EXHIBIT 10(z)
SECOND AMENDED AND RESTATED LOAN AGREEMENT
By and Among:
PULTE FUNDING, INC.
As Borrower,
ATLANTIC ASSET SECURITIZATION LLC
As an Issuer,
JUPITER SECURITIZATION CORPORATION
As an Issuer,
LA FAYETTE ASSET SECURITIZATION LLC
As an Issuer,
CALYON NEW YORK BRANCH
As the Administrative Agent,
as a Bank and as a Managing Agent,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
As a Bank and as a Managing Agent,
LLOYDS TSB BANK PLC
As a Bank,
and
PULTE MORTGAGE LLC
As the Servicer
Dated as of August 19, 2005
TABLE OF CONTENTS
PAGE
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ARTICLE I GENERAL TERMS................................................. 2
1.1. Certain Definitions............................................ 2
1.2. Other Definitional Provisions.................................. 31
ARTICLE II AMOUNT AND TERMS OF COMMITMENT............................... 32
2.1. Maximum Facility Amount........................................ 32
2.2. Promissory Notes............................................... 33
2.3. Notice and Manner of Obtaining Borrowings...................... 33
2.4. Fees........................................................... 36
2.5. Prepayments.................................................... 36
2.6. Business Days.................................................. 36
2.7. Payment Procedures............................................. 36
2.8. The Reserve Account............................................ 40
2.9. Interest Allocations........................................... 41
2.10. Interest Rates................................................. 42
2.11. Quotation of Rates............................................. 42
2.12. Default Rate................................................... 42
2.13. Interest Recapture............................................. 42
2.14. Interest Calculations.......................................... 42
2.15. Interest Period................................................ 43
2.16. Additional Costs............................................... 44
2.17. Additional Interest on Advances Bearing a Eurodollar Rate...... 45
2.18. Consequential Loss............................................. 46
2.19. Replacement Banks.............................................. 46
ARTICLE III COLLATERAL.................................................. 46
3.1. Collateral..................................................... 46
3.2. Delivery of Collateral to Collateral Agent..................... 47
3.3. Redemption of Mortgage Collateral.............................. 49
3.4. Correction of Mortgage Notes................................... 51
3.5. Collateral Reporting........................................... 52
3.6. Hedge Reports.................................................. 52
3.7. [RESERVED]..................................................... 52
3.8. Servicer Monthly Reporting..................................... 52
3.9. Servicer Annual Pipeline Reporting............................. 52
3.10. Servicer Periodic Reporting.................................... 52
ARTICLE IV CONDITIONS PRECEDENT......................................... 53
4.1. Initial Borrowing............................................. 53
4.2. All Borrowings................................................ 54
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ARTICLE V REPRESENTATIONS AND WARRANTIES....................................... 55
5.1. Representations of the Borrower and the Servicer.............. 55
5.2. Additional Representations of the Borrower.................... 58
5.3. Additional Representations and Warranties of the Servicer..... 60
5.4. Survival of Representations................................... 61
ARTICLE VI AFFIRMATIVE COVENANTS............................................... 61
6.1. Financial Statements and Reports.............................. 61
6.2. Taxes and Other Liens......................................... 63
6.3. Maintenance................................................... 64
6.4. Further Assurances............................................ 64
6.5. Compliance with Laws.......................................... 64
6.6. Insurance..................................................... 64
6.7. Accounts and Records.......................................... 65
6.8. Right of Inspection........................................... 65
6.9. Notice of Certain Events...................................... 65
6.10. Performance of Certain Obligations............................ 66
6.11. Use of Proceeds; Margin Stock................................. 66
6.12. Notice of Default............................................. 67
6.13. Compliance with Transaction Documents......................... 67
6.14. Compliance with Material Agreements........................... 67
6.15. Operations and Properties..................................... 67
6.16. Performance Guarantor Credit Rating........................... 67
6.17. Take-Out Commitments.......................................... 67
6.18. Collateral Proceeds........................................... 68
6.19. Environmental Compliance...................................... 68
6.20. Closing Instructions.......................................... 68
6.21. Special Affirmative Covenants Concerning Collateral........... 68
6.22. Corporate Separateness........................................ 69
ARTICLE VII NEGATIVE COVENANTS................................................. 70
7.1. Limitations on Mergers and Acquisitions....................... 70
7.2. Fiscal Year................................................... 70
7.3. Business...................................................... 71
7.4. Use of Proceeds............................................... 71
7.5. Actions with Respect to Collateral............................ 71
7.6. Liens......................................................... 72
7.7. Employee Benefit Plans........................................ 72
7.8. Change of Principal Office or Jurisdiction.................... 72
7.9. No Commercial, A&D, Etc. Loans................................ 72
7.10. Maximum Leverage.............................................. 72
7.11. Indebtedness.................................................. 72
7.12. Deposits to Collection Account................................ 72
7.13. Transaction Documents......................................... 73
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7.14. Distributions, Etc. ........................... 73
7.15. Charter........................................ 73
ARTICLE VIII EVENTS OF DEFAULT............................................ 73
8.1. Nature of Event................................ 73
8.2. Default Remedies............................... 78
8.3. Paydowns....................................... 79
8.4. Waivers of Notice, Etc. ....................... 79
ARTICLE IX THE ADMINISTRATIVE AGENT..................................... 80
9.1. Authorization.................................. 80
9.2. Reliance by Administrative Agent............... 80
9.3. Administrative Agent and Affiliates............ 81
9.4. Lender Decision................................ 81
9.5. Rights of the Administrative Agent............. 81
9.6. Indemnification of Administrative Agent........ 81
9.7. UCC Filings.................................... 82
ARTICLE X INDEMNIFICATION.............................................. 82
10.1. Indemnities by the Borrower.................... 82
10.2. Contribution................................... 82
ARTICLE XI ADMINISTRATION AND COLLECTION OF MORTGAGE LOANS.............. 82
11.1. Designation of Servicer........................ 82
11.2. Duties of Servicer............................. 83
11.3. Certain Rights of the Administrative Agent..... 83
11.4. Rights and Remedies............................ 84
11.5. Indemnities by the Servicer.................... 84
ARTICLE XII THE MANAGING AGENTS.......................................... 86
12.1. Authorization.................................. 86
12.2. Reliance by Agent.............................. 86
12.3. Agent and Affiliates........................... 87
12.4. Notices........................................ 87
12.5. Lender Decision................................ 87
ARTICLE XIII MISCELLANEOUS................................................ 87
13.1. Notices........................................ 87
13.2. Amendments, Etc. .............................. 90
13.3. Invalidity..................................... 91
13.4. Restrictions on Informal Amendments............ 91
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13.5. Cumulative Rights....................................... 91
13.6. Construction; Governing Law............................. 92
13.7. Interest................................................ 92
13.8. Right of Offset......................................... 92
13.9. Successors and Assigns.................................. 93
13.10. Survival of Termination................................. 95
13.11. Exhibits................................................ 95
13.12. Titles of Articles, Sections and Subsections............ 95
13.13. Counterparts............................................ 95
13.14. No Proceedings.......................................... 95
13.15. Confidentiality......................................... 96
13.16. Recourse Against Directors, Managers, Officers, Etc..... 96
13.17. Waiver of Jury Trial.................................... 96
13.18. Consent to Jurisdiction; Waiver of Immunities........... 97
13.19. Costs, Expenses and Taxes............................... 97
13.20. Entire Second Restated Loan Agreement................... 98
13.21. Excess Funds............................................ 98
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SCHEDULES AND EXHIBITS
Schedule I Bank Commitments Percentages
Schedule II Approved Investors
Schedule III UCC Search
Schedule IV Litigation
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Amended and Restated Subordination Agreement
Exhibit C Form of Borrowing Request
Exhibit D Form of Second Amended and Restated Collateral Agency Agreement
Exhibit D-1 Definitions - Section 1
Exhibit D-2 Form of Security Agreement - Section 3.1(a)
Exhibit D-3 Form of Amended and Restated Assignment of Account - Section
3.1(b)
Exhibit D-4 Form of Assignment - Section 3.1(c) and Section 3.2(a)
Exhibit D-5 Form of Transfer Request
Exhibit D-5A(a) Form of Shipping Request (Conforming Loans)
Exhibit D-5A(b) Form of Shipping Request (Non-Conforming Loans)
Exhibit D-6(a) Form of Bailee and Security Agreement Letter - Section
3.4(b)(i)
Exhibit D-6(b) Form of Bailee and Security Agreement Letter for Pool
Custodian Section 3.4(b)(i)
Exhibit D-7 Form of Trust Receipt and Security Agreement for Approved
Investors - Section 3.5
Exhibit D-8 Form of Collateral Agent Daily Report - Section 3.8(a)
Exhibit D-9 [Reserved]
Exhibit D-10 UCC Financing Statements - Section 3.1(d)
Exhibit D-11 [Reserved]
Exhibit D-12 Form of Assignment of Trade
Exhibit D-13 Form of Substitution Assignment
Exhibit E Form of Promissory Note
Exhibit F Form of Servicer Monthly Report
Exhibit G-1 Form of Amended and Restated Servicer Performance Guaranty
Exhibit G-2 Form of Amended and Restated Originator Performance Guaranty
Exhibit H-1 Form of Pulte Mortgage Quarterly Officer's Certificate
Exhibit H-2 Form of Borrower's Quarterly Officer's Certificate
Exhibit I-1 Form of Opinion of Counsel to Borrower on Corporate Matters
Exhibit I-2 Form of Opinion of Counsel to Borrower and Originator on
Security Interest Matters
Exhibit J Form of Opinion of Counsel to Originator on Bankruptcy Matters
Exhibit K Form of Hedge Report
Exhibit L [Reserved]
Exhibit M Form of Servicer Periodic Report
Exhibit N Form of Reserve Account Control Agreement
Exhibit O Form of Collection and Paying Agreement
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
Dated as of August 19, 2005
THIS SECOND AMENDED AND RESTATED LOAN AGREEMENT (this "Second
Restated Loan Agreement"), among PULTE FUNDING, INC., a Michigan corporation
(hereinafter, together with its successors and assigns, the "Borrower"), as the
Borrower, ATLANTIC ASSET SECURITIZATION LLC, a Delaware limited liability
company (hereinafter, together with its successors and assigns, "Atlantic"), as
an Issuer, JUPITER SECURITIZATION CORPORATION, a Delaware corporation
(hereinafter, together with its successors and assigns, "Jupiter"), as an
Issuer, LA FAYETTE ASSET SECURITIZATION LLC, as an Issuer ("La Fayette"), CALYON
NEW YORK BRANCH ("Calyon New York"), as a Bank, as the Administrative Agent and
as a Managing Agent, JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national bank
(hereinafter, together with its successors and assigns, "JPMorgan"), as a Bank
and as a Managing Agent, LLOYDS TSB BANK PLC, a banking corporation organized
under the laws of England (hereinafter, together with its successors and
assigns, "Lloyds"), as a Bank, and PULTE MORTGAGE LLC, a limited liability
company (hereinafter, together with its successors and assigns, "Pulte
Mortgage"), as Servicer.
RECITALS
1. Capitalized terms used in these Recitals and not defined in the
preamble above have the meanings set forth in Article I.
2. The Borrower, Atlantic as an Issuer, Jupiter as an Issuer, Calyon
as a Bank, a Managing Agent and as the Administrative Agent, Lloyds as a Bank,
JPMorgan as a Bank and as a Managing Agent, and the Servicer have entered into
that certain Amended and Restated Loan Agreement dated as of August 23, 2002, as
further amended by the First Omnibus Amendment dated December 21, 2002, the
Second Omnibus Amendment dated August 25, 2003, the Third Omnibus Amendment
dated September 30, 2003 and the Fourth Omnibus Amendment dated September 20,
2004 (the "Original Loan Agreement").
3. The Borrower, Atlantic as an Issuer, Jupiter as an Issuer, Calyon
as a Bank, a Managing Agent and as the Administrative Agent, Lloyds as a Bank,
JPMorgan as a Bank and as a Managing Agent, and the Servicer now wish to amend
and restate the Original Loan Agreement in order to add La Fayette as a party
thereto, and to amend certain other provisions thereof.
4. The Originator is engaged in the business of originating,
acquiring, investing in, marketing and selling, for its own account, mortgage
loans that are made either to finance the purchase of one- to four-family
owner-occupied homes or to refinance loans secured by such properties.
5. The Borrower has purchased, and may continue to purchase,
Eligible Mortgage Loans from the Originator, as determined from time to time by
the Borrower and the Originator.
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6. In order to finance such purchases, the Borrower has requested
that the Lenders provide the Borrower with credit in the form of revolving loans
on the terms and conditions set forth herein.
7. The Issuers may, in their sole discretion, and the Banks shall,
in each case subject to the terms and conditions contained in this Second
Restated Loan Agreement, make Advances to the Borrower secured by a lien on, and
security interest in, the Mortgage Loans and certain other Collateral.
8. The Lenders have appointed the Administrative Agent as their
agent to perform certain administrative duties for the Lenders including, among
other things, the administration of the funding of the transactions hereunder
and the making of certain determinations hereunder and in connection herewith.
AGREEMENTS
In consideration of the recitals and the representations,
warranties, conditions, covenants and agreements made in this Second Restated
Loan Agreement, the sufficiency of which are acknowledged by all parties hereto,
the Borrower, the Lenders, the Servicer, the Managing Agents and the
Administrative Agent, intending to be legally bound, have established and hereby
amend and restate the provisions of the Original Loan Agreement. Accordingly,
the Borrower, the Lenders, the Administrative Agent, the Managing Agents and the
Servicer covenant and agree as follows:
ARTICLE I
GENERAL TERMS
1.1. Certain Definitions.
As used in this Second Restated Loan Agreement, the following terms
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"ABR Allocation" is defined in Section 2.9.
"Adjusted Liabilities" means, with respect to the Originator,
without duplication, and at any time, the sum of (a) all amounts that
should be reflected as liabilities on its balance sheet, plus (b) its
total direct and indirect guaranty and other obligations in respect of
borrowed money Indebtedness of others (calculated at the maximum amount of
those obligations that is stated in the relevant documents or, if not so
stated, that may reasonably be anticipated in good faith) plus (c) to the
extent not already included in clause (a) above, its total funding
obligations to originate or acquire Mortgage Loans that, in either case,
are closed but not funded, minus (d) its total trade payables and accrued
expenses incurred in the ordinary course of its business but unrelated to
originating or acquiring any specific Mortgage Loan (including, without
limitation, trade payables and accrued expenses owed to its Affiliates but
excluding advances by its Affiliates and
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interest on those advances), minus (e) the Originator's total
deferred-federal-income tax liabilities.
"Adjusted Net Worth" means, for the Originator, without duplication,
and at any time, the sum of (a) its members' equity reflected on its
balance sheet, plus (b) the remainder of (A) the income that Originator
has deferred, for accounting purposes, pending the sale of Mortgage Loans
in accordance with Statement of Financial Accounting Standards Number 91
and Number 122, as each is published by the Financial Accounting Standards
Board as of the date of this Second Restated Loan Agreement, minus (B)
reasonable reserves for the federal income tax liabilities related to that
deferred income.
"Administrative Agent" means Calyon New York, in its capacity as
administrative agent for the Lenders, or any successor administrative
agent.
"Administrative Agent's Account" means, the special account (account
number 01-88485-3701-00-001, ABA No. ▇▇▇▇▇▇▇▇▇) of Calyon New York
maintained at the office of Calyon New York Branch at 1301 Avenue of the
Americas, New York, New York.
"Advance" means with respect to any Lender any amount disbursed by
such Lender to the Borrower pursuant to Section 2.1 (or any conversion or
continuation thereof).
"Advance Rate" means (i) with respect to a Conforming Loan or a
Jumbo Loan (other than a Super Jumbo Loan), ninety-eight percent (98%),
(ii) with respect to an Alt-A Loan, ninety-seven percent (97%), or, if a
FICO Score Trigger Event has occurred and is continuing, as reported to
the Collateral Agent by the Servicer in the most recent Servicer Monthly
Report, then zero, (iii) with respect to a Second Lien Loan or a Super
Jumbo Loan, ninety-five percent (95%) and (iv) with respect to a Subprime
Loan, ninety percent (90%).
"Affected Party" means each Lender, the Administrative Agent, each
Managing Agent, any bank party to a Liquidity Agreement and any permitted
assignee or participant of any such bank, and any holding company of an
Affected Party.
"Affiliate" of any Person means (a) any other Person that, directly
or indirectly, controls, is controlled by, or is under common control
with, such Person, or (b) any other Person who is a director, manager,
officer or employee (i) of such Person, or (ii) of any Person described in
the preceding clause (a). For purposes of this definition, the term
"control" (and the terms "controlled by" and "under common control with"),
as used with respect to any Person, shall mean the possession or
ownership, directly or indirectly, of the power either (x) to direct or
cause the direction of the management and policies of such Person, whether
by contract or otherwise, or (y) vote 10% or more of the securities having
ordinary power in the election of directors or managers of such Person.
"Agent" means each of the Administrative Agent and the Managing
Agents.
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"Alt-A Loan" means a Mortgage Loan (other than a Conforming Loan or
a Jumbo Loan) that (1) does not conform to the conventional underwriting
standards of ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae but that is
underwritten to Approved Investor guidelines (other than ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇), within guidelines generally acceptable to
industry norms for "Alt-A" loans, (2) has a demonstrated secondary market
and are readily securitizable, (3) matches all applicable requirements for
purchase under the requirements of a Take-Out Commitment specifically
issued for the purchase of such Mortgage Loan, and (4) is a First Lien
Mortgage Loan.
"Alternate Base Rate" means:
(i) for the Calyon New York Group, on any date, a fluctuating rate
of interest per annum equal to the higher of:
(a) the rate of interest most recently announced by Calyon
New York as its base rate; and
(b) the Federal Funds Rate (as defined below) most recently
determined by the Administrative Agent plus 1.0% per annum; and
(ii) for the JPMorgan Group, on any date, a fluctuating rate of
interest per annum equal to the higher of:
(a) a rate per annum equal to the prime rate of interest
announced from time to time by JPMorgan or its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as
said prime rate changes; and
(b) the Federal Funds Rate (as defined below) most recently
determined by JPMorgan plus 1.0% per annum.
For purposes of this definition, "Federal Funds Rate" means, for any
period, a fluctuating interest rate per annum equal (for each day during
such period) to (i) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York; or (ii) if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it. The Alternate Base
Rate is not necessarily intended to be the lowest rate of interest
determined by Calyon New York in connection with extensions of credit.
"Annual Extension Date" shall mean (i) August 18, 2006, and (ii)
thereafter, if consented to by the Lenders, the Managing Agents and the
Administrative Agent pursuant to Section 2.1(b), the date that is
specified by the Lenders, the Managing Agents and the Administrative Agent
in the applicable consent, which date shall not be more than 364 days
following the then effective Annual Extension Date.
"Approved Investor" means:
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(a) ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae, or
(b) any Person with short-term ratings of at least A-1, P-1 and F1
from S&P, ▇▇▇▇▇'▇ and Fitch, respectively, or long-term unsecured debt
ratings (or in the case of a bank without such ratings that is the
principal subsidiary of a bank holding company, the rating of the bank
holding company) of at least AA, Aa2 and AA from S&P, ▇▇▇▇▇'▇, and Fitch,
respectively, or
(c) all other Persons as may be approved by the Managing Agents,
which approvals may be subject to certain concentration limits but may not
be unreasonably withheld or delayed;
provided that (i) if an Approved Investor has a short-term rating or a
long-term unsecured debt rating at the time such Person first becomes an
"Approved Investor" and such Person's short-term ratings or long-term
unsecured debt ratings are subsequently downgraded or withdrawn, such
Person shall cease to be an "Approved Investor"; provided, further, that
with respect to any Take-Out Commitments issued by such Person prior to
the date of such downgrade or withdrawal, such Person shall cease to be an
"Approved Investor" 60 days following such downgrade or withdrawal; and
(ii) if an Approved Investor does not have a short-term rating or a
long-term unsecured debt rating, such Person shall cease to be an
"Approved Investor" upon prior written notice from either Managing Agent
if such Managing Agent has good faith concerns about the future
performance of such Person; provided, further, that with respect to any
Take-Out Commitments issued by such Person prior to such notice, such
Person shall cease to be an "Approved Investor" 60 days following such
notice.
As of the date of this Second Restated Loan Agreement, Schedule II
hereto sets forth the Approved Investors pursuant to the preceding clauses
(b) and (c) (and any applicable concentration limits). Schedule II shall
be updated from time to time as Approved Investors are added or deleted or
concentration limits are changed pursuant to the preceding clauses (b) and
(c).
"Assignment" is defined in the Second Restated Collateral Agency
Agreement.
"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Bank, an Eligible Assignee and the
Administrative Agent, pursuant to which such Eligible Assignee may become
a party to this Second Restated Loan Agreement, in substantially the form
of Exhibit A hereto.
"Atlantic" has the meaning set forth in the preamble to this Second
Restated Loan Agreement.
"Atlantic Program Agent" means Calyon New York, in its capacity as
the collateral agent pursuant to a security agreement made by Atlantic for
the benefit of certain creditors of Atlantic, and any successor to Calyon
New York in such capacity.
"Availability" means, at the time determined, the Maximum Facility
Amount minus the Principal Debt owed to the Lenders.
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"Available Collateral Value" means, at the time determined, the
excess of the Collateral Value of all Eligible Mortgage Collateral over
the Principal Debt.
"Bailee and Security Agreement Letter" is defined in Section
3.4(b)(i) of the Second Restated Collateral Agency Agreement.
"Bank" means each of Calyon New York, JPMorgan, and Lloyds and each
respective Eligible Assignee that shall become a party to the Second
Restated Loan Agreement pursuant to an Assignment and Acceptance.
