUST/XX0000000). The following instructions must
also
be included on the form: "These instructions may not be
changed
without the prior written consent of Residential
Funding
Corporation, Xxxxxxx X. Xxxxxx, Vice President or
Xxxxxxx
Xxxxxxxxx, Assistant Vice President."
(c) Completed original Release of Security Interest (lIUD
Form
11711A) to be executed by the Lender.
(5) No later than two (2) Business Days prior to the Settlement
Date for
the Mortgage-backed Securities, the Lender must receive
signed
Securities Delivery Instructions form attached hereto as Schedule
I.
Upon instruction by the Company, the Lender will complete the endorsement
of the
Mortgage Note and make arrangements for the delivery of the original
Collateral
Documents evidencing Pledged Mortgages or Pledged Securities and
related
original pool documents with the appropriate bailee letter to the
Investor,
Approved Custodian, or other pool custodian. Upon receipt of Mortgage-
backed
Securities, the Lender will cause such Mortgage-backed Securities
to be
delivered to the Investor which issued the Purchase Commitment. Mortgage-
backed
Securities will be released to the Investor only upon payment of the
purchase
proceeds to the Lender. Cash proceeds of sales of Pledged Mortgages and
Pledged
Securities shall be applied to related Advances outstanding under
the
Commitment. Provided no Default exists, the Lender shall return any
excess
proceeds of the sale of Mortgage Loans or Mortgage-backed Securities
to the
Company, unless otherwise instructed in writing.
SCHEDULE I
RESIDENTIAL FUNDING CORPORATION
WAREHOUSING LENDING DIVISION
Security Delivery Instructions
INSTRUCTIONS MUST BE RECEIVED TWO (2) BUSINESS DAYS IN ADVANCE OF
PICK-UP/DELIVERY
BOOK-ENTRY DATE:_____________ SETTLEMENT DATE:_______________________
ISSUER:______________________ SECURITY: $____________________________
NO. OF CERTIFICATES:_________ 1)_____________________________________
2)_____________________________________
3)_____________________________________
CUSIP #________________
Pool #_________________ MI#________ Coupon Rate:______________________
Issue Date:(M/D/Y)__________________ Maturity Date: (M/D/Y)____________
POOL TYPE (circle one):
GNMA: GNMA I GNMA II
FHLMC: FIXED ARM DISCOUNT NOTE
FNMA: FIXED ARM DISCOUNT NOTE DEBENTURES REMIC
-----------------------------------------------------------------------
DELIVER TO:_______________________ ( ) Versus Payment
_______________________ DVP AMT. $__________________________
_______________________ ( ) Free Delivery
DELIVER TO:_______________________ ( ) Versus Payment
_______________________ DVP AMT. $__________________________
_______________________ ( ) Free Delivery
DELIVER TO:_______________________ ( ) Versus Payment
_______________________ DVP AMT. $__________________________
_______________________ ( ) Free Delivery
-----------------------------------------------------------------------
AUTHORIZED SIGNATURE:__________________________________________________
TITLE:_________________________________________________________________
EXHIBIT A-1
FIRST AMENDED AND RESTATED WAREHOUSING PROMISSORY NOTE
$10,000,000 Date: February 25,
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 Warehousing 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 Warehousing Promissory Note dated March 22, 1995, 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 )
) ss
COUNTY OF )
On , 1996, 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 A-2
FIRST AMENDED AND RESTATED SUBLIMIT PROMISSORY NOTE
$5,000,000 Date: February 29,
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 Five Million Dollars ($5,000,000)
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 Sublimit Promissory Note dated March 22, 1995, 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 )
) ss
COUNTY OF )
On , 1996, 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 A-3
FIRST AMENDED AND RESTATED WORKING CAPITAL PROMISSORY NOTE
$1,000,000 Date: February 29,
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
Blenders' 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 One Million Dollars ($1,000,000)
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 working capital
facility in
the above amount and is the Working Capital 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 Working Capital Promissory Note dated March 22, 1995, 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 )
) ss
COUNTY OF )
On , 1996, 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)
TERM LOAN PROMISSORY NOTE
$1,000,000 Date: March 22, 1995
FOR VALUE RECEIVED, the undersigned, MONUMENT MORTGAGE,
INC., a
California corporation, (herein called the "Company"), hereby promises to
pay to
the order of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation
(the
Menders 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 One Million Dollars ($1,000,000)
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 term loan facility
in the
above amount and is the Working Capital Promissory Note referred to in
that
certain Warehousing Credit and Security Agreement (the "Agreement")
dated the
date hereof between the Company and the Lender, as the same may be
amended or
supplemented from time to time, and is entitled to the benefits
thereof.
