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Exhibit 10.1
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FOURTH AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
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THIS FOURTH AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND
SECURITY AGREEMENT (this "Amendment") is entered into as of this 14th day of
July, 2000, by and between MONUMENT MORTGAGE, INC., a California corporation
(the "Company") and RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (the
"Lender").
WHEREAS, the Company and the Lender have entered into a single family revolving
warehouse facility with a present Commitment Amount of $75,000,000, to finance
the origination and acquisition of Mortgage Loans as evidenced by a Promissory
Note in the principal sum of $75,000,000, dated as of August 9, 1999 (the
"Note"), and by a First Amended and Restated Warehousing Credit and Security
Agreement dated as of August 9, 1999, as the same may have been amended or
supplemented (the "Agreement");
WHEREAS, the Company has requested that the Lender extend the period for which
the Commitment under the Agreement has been made, and amend certain other terms
of the Agreement, and the Lender has agreed to such extension and amendment
subject to the terms and conditions of this Amendment; and
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual
covenants, agreements and conditions hereinafter set forth and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The effective date ("Effective Date") of this Amendment shall be July 16,
2000.
2. All capitalized terms used herein and not otherwise defined shall have their
respective meanings set forth in the Agreement.
3. All references to "The First National Bank of Chicago" are amended to refer
to "Bank One, NA."
4. Section 1.1 of the Agreement is amended by deleting the following definitions
in their entirety and replacing them with the following definitions:
"ELECTRONIC ADVANCE REQUEST" means an electronic transmission through
RFConnects Delivery containing the same information as EXHIBIT C-SF to this
Agreement, together with the RFConnects Pledge Agreement, duly executed by
the Company, and a list of the Mortgage Loans (including mortgagor's name,
loan number and loan amount) to be funded with the Advance sent to the Lender
by facsimile.
"MATURITY DATE" shall mean the earlier of: (a) the close of business on
October 15, 2000 as such date may be extended from time to time in writing by
the Lender, in its sole discretion, on which date the Commitment shall expire
of its own term, and without the necessity of action by the Lender, and (b)
the date the Advances become due and payable pursuant to Section 8.1 below.
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"WET SETTLEMENT ADVANCE" means with respect to any Advance, the time from the
date the Advance is made until the date of the Lender's receipt of the
Collateral Documents as provided in Section 2.2(b) and the Exhibit referenced
therein.
5. Section 2.4(b) of the Agreement is deleted in its entirety and the following
is substituted in lieu thereof:
Provided no Default or Event of Default exists, the Company is entitled
to receive a benefit in the form of an "Earnings Credit" on the portion of
the Eligible Balances maintained in time deposit accounts with a Designated
Bank, and the Company is entitled to receive a benefit in the form of an
"Earnings Allowance" on the portion of the Eligible Balances maintained in
demand deposit accounts with a Designated Bank. Any Earnings Allowance shall
be used first and any Earnings Credit shall be used second as a credit
against accrued Designated Bank Charges, any other Miscellaneous Charges and
fees, including, but not limited to Commitment Fees and Warehousing Fees, and
may be used, at the Lender's option, to reduce accrued interest. Any Earnings
Allowance not used during the month in which the benefit was received shall
be accumulated for use and must be used within 6 months of the month in which
the benefit was received. Provided no Default or Event of Default exists, 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. Any Earnings Credit
retained by the Lender as a result of a Default or Event of Default will be
applied to the payment of the Company's Obligations in such order as the
Lender will determine in its sole discretion. The Lender's determination of
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. No Notice is
required for a termination of benefits as a result of a Default or Event of
Default.
6. Section 3.3 of the Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
3.3 DELIVERY OF ADDITIONAL COLLATERAL OR MANDATORY PREPAYMENT. At any
time that the aggregate Collateral Value of the Collateral then pledged
hereunder is less than the aggregate amount of the Advances then outstanding
hereunder, the Lender may request, and the Company shall within 2 Business
Days after Notice by the Lender (a) deliver to the Lender for pledge
hereunder additional Collateral with a Collateral Value sufficient to cover
the difference between the Collateral Value of the Collateral pledged and the
aggregate amount of Advances outstanding hereunder, and/or (b) repay the
Advances in an amount sufficient to reduce the aggregate balance thereof
outstanding to or below the Collateral Value of the Collateral pledged
hereunder.
7. Section 5.17 of the Agreement shall be deleted in its entirety and the
following shall be substituted in lieu thereof:
5.17 YEAR 2000 COMPLIANCE. The Company has conducted a comprehensive
review and assessment of the Company's computer applications and made inquiry
of the
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Company's key suppliers, vendors, customers, and Investors with respect to
the Year 2000 Problem and based on that review and inquiry, the Company
represents and warrants that the Year 2000 Problem has not resulted in and
will not result in a material adverse change in the Company's business
condition (financial or otherwise), operations, properties or prospects, or
ability to repay the credit.
8. Section 7.9 of the Agreement is deleted in its entirety and the following is
substituted in lieu thereof:
7.9 [INTENTIONALLY OMITTED].