"Bank Commitment" means (a) with respect to Calyon New York, Lloyds
and JPMorgan, in its capacity as a Bank, the amount set forth on Schedule
I hereto, and (b) with respect to a Bank that has entered into an
Assignment and Acceptance, the amount set forth therein as such Bank's
Bank Commitment, in each case as such amount may be reduced by each
Assignment and Acceptance entered into between such Bank and an Eligible
Assignee, and as may be further reduced (or terminated) pursuant to the
next sentence. Any reduction (or termination) of the Maximum Facility
Amount pursuant to the terms of this Second Restated Loan Agreement shall
(unless otherwise agreed by all the Banks) reduce ratably (or terminate)
each Bank's Bank Commitment. At no time shall the aggregate Bank
Commitments of all Banks exceed the Maximum Facility Amount.
"Bank Commitment Percentage" means, for any Bank, as of any date,
the amount obtained by dividing such Bank's Bank Commitment on such date
by the aggregate Bank Commitments of all Banks on such date. As of the
date of this Second Restated Loan Agreement, the Bank Commitment
Percentage for each Bank is as set forth on Schedule I hereto.
"Bank Spread" means 1.00%.
"Base Rate Advance" means an Advance that bears interest at a rate
per annum determined on the basis of the Alternate Base Rate.
"Borrower" has the meaning specified in the preamble of this Second
Restated Loan Agreement.
"Borrowing" means a borrowing of Advances consisting of Advances
having the same Interest Period made hereunder by each of the Lenders on
the same Business Day.
"Borrowing Date" means the date, identified by the Borrower in the
relevant Borrowing Request, as the date on which a Borrowing is to be
made.
"Borrowing Request" means a request, in the form of Exhibit C to
this Second Restated Loan Agreement, for a Borrowing pursuant to Article
ii.
"Business Day" means (a) a day on which (i) commercial banks in ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and Denver, Colorado, are not
authorized or required to be closed and (ii) commercial banks in the State
in which the Collateral Agent has its
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principal office are not authorized or required to be closed, and (b) if
this definition of "Business Day" is utilized in connection with a
Eurodollar Advance, a day on which dealings in United States dollars are
carried out in the London interbank market.
"Cash and Collateral Account" is account number ▇▇▇▇▇▇▇, held at the
Cash and Collateral Account Bank pursuant to the Collection and Paying
Agreement.
"Cash and Collateral Account Bank" means, initially, JPMorgan and,
at any time, the institution then holding the Cash and Collateral Account
in accordance with the terms of the Collection and Paying Agreement.
"Collection and Paying Agreement" means the Collection and Paying
Agreement, dated as of even date herewith, between the Borrower, the
Servicer, the Administrative Agent, the Cash and Collateral Account Bank
and the Collateral Agent.
"Charter" means the Borrower's articles of incorporation or charter,
as amended through the date of this Second Restated Loan Agreement.
"Calyon New York" has the meaning set forth in the preamble of this
Second Restated Loan Agreement and its successors and assigns.
"Calyon New York Group" means Atlantic, La Fayette, Calyon New York,
and each other Group Bank of Atlantic and La Fayette.
"Closing Protection Rights" means any rights of the Originator or
the Borrower to or under (i) a letter issued by a title insurance company
to the Originator assuming liability for certain acts or failure to act on
behalf of a named closing escrow agent, approved attorney or similar
Person in connection with the closing of a Mortgage Loan transaction, (ii)
a bond, insurance or trust fund established to protect a mortgage lender
against a loss or damage resulting from certain acts or failure to act of
a closing escrow agent, approved attorney, title insurance company or
similar Person, or (iii) any other right or claim that the Originator or
the Borrower may have against any Person for any loss or damage resulting
from such Person's acts or failure to act in connection with the closing
of a Mortgage Loan and the delivery of the related Mortgage Loan
Collateral to the Collateral Agent, the Originator or to the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means Property that is subject to a Lien for the
benefit of the holders of the Obligations.
"Collateral Agent" means LaSalle Bank National Association, and its
successors and assigns.
"Collateral Agent Daily Report" is defined in Section 3.8(a) of the
Second Restated Collateral Agency Agreement.
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"Collateral Deficiency" means, at any time, the amount by which the
Principal Debt exceeds the lesser of (a) the Collateral Value of all
Eligible Mortgage Collateral and (b) if the Collateral Agent holds no
Eligible Mortgage Collateral, zero.
"Collateral Proceeds" means all amounts received by the Borrower,
the Servicer, the Administrative Agent, the Lenders, the Collateral Agent
or any other Person, in respect of the Collateral, whether in respect of
principal, interest, fees or other amounts, including, without limitation,
(i) all amounts received pursuant to Take-Out Commitments, and (ii) with
respect to any Mortgage Loan, all funds that are received from or on
behalf of the related Obligors in payment of any amounts owed (including,
without limitation, purchase prices, finance charges, escrow payments,
interest and all other charges) in respect of such Mortgage Loan, or
applied to such amounts owed by such Obligors (including, without
limitation, insurance payments that Borrower or Servicer applies in the
ordinary course of its business to amounts owed in respect of such
Mortgage Loan and net proceeds of sale or other disposition of Property of
the Obligor or any other party directly or indirectly liable for payment
of such Mortgage Loan and available to be applied thereon).
"Collateral Report" is defined in Section 6.1(f).
"Collateral Value" means
(A) with respect to each Eligible Mortgage Loan and at all times, an
amount equal to the product of the Advance Rate for such Eligible Mortgage
Loan multiplied by the least of:
(1) the lesser of the original principal amount of such
Eligible Mortgage Loan or the acquisition price paid by Pulte
Mortgage on the closing and funding of such Eligible Mortgage Loan;
(2) for each Eligible Mortgage Loan, a ratable amount
determined by multiplying (a) the weighted average purchase price
(expressed as a percentage of par) that Approved Investors are
obligated to pay, pursuant to Take-Out Commitments, for all Eligible
Mortgage Loans, as shown on the most recent Hedge Report, times (b)
the outstanding principal amount of such Eligible Mortgage Loan; and
(3) while a Default or Event of Default is continuing,
or upon request of either of the Managing Agents at any other time, the
Market Value of such Eligible Mortgage Loan; and
(B) with respect to the Collection Account, the balance of collected
funds therein which is not subject to any Lien in favor of any Person
other than the Lien in favor of the Administrative Agent for the benefit
of the holders of the Obligations;
provided, however, that
8
(a) at any time, the portion of total Collateral Value that may be
attributable to Jumbo Loans shall not exceed twenty percent (20%) of the
Maximum Facility Amount;
(b) at any time, the portion of total Collateral Value that may be
attributable to Super Jumbo Loans shall not exceed ten percent (10%) of
the Maximum Facility Amount, which percentage is a sublimit of clause (a)
representing 50% of the 20% set forth in clause (a) above;
(c) at any time, the portion of total Collateral Value that may be
attributable to Alt-A Loans shall not exceed fifty percent (50%) of the
Maximum Facility Amount; provided that (i) if an Obligor on any Alt-A Loan
shall have a FICO Score of less than 650, or (ii) if an Alt-A Loan shall
have a Loan-to-Value Ratio of more than 95% or a Combined Loan-to-Value
Ratio of more than 100%, such Mortgage Loan shall have a Collateral Value
of zero;
(d) at any time, the portion of total Collateral Value that may be
attributable to Subprime Loans shall not exceed five (5%) of the Maximum
Facility Amount; provided that (i) if an Obligor on any Subprime Loan
shall have a FICO Score of less than 600, or (ii) if a Subprime Loan shall
have a Loan-to-Value Ratio of more than 90%, such Mortgage Loan shall have
a Collateral Value of zero;
(e) any Mortgage Loan with an original principal balance in excess
of $1,000,000 or more and a Loan-to-Value Ratio of 75% or more shall have
a Collateral Value of zero;
(f) at any time, the portion of total Collateral Value that may be
attributable to Mortgage Loans for which the Mortgage Notes have been
withdrawn for correction pursuant to Section 3.5 of the Second Restated
Collateral Agency Agreement shall not exceed five percent (5%) of the
Maximum Facility Amount, as determined in accordance with said Section 3.5
of the Second Restated Collateral Agency Agreement;
(g) at any time, the portion of the total Collateral Value that may
be attributable to any single Approved Investor listed on Schedule II
pursuant to one or more Take-Out Commitments shall not exceed the
concentration limit for such Approved Investor as set forth on Schedule II
(as the same may be updated from time to time);
(h) at any time, the portion of total Collateral Value that may be
attributable to Mortgage Loans that have been Eligible Mortgage Loans (A)
for more than 120 days shall not exceed ten percent (10%) of the Maximum
Facility Amount or (B) for more than 180 days, shall be zero;
(i) a Mortgage Loan that ceases to be an Eligible Mortgage Loan
shall have a Collateral Value of zero;
(j) at any time, (A) except the first five and last five Business
Days of any month, the portion of total Collateral Value that may be
attributable to Special Mortgage Loans with respect to which the related
Principal Mortgage Documents have
9
not been delivered to the Collateral Agent within nine (9) Business Days
after the earlier of the date the Assignment was delivered to the
Collateral Agent or, if different, the date of origination of the related
Mortgage Loan shall not exceed thirty percent (30%) of the Maximum
Facility Amount, and (B) during the first five and last five (5) Business
Days of any month, the portion of total Collateral Value that may be
attributable to Special Mortgage Loans with respect to which the related
Principal Mortgage Documents have not been delivered to the Collateral
Agent within nine (9) Business Days after the earlier of the date the
Assignment was delivered to the Collateral Agent or, if different, the
date of origination of the related Mortgage Loan shall not exceed fifty
percent (50%) of the Maximum Facility Amount; and
(k) at any time, the portion of total Collateral Value that may be
attributable to Second Lien Loans shall not exceed ten percent (10%) of
the Maximum Facility Amount; provided that (A) if any Obligor on any
Second Lien Loan shall have a FICO Score of less than 670 or (B) if any
Second Lien Loan shall have a Combined Loan-to-Value Ratio of more than
100%, such Mortgage Loan shall have a Collateral Value of zero.
"Collection Account" means the account established by the Borrower
pursuant to Section 2.7(b) to be used for (i) the deposit of proceeds from
the sale of Mortgage Loans; and (ii) the payment of the Obligations, it
being understood that such account is assigned to the Administrative Agent
pursuant to the Restated Assignment of Account and the Administrative
Agent has the authority to direct the transfer of all funds in the
Collection Account.
"Collection Account Bank" means, initially, JPMorgan and, at any
time, the institution then holding the Collection Account in accordance
with the terms of the Restated Assignment of Account.
"Collection Period" means each calendar month, beginning on the
first day of each month and including the last day of the month.
"Collections" means, with respect to any Mortgage Asset, all cash
collections (other than in respect of escrows payable under the related
Mortgage Loan) and other cash proceeds of such Mortgage Asset.
"Combined Loan-to-Value Ratio" means, with respect to any Mortgage
Loan, the fraction, expressed as a percentage found by dividing the
original principal balance of all Mortgage Loans secured by a particular
property by the value of such Mortgage Loans, such value being measured by
(i) the appraised value of such property at such time, if a Mortgage Loan
is a refinance of an existing loan or (ii) the lower of the sales price of
the related property at the time of origination of a Mortgage Loan or the
appraised value of such property at such time, if a Mortgage Loan is a
purchase money loan.
"Commercial Paper Notes" means short-term promissory notes issued or
to be issued by the Issuers to fund or maintain their Advances or
investments in other financial assets.
10
"Commercial Paper Rate" for any Interest Period for the related
Advance means:
(a) with respect to the portion of such Advance funded by Atlantic
or La Fayette, a rate per annum equal to the sum of:
(i) the rate or, if more than one rate, the weighted average
of the rates, determined by converting to an interest-bearing
equivalent rate per annum the discount rate (or rates) at which
Commercial Paper Notes having a term equal to such Interest Period
and to be issued to fund or to maintain such Advance by Atlantic
(including, without limitation, Principal Debt and accrued and
unpaid interest), may be sold by any placement agent or commercial
paper dealer selected by the Managing Agent for Atlantic and La
Fayette, as agreed between each such agent or dealer and the
Managing Agent for Atlantic and La Fayette, plus
(ii) the commissions and charges charged by such placement
agent or commercial paper dealer with respect to such Commercial
Paper Notes expressed as a percentage of such face amount and
converted to an interest-bearing equivalent rate per annum, plus
(iii) the Conduit Spread,
(b) with respect to the portion of any Advance funded by Jupiter for
any Interest Period, the per annum rate that reflects:
(i) the rate (or, if more than one rate, the weighted average
of the rates) at which Commercial Paper Notes having a term equal to
such Interest Period (or portion thereof) may be sold by any
placement agent or commercial paper dealer selected by Jupiter, as
agreed between each such agent or dealer and Jupiter, provided,
however, that if the rate (or rates) as agreed between any such
agent or dealer and Jupiter is a discount rate (or rates), the
"Commercial Paper Rate" for such Interest Period (or portion
thereof) shall be the rate (or if more than one rate, the weighted
average of the rates) resulting from Jupiter's converting such
discount rate (or rates) to an interest-bearing equivalent rate per
annum, plus
(ii) accrued commissions in respect of placement agents and
commercial paper dealers and issuing and paying agent fees incurred,
in respect of such Commercial Paper Notes, minus
(iii) any payment received on such date net of expenses in
respect of Consequential Losses related to the prepayment of any
purchased interest of Jupiter pursuant to the terms of any
receivable purchase facilities funded substantially with such
Commercial Paper Notes plus
(iv) the Conduit Spread; or
(c) such other rate as Atlantic, La Fayette or Jupiter and the
Borrower shall agree to in writing.
11
"Conduit Spread" means the margin set forth in the Restated Agent
Fee Letter or the Managing Agent Fee Letter, as applicable.
"Conforming Loan" means (i) a Mortgage Loan that complies with all
applicable requirements for purchase under a ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or
similar Governmental Authority standard form of conventional mortgage loan
purchase contract, then in effect, or (ii) an FHA Loan or a VA Loan, that,
in either case, is a First Lien Mortgage Loan.
"Consequential Loss" means any loss or expense that any Affected
Party may reasonably incur in respect of a Borrowing as a consequence of
(a) any failure or refusal of Borrower (for any reasons whatsoever other
than a default by the Administrative Agent, any Lender or any Affected
Party) to take such Borrowing after Borrower shall have requested it under
this Second Restated Loan Agreement, (b) any prepayment or payment of such
Borrowing that is a Eurodollar Advance or CP Advance on a day other than
the last day of the Interest Period applicable to such Borrowing, (c) any
prepayment of any Borrowing that is not made in compliance with the
provisions of Section 2.5(a); provided, that so long as an Event of
Default shall not have occurred, the Borrower shall not be responsible for
any Consequential Loss resulting from changes in the Settlement Date made
by the Administrative Agent, as described in the proviso contained in the
definition of "Settlement Date," or (d) Borrower's failure to make a
prepayment after giving notice under Section 2.5(a) that a prepayment will
be made.
"CP Allocation" is defined in Section 2.9.
"Debtor Laws" means all applicable liquidation, conservatorship,
bankruptcy, fraudulent transfer or conveyance, moratorium, arrangement,
receivership, insolvency, reorganization or similar laws from time to time
in effect affecting the rights of creditors generally.
"Default" means any condition or event that, with the giving of
notice or lapse of time or both and unless cured or waived, would
constitute an Event of Default.
"Default Rate" means a per annum rate of interest equal from day to
day to the lesser of (a) the sum of the Alternate Base Rate plus two
percent and (b) the Maximum Rate.
"Default Ratio" means as of the end of any Collection Period, the
ratio of (i) the principal amount of all Mortgage Loans that were
Defaulted Mortgage Loans at such time, to (ii) the aggregate principal
amount of all Mortgage Loans at such time.
"Defaulted Mortgage Loan" means a Mortgage Asset under which the
Obligor is 30 or more days in payment default or has taken any action, or
suffered any event of the type described in Section 8.1(f), 8.1(g) or
8.1(h) or is in foreclosure.
"Deferred Income" means the amount of income that the Originator or
Borrower has deferred, for accounting purposes, pending the sale of
Mortgage Loans, in accordance with Statement of Financial Accounting
Standards Number 91 ("SFAS 91") and
12
Statement of Financial Accounting Standards Number 122 ("SFAS 122"), each
as currently published by the Financial Accounting Standards Board.
"Drawdown Termination Date" means the earliest to occur of:
(a) August 18, 2006, or such earlier date determined in accordance
with Section 2.1(b), or
(b) the date on which the Maximum Facility Amount is terminated by
the Borrower pursuant to Section 2.1(d), and
(c) the date, on or after the occurrence of an Event of Default,
determined pursuant to Section 8.1.
"Effective Date" means August 19, 2005.
"Eligible Assignee" means (i) Calyon New York or any of its
Affiliates, JPMorgan or any of its Affiliates, or Lloyds or any of its
Affiliates, (ii) any Person managed by Calyon New York or any of its
Affiliates, JPMorgan or any of its Affiliates or Lloyds or any of its
Affiliates, respectively, or (iii) any financial or other institution that
is approved by the Administrative Agent (such approval not to be
unreasonably withheld or delayed) and is approved by the Borrower (such
approval not to be unreasonably withheld or delayed), provided that no
such approval by the Borrower shall be required at any time when a Default
or an Event of Default shall have occurred and be continuing.
"Eligible Institution" means any depository institution, organized
under the laws of the United States or any state, having capital and
surplus in excess of $200,000,000, the deposits of which are insured to
the full extent permitted by law by the Federal Deposit Insurance
Corporation and that is subject to supervision and examination by federal
or state banking authorities; provided that such institution also must
have a rating of A or higher with respect to long-term deposit obligations
from ▇▇▇▇▇'▇, A2 or higher with respect to long-term deposit obligations
from S&P and A or higher with respect to long-term deposit obligations
from Fitch. If such depository institution publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then the combined capital and surplus
of such corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
"Eligible Mortgage Collateral" means Eligible Mortgage Loans and the
Collection Account.
"Eligible Mortgage Loan" means a Mortgage Loan:
(a) that (i) is a closed and funded Mortgage Loan, (ii) has a
maximum term to maturity of 30 years and the proceeds of which were used
either to finance a portion of the purchase price of a Property encumbered
by the related Mortgage or to refinance a loan secured by such Property,
and (iii) is secured by a perfected first-priority Lien
13
(except Second Lien Loans) on residential real Property consisting of
land and a one-to-four family dwelling thereon which is completed and
ready for owner occupancy, including townhouses and condominiums;
(b) that is a Conforming Loan, a Jumbo Loan, a Subprime Loan, a
Second Lien Loan or an Alt-A Loan;
(c) in which the Administrative Agent has been granted and continues
to hold a perfected (other than actual delivery of the Mortgage Note to
the Collateral Agent for Special Borrowings), first-priority (except
Second Lien Loans), security interest for the benefit of the holders of
the Obligations;
(d) for which the Mortgage Note is endorsed (without recourse) in
blank and each of such Mortgage Loan and the related Mortgage Note is a
legal, valid and binding obligation of the Obligor thereof;
(e) for which, other than in respect of Special Mortgage Loans, the
Principal Mortgage Documents have been received by the Collateral Agent
and are in form and substance reasonably acceptable to the Collateral
Agent;
(f) that is either eligible for delivery or designated for delivery
under a Take-Out Commitment from an Approved Investor; provided that no
more than 45 days have lapsed since the date on which any documentation
relating to such Mortgage Loan was shipped to the related Approved
Investor;
(g) that, immediately prior to the pledge thereof under the Second
Restated Collateral Agency Agreement, together with the related Mortgage
Loan Collateral, is owned beneficially by Borrower free and clear of any
Lien of any other Person other than the Administrative Agent for the
benefit of the holders of the Obligations (except Second Lien Loans);
(h) that, together with the related Mortgage Loan Collateral, does
not contravene any Governmental Requirements applicable thereto
(including, without limitation, the Real Estate Settlement Procedures Act
of 1974, as amended, and all laws, rules and regulations relating to
usury, truth-in-lending, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices, privacy and other
applicable federal and state consumer protection laws) and with respect to
which no party to the related Mortgage Loan Collateral is in violation of
any Governmental Requirements (or procedure prescribed thereby) if such
violation would impair the collectability of such Mortgage Loan or the
saleability of such Mortgage Loan under the applicable Take-Out
Commitment;
(i) that, (i) is not a Seasoned Mortgage Loan or an Uncovered
Mortgage Loan; (ii) is not a Defaulted Mortgage Loan; (iii) has not
previously been sold to an Approved Investor and repurchased by Borrower;
(iv) is a Mortgage Loan with respect to which the Principal Mortgage
Documents relating to such Mortgage Loan were delivered to the Collateral
Agent within the time frame set forth in Section 2.3(c); provided that,
upon delivery of such Principal Mortgage Documents to the Collateral
Agent, such
14
Mortgage Loans may subsequently qualify as Eligible Mortgage Loans to
support Borrowings subsequent to such delivery; or (v) has an original
principal balance not in excess of $1,500,000.00;
(j) that if the Mortgage Loan Collateral has been withdrawn for
correction pursuant to Section 3.4 such Mortgage Loan Collateral has been
returned to the Collateral Agent within 14 calendar days after withdrawal
as required by Section 3.4;
(k) that is denominated and payable in U.S. dollars in the United
States and the Obligor of which is a natural person who is a U.S. citizen
or resident alien or a corporation or other legal entity organized under
the laws of the United States or any State thereof or the District of
Columbia;
(l) that is not subject to any right of rescission, setoff,
counterclaim or other dispute whatsoever; (m) that was acquired by the
Borrower from the Originator within 60 days after its Mortgage Origination
Date;
(n) that is covered by the types and amounts of insurance required
by Section 6.6(b);
(o) with respect to which all representations and warranties made by
the Originator in the Second Restated Repurchase Agreement are true and
correct in all material respects and with respect to which all loan level
covenants made in the Second Restated Repurchase Agreement have been
complied with;
(p) that is subjected to the following "Quality Control" measures by
personnel of the Originator before the Mortgage Note is funded by the
Originator:
(i) for those Mortgage Loans not originated by the Originator,
is underwritten by the Originator prior to funding thereof and after
performance of all underwriting procedures, is submitted to the
Originator for closing where it is reviewed for thoroughness and
compliance (including truth-in-lending, good faith estimates and
other disclosures) and a verbal verification of employment and
in-file credit report are obtained;
(ii) with respect to which, all Mortgage Loan Collateral is
prepared by the Originator and submitted to the closing agent at the
time of funding the related Mortgage Loan; and
(q) that, if it is a Second Lien Loan, has a Combined Loan-to-Value
Ratio of 100% or less and with respect to which the related first lien
loan is owned by Pulte Mortgage.