Reference is hereby made to the Agreement (which is incorporated
herein by
reference as fully and with the same effect as if set forth herein at
length)
for a description of the Collateral, a statement of the covenant"
and
agreements, a statement of the rights and remedies and securities
afforded
thereby and other matters contained therein. Capitalized terms used
herein,
unless otherwise defined herein, shall have the meanings given them
in the
Agreement.
This Note may be prepaid in whole or in part at any time
without
premium or penalty.
Should this Note be placed in the hands of attorneys for
collection,
the Company agrees to pay, in addition to principal and interest,
fees and
charges due under the Agreement, 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 V.P. / CFO
STATE OF )
) ss
COUNTY OF )
On March 22, 1995, 1996, before me, a Notary Public,
personally
appeared {ai; Garrogies, the Sr. V.P. / 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)
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(d) 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
Officers
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 opel^acions of the
Company
(xxx, if applicable, its Subsidiaries) as at the Statement Date.
Dated:___________________
MONUMENT MORTGAGE, INC.,
a California corporation
By:_______________________________
Its:______________________________
CALCULATIONS SUPPORTING OFFICER'S CERTIFICATE
Company Name: MONUMENT MORTGAGE, INC. and its Subsidiaries
Statement Date:____________________
All financial calculations set forth herein are as of the Statement Date.
I. TANGIBLE NET WORTH
A. Tangible Net Worth of the Company is:
Excess of total assets over total liabilities: $____________
Plus: Loan loss reserves: $____________
Plus: Subordinated Debt not due within
one year of the Statement Date
(or any portion thereof): $____________
Minus: Advances to owners, officers or
Affiliates: $____________
Minus: Investments in Affiliates: $____________
Minus: Assets pledged to secure liabilities
not included in Debt: $____________
Minus: Intangible assets: $____________
Minus: Any other HUD nonacceptable assets: $____________
Minus: Other assets unacceptable to the
Lender: $____________
TANGIBLE NET WORTH $________________
B. Requirements of Section 7.8 of the Agreement:
MINIMUM TANGIBLE NET WORTH OF $1,500,000.
C. Covenant Satisfied:___________ Covenant Not
Satisfied:____________
II. ADJUSTED TANGIBLE NET WORTH
A. Adjusted Tangible Net Worth of the Company is:
Tangible Net Worth (from IA above)
$_____________
Minus: Capitalized excess servicing fees
$_____________
Minus: Capitalized excess servicing rights
$_____________
Plus: Deferred taxes arising from
capitalized excess servicing fees:
$_____________
Plus: 1% of Adjusted Servicing Portfolio
(from IIIA below):
$_____________
ADJUSTED TANGIBLE NET WORTH
$__________________
B. Requirements of Section 7.9 of the Agreement:
MINIMUM ADJUSTED TANGIBLE NET WORTH OF $4,500,000.