9. Sections 8.1(f) and 8.1(g) of the Agreement shall be deleted in their
entirety and the following shall be substituted in lieu thereof:
8.1(f) (1) An involuntary case is filed against the Company or any
Subsidiary or any Guarantor under any applicable bankruptcy, insolvency or
other similar federal or state law and is not dismissed or the order for
relief stayed within 60 days after the date of filing; or (2) a court of
competent jurisdiction appoints a receiver (interim or permanent),
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over the Company or any Subsidiary or any Guarantor, or over all or a
substantial part of their respective properties; or
8.1(g) (1) The Company or any Subsidiary or any Guarantor commences a
voluntary case, under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect; or (2) the Company or any Subsidiary or any
Guarantor consents to the entry of an order for relief or similar
adjudication in an involuntary case, or requests or consents to the
conversion to an involuntary case under any of those laws; or (3) the Company
or any Subsidiary or any Guarantor consents to the appointment of or
possession by a receiver (interim or permanent), liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the Company or
any Subsidiary or any Guarantor, or over all or a substantial part of their
respective properties; or (4) the Company or any Subsidiary or any Guarantor
makes an assignment for the benefit of creditors; or (5) the Company or any
Subsidiary or any Guarantor fails, or admits in writing its inability, to pay
its debts as those debts become due; or
10. Section 8.1(u) of the Agreement is deleted in its entirety.
11. Upon execution of this Amendment, the Company agrees to pay to the Lender
the pro rata Commitment Fee on the Commitment Amount for the time period from
the Effective Date to and including September 30, 2000.
12. EXHIBIT I-SF to the Agreement is deleted in its entirety and replaced with
the new EXHIBIT I-SF attached to this Amendment. All references in this
Amendment and the Agreement to EXHIBIT I-SF shall be deemed to refer to the new
EXHIBIT I-SF.
13. EXHIBIT M to the Agreement is hereby deleted in its entirety and replaced
with the new EXHIBIT M attached to this Amendment. All references in the
Agreement to EXHIBIT M shall be deemed to refer to the new EXHIBIT M.
14. EXHIBIT N to the Agreement is hereby deleted in its entirety and replaced
with the new EXHIBIT N attached to this Amendment. All references in the
Agreement to EXHIBIT N shall be deemed to refer to the new EXHIBIT N.
15. The Company must deliver to the Lender (a) an executed original of this
Amendment; (b) an executed Certificate of Secretary with corporate resolutions;
(d) a current certified tax lien and
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judgment search of the appropriate public records for the Company and the
Guarantor, including a search of Uniform Commercial Code financing statements,
which search shall not have disclosed the existence of any prior Lien on the
Collateral other than in favor of the Lender or as permitted hereunder; (e)
current Certificates of Good Standing of the Company; (f) current insurance
information; (g) the Commitment Fee from the Effective Date through September
30, 2000; and (h) a $750 document production fee.
16. 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 material 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.
17. Except as hereby expressly modified, the Agreement is otherwise unchanged
and remains in full force and effect, and the Company ratifies and reaffirms all
of its obligations thereunder.
18. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Lender have caused this Amendment to be
duly executed on their behalf by their duly authorized officers as of the day
and year above written.
MONUMENT MORTGAGE, INC.,
a California corporation
By:
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Its:
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RESIDENTIAL FUNDING CORPORATION,
a Delaware corporation
By:
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Its:
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STATE OF _____________ )
) ss.
COUNTY OF ____________ )
On, _____________________________, 2000 before me, a Notary Public, personally
appeared ___________________________________ the
___________________________________ of MONUMENT MORTGAGE, INC., a California
corporation personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________________
Notary Public
(seal)
(SEAL) My Commission Expires: __________
STATE OF _____________ )
) ss.
COUNTY OF ____________ )
On, _____________________________, 2000 before me, a Notary Public, personally
appeared ___________________________________ the _______________________________
of RESIDENTIAL FUNDING CORPORATION, a Delaware corporation, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity, and that by his/her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
__________________________________________
Notary Public
(seal)
(SEAL) My Commission Expires: __________
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CONSENT OF GUARANTOR
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The undersigned, being the Guarantor under the Guaranty dated as of August 9,
1999, hereby consents to the foregoing Amendment and the transactions
contemplated thereby and hereby modifies and reaffirms his obligations under his
Guaranty so as to include within the term "Guaranteed Debt" the indebtedness,
obligations and liabilities of the Company under this Amendment and the Note.
The Guarantor hereby reaffirms that his obligations under his Guaranty are
separate and distinct from the Company's obligations to Lender, and that his
obligations under the Guaranty are in full force and effect, and hereby waives
and agrees not to assert any anti-deficiency protections or other rights as a
defense to his obligations under the Guaranty, all as more fully set forth in
the Guaranty, the terms of which are incorporated herein as if fully set forth
herein.
The Guarantor hereby irrevocably waives any claim or other rights that the
Guarantor may now have or hereafter acquire against the Company that arises from
the existence, payment, performance or enforcement of the Guarantor's
obligations hereunder, including any right of subrogation, reimbursement,
exoneration, contribution or indemnification and 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 right, until the Guaranteed Debt has been paid and performed in
full. If any amount shall be paid to the Guarantor in violation of the preceding
sentence, such amount shall be deemed to have been paid to the Guarantor 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. In addition, to the extent permitted by law, the Guarantor
irrevocably releases and waives any such subrogation rights or rights of
reimbursement, exoneration, contribution or indemnity if and to the extent any
such right or rights would give rise to a claim under the U.S. Bankruptcy Code
that payments or transfers to the Lender with respect to the Guaranteed Debt
constitute a preference in favor of the Guarantor or a claim under the U.S.
Bankruptcy Code that the preference is recoverable from the Lender.
The Guarantor further agrees, upon Lender's request, to execute for the benefit
of Lender an additional guaranty in form and content acceptable to Lender and
conforming to the Guaranty in connection with the foregoing Amendment.
FiNET.COM, INC.,
a Delaware corporation
By: ____________________________________
Its: ___________________________________
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STATE OF _____________ )
) ss.
COUNTY OF ____________ )
On ___________________, 2000 before me, a Notary Public, personally appeared
______________________ the _________________ of FiNET.COM, INC., a Delaware
corporation, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument
the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
__________________________________________
Notary Public
(seal)
(SEAL) My Commission Expires: __________
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