For the purpose of this definition:
15
(x) A Mortgage Loan is "eligible for delivery" under a Take-Out
Commitment if (i) it is designated to be transferred to a Governmental
Authority, (ii) the underwriting criteria utilized and the Mortgage Loan
Collateral either match, or are in respect of interest rates (which rates
must bear a relationship to prevailing current market rates of interest
for loans with similar maturities), term, product type and delivery period
representative of the terms for purchase that are specified in a Take-Out
Commitment, and (iii) the aggregate outstanding principal of all such
Mortgage Loans is not more than the aggregate Take-Out Commitments'
unutilized amount (i.e. taking in account all such Mortgage Loans already
allocated to the aggregate Take-Out Commitments for purposes of
determining Eligible Mortgage Loans whether or not already delivered by
the Borrower to the Collateral Agent).
(y) A Mortgage Loan is "designated for delivery" under a Take-Out
Commitment if (i) it is designated to be transferred to any entity other
than a Governmental Authority and (ii) the underwriting criteria utilized
in approving such Mortgage Loan conform to the underwriting criteria, and
the terms of repayment (including interest rate and "term to maturity")
and other terms and conditions of the Mortgage Loan Collateral match the
specifications of that specific Take-Out Commitment that designates that
particular Mortgage Loan for purchase.
"Employee Plan" means an employee pension benefit plan covered by
Title IV of ERISA and established or maintained by the Originator.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any corporation, trade or business that is,
along with the Performance Guarantor, a member of a controlled group of
corporations or a controlled group of trades or businesses, as described
in Sections 414(b), (c), (m) and (o) of the Code, or Section 4001 of
ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Advance" means an Advance that bears interest at a rate
per annum determined on the basis of the Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period for any Eurodollar
Advance, for each Lender, an interest rate per annum (expressed as a
decimal and rounded upwards, if necessary, to the nearest one hundredth of
a percentage point) equal to the offered rate per annum for deposits in
U.S. Dollars in a principal amount of not less than $10,000,000 for such
Interest Period as of 11:00 A.M., London time, two Business Days before
(and for value on) the first day of such Interest Period, that appears on
the display designated as "Page 3750" on the Telerate Service (or such
other page as may replace "Page 3750" on that service for the purpose of
displaying London interbank offered rates of major banks); provided, that
if such rate is not available on any date when the Eurodollar Rate is to
be determined, then an interest rate per annum determined by the
Administrative
Agent equal to the rate at which it would offer deposits in United States
dollars to prime banks in the London interbank market for a period equal to such
Interest Period and in a principal amount of not less than $10,000,000 at or
about 11:00 A.M. (London time) on the second Business Day before (and for value
on) the first day of such Interest Period.
"Eurodollar Reserve Percentage" means, with respect to any Bank and for
any Interest Period for such Bank's Eurodollar Advance, the reserve percentage
applicable during such Interest Period (or, if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Federal Reserve Board (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for such Bank with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Event of Default" is defined in Section 8.1.
"Excess Spread" means, as of the last day of each Collection Period, an
amount equal to the Portfolio Yield for such Collection Period minus the
weighted average applicable interest rate on the Advances at such time minus the
weighted average Conduit Spread and/or Bank Spread, as applicable during such
Collection Period minus the Servicing Fee for such Collection Period determined
in accordance with clause (a) of the definition of Portfolio Yield.
"Facility" means the borrowing facility provided by the Lenders as
described in Section 2.1 of this Second Restated Loan Agreement.
"▇▇▇▇▇▇ ▇▇▇" means the government sponsored enterprise formerly known as
the Federal National Mortgage Association, or any successor thereto.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fee Letter" means the Restated Agent Fee Letter or the Managing Agent Fee
Letter.
"FHA" means the Federal Housing Administration, or any successor thereto.
"FHA Loan" means a Mortgage Loan, the ultimate payment of which is
partially or completely insured by the FHA or with respect to which there is a
current, binding and enforceable commitment for such insurance issued by the
FHA.
"FICO Score" means, with respect to the Obligor under a particular
Mortgage Loan, a credit rating established by Fair ▇▇▇▇▇ Corporation or a market
competitor.
"FICO Score Trigger Event" means that (i) the Pool Weighted Average FICO
Score has been reported, in a Servicer Monthly Report, as less than 690, (ii) a
period of
17
seven Business Days has elapsed from the date of receipt of such report by the
Administrative Agent and (iii) the Servicer has not provided to the
Administrative Agent a revised Pool Weighted Average FICO Score that exceeds
690.
"Financial Officer" means (i) with respect to the Servicer or the
Originator, the chief financial officer, treasurer or a vice president having
the knowledge and authority necessary to prepare and deliver the financial
statements and reports required pursuant to Sections 6.1(b) and Section 3.8 and
(ii) with respect to the Performance Guarantor, the chief financial officer, the
vice president-treasurer or the senior vice president-finance.
"First Lien Mortgage Loan" means a loan secured by a perfected first lien
mortgage on real property.
"Fitch" means Fitch, Inc., and any successor thereto.
"▇▇▇▇▇▇▇ Mac" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"GAAP" means generally accepted accounting principles as in effect in the
United States from time to time.
"▇▇▇▇▇▇ Mae" means the Government National Mortgage Association, or any
successor thereto.
"Governmental Authority" means any nation or government, any agency,
department, state or other political subdivision thereof, or any instrumentality
thereof, and any entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government. Governmental
Authority shall include, without limitation, each of ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇,
FHA, HUD, VA and ▇▇▇▇▇▇ Mae.
"Governmental Requirement" means any law, statute, code, ordinance, order,
rule, regulation, judgment, decree, injunction, franchise, permit, certificate,
license, authorization or other requirement (including, without limitation, any
of the foregoing that relate to energy regulations and occupational, safety and
health standards or controls and any hazardous materials laws) of any
Governmental Authority that has jurisdiction over either Originator, the
Servicer, the Collateral Agent or the Borrower or any of their respective
Properties.
"Group" means the Calyon New York Group and the JPMorgan Group.
"Group Bank" means (1) with respect to Atlantic and La Fayette, Calyon New
York, each Bank that has entered into an Assignment and Acceptance with Calyon
New York, including Lloyds, and each assignee (directly or indirectly) of any
such Bank, which assignee has entered into an Assignment and Acceptance and (2)
with respect to Jupiter, JPMorgan, each Bank that has entered into an Assignment
and Acceptance with JPMorgan and each assignee (directly or indirectly) of any
such Bank, which assignee has entered into an Assignment and Acceptance.
18
"Group Bank Commitment Percentage" means, the sum of all of the Bank
Commitment Percentages of all of the Banks in a Group.
"Hedge Report" means, with respect to any Conforming Loans included in the
Eligible Mortgage Collateral that is to be sold to a Governmental Authority, a
report prepared by the Servicer and pursuant to Section 3.6 hereof, showing, as
of the close of business on the previous Business Day, all trades that have been
assigned to the Administrative Agent, for the benefit of holders of the
Obligations, and the following information with respect to such trades: (i)
trade counterparty, (ii) trade amount, (iii) coupon, (iv) price, (v) type of
security, (vi) date of trade, and (vii) such other information as the
Administrative Agent may reasonably request in the form of Exhibit K hereto.
"HUD" means the Department of Housing and Urban Development, or any
successor thereto.
"Indebtedness" means, for any Person, without duplication, and at any
time, (a) all obligations required by GAAP to be classified on such Person's
balance sheet as liabilities, (b) obligations secured (or for which the holder
of the obligations has an existing contingent or other right to be so secured)
by any Lien existing on property owned or acquired by such Person, (c)
obligations that have been (or under GAAP should be) capitalized for financial
reporting purposes, and (d) all guaranties, endorsements, and other contingent
obligations with respect to obligations of others.
"Indemnified Amounts" is defined in Section 10.1.
"Indemnified Party" is defined in Section 10.1.
"Interest Period" is defined in Section 2.15.
"Issuer Facility Amount" means (a) with respect to Atlantic and La Fayette
on an aggregate basis, $300,000,000 and (b) with respect to Jupiter on an
aggregate basis, $250,000,000. Any reduction (or termination) of the Maximum
Facility Amount pursuant to the terms of this Second Restated Loan Agreement
shall reduce ratably (or terminate) the Issuer Facility Amount of each Issuer.
"Issuer" means any of Atlantic, Jupiter and La Fayette.
"JPMorgan" has the meaning as set forth in the preamble to this Second
Restated Loan Agreement.
"JPMorgan Group" means Jupiter, JPMorgan and each other Group Bank of
Jupiter.
"Jumbo Loan" means a Mortgage Loan (other than a Conforming Loan) that (1)
is underwritten to Approved Investor guidelines (other than ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇ Mae), (2) matches all applicable requirements for purchase under
the requirements of a Take-Out Commitment issued for the purchase of such
Mortgage Loan, (3) differs from a Conforming Loan solely because the principal
amount of such
19
Mortgage Loan exceeds the limit set for Conforming Loans by ▇▇▇▇▇▇ ▇▇▇ or
▇▇▇▇▇▇▇ Mac from time to time, but shall not exceed $1,000,000; provided, that a
Jumbo Loan having an original principal balance in excess of $1,000,000 but not
more than $1,500,000 shall qualify as a Super Jumbo Loan and (4) is a First Lien
Mortgage Loan. The term Jumbo Loan includes Super Jumbo Loans.
"Jupiter" has the meaning as set forth in the preamble of this Second
Restated Loan Agreement.
"La Fayette" has the meaning as set forth in the preamble of this Second
Restated Loan Agreement.
"La Fayette Program Agent" means Calyon New York, in its capacity as the
collateral agent pursuant to a security agreement made by La Fayette for the
benefit of certain creditors of La Fayette, and any successor to Calyon New York
in such capacity.
"Lenders" means, collectively, the Issuers and the Banks.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (whether statutory, consensual or otherwise), or
other security arrangement of any kind (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the uniform commercial code or comparable law
of any jurisdiction in respect of any of the foregoing).
"Liquidity Agreement" means, with respect to an Issuer, a liquidity loan
agreement, liquidity asset purchase agreement or similar agreement entered into
by the related Group Banks and providing for the making of loans to such Issuer,
or the purchase of Advances (or interests therein) from such Issuer, to support
the Issuer's payment obligations under its Commercial Paper Notes.
"Lloyds" has the meaning specified in the preamble of this Second Restated
Loan Agreement.
"Loan-to-Value Ratio" means, with respect to any Mortgage Loan, the
fraction, expressed as a percentage found by dividing the original principal
balance of a Mortgage Loan by the value of the Mortgage Loan, such value being
measured by (i) the appraised value of such property at such time, if the
Mortgage Loan is a refinance of an existing lien or (ii) the lower of the sales
price of the related property at the time of origination of the Mortgage Loan or
the appraised value of such property at such time, if the Mortgage Loan is a
purchase money loan.
"Majority Banks" means, at any time, Banks, including Banks that have
become party to this Second Restated Loan Agreement pursuant to an Assignment
and Acceptance, having outstanding Advances equal to more than 67% of the
aggregate outstanding Advances held by Banks or, if no Advance is then
outstanding from any Bank, Banks having more than 67% of the Bank Commitments.
20
"Majority Group Banks" means, as to any Group Banks included in the
related Group having outstanding Bank Commitments equal to more than 50% of the
aggregate outstanding Bank Commitments of the Banks in such Group.
"Managing Agent" means, with respect to Atlantic and La Fayette, Calyon
New York or any successor managing agent designated by such party; and, with
respect to Jupiter, JPMorgan or any successor managing agent designated by such
party.
"Managing Agent Fee Letter" means the letter agreement pertaining to fees
among the Borrower and JPMorgan, as a Managing Agent, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"Managing Agent's Account" means, (a) with respect to Calyon New York, the
special account (account number 01-25680-001-00-001, ABA No. ▇▇▇▇▇▇▇▇▇ of Calyon
New York maintained at Calyon New York Branch, 1301 Avenue of the Americas, New
York, New York, and (b) with respect to JPMorgan, the special account (account
number ▇▇▇▇▇▇▇, ABA No. ▇▇▇▇▇▇▇▇▇) of Jupiter maintained at JPMorgan Chase Bank,
National Association, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Market Value" means at the time determined, for any (a) Mortgage Loan
(other than a Non-Conforming Loan), the market value of such Mortgage Loan based
upon the then most recent posted net yield for 30-day mandatory future delivery
furnished by ▇▇▇▇▇▇ ▇▇▇ and published and distributed by Telerate Mortgage
Services, or, if such posted net yield is not available from Telerate Mortgage
Services, such posted net yield obtained by the Administrative Agent from ▇▇▇▇▇▇
Mae, or (b) Non-Conforming Loan, or any other Mortgage Loan while the posted
rate is not available from ▇▇▇▇▇▇ ▇▇▇, the value determined by the
Administrative Agent in good faith.
"Material Adverse Effect" means, with respect to any Person, any material
adverse effect on (i) the validity or enforceability of this Second Restated
Loan Agreement, the Notes or any other Transaction Document, (ii) the business,
operations, total Property or financial condition of such Person, (iii) the
Collateral taken as a whole, (iv) the enforceability or priority of the Lien in
favor of the Administrative Agent on any significant portion of the Collateral,
or (v) the ability of such Person to fulfill its obligations under this Second
Restated Loan Agreement, the Notes or any other Transaction Document.
"Maximum Facility Amount" means $550,000,000, as such amount may be
reduced pursuant to Section 2.1(c) of this Second Restated Loan Agreement."
"Maximum Rate" means the maximum non-usurious rate of interest that, under
applicable law, each of the Lenders is permitted to contract for, charge, take,
reserve, or receive on the Obligations.
"MERS" means Mortgage Electronic Registration Systems, Inc., a Delaware
corporation.
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"MERS Designated Mortgage Loan" means a Mortgage Loan registered to or by
the Originator on the MERS electronic mortgage registration system.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and any successor
thereto.
"Mortgage" means a mortgage or deed of trust or other security instrument
creating a Lien on real property, on a standard form as approved by ▇▇▇▇▇▇ Mae,
▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or such other form as the Originator determines is
satisfactory for any Approved Investor unless otherwise directed by the
Administrative Agent and communicated to the Collateral Agent.
"Mortgage Assets" means, collectively, all of the Mortgage Loans,
including funds advanced for Mortgage Loans that ultimately fail to close, and
all Take-Out Commitments.
"Mortgage Loan" means a loan evidenced by a Mortgage Note and secured by a
Mortgage, the beneficial interest of which has been acquired by the Borrower
from the Originator by purchase pursuant to the Second Restated Repurchase
Agreement (with the record owner thereof being the Originator or, in the case of
a MERS Designated Mortgage Loan, MERS as nominee for the Originator, and its
successors and assigns).
"Mortgage Loan Collateral" means all Mortgage Notes and related Principal
Mortgage Documents, Other Mortgage Documents, and other Collateral.
"Mortgage Note" means a promissory note, on a standard form approved by
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or such other form as the Originator
determines is satisfactory for any Approved Investor unless otherwise directed
by the Administrative Agent and communicated to the Collateral Agent.
"Mortgage Origination Date" means, with respect to each Mortgage Loan, the
date that is the later of (1) the date of the Mortgage Note or (2) the date such
Mortgage Loan was funded and disbursed to or at the direction of the Obligor.
"Multiemployer Plan" means a multiemployer plan defined in Sections 3(37)
or 4001(a)(3) of ERISA or Section 414(f) of the Code to which Borrower or any
ERISA Affiliate is making or has made (or is accruing or has accrued an
obligation to make) contributions.
"Net Worth" of a Person means, as of any date of determination, the total
stockholder's equity (including capital stock, additional paid-in capital and
retained earnings after deducting treasury stock) that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP but
excluding the value of any investment made by such Person in an unconsolidated
Subsidiary.
"Non-Conforming Loan" means a Subprime Loan, a Jumbo Loan, a Second Lien
Loan or an Alt-A Loan.
22
"Note" means each or any of the promissory notes executed by the Borrower,
substantially in the form of Exhibit E hereto, together with all renewals,
extensions, and replacements for any such note.
"Obligations" means any and all present and future indebtedness,
obligations, and liabilities of the Borrower to any of the Lenders, the
Collateral Agent, the Managing Agents, each Affected Party, each Indemnified
Party and the Administrative Agent, and all renewals, rearrangements and
extensions thereof, or any part thereof, arising pursuant to this Second
Restated Loan Agreement or any other Transaction Document, and all interest
accrued thereon, and attorneys' fees and other costs incurred in the drafting,
negotiation, enforcement or collection thereof, regardless of whether such
indebtedness, obligations, and liabilities are direct, indirect, fixed,
contingent, joint, several or joint and several.
"Obligor" means (i) with respect to each Mortgage Note included in the
Collateral, the obligor on such Mortgage Note and (ii) with respect to any other
agreement included in the Collateral, any person from whom the Originator or the
Borrower is entitled to performance.
"Original Loan Agreement" means the Amended and Restated Loan Agreement,
dated as of August 23, 2002, by and among the Borrower, Atlantic, as an Issuer,
Jupiter, as an Issuer, Calyon New York, as a Bank and as the Administrative
Agent, Lloyds, as a Bank, JPMorgan, as a Bank, and the Servicer, as amended by
the First Omnibus Amendment dated December 21, 2002, the Second Omnibus
Amendment dated August 25, 2003, the Third Omnibus Amendment dated September 30,
2003 and the Fourth Omnibus Amendment dated September 20, 2004.
"Originator" means Pulte Mortgage LLC, a limited liability company, and
its successors and assigns.
"Other Company" means the Performance Guarantor and all of its
Subsidiaries except the Borrower.
"Other Mortgage Documents" is defined in Section 3.2(c).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Performance Guarantor" means Pulte.
"Permitted Investments" means book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form that evidence any of the following:
(a) direct obligations of, and obligations fully guaranteed by, the United
States of America or any agency or instrumentality of the United States of
America, the obligations of which are backed by the full faith and credit of the
United States of America;
23
(b) (i) demand and time deposits in, certificates of deposits of, bankers'
acceptances issued by, or federal funds sold by, any depository institution or
trust company incorporated under the laws of the United States of America, any
State thereof or the District of Columbia or any foreign depository institution
with a branch or agency licensed under the laws of the United States of America
or any State, subject to supervision and examination by Federal and/or State
banking authorities and having a rating of P-1 by Moody's, a rating of at least
A-1 by S&P and a rating of at least F1 by Fitch at the time of such investment
or contractual commitment providing for such investment or otherwise approved in
writing by each Rating Agency or (ii) any other demand or time deposit or
certificate of deposit that is fully insured by the Federal Deposit Insurance
Corporation;
(c) repurchase obligations with respect to (i) any security described in
clause (a) above or (ii) any other security issued or guaranteed by an agency or
instrumentality of the United States of America, in either case entered into
with a depository institution or trust company (acting as principal) described
in clause (b)(i) above;
(d) short-term securities bearing interest or sold at a discount issued by
any corporation incorporated, or any entity formed, under the laws of the United
States of America or any State, the short-term unsecured obligations of which
have a rating of at least P-1 by Moody's, a rating of at least A-1 by S&P and a
rating of at least F1 by Fitch at the time of such investment; provided,
however, that securities issued by any particular corporation or other entity
will not be Permitted Investments to the extent that investment therein will
cause the then outstanding principal amount of securities issued by such
corporation or other entity and held in the Reserve Account to exceed 10% of
amounts held in the Reserve Account;
(e) commercial paper having a rating of at least P-1 by Moody's, a rating
of at least A-1 by S&P and a rating of least F1 by Fitch at the time of such
investment or pledge as security;
(f) money market funds whose investments consist solely of one of the
foregoing; or
(g) any other investments approved in writing by each Rating Agency.
"Permitted Transferee" is defined in Section 3.3(c).
"Person" means any individual, corporation (including a business trust),
limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, Governmental Authority, or any
other form of entity.
"Pool Weighted Average FICO Score" means, as of any date, an amount,
reported in the most recent Servicer Monthly Report, equal to the ratio of (a)
the sum, for all Alt-A Loans, of the product for each Alt-A Loan of (i) its FICO
Score and (ii) its original principal balance to (b) the sum of the original
principal balances of all Alt-A Loans.
24
"Portfolio Yield" means, with respect to any Collection Period, the
percentage equivalent to the amount computed as of the last day of such
Collection Period by multiplying (i) 12 by (ii) (a) the aggregate amount of
interest accrued (whether or not paid) with respect to all Eligible Mortgage
Loans included in the Collateral during such Collection Period divided by (b)
the daily average outstanding principal amount of all Eligible Mortgage Loans
included in the Collateral during such Collection Period.
"Primary Obligations" means, at the time determined, the sum of Principal
Debt plus accrued and unpaid interest thereon through the end of the then
current Interest Period, plus accrued and unpaid fees under Section 2.4(b).
"Principal Debt" means, at the time determined, the unpaid principal
balance of all Advances under this Second Restated Loan Agreement.
"Principal Mortgage Documents" is defined in Section 3.2(b).