C. Covenant Satisfied:___________ Covenant Not
Satisfied:____________
III. ADJUSTED SERVICING PORTFOLIO
A. Adjusted Servicing Portfolio of the Company is:
Servicing Portfolio owned by the Company is:
$_____________
Minus: The unpaid principal balance of
Mortgage Loans:
$_____________
Past due 60 days or more:
$_____________
Sold with recourse:
$_____________
For which the Servicing Contracts
are pledged:
$_____________
Serviced by Company for others under
subservicing arrangements:
$_____________
ADJUSTED SERVICING PORTFOLIO
$__________________
B. Requirements of Section 7.10 of the Agreement:
ADJUSTED SERVICING PORTFOLIO OF $250,000,000.
C. Covenant Satisfied:______ Covenant Not Satisfied:________
IV. DEBT OF THE COMPANY
Total liabilities
$_____________
Minus: Loan loss reserves:
$_____________
Minus: Subordinated Debt not due within one year
of the Statement Date (or any portion
thereof):
$_____________
Minus: Deferred taxes arising from
capitalized excess servicing fees:
$_____________
DEBT
$_________________
V. RATIO OF DEBT TO ADJUSTED TANGIBLE NET WORTH
A. The ratio of Debt to Adjusted Tangible Net Worth (IV to
II.A) is: ______ to 1
B. Requirements of Section 7.7 of the Agreement:
The ratio of Debt to Adjusted Tangible Net Worth shall not
exceed 15 to 1.
C. Covenant Satisfied:_______ Covenant Not Satisfied:__________
VI. DIVIDENDS
A. The dividends declared or paid by the Company during the current
fiscal
year was: $__________
B. Requirements of Section 7.11 of the Agreement:
No dividends shall be declared or paid in excess of
twenty-five percent (25%) of the Company's net after-tax income.
C. Covenant Satisfied:_________ Covenant Not Satisfied:__________
VII. CURRENT RATIO OF THE COMPANY
A. Consolidated current assets of the Company: $__________
B. Consolidated current liabilities of the Company: $__________
C. Consolidated current ratio (VII.A to VII.B) is: _____ to 1.0
D. Requirements of Section 7.6 of the Agreement:
The ratio of consolidated current assets to consolidated
current liabilities shall not be less than 1.01 to 1.
E. Covenant Satisfied:________ Covenant Not Satisfied:__________
VIII. TRANSACTIONS WITH AFFILIATES
A. Loans, advances, and extensions of credit made by the Company to
its
Affiliates total: $__________
B. Capital contributions made by the Company to its Affiliates
total: $__________
C. Management fees paid to Affiliates during the current
fiscal year total: $__________
D. Requirements of Section 7.12 of the Agreement:
1. No loans, advances or extensions of credit shall be made
by the
Company to Affiliates.
Covenant Satisfied:_______ Covenant Not Satisfied:_______
2. No capital contributions shall be made by the Company
to any
Affiliate.
Covenant Satisfied:_______ Covenant Not Satisfied:_________
3. No Management fees shall be paid by the Company to
Affiliates.
Covenant Satisfied:_______ Covenant Not Satisfied:_________
FIRST AMENDED AND RESTATED WAREHOUSING PROMISSORY NOTE
$10,000,000 Date: February 29,
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 Warehousing 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 Warehousing Promissory Note dated March 22, 1995, 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:_____________________________
Xxxx X. Xxxxxxxxx
Its: Senior VP / Chief Financial
Officer
STATE OF )
) ss
COUNTY OF )
On March 8, 1996, before me, a Notary Public, personally appeared
Xxxx
X. Xxxxxxxxx, the Senior VP CFO of MONUMENT MORTGAGE, INC., a
California
corporation, personally known to me (or proved to me on the
basis of
satisfactory evidence) to be the person whose name is subscribed to the
within
instrument and acknowledged to me that he/she executed the same in
his/her
authorized capacity, and that by his/her signature on the instrument the
person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public____________________
My Commission Expires:___________
(SEAL)
FIRST AMENDED AND RESTATED SUBLIMIT PROMISSORY NOTE
$5,000,000 Date: February 29,
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 Five Million Dollars ($5,000,000)
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 Sublimit Promissory Note dated March 22, 1995, 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:_____________________________
Xxxx X. Xxxxxxxxx
Its: Senior VP / Chief Financial
Officer
STATE OF )
) ss
COUNTY OF )
On March 8, 1996, before me, a Notary Public, personally appeared