"Program Documents" means, in the case of the Issuers, each Liquidity
Agreement relating to this Second Restated Loan Agreement and the other
documents executed and delivered in connection therewith, as each may be
amended, supplemented or otherwise modified from time to time.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Pulte" means Pulte Homes, Inc., a Michigan corporation, and its
successors and assigns (formerly known as Pulte Corporation).
"Pulte Funding, Inc." has the meaning set forth in the preamble to this
Second Restated Loan Agreement.
"Pulte Mortgage" has the meaning set forth in the preamble to this Second
Restated Loan Agreement.
"Rating Agency" means S&P, ▇▇▇▇▇'▇ and Fitch.
"Regulation T, U, X and Z," respectively, mean Regulation T, U, X and Z
promulgated by the Federal Reserve Board as in effect from time to time, or any
successor regulations thereto.
"Regulatory Change" means, relative to any Affected Party:
(a) any change in (or the adoption, implementation, change in the phase-in
or commencement of effectiveness of) any:
(i) United States federal or state law or foreign law applicable to
such Affected Party;
25
(ii) regulation, interpretation, directive, requirement or request
(whether or not having the force of law) applicable to such Affected Party of
(A) any court, government authority charged with the interpretation or
administration of any law referred to in clause (a)(i) or (B) any fiscal,
monetary or other authority having jurisdiction over such Affected Party; or
(iii) GAAP or regulatory accounting principles applicable to such
Affected Party and affecting the application to such Affected Party of any law,
regulation, interpretation, directive, requirement or request referred to in
clause (a)(i) or (a)(ii) above;
(b) any change in the application to such Affected Party of any existing
law, regulation, interpretation, directive, requirement, request or accounting
principles referred to in clause (a)(i), (a)(ii) or (a)(iii) above; or
(c) the issuance, publication or release of any regulation,
interpretation, directive, requirement or request of a type described in clause
(a)(ii) above to the effect that the obligations of any Bank under the
applicable Liquidity Agreement are not entitled to be included in the zero
percent category of off-balance sheet assets for purposes of any risk-weighted
capital guidelines applicable to such Bank or any related Affected Party.
"Required Reserve Account Amount" means, on any date, 0.50% of the Maximum
Facility Amount on such date.
"Requirement of Law" as to any Person means the articles of incorporation,
or certificate of formation, and by-laws, or limited liability company
agreement, or other organizational or governing documents of such Person, and
any law, statute, code, ordinance, order, rule, regulation, judgment, decree,
injunction, franchise, permit, certificate, license, authorization or other
determination, direction or requirement (including, without limitation, any of
the foregoing that relate to energy regulations and occupational, safety and
health standards or controls and any hazardous materials laws) of any
Governmental Authority, in each case applicable to or binding upon such Person
or any of its Property or to which such Person or any of its Property is
subject.
"Reserve Account" is defined in Section 2.8, it being understood that such
account is assigned to the Administrative Agent pursuant to the Reserve Account
Control Agreement and the Administrative Agent has the authority to direct the
transfer of all funds in the Reserve Account.
"Reserve Account Bank" means the institution then holding the Reserve
Account pursuant to Section 2.8.
"Reserve Account Control Agreement" means the Reserve Account Control
Agreement, dated as of December 22, 2000, among the Borrower, the Servicer, the
Administrative Agent and the Reserve Account Bank, substantially in the form
attached hereto as Exhibit N, as amended, modified or supplemented.
26
"Restated Agent Fee Letter" means the amended and restated letter
agreement pertaining to fees of the Administrative Agent and Calyon New York, as
Managing Agent, among the Borrower, the Administrative Agent and Calyon New
York, as Managing Agent, as the same maybe amended, restated, supplemented or
otherwise modified from time to time.
"Restated Assignment of Account" means the Amended and Restated Assignment
of Account dated as of August 23, 2002, among the Borrower, Calyon New York as
the secured party, the Servicer and LaSalle Bank National Association,
substantially in the form attached as Exhibit D-3 to the Second Restated
Collateral Agency Agreement, as amended, modified or supplemented.
"Restated Originator Performance Guaranty" means the Amended and Restated
Originator Performance Guaranty, in the form attached hereto as Exhibit G-2,
made by the Performance Guarantor in favor of the Borrower, and assigned to the
Administrative Agent for the benefit of the Lenders.
"Restated Performance Guaranties" means, collectively, the Restated
Servicer Performance Guaranty, in the form attached hereto as Exhibit G-1, made
by the Performance Guarantor in favor of the Administrative Agent for the
benefit of the Lenders, and the Restated Originator Performance Guaranty, in the
form attached hereto as Exhibit G-2, made by the Performance Guarantor in favor
of the Borrower and assigned to the Administrative Agent for the benefit of the
Lenders.
"Restated Servicer Performance Guaranty" means the Amended and Restated
Servicer Performance Guaranty, in the form attached hereto as Exhibit G-1, made
by the Performance Guarantor in favor of the Administrative Agent for the
benefit of the Lenders.
"Restated Subordination Agreement" means the Amended and Restated
Subordination Agreement, substantially in the form attached as Exhibit B hereto,
executed by the Performance Guarantor and certain of its Affiliates in favor of
the Borrower and the Administrative Agent for the benefit of the holders of the
Obligations.
"S&P" means Standard & Poor's Rating Services, a Division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"Seasoned Mortgage Loan" means, as of any date, a Mortgage Loan with a
Mortgage Origination Date that is more than 180 days prior to such date.
"Second Lien Loan" means a Mortgage Loan secured by particular property
with respect to which at least one other higher-priority Mortgage Loan exists
secured by the same property.
"Second Restated Collateral Agency Agreement" means the Second Amended and
Restated Collateral Agency Agreement, dated as of the date hereof, among the
Borrower, the Collateral Agent and the Administrative Agent, substantially in
the form of
27
Exhibit D hereto, as amended, supplemented, restated or otherwise modified from
time to time.
"Second Restated Loan Agreement" means this Second Amended and Restated
Loan Agreement, as amended, modified or supplemented from time to time.
"Second Restated Repurchase Agreement" means the Master Repurchase
Agreement, dated as of December 22, 2000, and the Second Amended and Restated
Addendum to the Master Repurchase Agreement, dated as of the date of this Second
Restated Loan Agreement between the Originator, as Seller, and the Borrower, as
purchaser, as the same may be amended, modified or restated from time to time.
"Security Agreement" means the Security Agreement dated as of December 22,
2000, among the Borrower, the Collateral Agent and the Administrative Agent in
the form attached as Exhibit D-2 to the Second Restated Collateral Agency
Agreement, as amended, modified or supplemented.
"Security Instruments" means (a) the Second Restated Collateral Agency
Agreement, (b) the Security Agreement, (c) the Restated Assignment of
Account,(d) the Reserve Account Control Agreement, (e) the Collection and Paying
Agreement, and (f) such other executed documents as are or may be necessary to
grant to the Administrative Agent a perfected first, prior and continuing
security interest in and to the Collateral and any and all other agreements or
instruments now or hereafter executed and delivered by or on behalf of the
Borrower in connection with, or as security for the payment or performance of,
all or any of the Obligations, as amended, modified or supplemented.
"Servicer" means at any time the Person then authorized pursuant to
Section 11.1 to administer and collect Mortgage Loans on behalf of the Lenders.
The initial Servicer shall be Pulte Mortgage.
"Servicer Default" means (a) any Event of Default, to the extent relating
to the Servicer, arising under Sections 8.1(a), (b), (c), (d), (e), (f), (g),
(h), (i), (j), (k), (l), (m), (n), (o), (u), (v) or (w) in each case, without
giving effect to any provisions in such sections that make such sections
applicable only so long as the Servicer and the Originator are the same
entities, (b) if the Servicer is the Originator, the Performance Guarantor shall
cease to own, directly or indirectly, at least 75% of each class of the
outstanding capital stock of the Servicer, or (c) if the Servicer is the
Originator, the Servicer's Net Worth shall be less than $10,000,000.
"Servicer Fee" is defined in Section 2.4(b).
"Servicer Monthly Report" is defined in Section 3.8.
"Servicer Periodic Report" is defined in Section 3.10.
"Settlement Date" means (a) for purposes of determining fees set forth in
the Fee Letters, (i) the 10th day of each of October, January, April and July,
commencing
28
October 10, 2002 or, if such day is not a Business Day, the next succeeding
Business Day, or (ii) on and after the Drawdown Termination Date, the 10th day
of each calendar month or, if such day is not a Business Day, the next
succeeding Business Day, provided, however, that the Administrative Agent may,
with the consent of the Managing Agents, by notice to the Borrower and the
Servicer, select other days to be Settlement Dates (including days occurring
more frequently than once per month) and (b) for all other purposes, the 10th
day of each calendar month or, if such day is not a Business Day, the next
succeeding Business Day, commencing September 10, 2002, provided, however, on
and after the Drawdown Termination Date, the Administrative Agent may, with the
consent of the Managing Agents, by notice to the Borrower and the Servicer,
select other days to be Settlement Dates (including days occurring more
frequently than once per month)
"Shipping Request" means the shipping request presented by the Borrower to
the Collateral Agent substantially on one of the forms attached as Exhibits
D-5A(a) and D-5A(b) (as amended, modified or supplemented from time to time as
agreed to by the Administrative Agent, the Borrower and the Collateral Agent).
"Shortfall Amount" means, with respect to the last day of any Interest
Period or any Settlement Date, the excess, if any, of (a) all amounts due
pursuant to (i) Section 2.7(c)(iii)(B) or Section 2.7(c)(iv)(C) on the last day
of such Interest Period occurring prior to, on or after the Drawdown Termination
Date, as applicable, (ii) 2.7(c)(iii)(A), (C), (D), or (H) on any such
Settlement Date occurring prior to the Drawdown Termination Date or (iii)
Section 2.7(c)(iv)(A), (B), (D), (E), or (G) on any such Settlement Date
occurring on or after the Drawdown Termination Date, over (b) the sum of the
collections then held by the Servicer for the Lenders and the Administrative
Agent pursuant to Section 2.7(c)(ii) plus collected funds then on deposit in the
Collection Account.
"Sixty-Day Default Ratio" means as of the end of any Collection Period,
the ratio of (i) the principal amount of all Mortgage Loans with respect to
which the Obligor is 60 or more days in payment default or has taken any action,
or suffered any event of the type described in Section 8.1(f), (g) or (h) or is
in foreclosure at such time, to (ii) the aggregate principal amount of all
Mortgage Loans at such time.
"Special Borrowing" is defined in Section 2.3(c).
"Special Indemnified Amounts" is defined in Section 11.5.
"Special Indemnified Party" is defined in Section 11.5
"Special Mortgage Loans" is defined in Section 2.3(c).
"Subprime Loan" means a Mortgage Loan (other than a Conforming Loan, a
Jumbo Loan, an Alt-A Loan or a Second Lien Loan) that (1) is underwritten to
Approved Investor guidelines, (2) matches all applicable requirements for
purchase under the requirements of a Take-Out Commitment specifically issued for
the purchase of such Mortgage Loan, and (3) differs from a Conforming Loan
because of the credit quality of
29
the Obligor, and is originated by the Originator or by a correspondent of the
Originator using the established underwriting guidelines for subprime loans of
the Originator, which are the same underwriting guidelines that the Originator
uses to originate subprime loans for sales into the secondary mortgage market.
"Subsidiary" means, with respect to any Person, any corporation or limited
liability company or other entity of which securities having ordinary voting
power to elect a majority of the board of directors or managers or other persons
performing similar functions are at the time directly or indirectly owned by
such Person, or one or more of its Subsidiaries, or by such Person and one or
more of its Subsidiaries.
"Super Jumbo Loan" means a Jumbo Loan having an original principal balance
in excess of $1,000,000 but equal to or less than $1,500,000.
"Take-Out Commitment" means a current, valid, binding, enforceable,
written commitment, issued by an Approved Investor, to purchase one or more
Mortgage Loans from the Originator prior to the date that is 120 days (or 180
days to the extent Collateral Value may include Mortgage Loans that have been
Eligible Mortgage Loans for more than 120 days pursuant to paragraph (f) of the
definition of Collateral Value) from the date that such Mortgage Loan first
becomes Eligible Mortgage Collateral and at a specified price and in amounts,
form and substance reasonably satisfactory to the Managing Agents, which
commitment is not subject to any term or condition (i) that is not customary in
commitments of like nature or (ii) that, in the reasonably anticipated course of
events, cannot be fully complied with prior to the expiration thereof, which
commitment has been assigned to the Borrower (partial assignments being
permitted so long as the amount assigned (together with all other Take-Out
Commitments) fully covers the amount of the Eligible Mortgage Collateral) and in
which a perfected and first-priority security interest has been granted by the
Borrower to the Administrative Agent; provided, that upon receipt of the actual
written confirmation (each, a "Trade Confirmation") of such trade duly executed
by the Originator and the trade counterparty, and promptly upon request of the
Administrative Agent, the Originator must provide such trade confirmation to the
Administrative Agent. The Administrative Agent, on behalf of the Lenders shall
have the right, without notice, to review such Trade Confirmation at the office
of, and with the officers of, the Originator during normal business hours.
"Transaction Documents" means any of this Second Restated Loan Agreement,
the Notes, the Second Restated Collateral Agency Agreement, the Second Restated
Repurchase Agreement, the Restated Subordination Agreement, the Restated
Originator Performance Guaranty, the Restated Servicer Performance Guaranty, the
Fee Letters, the Original Loan Agreement, the Original Notes, the Security
Instruments, the Original Collateral Agency Agreement, the Original Repurchase
Agreement, the Original Administrative Agent Fee Letter, the Original
Subordination Agreement, the Original Servicer Performance Guaranty, the
Original Originator Performance Guaranty and any and all other agreements or
instruments now or hereafter executed and delivered by or on behalf of the
Borrower in connection with, or as security for the payment or performance of
any or all of the Obligations, as any of such documents may be renewed, amended,
restated or supplemented from time to time.
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"Transfer Request" is defined in Section 3.3(a).
"UCC" means the Uniform Commercial Code as adopted in the applicable
state, as the same may hereafter be amended.
"Uncovered Mortgage Loan" means a Mortgage Loan that would be an
Eligible Mortgage Loan but for the expiration, forfeiture, termination, or
cancellation of, or default under, the relevant Take-Out Commitment.
"VA" means the Department of Veterans Affairs, or any successor
thereto.
"VA Loan" means a Mortgage Loan, the payment of which is partially
or completely guaranteed by the VA under the Servicemen's Readjustment Act
of 1944, as amended, or Chapter 37 of Title 38 of the United States Code
or with respect to which there is a current binding and enforceable
commitment for such a guaranty issued by the VA.
"Warehouse Credit Agreement" means the Fifth Amended and Restated
Revolving Credit Agreement dated as of June 30, 2004, as amended from time
to time, with JPMorgan as administrative agent, Pulte Mortgage and certain
lenders named therein.
1.2. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Second Restated Loan Agreement have the above-defined meanings when used in the
Notes or any other Transaction Document, certificate, report or other document
made or delivered pursuant hereto.
(b) The words "hereof," "herein," "hereunder" and similar terms when
used in this Second Restated Loan Agreement shall refer to this Second Restated
Loan Agreement as a whole and not to any particular provision of this Second
Restated Loan Agreement, and article, section, subsection, schedule and exhibit
references herein are references to articles, sections, subsections, schedules
and exhibits to this Second Restated Loan Agreement unless otherwise specified.
(c) As used herein, in the Notes or in any other Transaction
Document, certificate, report or other document made or delivered pursuant
hereto, accounting terms relating to any Person and not specifically defined in
this Second Restated Loan Agreement or therein shall have the respective
meanings given to them under GAAP.
(d) All accounting and financial terms used -- and compliance with
each financial covenant -- in the Transaction Documents shall be determined
under GAAP; however, unless the Administrative Agent has agreed (in writing) to
the contrary, the determinations concerning the financial covenants found in
Sections 7.1 and 7.10 and the Net Worth of the Servicer (so long as the
Originator is the Servicer), including determinations of Deferred Income under
SFAS 91 and SFAS 122, shall be made under GAAP, and SFAS 91 and SFAS 122, as in
effect on the date of this Second Restated Loan Agreement. All accounting
principles shall be
31
applied on a consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied during the
preceding comparable period.
ARTICLE II
AMOUNT AND TERMS OF COMMITMENT
2.1. Maximum Facility Amount.
(a) Subject to the terms of this Second Restated Loan Agreement and
so long as (i) the total Principal Debt related to the Facility does not exceed
the Maximum Facility Amount, (ii) the Principal Debt owed to the Lenders never
exceed the total Collateral Value of all Eligible Mortgage Collateral, (iii) no
Borrowing ever exceeds the Availability, and (iv) Borrowings are only made on
Business Days before the Drawdown Termination Date, each Issuer may, each in its
sole discretion, make an Advance ratably in accordance with the Bank Commitment
of its Group Bank, and if an Issuer does not make such Advance, its Group Banks
shall, ratably in accordance with their Bank Commitments, make such Advance, to
the Borrower from time to time in such amounts as may be requested by the
Borrower pursuant to Section 2.3, so long as each Borrowing is the least of (x)
the Availability, (y) the Available Collateral Value as of such date, and (z)
$15,000,000 or an integral multiple of $10,000 in excess thereof. Within the
limits of the Maximum Facility Amount, the Borrower may borrow, prepay (whether
pursuant to Section 2.5 or Section 3.3(a) of this Second Restated Loan Agreement
or otherwise), and reborrow under this Section 2.1.
(b) The Borrower may, from time to time by written request to the
Lenders, the Managing Agents, and the Administrative Agent (each such notice
being an "Extension Request") given not later than 90 days and not sooner than
120 days prior to each Annual Extension Date, request an extension of the then
applicable Annual Extension Date. If the Lenders, the Managing Agents, and the
Administrative Agent consent, in their sole discretion, to such Extension
Request, then (x) the Drawdown Termination Date shall not occur as of the then
applicable Annual Extension Date and (y) the Annual Extension Date shall be
extended as described in the definition of "Annual Extension Date." Any such
extension may be accompanied by such additional fees as the parties shall
mutually agree. Notwithstanding anything else to the contrary, the Drawdown
Termination Date shall occur automatically, without further action on the part
of the Lenders, the Managing Agents or the Administrative Agent, on the then
current Annual Extension Date unless an Extension Request has been granted
pursuant to this paragraph. If the Lenders in the JPMorgan Group decline to
consent to an extension requested pursuant to this Section 2.1, but the Lenders
in the Calyon New York Group nevertheless desire to consent to the extension or
confirmation, then the extension shall be granted, and at the option of the
Managing Agent of the Calyon New York Group, either (a) the Maximum Facility
Amount shall be reduced by the Bank Commitments of the Banks in the JPMorgan
Group on the anniversary date immediately following the Extension Request or (b)
the Managing Agent of the Calyon New York Group shall find a replacement for the
JPMorgan Group. If the Lenders in the Calyon New York Group decline to consent
to the extension, but the Lenders in the JPMorgan Group nevertheless desire to
consent to the extension, then the extension shall be granted, and Calyon New
York shall cease to be the Administrative Agent and JPMorgan shall become the
Administrative Agent hereunder, and, at the option of the Managing
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Agent of the JPMorgan Group, either (a) the Maximum Facility Amount shall be
reduced by the Bank Commitments of the Banks in the Calyon New York Group on the
anniversary date immediately following the Extension Request or (b) the Managing
Agent of the JPMorgan Group shall find a replacement for the Calyon New York
Group. To the extent that a Group Bank declines to extend the Drawdown
Termination Date, the Obligations of such Group Bank will be repaid pursuant to
Section 2.7(c)(iii) hereof.
(c) The Borrower may, upon at least thirty (30) days prior
irrevocable notice to the Managing Agents and the Administrative Agent, but no
more than once every three months, reduce the Maximum Facility Amount; provided,
however, that each partial reduction shall be in the aggregate amount of
$10,000,000 or integral multiples of $1,000,000 in excess thereof; provided
further, however that no such reduction shall reduce the Maximum Facility Amount
below the greater of (i) the total Principal Debt owed to the Lenders and (ii)
$75,000,000. Any partial reduction in the Maximum Facility Amount will reduce
the Bank Commitment of each Bank Group ratably.
(d) The Borrower may, upon at least thirty (30) days' prior
irrevocable notice to the Administrative Agent and the Managing Agents,
terminate the Maximum Facility Amount in its entirety upon payment in full of
all Obligations.
2.2. Promissory Notes.
The Advances made by each of the Lenders related to each Group
pursuant to this Article II shall be evidenced by separate Notes each
substantially in the form set forth in Exhibit E-1 (in the case of Lenders in
the Calyon New York Group) or Exhibit E-2 (in the case of Lenders in the
JPMorgan Group) hereto, each in the maximum principal amount of such Group's
related Issuer Facility Amount. Each Managing Agent on behalf of the Lenders in
its Group shall record in its records the date and amount of each Advance to the
Borrower and each repayment thereof. The information so recorded shall be
rebuttable presumptive evidence of the accuracy thereof. The failure to so
record, in the absence of manifest error, any such information or any error in
so recording any such information shall not, however, limit or otherwise affect
the obligations of the Borrower hereunder or under the Notes to pay the
principal of all Advances, together with interest accruing thereon.
2.3. Notice and Manner of Obtaining Borrowings.
(a) Borrowings.
(i) The Borrower shall give the Administrative Agent and each
Managing Agent notice of each request for a Borrowing pursuant to a
Borrowing Request, and in accordance with the provisions of Section 4.2
hereof. On the Borrowing Date specified in the Borrowing Request and
subject to all other terms and conditions of this Second Restated Loan
Agreement, each Issuer may, in its sole discretion, make available to its
Managing Agent at the office of its Managing Agent set forth in Section
13.1, in immediately available funds, its pro rata share of the Borrowing.
(ii) In the event that an Issuer shall elect not to fund an
Advance requested by the Borrower, each Group Bank of such Issuer agrees
that it shall, on the
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Borrowing Date specified in the Borrowing Request and subject to all other
terms and conditions of this Second Restated Loan Agreement, make
available to its Managing Agent at the office of its Managing Agent set
forth in Section 13.1, in immediately available funds, an amount equal to
the product of (x) such Bank's Bank Commitment Percentage of the Group
Bank Commitment Percentage, multiplied by (y) the portion of such
Borrowing that such Issuer has elected not to fund.
(iii) After each Managing Agent's receipt of funds pursuant to
the preceding paragraph (i) or (ii) and upon fulfillment of the applicable
conditions set forth in Article IV, each Managing Agent will make such
funds available to the Borrower a like amount of immediately available
funds. So long as the Borrower is otherwise entitled to make a specific
Borrowing, Borrowing Requests that are received by each Managing Agent by
4:00 p.m. (eastern time) on a Business Day will be funded on the next
Business Day following receipt of the Borrowing Request.
(iv) Notwithstanding the foregoing, a Bank shall not be
obligated to make Advances under this Section 2.3 at any time to the
extent that the principal amount of all Advances made by such Bank would
exceed such Bank's Bank Commitment less the outstanding and unpaid
principal amount of any loans or purchases made by such Bank under a
Liquidity Agreement. Each Bank's obligation shall be several, such that
the failure of any Bank to make available to the Borrower any funds in
connection with any Borrowing shall not relieve any other Group Bank of
its obligation, if any, hereunder to make funds available on the date of
such Borrowing, but no Group Bank shall be responsible for the failure of
any other Group Bank to make funds available in connection with any
Borrowing.
(b) Type of Loan.
(i) Each Advance by an Issuer shall initially be funded by the
issuance of Commercial Paper Notes by such Issuer.
(ii) Each Advance by a Bank shall be either a Base Rate
Advance or a Eurodollar Advance, as determined pursuant to Section
2.15(b).
(c) Special Borrowings. The Borrower may from time to time request
that certain Borrowings be funded prior to the delivery to the Collateral Agent
of the corresponding Principal Mortgage Documents (individually, a "Special
Borrowing"; collectively, "Special Borrowings"). Advances in respect of Special
Borrowings shall be made in accordance with Section 2.3(a), subject to the terms
and conditions of this Second Restated Loan Agreement, including, without
limitation, the following additional terms and conditions:
(i) Pursuant to an Assignment, the Borrower shall grant to the
Administrative Agent for the benefit of the holders of the Obligations,
from the Borrowing Date of each Special Borrowing, a perfected,
first-priority security interest in the Mortgage Loans identified in
Schedule II to said Assignment (such Mortgage Loans being sometimes called
"Special Mortgage Loans";
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(ii) The Assignment in connection with the Borrowing Request
delivered by the Borrower to the Administrative Agent and the Collateral
Agent, pursuant to which the Borrower requests a Special Borrowing, shall
describe the Mortgage Note or Mortgage Notes to be delivered to the
Collateral Agent in connection therewith by the loan number assigned by
the Originator, original principal amount, the amount funded (minus
discount points paid to the Originator) by the Originator, Obligor's name
and interest rate;
(iii) Within nine (9) Business Days after the earlier of the
date that each Assignment is delivered or, if different, the date of
origination of the related Special Mortgage Loan (and inclusion of the
related Special Mortgage Loan within the computation of Collateral Value
as reported on the Collateral Agent Daily Report), to Collateral Agent,
the Borrower shall deliver to the Collateral Agent the Principal Mortgage
Documents pertaining to any Special Mortgage Loan identified on Schedule
II of such Assignment; and
(iv) The Borrower shall not request any Special Borrowing, and
no Special Borrowing shall be made, in respect of any Mortgage Loan that
is closed with an escrow agent other than the relevant title insurance
company, unless at the time of such request, the Borrower is entitled to
the benefit of Closing Protection Rights with provisions substantially
similar to one of the prescribed sets of rights set forth in Exhibit N to
this Second Restated Loan Agreement or as otherwise reasonably required by
the Administrative Agent (it being understood that pursuant to the
Security Agreement, the Administrative Agent has a security interest in
all Closing Protection Rights).
Each request by the Borrower for a Special Borrowing shall be automatically
deemed to constitute a representation and warranty by the Borrower to the effect
that immediately before and after giving effect to such Borrowing, the terms and
conditions specified in the foregoing clauses (i) through (iv) and specified in
Section 4.2 are and shall be satisfied in full as of the related Borrowing Date.
(d) Failure to Deliver Principal Mortgage Documents. The failure to
deliver Principal Mortgage Documents, as required by subparagraph ((iii)) of
Section 2.3(c) and elsewhere in this Second Restated Loan Agreement, shall not
be treated as a Default or an Event of Default so long as each Managing Agent is
satisfied that each such failure, when considered in the light of past and other
contemporaneous failures, does not have a Material Adverse Effect; however, (i)
if any such Principal Mortgage Documents related to such Special Mortgage Loans
are not so delivered on a timely basis, the Borrower shall make a mandatory
prepayment or deliver additional Mortgage Assets so that after giving effect
thereto, the Collateral Value of Eligible Mortgage Collateral (excluding such
Special Mortgage Loans) shall equal or exceed the Principal Debt, and (ii) the
Special Mortgage Loan shall not be an Eligible Mortgage Loan and shall have a
Collateral Value of zero until such Principal Mortgage Documents shall have been
delivered to the Collateral Agent in connection with a subsequent Borrowing.
The Borrower diligently shall pursue delivery to the Collateral
Agent of all Principal Mortgage Documents pertaining to any Special Borrowings.
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2.4. Fees.
(a) The Borrower shall pay to the Administrative Agent and each
Managing Agent (for itself and the Lenders for which it acts) the fees set forth
in the related Fee Letters, such fees to be payable pursuant to Section 2.7(c).
(b) The Borrower shall pay to the Servicer a fee (the "Servicer
Fee") of 0.25% per annum on the aggregate outstanding principal balance of the
Eligible Mortgage Loans from the date hereof until the Principal Debt is paid in
full, payable monthly in arrears on each Settlement Date. The Servicer Fee shall
be payable only from Collections pursuant to, and subject to the priority of
payments set forth in, Section 2.7(c).
2.5. Prepayments.
(a) Optional Prepayments. The Borrower may, at any time and from
time to time with five (5) Business Days' notice to the Administrative Agent and
the Managing Agent, prepay the Advances in whole or in part, in the aggregate
amount of $1,000,000 or integral multiples of $100,000 in excess thereof,
without premium or penalty; provided, that the Borrower may not prepay any
Advance bearing interest at the Commercial Paper Rate on any day other than the
last day of the Interest Period with respect thereto. Notwithstanding the
foregoing, any prepayment made hereunder shall be accompanied by accrued
interest on the principal amount being prepaid. After giving notice that a
prepayment will be made, the Borrower shall be liable to each Affected Party for
any Consequential Loss resulting from such prepayment or the failure to make a
prepayment designated in any such notice.
(b) Mandatory Prepayments. The Borrower shall immediately make a
mandatory prepayment on the Principal Debt owed to the Lenders if at any time,
and to the extent that, (i) the Principal Debt owed to the Lenders exceeds the
Maximum Facility Amount, or (ii) the Principal Debt exceeds the total Collateral
Value of all Eligible Mortgage Collateral. The Borrower shall be liable for any
Consequential Loss resulting from any such prepayment.
2.6. Business Days.
If the date for any payment under this Second Restated Loan
Agreement falls on a day that is not a Business Day, then for all purposes of
the Notes and this Second Restated Loan Agreement the same shall be deemed to
have fallen on either (a) the next following Business Day, and such extension of
time shall in such case be included in the computation of payments of interest
and fees or (b) if the next following Business Day is in another calendar month
and payment is being made with respect to a Eurodollar Advance, then on the
immediately previous Business Day.
2.7. Payment Procedures.
(a) In General. Subject to the provisions of this Section 2.7, all
payments on the Principal Debt and interest and fees under the Notes and this
Second Restated Loan Agreement shall be made by the Borrower (or the Collateral
Agent or the Servicer on behalf of the Borrower) to the related Managing Agent
for the account of the Lenders represented by such Managing Agent. All such
payments shall be made before 4:00 p.m. (eastern time) on the
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respective due dates in federal or other funds immediately available by that
time of day and at each Managing Agent's Account. Funds received after 4:00 p.m.
(eastern time) shall be treated for all purposes as having been received by a
Managing Agent on the Business Day next following the date of receipt of such
funds from the Borrower. All payments made by the Borrower under this Second
Restated Loan Agreement and the Notes shall be without setoff, deduction or
counterclaim and the Borrower agrees to pay on demand any present or future
stamp or documentary taxes or any other taxes, levies, imposts, duties, charges
or fees which arise from payment made hereunder or under the Notes or from the
execution or delivery or otherwise with respect to this Second Restated Loan
Agreement or the Notes.
(b) The Borrower shall establish and maintain an account (the
"Collection Account") with the Collection Account Bank, which account shall be
titled "Pulte Funding, Inc." The Collection Account shall be a fully segregated
trust account, unless the Collection Account Bank shall be an Eligible
Institution having short-term debt ratings from S&P, ▇▇▇▇▇'▇ and Fitch no lower
than A-1/P-1/F1, in which case the account need not be a trust account. The
Collection Account shall be under the control of the Administrative Agent
pursuant to the Restated Assignment of Account, and the Borrower shall have no
right, title or interest in, or any right to withdraw any amount from, the
Collection Account. The Servicer shall have no right to access the Collection
Account except as otherwise contemplated in Section 2.7(c).
(c) Collections.
(i) The Servicer shall administer Collections in accordance
with the provisions of this Section 2.7.
(ii) The Servicer shall hold, on behalf of the Lenders and the
Administrative Agent, from Collections received by it with respect to any
Mortgage Asset, amounts necessary to make payments on the following
Settlement Date (or end of the related Interest Period) pursuant to
Section 2.7(c)(iii) or (iv). Such amounts shall be deposited into the
Collection Account no later than such Settlement Date or at the end of
such Interest Period, or, on or after the Drawdown Termination Date or
upon the occurrence and during the continuation of an Event of Default,
within one Business Day after receipt by the Servicer.
(iii) Prior to the Drawdown Termination Date, the Servicer
shall withdraw funds from the Collection Account (to the extent of
collected funds therein) and shall make payments from the Collection
Account at the following times and in the following order of priority:
(A) To the extent not previously paid, on each
Settlement Date, the Servicer shall deposit an amount equal to
the costs, fees and expenses then due and payable to the
Collateral Agent to an account designated by the Collateral
Agent.
(B) On the last day of each Interest Period for any
Advance that bears interest at the Commercial Paper Rate or
any Eurodollar Advance, the Servicer shall deposit an amount
equal to accrued interest on such
37
Advance, which amount shall be paid to the applicable Managing
Agent's Account for the related Lenders. On each Settlement
Date, the Servicer shall deposit an amount equal to accrued
interest on each Advance that bears interest at the Alternate
Base Rate to the applicable Managing Agent's Account.
(C) To the extent not previously paid, on each
Settlement Date, an amount equal to the fees, costs and
expenses then due and payable, on a pro rata basis, to (i)
JPMorgan, as a Managing Agent under the Managing Agent Fee
Letter shall be paid to JPMorgan's Managing Agent's Account
and (ii) to the Administrative Agent and Calyon New York, as a
Managing Agent, under the Restated Agent Fee Letter to the
Calyon New York's Managing Agent's Account.
(D) On each Settlement Date on which the Required
Reserve Account Amount exceeds the amount then on deposit in
the Reserve Account, the Servicer shall deposit an amount
equal to such excess to the Reserve Account.
(E) [Reserved]
(F) On each Settlement Date, if the Group Banks in any
Group have not consented to an extension of the Drawdown
Termination Date, but the Group Banks in the other Group have
so consented and such non-extending Lenders have not assigned
their respective Advances and Bank Commitments to one or more
other Lenders in accordance with Section 2.1(b) and Section
13.9, the Servicer shall deposit an amount equal to the unpaid
balance of all Primary Obligations owing to the non-extending
Lenders to the related Managing Agent's Account.
(G) To the extent not previously paid, on each
Settlement Date, the Servicer shall deposit any amounts, other
than those listed in clauses (A), (B) and (C) above and other
than principal on the Advances, that are then due and payable
and of which the Servicer has received prior written notice,
including without limitation additional costs under Section
2.16, any additional interest under Section 2.17,
Consequential Losses under Section 2.18, indemnities under
Section 10.1 and costs, expenses and taxes under Section
13.19, to the applicable Managing Agent's Account.
(H) On each Settlement Date, the Servicer shall withdraw
from the Collection Account for its own account an amount
equal to accrued Servicing Fee then due and payable.
(iv) On the Drawdown Termination Date and thereafter, the
Administrative Agent shall make payments from the Collection Account (to
the extent of collected funds therein) at the following times and in the
following order of priority:
38
(A) On each Settlement Date, if the Servicer is not the
Originator or an Affiliate of the Originator, an amount equal
to accrued Servicing Fee then due and payable shall be paid to
the Servicer.
(B) To the extent not previously paid, on each
Settlement Date, an amount equal to the costs, fees and
expenses then due and payable to the Collateral Agent shall be
paid to an account designated by the Collateral Agent.
(C) On the last day of each Interest Period for any
Advance that bears interest at the Commercial Paper Rate or
for any Eurodollar Advance, an amount equal to accrued
interest on each such Advance shall be paid to the applicable
Managing Agent's Account. On each Settlement Date, an amount
equal to accrued interest on Advances that bear interest at
the Alternate Base Rate shall be paid to the applicable
Managing Agent's Account.
(D) On each Settlement Date, an amount equal to the
unpaid principal balance of all Advances made by Lenders shall
be paid to the applicable Managing Agent's Account.
(E) To the extent not previously paid, on each
Settlement Date, an amount equal to the fees, costs and
expenses then due and payable, on a pro rata basis, (i) to
JPMorgan as a Managing Agent, under the Managing Agent Fee
Letter shall be paid to JPMorgan's Managing Agent's Account
and (ii) to the Administrative Agent and Calyon New York, as a
Managing Agent, under the Agent Fee Letter shall be paid to
the Calyon New York's Managing Agent's Account.
(F) To the extent not previously paid, on each
Settlement Date, any amounts of the type described in Section
2.7(c)(iii)(iii)(G) are then due and payable and any other
unpaid Obligations shall be paid to the applicable Managing
Agent's Account.
(G) On the Settlement Date on which all Obligations are
paid in full, if the Servicer is the Originator or an
Affiliate of the Originator, an amount equal to accrued
Servicing Fee then due and payable shall be paid to the
Servicer.
(v) Upon receipt of funds deposited into its Managing Agent's
Account, each Managing Agent shall distribute such funds to the Lenders in
its Group or to itself for application to the Obligations in accordance
with the order of priority set forth in Section 2.7(c)(iii) or (iv), as
applicable.
(d) Interest Payments. Interest on each Advance that bears interest
at the Commercial Paper Rate and interest on each Eurodollar Advance shall be
due and payable on the last day of the Interest Period applicable to such
Advance. Interest on each Advance that bears
39
interest at a rate based on the Alternate Base Rate shall be due and payable in
arrears on each Settlement Date, on the Drawdown Termination Date and,
thereafter, on demand.
(e) Payments from Collection Account. To effect payments (including
prepayments) hereunder, the Borrower or the Servicer may request the
Administrative Agent to remit the collected funds (if any) then held on deposit
in the Collection Account.
2.8. The Reserve Account.
(a) Establishment. An account (the "Reserve Account") shall be
established with JPMorgan Chase Bank, National Association. The Borrower, the
Servicer, Administrative Agent and the Reserve Account Bank have entered into
the Reserve Account Control Agreement. The Reserve Account is and shall be under
the control of the Administrative Agent, and the Borrower has and shall have no
right, title or interest in, or any right to withdraw any amount from, the
Reserve Account.
(b) Taxation. The taxpayer identification number associated with the
Reserve Account shall be that of the Borrower, and the Borrower will report for
federal, state and local income tax purposes the income, if any, earned on funds
in the Reserve Account.
(c) New Reserve Account. In the event the Reserve Account Bank
ceases to be an Eligible Institution, the Borrower shall, within ten days after
learning thereof, establish a new Reserve Account (and transfer any balance and
investments then in the Reserve Account to such new Reserve Account) at another
Eligible Institution.
(d) Statements for Reserve Account. On a monthly basis, the Servicer
shall cause the Reserve Account Bank to provide the Borrower, the Servicer and
the Managing Agents with a written statement with respect to the preceding
calendar month regarding the Reserve Account in a form customary for statements
provided by the Reserve Account Bank for other accounts held by it, which
statement shall include, at a minimum, the amount on deposit in the Reserve
Account, and the dates and amounts of all deposits, withdrawals and investment
earnings with respect to the Reserve Account.
(e) Payments from Reserve Account.
(i) On the Business Day preceding the last day of each
Interest Period and each Settlement Date, the Servicer will determine
whether any Shortfall Amount will arise with respect to such Interest
Period or Settlement Date and will give the Administrative Agent notice of
the amount thereof by noon New York City time. By 2:00 p.m. New York City
time on the Business Day prior to the last day of each Interest Period and
each Settlement Date on which the amount of the Shortfall Amount is
greater than zero, the Servicer shall notify the Reserve Account Bank
requesting payment thereof. To the extent funds are available in the
Reserve Account, the Servicer shall cause the Reserve Account Bank to pay
the amount requested to the applicable Managing Agent's Account, as
specified by the Administrative Agent, by 2:00 p.m. New York City time on
the last day of such Interest Period or on such Settlement Date.
40
(ii) On each Settlement Date prior to the Drawdown Termination
Date on which the funds on deposit in the Reserve Account exceed the
Required Reserve Account Amount (after giving effect to any payments
pursuant to Section 2.8(e)(i)), the Servicer may withdraw and pay to the
Borrower any such excess from the Reserve Account.
(f) Payments to Reserve Account. On the date hereof, the Borrower
shall remit to the Reserve Account immediately available funds so that the
amount on deposit in the Reserve Account equals the Required Reserve Account
Amount. Additional payments shall be deposited to the Reserve Account from time
to time pursuant to Section 2.7(c)(iii)(D).
(g) Pledge. The Borrower hereby pledges and assigns to the
Administrative Agent for the benefit of the Lenders, and hereby grants to the
Administrative Agent for the benefit of the Lenders, a security interest in, all
of the Borrower's right, title and interest in and to the Reserve Account,
including, without limitation, all funds on deposit therein, all investments
arising out of such funds, all interest and any other income arising therefrom,
all claims thereunder or in connection therewith, and all cash, instruments,
securities, rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of such account, such
funds or such investments, and all money at any time in the possession or under
the control of, or in transit to such account, or any bailee, nominee, agent or
custodian of the Reserve Account Bank, and all proceeds and products of any of
the foregoing. Except as provided in the preceding sentence, the Borrower may
not assign, transfer or otherwise convey its rights under this Second Restated
Loan Agreement to receive any amounts from the Reserve Account.
(h) Termination of Reserve Account. On the date following the
Drawdown Termination Date on which all Obligations have been paid in full, all
funds then on deposit in the Reserve Account shall be paid to the Borrower, and
the Reserve Account shall be closed.
2.9. Interest Allocations.
Each Managing Agent shall, from time to time and in its sole
discretion, determine whether interest in respect of the Advances then
outstanding and owing to the Lenders in the related Group, or any portion
thereof, shall be calculated by reference to the Commercial Paper Rate (such
portion of the Principal Debt being herein called a "CP Allocation"), the
Eurodollar Rate or the Alternate Base Rate (such portion of the Principal Debt
as shall be calculated based on the Alternate Base Rate or the Eurodollar Rate
collectively, being herein called an "ABR Allocation"; provided, however, that
each Advance made by a Bank hereunder shall be allocated to the ABR Allocation.
Each Managing Agent shall provide the Borrower with reasonably prompt notice of
the allocations made by it pursuant to this Section 2.9. Following designation
by each Managing Agent of any Advance, or any portion thereof, as being a CP
Allocation, the Borrower may, at all times that such designation remains in
effect, consult with such Managing Agent as to the number and length of Interest
Periods relating to such CP Allocation. In selecting such Interest Periods, each
Managing Agent shall use reasonable efforts, taking into account market
conditions, to accommodate the Borrower's preferences; provided, however, that
each Managing Agent shall have the ultimate authority to make all such
selections.
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2.10. Interest Rates.
Except where specifically otherwise provided, each CP Allocation
shall bear interest for the related Interest Period at a rate per annum equal to
the Commercial Paper Rate applicable to such Interest Period, and each ABR
Allocation shall bear interest at either the Eurodollar Rate plus the Bank
Spread, or the Alternate Base Rate; provided, however, that in no event shall
the rate of interest with respect to any Advance or portion thereof exceed the
Maximum Rate. Each change in the Alternate Base Rate and Maximum Rate, subject
to the terms of this Second Restated Loan Agreement, will become effective,
without notice to the Borrower or any other Person, upon the effective date of
such change.
2.11. Quotation of Rates.
It is hereby acknowledged that an officer or other individual
appropriately designated by an officer previously identified to a Managing Agent
in a certificate of incumbency or other appropriately designated officer of the
Borrower may call such Managing Agent from time to time in order to receive an
indication of the rates then in effect, but such indicated rates shall neither
be binding upon such Managing Agent nor the Lenders nor affect the rate of
interest which thereafter is actually in effect.
2.12. Default Rate.
So long as any Event of Default exists, all Obligations shall bear
interest at the Default Rate until paid, regardless of whether such payment is
made before or after entry of a judgment.