Xxxx
X. Xxxxxxxxx, the Senior VP CFO of MONUMENT MORTGAGE, INC., a
California
corporation, personally known to me (or proved to me on the
basis of
satisfactory evidence) to be the person whose name is subscribed to the
within
instrument and acknowledged to me that he/she executed the same in
his/her
authorized capacity, and that by his/her signature on the instrument the
person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public______________________
My Commission Expires:_____________
(SEAL)
FIRST AMENDED AND RESTATED WORKING CAPITAL PROMISSORY NOTE
$1,000,000 Date: February 29,
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 One Million Dollars ($1,000,000)
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 working capital
facility in
the above amount and is the Working Capital 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 Working Capital Promissory Note dated March 22, 1995, 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:______________________________
Xxxx X. Xxxxxxxxx
Its: Senior VP / Chief Financial
Officer
STATE OF )
) ss
COUNTY OF )
On March 8, 1996, before me, a Notary Public, personally appeared
Xxxx
X. Xxxxxxxxx, the Senior VP CFO of MONUMENT MORTGAGE, INC., a
California
corporation, personally known to me (or proved to me on the
basis of
satisfactory evidence) to be the person whose name is subscribed to the
within
instrument and acknowledged to me that he/she executed the same in
his/her
authorized capacity, and that by his/her signature on the instrument the
person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public____________________
My Commission Expires:___________
(SEAL)
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 Third Amendment to Warehousing Credit and
Security
Agreement, and the First Amended and Restated Warehousing
Promissory
Note, First Amended and Restated Sublimit Promissory Note and
First
Amended and Restated Working Capital Promissory Note.
3. The Certificate of Incumbency delivered in connection with
the
Agreement is hereby deleted in its entirety and replaced with
the new
Certificate of Incumbency attached to this Certificate of
Secretary as
Exhibit B.
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 8th day of February,
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.
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 8th day of March, 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 commandment amour.. of Ten
Xxxxxx:-!
Dollars ($10,000,000) (the "Warehousing Commitment Amount"), with
RESIDENTIAL
FUNDING CORPORATION, a Delaware corporation (the "Lender"), as evidenced
by a
Warehousing Promissory Note in the principal sum of Ten Million
Dollars
($10,000,000), dated as of March 22, 1995, a Sublimit Promissory Note
in the
principal sum of Six Million Dollars ($6,000,000), dated as of March 22,
1995,
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) ("Term Loan Commitment"), 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 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) ("Working Capital Commitment"), as evidenced by a
Working
Capital Promissory Note in the principal sum of One Million
Dollars
($1,000,000), dated as of March 22, 1995 (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 proposes to extend the period for which
certain of
the Commitments under the Agreement have been made and amend certain other
terms
of the Agreement; and
WHEREAS, to evidence the extension of such Commitments and
amendment of
the Agreement, the Company proposes to execute and deliver a Third
Amendment to
Warehousing Credit and Security Agreement (the "Amendment"), a First
Amended and
Restated Warehousing Promissory Note, a First Amended and Restated
Sublimit
Promissory Note and a First Amended and Restated Working Capital Promissory
Note
(all such amended and restated notes, the `"Amended Notes"), copies of
which
have been presented to the Board of Directors of this Company; and
WHEREAS, the Board of Directors of this Company have determined
that it
will be in the best interests of this Company for the Company to
extend the
Commitment and amend the Agreement.
RESOLVED, that these resolutions are enacted by the Board of
Directors
of this Company on their behalf and on behalf of the Company.
FURTHER RESOLVED, that the Company shall extend the Commitments
and
amend the Agreement to be evidenced by the Amendment and the Amended Notes.