2.13. Interest Recapture.
If the designated rate applicable to any Borrowing exceeds the
Maximum Rate, the rate of interest on such Borrowing shall be limited to the
Maximum Rate, but any subsequent reductions in such designated rate shall not
reduce the rate of interest thereon below the Maximum Rate until the total
amount of interest accrued thereon equals the amount of interest that would have
accrued thereon if such designated rate had at all times been in effect. If at
maturity (stated or by acceleration), or at final payment of the Notes, the
total amount of interest paid or accrued is less than the amount of interest
that would have accrued if such designated rates had at all times been in
effect, then, at such time and to the extent permitted by applicable
Governmental Requirements, the Borrower shall pay an amount equal to the
difference between (a) the lesser of the amount of interest that would have
accrued if such designated rates had at all times been in effect and the amount
of interest that would have accrued if the Maximum Rate had at all times been in
effect, and (b) the amount of interest actually paid or accrued on the Notes.
2.14. Interest Calculations.
All computations of interest and any other fees hereunder shall be
made on the basis of a year of 360 days for the actual number of days (including
the first day but excluding the last day) elapsed; provided, however, that any
calculations of interest based on the rate set forth in clause (a) of the
definition of Alternate Base Rate shall be made on the basis of a year of
42
365/366 days for the actual number of days (including the first day but
excluding the last day) elapsed. All such determinations and calculations by the
Administrative Agent and the Managing Agents shall be conclusive and binding
absent manifest error.
2.15. Interest Period.
(a) "Interest Period" means with respect to any Advance included in
the CP Allocation, each period (i) commencing on, and including, the date that
such Advance was initially designated by the related Managing Agent as
comprising a part of the CP Allocation hereunder, or the last day of the
immediately preceding Interest Period for such Advance (whichever is latest);
and (ii) ending on, but excluding, the date that falls such number of days (not
to exceed 30 days) thereafter as such Managing Agent shall select; provided,
however, that no more than ten Interest Periods (five per Issuer) shall be in
effect at any one time with respect to Advances included in the CP Allocation.
(b) "Interest Period" means with respect to any Advance included in
the ABR Allocation, a period of one month, which Advance shall be a Eurodollar
Advance, unless:
(i) on or prior to the first day of such Interest Period the
Lender with respect to such Advance shall have notified the Administrative
Agent that the introduction of or any change in or in the interpretation
of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for such Lender to
fund such Advance at the Eurodollar Rate (and such Lender shall not have
subsequently notified the Administrative Agent and Managing Agents that
such circumstances no longer exist), or
(ii) the Borrower shall have requested a Base Rate Advance or
an Interest Period shorter than one month, or
(iii) the Administrative Agent and Managing Agents do not
receive notice, by no later than 12:00 noon (New York City time) on the
third Business Day preceding the first day of such Interest Period, that
the related Advance will not be funded by issuance of Commercial Paper
Notes, or
(iv) the principal amount of such Advance is less than
$500,000, or
(v) an Event of Default shall have occurred and be continuing,
in which case (if any of the foregoing events occurs) such Advance shall be a
Base Rate Advance having a duration not in excess of 31 days as selected by the
Borrower (unless an Event of Default shall exist, in which case such duration
shall be selected by the applicable Managing Agent).
(c) Notwithstanding any provision in this Second Restated Loan
Agreement to the contrary, (x) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next succeeding Business
Day (provided, however, if interest in respect of such Interest Period is
computed by reference to the Eurodollar Rate, and such Interest Period would
otherwise end on a day that is not a Business Day, and there is no subsequent
43
Business Day in the same calendar month as such day, such Interest Period shall
end on the immediately preceding Business Day); (y) any Interest Period that
commences before the Drawdown Termination Date and would otherwise end after the
Drawdown Termination Date shall end on the Drawdown Termination Date; and (z)
the duration of each Interest Period that commences on or after the Drawdown
Termination Date shall be of such duration as shall be selected by the
applicable Managing Agents and communicated by notice to the Borrower.
2.16. Additional Costs.
(a) If any Regulatory Change occurring after the date hereof:
(i) shall subject an Affected Party to any tax, duty or other
charge with respect to any Advance to or funded by it, or any obligations
or right to make Advances hereunder or to provide funding therefor, or
shall change the basis of taxation of payments to the Affected Party of
any amounts in respect of a Lender's principal or interest owed to or
funded by it or any other amounts due under this Second Restated Loan
Agreement in respect of any Advance funded by it or its obligations or
rights, if any, to make Advances or to provide funding therefor (except
for changes in the rate of tax on the overall net income of such Affected
Party imposed by the United States of America, by the jurisdiction in
which such Affected Party's principal executive office is located and, if
such Affected Party's principal executive office is not in the United
States of America, by the jurisdiction where such Affected Party's
principal office in the United States is located); or
(ii) shall impose, modify or deem applicable any reserve
(other than reserve requirements referred to in Section 2.17), special
deposit or similar requirement against assets of any Affected Party,
deposits or obligations with or for the account of any Affected Party or
with or for the account of any affiliate (or entity deemed by the Federal
Reserve Board to be an affiliate) of any Affected Party, or credit
extended by any Affected Party; or
(iii) shall change the amount of capital maintained or
required or requested or directed to be maintained by any Affected Party;
or
(iv) shall change the rates for, or the manner in which the
Federal Deposit Insurance Corporation (or any successor thereto) assesses
deposit insurance premiums or similar charges; or
(v) shall impose any other condition affecting any Advance
funded by any Affected Party, or its obligations or rights, if any, to
make Advances or to provide funding therefor;
and the result of any of the foregoing is or would be:
(x) to increase the cost to or impose a cost on (I) an
Affected Party funding or making or maintaining any Advances or any
liquidity loan to an Issuer or any commitment of such Affected Party with
respect to any of the foregoing, or (II) the Administrative Agent for
continuing its, or the Borrower's, relationship with the Lenders,
44
(y) to reduce the amount of any sum received or receivable by
an Affected Party under this Second Restated Loan Agreement or any Note,
or under the Liquidity Agreement with respect thereto, or
(z) in the sole determination of such Affected Party, to
reduce materially the rate of return on the capital of an Affected Party
as a consequence of its obligations hereunder or arising in connection
herewith to a level below that which such Affected Party could otherwise
have achieved,
then within thirty days after demand by such Affected Party (which demand shall
be accompanied by a statement setting forth the basis of such demand), the
Borrower shall pay directly to such Affected Party such additional amount or
amounts as will compensate such Affected Party for such additional or increased
cost or such reduction.
(b) Each Affected Party will promptly notify the Borrower, the
applicable Managing Agent and the Administrative Agent of any event of which it
has knowledge that will entitle such Affected Party to compensation pursuant to
this Section 2.16; provided, however, no failure to give or delay in giving such
notification shall adversely affect the rights of any Affected Party to such
compensation.
(c) In determining any amount provided for or referred to in this
Section 2.16, an Affected Party may use any averaging and attribution methods
that it (in its sole discretion) shall deem applicable. Any Affected Party when
making a claim under this Section 2.16 shall submit to the Borrower a statement
as to such increased cost or reduced return (including calculation thereof),
which Statement shall, in the absence of manifest error, be conclusive and
binding upon the Borrower.
2.17. Additional Interest on Advances Bearing a Eurodollar Rate.
The Borrower shall pay to any Affected Party, so long as such
Affected Party shall be required under regulations of the Federal Reserve Board
to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
of each Advance or portion thereof made or funded (including fundings to an
Issuer for the purpose of maintaining an Advance) by such Affected Party during
each Interest Period in respect of which interest is computed by reference to
the Eurodollar Rate, for such Interest Period, at a rate per annum equal at all
times during such Interest Period to the remainder obtained by subtracting (i)
the Eurodollar Rate for such Interest Period from (ii) the rate obtained by
dividing such Eurodollar Rate referred to in clause (i) above by that percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Affected
Party for such Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be determined by such
Affected Party and notice thereof given to the Borrower (with a copy to the
Administrative Agent and the applicable Managing Agent) within 30 days after any
interest payment is made with respect to which such additional interest is
requested. A certificate as to such additional interest submitted to the
Borrower, the Administrative Agent and the applicable Managing Agent by such
Affected Party shall be conclusive and binding for all purposes, absent manifest
error.
45
2.18. Consequential Loss.
The Borrower shall indemnify each Affected Party against, and shall
pay to the Administrative Agent for such Affected Party within ten days after
request therefor, any Consequential Loss of any Affected Party. When any
Affected Party requests that the Borrower pay any Consequential Loss, it shall
deliver to the Borrower, the Administrative Agent and the applicable Managing
Agent a certificate setting forth the basis for imposing such Consequential Loss
and the calculation of such amount thereof, which calculation shall be
conclusive and binding absent manifest error.
2.19. Replacement Banks.
Upon the election of any Affected Party to request reimbursement by
the Borrower for increased costs under Sections 2.16 or 2.17, the Borrower may,
upon prior written notice to the Administrative Agent, the applicable Managing
Agent and such Affected Party, seek a replacement Bank to whom such additional
costs shall not apply (a "Replacement Bank") and, upon a Bank's breach of its
obligation hereunder to make an Advance, the Borrower may seek a Replacement
Bank for such Bank. Any Replacement Bank shall be satisfactory to the applicable
Managing Agent. Notwithstanding the foregoing, the Borrower may not seek a
replacement for a Bank that is also a Managing Agent unless the related Issuer
is also terminated as a party to this Second Restated Loan Agreement and all of
its outstanding Advances are repaid in full. Each Affected Party agrees that,
should it be identified for replacement pursuant to this Section 2.19, upon
payment in full of all amounts due and owing to such Affected Party hereunder
and under the other Transaction Documents, it will promptly execute and deliver
all documents and instruments reasonably required by the Borrower to assign such
Affected Party's portion of the Advances to the applicable Replacement Bank. Any
such replacement shall not relieve the Borrower of its obligation to reimburse
the Affected Party for any such increased costs incurred through the date of
such replacement.
ARTICLE III
COLLATERAL
3.1. Collateral.
To secure the payment of the Obligations, the Borrower has executed
and delivered to the Administrative Agent and the Collateral Agent, as
applicable:
(a) the Security Agreement,
(b) the Restated Assignment of Account,
(c) Collection and Paying Agreement,
(d) Reserve Account Control Agreement,
(e) the Assignments, and
46
(f) the UCC Financing Statements;
all as more fully provided for in the Second Restated Collateral Agency
Agreement. The Borrower further agrees to execute all documents and instruments,
and perform all other acts reasonably deemed necessary by the Administrative
Agent or any Managing Agent to create and perfect, and maintain the security
interests and collateral assignments in favor of the Administrative Agent or the
Collateral Agent for the benefit of the holders of the Obligations, as perfected
first priority security interests. Any security interest or collateral
assignments granted to the Administrative Agent or the Collateral Agent under
any Transaction Document is for the benefit of the holders of the Obligations,
whether or not reference is made to such holders.
3.2. Delivery of Collateral to Collateral Agent.
(a) Periodically, the Borrower may deliver Mortgage Loan Collateral
to the Collateral Agent to hold as bailee for the Administrative Agent. Each
delivery shall be made in association with an Assignment to the Administrative
Agent, for the benefit of the holders of the Obligations, in all Mortgage Loans,
Take-Out Commitments and related Collateral delivered with or described in such
Assignment or any schedules thereto. The Borrower shall use the form of
Assignment provided for in the Second Restated Collateral Agency Agreement.
(b) Each Assignment delivered to the Collateral Agent shall be
accompanied by a completed Schedule I, Schedule II and Schedule III using the
forms of such schedules as prescribed in the Second Restated Collateral Agency
Agreement and, with respect to each Mortgage Loan described in Schedule I to
each Assignment, shall deliver or cause to be delivered the following items
(collectively, the "Principal Mortgage Documents"):
(i) the original of each Mortgage Note, endorsed in blank
(without recourse) and all intervening endorsements thereto;
(ii) in the case of each Mortgage Loan that is not a MERS
Designated Mortgage Loan, an original executed assignment in blank for
each Mortgage Note and the Mortgage securing such Mortgage Note, in
recordable form executed by the Originator (and if the related Mortgage
Loan is a MERS Designated Mortgage Loan, this document shall not be
required to be delivered to the Collateral Agent); and
(iii) a certified copy of the executed Mortgage related to
such Mortgage Note;
(c) The Servicer shall hold in trust for the Administrative Agent
for the benefit of the holders of the Obligations, with respect to each Mortgage
Loan included in the Collateral,
(i) the original filed Mortgage relating to such Mortgage
Loan, provided, however, that, until an original Mortgage is received from
the public official charged with its filing and recordation, a copy,
certified by the closing agent to be a true and correct copy of the filed
and recorded original, may be used by the Borrower to satisfy this
requirement; however, the Borrower shall thereafter pursue, with
reasonable diligence, receipt of the filed and recorded original Mortgage;
47
(ii) other than with respect to a HUD repossessed Property
that is sold to a consumer, a mortgagee's policy of title insurance (or
binding unexpired commitment to issue such insurance if the policy has not
yet been delivered to the Servicer) insuring the Borrower's perfected,
first-priority Lien except Second Lien Loans created by the Mortgage
securing such Mortgage Loan (subject to such title exceptions that conform
to the related Take-Out Commitments) in a policy amount not less than the
principal amount of such Mortgage Loan;
(iii) the original hazard insurance policy, appropriately
endorsed to provide that all insurance proceeds will be paid to the
Originator or its assigns, referred to in Section 6.6(b) hereof which
relate to such Mortgage Loan, or other evidence of insurance reasonably
acceptable to the Administrative Agent;
(iv) the form of current appraisal of the Property described
in the Mortgage, prepared by a state licensed appraiser, that complies
with all applicable Governmental Requirements, including all Governmental
Requirements that are applicable to the Lenders or any other Affected
Party; provided, however, that no appraisal shall be required for Mortgage
Loans (x) financing HUD repossessed Property that is sold to a consumer,
financed with an FHA loan, fully insurable and in accordance with FHA
guidelines, but for which an appraisal is not required, and (y)
representing so called VA Rate Reduction or FHA Streamline refinances,
insurable in accordance with VA and FHA guidelines, but for which an
appraisal is not required; and
(v) all other original documents (collectively, the "Other
Mortgage Documents").
Upon request of the Administrative Agent or any Managing Agent, the Borrower
shall immediately deliver, or shall cause to be delivered, all such items, held
in trust, to the Collateral Agent as bailee for the Administrative Agent or such
other party as may be designated in such notice. Upon instructions from the
Administrative Agent, the Collateral Agent shall reject as unsatisfactory any
items so delivered, whereupon the Mortgage Loan shall not be an Eligible
Mortgage Loan.
(d) In connection with each Assignment delivered to the Collateral
Agent, the Borrower shall deliver to the Administrative Agent with respect to
any Non-Conforming Loans, copies of the related master agreement or commitment
with the related Approved Investor, with any confidential economic terms
redacted (unless a copy of such agreement or commitment has been delivered
previously), together with a current Hedge Report with respect to such Mortgage
Loans.
(e) The Servicer shall provide the Collateral Agent and the
Administrative Agent with full access to all Other Mortgage Documents held in
trust for the Administrative Agent at all times.
(f) With respect to each Assignment that is received by the
Collateral Agent, the Collateral Agent shall review such Assignment and make a
written report to the Borrower
48
and the Administrative Agent, all as more fully provided in the Second Restated
Collateral Agency Agreement.
3.3. Redemption of Mortgage Collateral.
(a) Generally. Subject to the limitations contained in this Section
3.3, in connection with a sale or other transfer contemplated by clause (a) or
(b), and so long as no Default or Event of Default is continuing, the Borrower
or the Servicer (on behalf of the Borrower) may request releases of the
Administrative Agent's security interest in all or any part of the Collateral
(including releases from the Collection Account and release of funds owned by
the Borrower and held in the Cash and Collateral Account) at any time, and from
time to time; provided that no such request shall be granted unless, in addition
to the satisfaction of the other conditions contained in this Section 3.3,
(i) (immediately after giving effect to any requested release)
the total Collateral Value of all Eligible Mortgage Collateral shall equal
or exceed the Principal Debt, or
(ii) (A) the Borrower makes a principal payment on account of
the Principal Debt in an amount, or (B) the Borrower delivers to the
Collateral Agent as bailee for the Administrative Agent substitute
Eligible Mortgage Collateral with a Collateral Value, such that after
giving effect to such payment or delivery, the total Collateral Value of
all Eligible Mortgage Collateral will equal or exceed the Principal Debt.
Each request for a partial release of Collateral (a "Transfer Request") shall be
addressed to the Collateral Agent and (i) shall be substantially in the form
illustrated in Exhibit D-5 to the Second Restated Collateral Agency Agreement
(or such other form as may be reasonably acceptable to or required by the
Administrative Agent, from time to time) or (ii) shall be in the form of an
electronic transmission which shall include a schedule substantially in the form
illustrated on Schedule I to Exhibit D-5 to the Second Restated Collateral
Agency Agreement (or such other form as may be reasonably acceptable to or
required by the Administrative Agent, from time to time).
(b) Redemption Pursuant to Sale. So long as no Default or Event of
Default is continuing, the Borrower or the Servicer (on behalf of the Borrower)
may from time to time submit a Shipping Request that would permit a sale of
Mortgage Loan Collateral to, or the pooling of Mortgage Loan Collateral for, an
Approved Investor, pursuant to a Take-Out Commitment. Upon the receipt by the
Collateral Agent of a Shipping Request from the Borrower identifying Collateral
to be delivered to an Approved Investor, and so long as no Default or Event of
Default shall be in existence or would be caused thereby:
(i) The Collateral Agent shall deliver to the Approved
Investor, or its loan servicing provider or custodian, under the
Collateral Agent's "Bailee and Security Agreement Letter" substantially in
the form provided for in the Second Restated Collateral Agency Agreement,
as appropriate, the items of Mortgage Loan Collateral being sold that are
held by the Collateral Agent as bailee for the Administrative Agent
pursuant to Section 3.2 hereof, with the release of the security interest
in favor of the Administrative Agent
49
for the benefit of the holders of the Obligations in such items being
conditioned upon timely payment to the Cash and Collateral Account of the
amount described in Section 3.3(b)(iii) or delivery of additional Eligible
Mortgage Collateral;
(ii) The Servicer shall, as agent for the Administrative
Agent, deliver to such Approved Investor, or such Approved Investor's loan
servicing provider or custodian, pursuant to procedures provided for in
the Second Restated Collateral Agency Agreement, the items held by the
Servicer pursuant to Section 3.2(c) that are related to the Mortgage Loan
Collateral to be transferred on the condition that such Approved Investor
or its loan servicing provider or custodian shall hold or control such
Other Mortgage Documents as bailee for the Administrative Agent (for the
benefit of the holders of the Obligations) until the Approved Investor has
either paid the full purchase price for such Mortgage Loan Collateral to
the Collateral Agent, as required by the relevant Take-Out Commitment;
(iii) Within forty-five (45) days after the delivery by the
Collateral Agent to such Approved Investor or its loan servicing provider
or custodian of the items of Mortgage Loan Collateral described in Section
3.3(b)(i), the Borrower shall make a payment, or shall cause a payment to
be made, to the Cash and Collateral Account, for distribution to the
Administrative Agent for the account of the Lenders in an amount equal to
at least the full purchase price for such Mortgage Loan Collateral; and
(iv) With respect to each Shipping Request that is received by
the Collateral Agent by 8:00 a.m. (eastern time) on a Business Day, the
Collateral Agent shall use due diligence and efforts to review such
Shipping Request and prepare the Mortgage Loan files identified in each
Shipping Request, for shipment prior to the close of business on such day.
(c) Transfers. So long as no Default or Event of Default is
continuing, the Borrower shall, at any time, be permitted to transfer Mortgage
Loans to any Permitted Transferees (as defined below) by means of its daily
electronic transmissions to the Collateral Agent, together with delivery of a
Transfer Request delivered to the Collateral Agent identifying each Mortgage
Loan being transferred. The Collateral Agent's sole responsibility with respect
to any such transfers shall be to correctly reflect such transfers on its
computer system and books and records and to indicate, on its Collateral Agent's
Daily Report on the next Business Day, that such transfers have been effected.
"Permitted Transferees" means (i) the Originator, in connection with any sale
and transfer thereto effected pursuant to the terms of the Second Restated
Repurchase Agreement and (ii) any Approved Investor approved by the
Administrative Agent as a Permitted Transferee. However, requested transfers
will not be made if (A) total Principal Debt, as shown on the most recently
received Servicer Periodic Report in the form of Exhibit M, will exceed the
total Collateral Value of Eligible Mortgage Collateral immediately after giving
effect to a requested transfer, (B) the Collateral Agent has not received the
prior day's Servicer Periodic Report in the form of Exhibit M by 11:00 a.m.
(eastern time) on the date on which the transfer is to be made, or (C) the
Collateral Agent shall have received written notice from the Administrative
Agent that a Default or Event of Default has occurred.
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(d) Continuation of Lien. Unless released in writing by the
Administrative Agent as herein provided, the security interest in favor of the
Administrative Agent for the benefit of the holders of the Obligations, in all
Mortgage Loan Collateral transmitted pursuant to Section 3.3(b) shall continue
in effect until such time as payment in full of the amount described in Section
3.3(b)(iii) shall have been received.
(e) Application of Proceeds; No Duty. Neither the Administrative
Agent nor the Lenders shall be under any duty at any time to credit Borrower for
any amount due from any Approved Investor in respect of any purchase of any
Mortgage Collateral contemplated under Section 3.3(b) above, until such amount
has actually been received in immediately available funds and deposited to the
Collection Account. Neither the Collateral Agent, nor the Lenders, nor the
Administrative Agent shall be under any duty at any time to collect any amounts
or otherwise enforce any obligations due from any Approved Investor in respect
of any such purchase.
(f) Mandatory Redemption of Mortgage Collateral. Notwithstanding any
provision herein to the contrary, if at any time a Collateral Deficiency exists,
the Borrower shall, immediately make a payment to the Collection Account (or
make payment directly to the Administrative Agent) or pledge, assign and deliver
additional or substitute Eligible Mortgage Collateral to the Administrative
Agent for the benefit of the holders of the Obligations, so that, immediately
after giving effect to such payment or pledge and assignment, total Collateral
Value of Eligible Mortgage Collateral shall be equal or greater than the
Principal Debt.
(g) Representation in Connection with Releases, Sales and Transfers.
The Borrower represents and warrants that each request for any release or
transfer pursuant to Section 3.3(a) or Section 3.3(b) shall automatically
constitute a representation and warranty to the effect that immediately before
and after giving effect to such release or Transfer Request, the Collateral
Value of Eligible Mortgage Collateral shall equal or exceed the Principal Debt.
(h) Limitation on Releases. Notwithstanding any provision to the
contrary, the Collateral Agent shall not release any Collateral unless payment
of the purchase price by the Approved Investor or the Originator shall have been
made in immediately available funds to the Cash and Collateral Account;
provided, however, that the foregoing shall not apply if there is no Default or
Event of Default and immediately before and after giving effect to such release,
the total Collateral Value of Eligible Mortgage Collateral shall equal or exceed
the Principal Debt.
3.4. Correction of Mortgage Notes.
The Servicer may from time to time request, in writing, that the
Collateral Agent deliver a Mortgage Note that constitutes Mortgage Loan
Collateral so that such Mortgage Note may be replaced by a corrected Mortgage
Note. Upon receipt by the Collateral Agent of such a request from the Servicer,
and so long as no Default or Event of Default shall be in existence, the
Collateral Agent shall deliver to the Servicer, under the Collateral Agent's
"Trust Receipt and Security Agreement Letter", in the form provided for in the
Second Restated Collateral Agency Agreement, the Mortgage Note to be corrected,
such delivery to be conditioned upon the receipt within fourteen (14) calendar
days by the Collateral Agent of a corrected Mortgage Note acceptable to it. If
the corrected Mortgage Note is not received with such time, then, beginning
51
on the first Business Day following such fourteenth calendar day, the Collateral
Agent shall assign such Mortgage Loan a Collateral Value of zero.
3.5. Collateral Reporting.
Pursuant to the Second Restated Collateral Agency Agreement, at the
commencement of each Business Day, and in no event later than 11:00 a.m.
(eastern time), the Collateral Agent shall furnish to the Borrower, the Servicer
and each Managing Agent (by facsimile (a hard copy of which shall not
subsequently be mailed, sent or delivered to either Managing Agent, unless so
requested by such Managing Agent)) a duly completed Collateral Agent Daily
Report in the form of Exhibit D-8 to the Second Restated Collateral Agency
Agreement.
3.6. Hedge Reports.
No later than 11:00 a.m. (eastern time), on the first Business
Day of each week, and, if any changes would be reflected since the last Hedge
Report, on each other Business Day, the Servicer shall furnish the Borrower and
the Administrative Agent a Hedge Report, in the form of Exhibit K.
3.7. [RESERVED]
3.8. Servicer Monthly Reporting.
No later than 11:00 a.m. (eastern time) on the 15th day of
each month (or, if such day is not a Business Day, the next Business Day) and
within twenty (20) days after request by the Managing Agent, the Servicer shall
furnish the Borrower and the Managing Agents (by facsimile or electronic
transmission (a hard copy of which shall not subsequently be mailed, sent or
delivered to the Managing Agent, unless so requested by a Managing Agent) a
report executed by a Financial Officer of the Servicer or the Originator, in the
form of Exhibit F hereto ("Servicer Monthly Report") which shall provide as of
the last day of the previous month (or of the date of such request) (i) a
computation of the Default Ratio and Sixty-Day Default Ratio, (ii) an aging of
Mortgage Loans owned by the Borrower that are financed by the Lenders and
constitute Collateral hereunder, (iii) the Pool Weighted Average FICO Score, and
(iv) the other information provided for therein;
3.9. Servicer Annual Pipeline Reporting.
No later than 11:00 a.m. (eastern time) promptly after
becoming available, and in any event within 90 days after the close of each
fiscal year of the Originator, a report, in form and content reasonably
acceptable to the Administrative Agent, on the Originator's "open and pipeline
positions" for Conforming Loans as of the last day of such fiscal year, and the
Originator's Mortgage Loan production for such fiscal year for all Mortgage
Loans; and
3.10. Servicer Periodic Reporting.
The Servicer shall furnish the Administrative Agent, the
Managing Agents and the Collateral Agent (by facsimile (a hard copy of which
shall subsequently be mailed, sent or
52
delivered to the Collateral Agent only if so requested by such Person)) a duly
completed Servicer Periodic Report, in the form of Exhibit M (the "Servicer
Periodic Report") (i) as Schedule II attached to each Borrowing Request, on or
prior to 4:00 p.m. eastern time on the date prior to the date on which the
Borrowing is to be made, and (ii) upon any mandatory or voluntary prepayment in
accordance with Section 2.5(a) or (b), on or prior to 4:00 p.m. eastern time on
the date prior to the date on which the prepayment is to be made.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Borrowing.
The effectiveness of this Second Restated Loan Agreement and the
making of the any Advances hereunder shall not occur until the later of August
19, 2005, or satisfaction of the conditions precedent specified in Section 4.2
hereof and delivery to the Administrative Agent of the following (each of the
following documents being duly executed and delivered and in form and substance
satisfactory to the Managing Agents and the Administrative Agent, and, with the
exception of the Notes and the UCC statement(s), each in a sufficient number of
originals that the Administrative Agent may have an executed original of each
document):
(a) an executed counterpart of this Second Restated Loan
Agreement;
(b) the Notes;
(c) the Second Restated Collateral Agency Agreement, the Restated
Assignment of Account, the Reserve Account Control Agreement, Collection and
Paying Agreement, and such other Security Instruments as may be requested by the
Administrative Agent;
(d) the Second Restated Repurchase Agreement;
(e) upon request of the Administrative Agent, a certificate of the
Secretary or Assistant Secretary of each of the Borrower and the Originator
certifying as to (i) certificate of incorporation or organization, or
certificate of formation (ii) bylaws or limited liability company agreement
(iii) resolutions of the Borrower's and the Originator's board of directors or
board of managers authorizing the execution, delivery, and performance by each
of them of the Transaction Amendment Documents to which they are a party and
identifying the officers of the Borrower and the Originator who are authorized
to sign such Transaction Amendment Documents, and (iv) specimen signatures of
the officers so authorized;
(f) upon request of the Administrative Agent, a favorable written
opinion, relating to security interest matters, substantially in the form of
Exhibit I-2 hereto;
(g) upon request of the Administrative Agent, a favorable written
opinion from counsel to the Borrower and the Originator, regarding corporate
matters, substantially in the form of Exhibit I-1 hereto;
53
(h) upon request of the Administrative Agent, a favorable written
opinion from counsel to the Borrower and Originator, regarding true sale
matters, substantially in the form of Exhibit J;
(i) upon request of the Administrative Agent, a certificate from
each of (i) the Michigan Department of Consumer and Industry Services, (ii) the
Secretary of State of Colorado, (iii) the Secretary of State of the State of
Delaware and (iv) an officer of the Borrower, the Performance Guarantor and the
Originator with respect to every other state in which the Borrower, the
Performance Guarantor or the Originator conducts business, as to the good
standing of the Borrower, the Performance Guarantor and/or the Originator, as
applicable, in each state or states for which each certificate is made;
(j) the Managing Agent Fee Letter and the Restated Agent Fee
Letter;
(k) evidence of the payment of fees due at closing, as provided in
the Fee Letters;
(l) evidence that the balance in the Reserve Account, as of the
date hereof, is the amount of the Required Reserve Account Amount;
(m) such other documents as the Managing Agents may reasonably
request at any time at or prior to the Borrowing Date of the initial Borrowing
hereunder; and
(n) upon request of the Administrative Agent, a search report
provided in writing to the Administrative Agent by the United States Corporation
Company Document Services, listing all effective financing statements that name
the Borrower or the Originator as debtor and that are filed in the jurisdictions
in which UCC1 filings were made in connection with the Original Loan Agreement
and in such other jurisdictions as the Administrative Agent shall reasonably
request, together with copies of such financing statements (none of which,
except as listed on Schedule V, shall cover any Mortgage Loans or interests
therein or proceeds thereof).
4.2. All Borrowings.
Each Advance (including, without limitation, the initial Advance)
pursuant to this Second Restated Loan Agreement is subject to the following
further conditions precedent:
(a) (i) prior to 5:00 p.m. (eastern time) on the Business Day
before the designated Borrowing Date, the Administrative Agent, each Managing
Agent and the Collateral Agent shall have received a Borrowing Request (together
with any related Assignment) duly executed and delivered by the Borrower; and
(ii) the Administrative Agent and each Managing Agent shall have received on the
proposed date of funding, a Collateral Agent Daily Report, pursuant to Section
3.8 of the Second Restated Collateral Agency Agreement, verifying that after
giving effect to the requested Advance, the Collateral Value of all Eligible
Mortgage Collateral shall exceed the Principal Debt;
(b) all Collateral in which the Borrower has granted a security
interest to the Administrative Agent for the benefit of the holders of the
Obligations, with the exception of Special Mortgage Loans pursuant to Section
2.3(c), shall have been physically delivered to the
54
possession of the Collateral Agent, to the extent that such possession is
necessary or appropriate for the purpose of creating a first priority perfected
Lien of the Administrative Agent for the benefit of the holders of the
Obligations in such Collateral;
(c) the representations and warranties of the Borrower, the
Originator and (so long as the Servicer and the Originator are the same entity)
the Servicer contained in this Second Restated Loan Agreement, any Assignment or
Borrowing Request, or any Security Instrument or other Transaction Document
(other than those representations and warranties that, by their express terms,
are limited to the effective date of the document or agreement in which they are
initially made) shall be true and correct on and as of the date of such Advance;
(d) no Default or Event of Default or Servicer Default shall have
occurred and be continuing, or would result from such Advance, and no change or
event that constitutes a Material Adverse Effect shall have occurred and be
continuing as of the date of such Advance;
(e) the Collection Account shall be established and in existence
and free from any Lien other than pursuant to the Restated Assignment of
Account;
(f) delivery of a sufficient number of originals such that the
Administrative Agent may have an executed original thereof, of such other
documents, including such other documents as may be necessary or desirable to
perfect or maintain the priority of any Lien granted or intended to be granted
hereunder, as any Managing Agent may reasonably request; and
(g) the Drawdown Termination Date shall not have occurred.
Each Borrowing Request shall be automatically deemed to constitute a
representation and warranty by the Borrower on the Borrowing Date set forth
therein to the effect that all of the conditions of this Section 4.2 are
satisfied as of such Borrowing Date; provided that it is understood and agreed
that only the Managing Agents can determine whether conditions are
"satisfactory" to the Managing Agents.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Representations of the Borrower and the Servicer.
The Borrower and the Servicer each represents and warrants, as to
itself, as follows:
(a) Organization and Good Standing. It (i) is a corporation or
limited liability company duly organized and existing in good standing under the
laws of the jurisdiction of its incorporation or formation, (ii) is duly
qualified to do business and in good standing in all jurisdictions in which its
failure to be so qualified could have a Material Adverse Effect, (iii) has the
requisite corporate power and authority to own its properties and assets and to
transact the business in which it is engaged and is or will be qualified in
those states wherein it proposes to transact business in the future and (iv) is
in compliance with all Requirements of Law, except
55
where the failure to be in compliance would not reasonably be expected to have a
Material Adverse Effect. The Servicer is formed in Delaware and in no other
jurisdiction. The Borrower is incorporated in Michigan and in no other
jurisdiction.
(b) Authorization and Power. It has the requisite corporate power
and authority to execute, deliver and perform this Second Restated Loan
Agreement and the other Transaction Documents to which it is a party; it is duly
authorized to and has taken all requisite corporate action necessary to
authorize it to, execute, deliver and perform this Second Restated Loan
Agreement and the other Transaction Documents to which it is a party and is and
will continue to be duly authorized to perform this Second Restated Loan
Agreement and such other Transaction Documents.
(c) No Conflicts or Consents. Neither the execution and delivery
by it of this Second Restated Loan Agreement or the other Transaction Documents
to which it is a party, nor the consummation of any of the transactions herein
or therein contemplated, nor compliance with the terms and provisions hereof or
with the terms and provisions thereof, will (i) contravene or conflict with any
Requirement of Law to which it is subject, except where such contravention or
conflict would not reasonably be expected to have a Material Adverse Effect, or
any indenture, mortgage, deed of trust, or other agreement or instrument to
which it is a party or by which it may be bound, or to which its Property may be
subject, except where such contravention or conflict would not reasonably be
expected to have a Material Adverse Effect, or (ii) result in the creation or
imposition of any Lien, other than the Liens of the Security Instruments, on the
Property of the Borrower.
(d) Enforceable Obligations. This Second Restated Loan Agreement
and the other Transaction Documents to which it is a party have been duly and
validly executed by it and are its legal, valid and binding obligations,
enforceable in accordance with their respective terms, except as limited by
Debtor Laws and by general principles of equity.
(e) Full Disclosure. There is no fact known to it that it has not
disclosed to the Managing Agents that could have a Material Adverse Effect.
Neither its financial statements nor any Borrowing Request, officer's
certificate or statement delivered by it to the Managing Agents in connection
with this Second Restated Loan Agreement, contains or will contain any untrue or
inaccurate statement of material fact or omits or will omit to state a material
fact necessary to make such information not misleading.
(f) No Default. It is not in default under any loan agreement,
mortgage, security agreement or other agreement or obligation to which it is a
party or by which any of its Property is bound, if such default would also be a
Default or an Event of Default (or, with notice or passage of time would become
a Default or Event of Default) under either of subparagraphs (e) or (i) of
Section 8.1 of this Second Restated Loan Agreement.
(g) Litigation.
(i) Except as set forth on Schedule IV, there are no
actions, suits or proceedings, including arbitrations and administrative
actions, at law or in equity, either by or before any Governmental
Authority, now pending or, to its knowledge, threatened
56
by or against it or any of its Subsidiaries, and pertaining to any
Governmental Requirement affecting its Property or rights or any of its
Subsidiaries.
(ii) Neither it nor any of its Subsidiaries is in default
with respect to any Governmental Requirements.
(iii) The Borrower is not liable on any judgment, order or
decree (or any series of judgments, orders, or decrees) having an
aggregate liability of $100,000 or more and that has not been paid, stayed
or dismissed within 30 days.
(h) Taxes. All tax returns required to be filed by it in any
jurisdiction have been filed and all taxes, assessments, fees and other
governmental charges upon it or upon any of its properties, income or franchises
have been paid prior to the time that such taxes could give rise to a Lien
thereon, unless protested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been established on its
books, and except where such failure to file or pay would not reasonably be
expected to have a Material Adverse Effect. There is no proposed tax assessment
against it that would have a Material Adverse Effect.
(i) Indebtedness. If the Servicer is the Originator, the Servicer
is in compliance with the maximum leverage test set forth in Section 7.10.
(j) Permits, Patents, Trademarks, Etc.
(i) It has all permits and licenses necessary for the
operation of its business, the absence of which would reasonably be
expected to have a Material Adverse Effect.
(ii) It owns or possesses (or is licensed or otherwise has
the necessary right to use) all patents, trademarks, service marks, trade
names and copyrights, technology, know-how and processes, and all rights
with respect to the foregoing, which are necessary for the operation of
its business, without any conflict with the rights of others. The
consummation of the transactions contemplated hereby will not alter or
impair any of such rights of it.
(k) Status Under Certain Federal Statutes. It is not (i) a
"holding company", or a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, (ii) a "public utility," as such term is defined in the
Federal Power Act, as amended, (iii) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended, or (iv) a "rail carrier," or a "person
controlled by or affiliated with a rail carrier," within the meaning of Title
49, U.S.C., and it is not a "carrier" to which 49 U.S.C. Section 11301(b)(1) is
applicable.
(l) Securities Acts. It has not issued any unregistered securities
in violation of the registration requirements of the Securities Act of 1933, as
amended, or of any other Requirement of Law, and is not violating any rule,
regulation, or requirement under the
57
Securities Act of 1933, as amended, or the Securities and Exchange Act of 1934,
as amended. The Borrower is not required to qualify an indenture under the Trust
Indenture Act of 1939, as amended, in connection with its execution and delivery
of the Notes.
(m) No Approvals Required. Other than consents and approvals
previously obtained and actions previously taken, neither the execution and
delivery of this Second Restated Loan Agreement and the other Transaction
Documents to which it is a party, nor the consummation of any of the
transactions contemplated hereby or thereby requires the consent or approval of,
the giving of notice to, or the registration, recording or filing by it of any
document with, or the taking of any other action in respect of, any Governmental
Authority that has jurisdiction over it or any of its Property.
(n) Environmental Matters. There have been no past, and there are
no pending or threatened, claims, complaints, notices, or governmental inquiries
against it regarding any alleged violation of, or potential liability under, any
environmental laws that could reasonably be expected to have a Material Adverse
Effect. It and its properties are in compliance in all respects with all
environmental laws and related licenses and permits, except where such
non-compliance would reasonably be expected to have a Material Adverse Effect.
No conditions exist at, on or under any Property now or previously owned or
leased by it that could give rise to liability under any environmental law that
could reasonably be expected to have a Material Adverse Effect.
(o) Eligibility. The Servicer and the Originator are approved and
qualified and in good standing as a lender or seller/servicer, as follows:
(i) Each of the Servicer and the Originator is a ▇▇▇▇▇▇ ▇▇▇
approved seller/servicer and the Borrower is a ▇▇▇▇▇▇ Mae approved seller
(in good standing) of Mortgage Loans, eligible to originate, purchase,
hold, sell and, with respect to the Originator and the Servicer, service
Mortgage Loans to be sold to ▇▇▇▇▇▇ ▇▇▇.
(ii) Each of the Servicer and the Originator is a ▇▇▇▇▇▇▇ Mac
approved seller/servicer (in good standing) of Mortgage Loans, eligible to
originate, purchase, hold, sell and service Mortgage Loans to be sold to
▇▇▇▇▇▇▇ Mac.
The Servicer and Originator is an approved FHA servicer, VA servicer and
▇▇▇▇▇▇ Mae issuer (in good standing) of mortgage loans, eligible to
originate, purchase, hold, sell and service mortgage loans to be pooled
into ▇▇▇▇▇▇ ▇▇▇ MBS Pools and to issue ▇▇▇▇▇▇ Mae MBS.
(p) Second Lien Loans. At least 95% of the Second Lien Loans were
originated by the Originator at the same time that the Originator originated the
related first lien mortgage loan secured by the same mortgaged property.
5.2. Additional Representations of the Borrower.
The Borrower further represents and warrants as follows:
58
(a) Activities. The Borrower was formed on December 22, 2000, and
the Borrower did not engage in any business activities prior to the date of the
Original Loan Agreement.
(b) Solvency. Both prior to and after giving effect to each
Borrowing, (i) the fair value of the property of the Borrower is greater than
the total amount of liabilities, including contingent liabilities, of the
Borrower, (ii) the present fair salable value of the assets of the Borrower is
not less than the amount that will be required to pay all probable liabilities
of the Borrower on its debts as they become absolute and matured, (iii) the
Borrower does not intend to, and does not believe that it will, incur debts or
liabilities beyond the Borrower's abilities to pay such debts and liabilities as
they mature and (iv) the Borrower is not engaged in a business or a transaction,
and is not about to engage in a business or a transaction, for which the
Borrower's property would constitute unreasonably small capital.
(c) Purchase of Mortgage Loans. With respect to each Mortgage
Loan, the Borrower purchased such Mortgage Loan from the Originator for cash (in
accordance with the provisions of the Second Restated Repurchase Agreement),
substitution of other Mortgage Loans, the Deferred Purchase Price (as such term
is defined in the Second Restated Repurchase Agreement), or a combination
thereof in an amount that constitutes fair consideration and reasonably
equivalent value. Each such sale referred to in the preceding sentence shall not
have been made for or on account of an antecedent debt owed by the Originator to
the Borrower and no such sale is or may be voidable or subject to avoidance
under any section of the Federal Bankruptcy Code.
(d) Priority of Debts and Liens. The Borrower has incurred no
Indebtedness except as expressly incurred hereunder and under the other
Transaction Documents. Upon delivery of an Assignment to the Collateral Agent,
the Administrative Agent will have a valid, enforceable, perfected and
first-priority Lien, for the benefit of the holders of the Obligations, in all
Mortgage Loan Collateral described in or delivered with such Assignment. Upon
delivery of funds for deposit in the Collection Account to the Collateral Agent,
the Administrative Agent will have a valid, enforceable, perfected and
first-priority Lien for the benefit of the holders of the Obligations, on the
Collection Account and related Collateral.
(e) No Liens. The Borrower has (or, as to all Mortgage Loan
Collateral delivered to the Collateral Agent after the date of this Second
Restated Loan Agreement, will have) good and indefeasible title to all
Collateral, and the Mortgage Loan Collateral and all proceeds thereof are (or,
as to all Mortgage Loan Collateral delivered to the Collateral Agent after the
date of this Second Restated Loan Agreement, will be) free and clear of all
Liens and other adverse claims of any nature, other than (i) the right of the
Originator to repurchase such Mortgage Loan Collateral pursuant to the terms of
the Second Restated Repurchase Agreement and/or (ii) Liens in the Mortgage Loan
Collateral or proceeds in favor of the Administrative Agent for the benefit of
the holders of the Obligations.
(f) Financial Condition. The opening pro forma balance sheet of
the Borrower as at December 31, 2004, giving effect to the initial Borrowing to
be made under this Second Restated Loan Agreement, a copy of which has been
furnished to the Managing Agents, fairly presents the financial condition of the
Borrower as at such date, in accordance with GAAP,
59
and since December 31, 2004, there has been no material adverse change in the
business, operations, property or financial or other condition of the Borrower.
(g) Principal Office, Etc. The principal office, chief executive
office and principal place of business of the Borrower is at Englewood,
Colorado.