FURTHER RESOLVED, that the Amendment and Amended Notes in the
forms
presented to the Board of Directors of this Company are hereby
approved and
copies thereof are Bled in the records of this Company with these
Resolutions.
FURTHER RESOLVED, that any one (insert minimum number required to
sign)
of the following officers of the Company: President, Executive Vice
President,
Senior Vice President, Assistant Vice President, Secretary. or
Assistant
Secretary (list titles 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 Notes 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 officers of the Company: President Executive Vice
President,
Senior Vice President, Assistant Vice President, Secretary. or
Assistant
Secretary Or Vice President (list titles of racers 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 the Company hereby authorizes the
Lender to
accept the Company's bailee pledge agreements, advance requests,
shipping
requests, wire transfer instructions and security delivery
instructions
transmitted to the Lender via facsimile or electronic transmission, and
that
said documents, when transmitted by facsimile or electronic transmission,
shall
have the same force and erect as the originals.
FURTHER RESOLVED, that such officers shall be and are
hereby
authorized, empowered and directed to do and perform each and every
act and
execute any and all documents and instruments in the name of 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 (e
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.
__________________________
Xxxxxx Xxxx Xx. Vice Pres.
__________________________
Xxxxx Xxxxxx Secretary
__________________________
Xxxxxx Xxxxxxxx Asst. Sec.
__________________________
Xxxx Xxxxx Asst. Sec.
__________________________
Xxxxxx X. Xxxxxx Asst. Sec.
__________________________
Xxxxxxx X. Bally Asst. Sec.
__________________________
Xxxxx Xxxxxxx Vice President
__________________________
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
8th day of March, 1996.
_________________________________
Secretary
Residential Funding Corporation
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx Xxxxx. XX 00000
510-935-0614
February 29, 1996
Monument Mortgage, Inc.
0000 Xxxxxx Xxxxxx #000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, SVP/CFO
Re: Gestation Warehousing Credit and Security Agreement (Shipped
Mortgage
Loans) dated March 22, 1995 (the "Gestation Agreement"), by and
between
MONUMENT MORTGAGE, INC., a California corporation (the "Company"),
and
RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender"),
as the same may be or has been amended or supplemented.
Gentlemen:
Reference is hereby made to the Gestation Agreement. The
capitalized
terms used herein shall have the same meaning defined in the Gestation
Agreement
unless otherwise defined herein.
The Company has requested the Lender to increase the maximum
amount of
the Advances that may be outstanding at any time under the Agreement
from Ten
Million Dollars ($10,000,000) to Twenty-Five Million Dollars
($25,000,000).
Accordingly, enclosed please find a First Amended and Restated Promissory
Note
in the amount of Twenty-Five Million Dollars ($25,000,000) in favor
of the
Lender to be executed by the Company (the "Promissory Note"). The
increase
described above does not limit the Lender's discretion to make or not to
make
Advances, as set forth in the Gestation Agreement.
This increase shall be effective on the earliest day upon
which the
Company has delivered to the Lender an executed copy of the enclosed
Promissory
Note, together with a copy of this letter acknowledged and accepted
by the
Company.
Very truly yours,
RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:_________________________________
Its: Director
ACCEPTED AND AGREED TO THIS
29th DAY OF FEBRUARY 1996:
MONUMENT MORTGAGE, INC.,
a California Corporation
By:______________________________
Xxxx X. Xxxxxxxxx
Its: Senior VP / Chief Financial Officer
FIRST AMENDED AND RESTATED PROMISSORY NOTE
$25,000,000 Date: February 29, 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 Twenty-Five Million
Dollars
($25,000,000) 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 gestation warehouse
facility
in the above amount and is the Note referred to in that certain
Gestation
Warehousing Credit and Security Agreement (Shipped Mortgage Loans)
(the
"Agreement") dated 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 Promissory Note dated March 23, 1995, 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:
Xxxx X. Xxxxxxxxx
Its: Senior VP / Chief Financial
Officer
STATE OF )
) ss
COUNTY OF )
On March 8, 1996, before me, a Notary Public, personally appeared
Xxxx
X. Xxxxxxxxx, the Senior VP CFO of MONUMENT MORTGAGE, INC., a
California
corporation, personally known to me (or proved to me on the
basis of
satisfactory evidence) to be the person whose name is subscribed to the
within
instrument and acknowledged to me that he/she executed the same in
his/her
authorized capacity, and that by his/her signature on the instrument the
person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public_____________________
My Commission Expires:____________
(SEAL)
Residential Funding Corporation1646 Xxxxx Xxxxxxxxxx XxxxxxxxxXxxxx
000Xxxxxx Xxxxx. XX 00000 510-935-0614
February 29, 1996
Monument Mortgage, Inc.
0000 Xxxxxx Xxxxxx #000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, SVP/CFO
Re: Gestation Warehousing Credit and Security Agreement (Shipped
Mortgage
Loans) dated March 22, 1995 (the "Gestation Agreement"), by and
between
MONUMENT MORTGAGE, INC., a California corporation (the "Company"),
and
RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender"),
as the same may be or has been amended or supplemented.
Gentlemen:
Reference is hereby made to the Gestation Agreement. The capitalized
terms
used herein shall have the same meaning defined in the Gestation
Agreement
unless otherwise defined herein.
The Company has requested the Lender to increase the maximum amount
of the
Advances that may be outstanding at any time under the Agreement
from Ten
Million Dollars ($10,000,000) to Twenty-Five Million Dollars
($25,000,000).
Accordingly, enclosed please find a First Amended and Restated Promissory
Note
in the amount of Twenty-Five Million Dollars ($25,000,000) in favor
of the
Lender to be executed by the Company (the "Promissory Note"). The
increase
described above does not limit the Lender's discretion to make or not to
make
Advances, as set forth in the Gestation Agreement.
This increase shall be effective on the earliest day upon which the
Company
has delivered to the Lender an executed copy of the enclosed Promissory
Note,
together with a copy of this letter acknowledged and accepted by the
Company.
Very truly yours,
RESIDENTIAL.FUNDING
CQRPORATION,
a Delaware corporation
By:
------------------------------
---
Its: Director
ACCEPTED AND AGREED TO THIS
29th DAY OF FEBRUARY 1996:
MONUMENT MORTGAGE, INC.,
a California corporation
By:
------------------------------------
Xxxx X. Xxxxxxxxx
Its: Senior VP / Chief Financial Officer
FIRST AMENDED AND RESTATED PROMISSORY NOTE
Date: February 29, 1996
$25,000,000
FOR VALUE RECEIVED, the undersigned, MONUMENT MORTGAGE, INC., a
California
corporation, (herein called the "Company"), hereby promises to pay to the
order
of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender" or,
together with its successors and assigns, the "Holder") whose principal
place of
business is 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000,
or at such other place as the Holder may designate from time to time,
the
principal sum of Twenty-Five Million Dollars ($25,000,000) 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 gestation warehouse
facility in
the above amount and is the Note referred to in that certain
Gestation
Warehousing Credit and Security Agreement (Shipped Mortgage Loans)
(the
"Agreement") dated 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 Promissory Note dated March 23, 1995, 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:
-----------------------------------
---
Xxxx X. Xxxxxxxxx
Its: Senior VP/Chief Financial
Officer
STATE OF California )
) ss
COUNTY OF Contra Costa )
On March 8 , 1996, before me, a Notary Public personally appeared
Xxxx X.
Xxxxxxxxx , the Senior VP CFO of MONUMENT MORTGAGE, INC., a
California
corporation, personally known to me (or proved to me on the
basis of
satisfactory evidence) to be the person whose name is subscribed to the
within
instrument and acknowledged to me that he/she executed the same in
his/her
authorized capacity, and that by his/her signature on the instrument the
person,
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
--------------------------------
----
Notary Public
My Commission Expires:
----------------
---
(SEAL)