(h) Ownership. Pulte Mortgage is the owner of all of the issued
and outstanding shares of each class of stock of the Borrower.
(i) UCC Financing Statements. Except as set forth on Schedule III,
no effective financing statement or other instrument similar in effect covering
any Mortgage Loan, any interest therein, or the related Collateral with respect
thereto is on file in any recording office except such as may be filed (x) in
favor of the Originator or the Borrower in accordance with the Mortgage Loans,
(y) in favor of the Borrower in connection with the Second Restated Repurchase
Agreement, or (z) in favor of the Administrative Agent or the holders of the
Obligations in accordance with this Second Restated Loan Agreement or in
connection with a Lien arising solely as the result of any action taken by the
Lenders (or any assignee thereof) or by the Administrative Agent.
(j) Trade Names. The Borrower is not known by and does not use any
trade name or doing-business-as name.
5.3. Additional Representations and Warranties of the Servicer.
The Servicer represents and warrants as follows:
(a) Financial Condition.
(i) The Servicer has delivered to the Administrative Agent
(x) copies of the Servicer's balance sheet, as of December 31, 2004, and
the related statements of income, stockholder's equity and cash flows for
the year ended on such date, audited by independent certified accountants
of recognized national standing and (y) copies of the Servicer's unaudited
balance sheet, as of June 30, 2005, and the related statements of income,
stockholder's equity and cash flows for the nine months ended on such date
("Interim Statements"); and all such financial statements fairly present
the financial condition of the Servicer as of their respective dates,
subject, in the case of the Interim Statements, to normal year end
adjustments and the results of operations of the Servicer for the periods
ended on such dates and have been prepared in accordance with GAAP.
(ii) As of the date thereof, there are no material
obligations, liabilities or Indebtedness (including contingent and
indirect liabilities and obligations or unusual forward or long-term
commitments) of the Servicer that are required to be reflected in the
foregoing financial statements in accordance with GAAP and that are not
reflected therein.
(iii) No change that constitutes a Material Adverse Effect has
occurred in the financial condition or business of the Servicer since June
30, 2005.
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(b) Employee Benefit Plans. (i) No Employee Plan of the Servicer
or any ERISA Affiliate has incurred an "accumulated funding deficiency" (as
defined in Section 302 of ERISA or Section 412 of the Code), (ii) neither the
Servicer nor any ERISA Affiliate has incurred liability under ERISA to the PBGC,
(iii) neither the Servicer nor any ERISA Affiliate has partially or fully
withdrawn from participation in a Multiemployer Plan, (iv) no Employee Plan of
the Servicer or any ERISA Affiliate has been the subject of involuntary
termination proceedings, (v) neither the Servicer nor any ERISA Affiliate has
engaged in any "prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code), and (vi) no "reportable event" (as defined in Section
4043 of ERISA) has occurred in connection with any Employee Plan of the Servicer
or any ERISA Affiliate other than events for which the notice requirement is
waived under applicable PBGC regulations.
(c) Ownership. On the date of this Second Restated Loan Agreement,
the Performance Guarantor has beneficial ownership of 100% of the issued and
outstanding shares of each class of the stock of the Servicer.
5.4. Survival of Representations.
All representations and warranties by the Borrower and the Servicer
herein shall survive delivery of the Notes and the making of the Advances, and
any investigation at any time made by or on behalf of the Administrative Agent
or the Lenders shall not diminish the right of the Administrative Agent, the
Managing Agents or the Lenders to rely thereon.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower and the Servicer shall each at all times comply with
the covenants applicable to it contained in this Article VI, from the date
hereof until the later of the Drawdown Termination Date and the date all of the
Obligations are paid in full.
6.1. Financial Statements and Reports.
The Servicer, for so long as the Servicer is the Originator, and
thereafter the Borrower, shall furnish to the Managing Agents the following, all
in form and detail reasonably satisfactory to the Managing Agents:
(a) promptly after becoming available, and in any event within 120
days after the close of each fiscal year of each of the Servicer, the Originator
and the Performance Guarantor, such Person's audited consolidated balance sheet
as of the end of such fiscal year, and the related statements of income,
stockholder's equity and cash flows of such Person for such year accompanied by
(i) the related report of independent certified public accountants reasonably
acceptable to the Managing Agents, which report shall be to the effect that such
statements have been prepared in accordance with GAAP applied on a basis
consistent with prior periods except for such changes in such principles with
which the independent public accountants shall have concurred and (ii) if
issued, the auditor's letter or report to management customarily given in
connection with such audit;
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(b) promptly after becoming available, and in any event within 60
days after the end of each fiscal quarter, excluding the fourth fiscal quarter,
of each fiscal year of each of the Servicer, the Originator and the Performance
Guarantor, the unaudited consolidated balance sheet of each of the Servicer, the
Originator and the Performance Guarantor as of the end of such fiscal quarter
and the related statements of income, stockholders' and members' equity and cash
flows of each of the Servicer, the Originator and the Performance Guarantor for
such fiscal quarter and the period from the first day of the then current fiscal
year of the Servicer, the Originator and the Performance Guarantor through the
end of such fiscal quarter, certified by a Financial Officer of the Servicer and
the Originator, respectively, to have been prepared in accordance with GAAP
applied on a basis consistent with prior periods, subject to normal year-end
adjustments;
(c) promptly upon receipt thereof, a copy of each other report
submitted to each of the Servicer, the Originator and the Performance Guarantor
by independent accountants in connection with any annual, interim or special
audit of the books of such Person;
(d) promptly and in any event within twenty (20) days after the
request of the Administrative Agent at any time and from time to time, a
certificate, executed by the president or chief financial officer of the
Servicer or the Originator, setting forth all of such Person's warehouse
borrowings and a description of the collateral related thereto; provided that,
as long as no Event of Default has occurred and is continuing, such requests may
be made no more frequently than annually;
(e) promptly and in any event within 60 days after the end of each
of the first three (3) quarters in each fiscal year of the Borrower, and within
120 days after the close of the Borrower's fiscal year, completed officer's
certificates in the form of Exhibit H-1 and H-2 hereto, executed by the
president or chief financial officer of each of the Servicer and the Borrower,
respectively;
(f) promptly and in any event within 60 days after the end of each
quarter (120 days in the case of the fourth quarter), a management report
regarding the Originator's Mortgage Loan production for the prior quarter and
year-to-date, in form and detail as reasonably required by the Administrative
Agent;
(g) promptly after the filing or receiving thereof, copies of all
reports and notices with respect to any "reportable event" defined in Article IV
of ERISA that the Borrower, the Originator or the Servicer files under ERISA
with the Internal Revenue Service, the PBGC or the U.S. Department of Labor
receives from the PBGC;
(h) immediately after becoming aware of the expiration,
forfeiture, termination, or cancellation of, or default under, any Take-Out
Commitment relating to any Collateral, telephone notice thereof confirmed in
writing within one Business Day, together with a statement as to what action the
Borrower proposes to take with respect thereto;
(i) promptly after becoming available, and in any event within 120
days after the close of each fiscal year of the Borrower, the Borrower's balance
sheet as of the end of such
62
fiscal year, and the related statements of income, stockholder's equity and cash
flows of the Borrower for such year;
(j) promptly after becoming available, and in any event within 60
days after the end of each fiscal quarter, excluding the fourth fiscal quarter,
of each fiscal year of the Borrower, the balance sheet of the Borrower as of the
end of such fiscal quarter and the related statements of income, stockholders'
equity and cash flows of the Borrower for such fiscal quarter and the period
from the first day of such fiscal year through the end of such fiscal quarter,
certified by the chief financial officer of the Borrower, to have been prepared
in accordance with GAAP applied on a basis consistent with prior periods,
subject to normal year-end adjustments;
(k) promptly after the Borrower obtains knowledge thereof, notice
of any "Event of Default" or "Facility Termination Date" under the Second
Restated Repurchase Agreement;
(l) promptly after receipt thereof, copies of all notices received
by the Borrower from the Originator under the Second Restated Repurchase
Agreement;
(m) promptly after the Servicer obtains knowledge thereof, notice
of any Servicer Default or of any condition or event that, with the giving of
notice or lapse of time or both and unless cured or waived, would constitute a
Servicer Default;
(n) such other information concerning the business, properties or
financial condition of the Borrower or the Originator as the Administrative
Agent or either Managing Agent may reasonably request; and
(o) upon request by the Administrative Agent, or if there is an
Event of Default, copies of all Take-Out Commitments (if the Take-Out Commitment
is made on a confirmation or supplement to a master agreement and the master
agreement has been previously delivered to the Administrative Agent, only the
confirmation or supplement is required to be delivered pursuant to this clause).
6.2. Taxes and Other Liens.
The Borrower shall pay and discharge promptly all taxes, assessments
and governmental charges or levies imposed upon it or upon its income or upon
any of its Property as well as all claims of any kind (including claims for
labor, materials, supplies and rent) that, if unpaid, might become a Lien upon
any or all of its Property; provided, however, the Borrower shall not be
required to pay any such tax, assessment, charge, levy or claim if the amount,
applicability or validity thereof shall currently be contested in good faith by
appropriate proceedings diligently conducted by it or on its behalf and if it
shall have set up reserves therefor adequate under GAAP. The Borrower shall
direct, via the closing instruction letter, each addressee title insurance
company, agent or attorney to remit into the Collection Account any funds held
in escrow for a Mortgage Loan that ultimately fails to close by the second
Business Day after the originally scheduled closing date for such Mortgage Loan.
In the absence of such remittance, the Borrower shall either (i) substitute for
the subject Mortgage Loan a substantially similar Mortgage Loan or (ii) remit
into the Collection Account, from its own funds, funds sufficient to repay funds
advanced for the subject Mortgage Loan.
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6.3. Maintenance.
The Borrower shall (i) maintain its corporate existence, rights and
franchises and (ii) observe and comply with all Governmental Requirements. The
Servicer shall maintain its corporate existence. The Borrower shall maintain its
Properties (and any Properties leased by or consigned to it or held under title
retention or conditional sales contracts) in good and workable condition at all
times and make all repairs, replacements, additions, betterments and
improvements to its Properties as are needful and proper so that the business
carried on in connection therewith may be conducted properly and efficiently at
all times.
6.4. Further Assurances.
The Borrower and the Servicer shall, each within three (3) Business
Days (or, in the case of Mortgage Notes, such longer period as provided under
Section 3.5 of this Second Restated Loan Agreement) after the request of the
Administrative Agent, cure any defects in the execution and delivery of the
Notes, this Second Restated Loan Agreement or any other Original Transaction
Documents or Transaction Amendment Documents. The Borrower and the Servicer
shall, each at its expense, promptly execute and deliver to the Administrative
Agent, upon the Administrative Agent's reasonable request, all such other and
further documents, agreements and instruments in compliance with or
accomplishment of the covenants and agreements of the Borrower and the Servicer,
respectively, in this Second Restated Loan Agreement and in the other Original
Transaction Documents or Transaction Amendment Documents or to further evidence
and more fully describe the collateral intended as security for the Notes, or to
correct any omissions in this Second Restated Loan Agreement or the other
Original Transaction Documents or Transaction Amendment Documents, or more fully
to state the security for the obligations set out herein or in any of the other
Original Transaction Documents or Transaction Amendment Documents, or to
perfect, protect or preserve any Liens created (or intended to be created)
pursuant to any of the other Original Transaction Documents or Transaction
Amendment Documents, or to make any recordings, to file any notices, or obtain
any consents.
6.5. Compliance with Laws.
The Servicer shall comply, in all material respects, with all
applicable laws, rules, regulations and orders in connection with servicing the
Mortgage Assets.
6.6. Insurance.
(a) The Borrower and the Servicer shall each maintain with
financially sound and reputable insurers, insurance with respect to its
Properties and business against such liabilities, casualties, risks and
contingencies and in such types and amounts as is customary in the case of
Persons engaged in the same or similar businesses and similarly situated,
including, without limitation, a fidelity bond or bonds in form and with
coverage and with a company reasonably satisfactory to the Administrative Agent
and with respect to such individuals or groups of individuals as the
Administrative Agent may reasonably designate. Upon request of the
Administrative Agent or a Managing Agent, the Borrower and the Servicer shall
each furnish or cause to be furnished to the Administrative Agent and any
requesting Managing Agent from time to time a summary of the insurance coverage
of the Borrower and the Servicer, respectively,
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in form and substance reasonably satisfactory to the Administrative Agent or
requesting Managing Agent and if requested shall furnish the Administrative
Agent or requesting Managing Agent with copies of the applicable policies.
(b) With respect to Mortgages comprising the Collateral (i) the
Servicer, for as long as the Servicer is the Originator, and thereafter the
Borrower, shall use its best efforts to cause the improvements on the land
covered by each Mortgage to be kept continuously insured at all times by
responsible insurance companies against fire and extended coverage hazards under
policies, binders, letters, or certificates of insurance, with a standard
mortgagee clause in favor of the original mortgagee and its successors and
assigns or, in the case of a MERS Designated Mortgage Loan, the beneficial owner
of such mortgage loan, and (ii) the Servicer, for so long as the Servicer is the
Originator, and thereafter the Borrower, shall use its best efforts to cause
each such policy to be in an amount equal to the lesser of the maximum insurable
value of the improvements or the original principal amount of the Mortgage,
without reduction by reason of any co-insurance, reduced rate contribution, or
similar clause of the policies or binders.
6.7. Accounts and Records.
The Borrower and, so long as the Servicer and the Originator are the
same entity, the Servicer shall each keep books of record and account in which
full, true and correct entries will be made of all dealings or transactions in
relation to its business and activities, in accordance with GAAP. The Borrower
and the Servicer shall each maintain and implement administrative and operating
procedures (including, without limitation, an ability to recreate all records
pertaining to the performance of the Borrower's obligations under the Take-Out
Commitments and other agreements made with reference to any Mortgage Loans in
the event of the destruction of the originals of such records) and keep and
maintain all documents, books, records, computer tapes and other information
reasonably necessary or advisable for the performance by the Borrower of its
Obligations. The Borrower shall not enter the "loan servicing" business.
6.8. Right of Inspection.
The Borrower and, so long as the Servicer and the Originator are the
same entity, the Servicer shall each permit any officer, employee or agent of
the Administrative Agent or either Managing Agent to visit and inspect any of
its Properties, examine its books of record and accounts and discuss its
affairs, finances and accounts with its officers, accountants and auditors, all
at such times during reasonable business hours and as often as the
Administrative Agent or either Managing Agent may desire upon prior notice,
provided that (i) except during the continuation of an Event of Default, such
inspections and examinations may be performed once annually and (ii) such
inspections and examinations shall be conducted in a manner which does not
interfere with the normal operations of the Borrower or the Servicer. The
Borrower agrees to pay the reasonable costs of reviews and inspections performed
pursuant to this Section 6.8.
6.9. Notice of Certain Events.
The Borrower and, so long as the Servicer and the Originator are the
same entity (other than with respect to clause (g) hereof), the Servicer shall
each promptly notify the Managing Agents upon (a) the receipt of any notice
from, or the taking of any other action by,
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the holder of any of its promissory notes, debentures or other evidences of
Indebtedness with respect to a claimed default, together with a detailed
statement by a responsible officer of the Borrower or the Servicer, as the case
may be, specifying the notice given or other action taken by such holder and the
nature of the claimed default and what action the Borrower or the Servicer is
taking or proposes to take with respect thereto, but only if such alleged
default or event of default (if it were true) would also be a Default or Event
of Default under this Second Restated Loan Agreement; (b) the commencement of,
or any determination in, any legal, judicial or regulatory proceedings that, if
adversely determined, could also be a Default or Event of Default under this
Second Restated Loan Agreement; (c) any dispute between the Borrower or the
Servicer, as the case may be, and any Governmental Authority or any other Person
that, if adversely determined, could have a Material Adverse Effect; (d) any
material adverse change in the business, operations or financial condition of
the Borrower or the Servicer, as the case may be, including, without limitation,
the Borrower's or the Servicer's insolvency; (e) any event or condition known to
it that, if adversely determined, would have a Material Adverse Effect; (f) the
receipt of any notice from, or the taking of any other action by any Approved
Investor indicating an intent not to honor, or claiming a default under a
Take-Out Commitment, together with a detailed statement by a responsible officer
of the Borrower specifying the notice given or other action taken by such
Approved Investor and the nature of the claimed default and what action the
Borrower is taking or proposes to take with respect thereto; (g) the receipt of
any notice from, and or the taking of any action by any Governmental Authority
indicating an intent to cancel the Borrower's or the Servicer's right to be
either a seller or servicer of such Governmental Authority's insured or
guaranteed Mortgage Loans; and (h) the receipt of any notice of any final
judgment or order for payment of money applicable to the Borrower or the
Servicer in excess of $1,000,000.
6.10. Performance of Certain Obligations.
The Borrower and, so long as the Servicer and the Originator are the
same entity, the Servicer shall each perform and observe each of the provisions
of each Mortgage Loan and Take-Out Commitment on its part to be performed or
observed and will cause all things to be done that are necessary to have each
Mortgage Loan covered by a Take-Out Commitment comply with the requirements of
such Take-Out Commitment.
6.11. Use of Proceeds; Margin Stock.
The proceeds of the Advances shall be used by the Borrower solely
for the acquisition of Mortgage Loans under the Second Restated Repurchase
Agreement. None of such proceeds shall be used for the purpose of purchasing or
carrying any "margin stock" as defined in Regulation U, or for the purpose of
reducing or retiring any Indebtedness that was originally incurred to purchase
or carry margin stock or for any other purpose that might constitute this
transaction a "purpose credit" within the meaning of such Regulation U. Neither
the Borrower nor any Person acting on behalf of the Borrower shall take any
action in violation of Regulations U or X or shall violate Section 7 of the
Securities Exchange Act of 1934, as amended, or any rule or regulation
thereunder, in each case as now in effect or as the same may hereafter be in
effect.
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6.12. Notice of Default.
The Borrower shall furnish to the Managing Agents immediately upon
becoming aware of the existence of any Default or Event of Default, a written
notice specifying the nature and period of existence thereof and the action that
the Borrower is taking or proposes to take with respect thereto.
6.13. Compliance with Transaction Documents.
The Borrower and, so long as the Servicer and the Originator are the
same entity, the Servicer shall each promptly comply with any and all covenants
and provisions of this Second Restated Loan Agreement applicable to it, the
Notes, in the case of the Borrower, and the other Transaction Documents.
6.14. Compliance with Material Agreements.
The Borrower and, so long as the Servicer and the Originator are the
same entity, the Servicer shall each comply in all respects with all agreements,
indentures, Mortgages or documents (including, with respect to the Borrower, the
Charter) binding on it or affecting its Property or business, except where such
non-compliance would not reasonably be expected to have a Material Adverse
Effect.
6.15. Operations and Properties.
The Borrower and, so long as the Servicer and the Originator are the
same entity, the Servicer shall each act prudently and in accordance with
customary industry standards in managing and operating its Property and shall
continue to underwrite, hedge and sell Mortgage Loans in the same diligent
manner it has applied in the past and take no greater credit or market risks
than are currently being borne by it.
6.16. Performance Guarantor Credit Rating.
If at any time any of the senior debt of the Performance Guarantor,
which is publicly held, shall fail to bear a rating of at least BBB- by S&P, Ba1
by ▇▇▇▇▇'▇ or BBB- by Fitch, the Borrower shall give the Administrative Agent
and the Managing Agents written notice of such change in rating, within two
Business Days of the date on which such change is announced by any of these
rating agencies.
6.17. Take-Out Commitments.
The Borrower shall use its best efforts to cause the Originator to
obtain, and maintain in full force and effect, Take-Out Commitments reflecting
total Approved Investor obligations, as of each date of determination, with an
aggregate purchase price equal to the total of the original principal balances
of the Borrower's entire portfolio of Mortgage Loans issued as proceeds thereof.
Each of such Take-Out Commitments shall reflect only those terms and conditions
as are permitted hereunder or are acceptable to the Administrative Agent and the
Managing Agents. The Borrower shall use its best efforts to cause the Originator
to obtain, and maintain in full force and effect, forward purchase commitments
(which may include options to
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sell Mortgage Loans to Approved Investors, so long as the Approved Investor is
bound thereby) issued by Approved Investors and obligating such Approved
Investors to purchase a portion of the Borrower's subsequently acquired Mortgage
Loans.
6.18. Collateral Proceeds.
The Borrower and the Servicer shall instruct all Approved Investors
to cause all payments in respect of Take-Out Commitments on Mortgage Loans to be
deposited directly in the Cash and Collateral Account.
6.19. Environmental Compliance.
The Borrower and, so long as the Servicer and the Originator are the
same entity, the Servicer shall each use and operate all of its facilities and
properties in compliance with all environmental laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and handle
all hazardous materials in compliance with all applicable environmental laws,
except where failure to so act would not reasonably be expected to have a
Material Adverse Effect.
6.20. Closing Instructions.
The Borrower agrees to indemnify and hold the Lenders, the
Administrative Agent and the Managing Agents harmless from and against any loss,
including attorneys' fees and costs, attributable to the failure of a title
insurance company, agent, Managing Agent or approved attorney to comply with the
disbursement or instruction letter or letters of the Borrower, the Managing
Agents or of the Administrative Agent relating to any Mortgage Loan. The
Borrower shall direct, via the closing instruction letter, each addressee title
insurance company, agent or attorney to remit into the Collection Account any
funds held in escrow for a Mortgage Loan that ultimately fails to close by the
second Business Day after the originally scheduled closing date for such
Mortgage Loan. In the absence of such remittance, the Borrower shall either (i)
substitute for the subject Mortgage Loan a substantially similar Mortgage Loan
or (ii) remit into the Collection Account, from its own funds, funds sufficient
to repay funds advanced for the subject Mortgage Loan. The Administrative Agent
shall have the right to pre-approve the closing instructions of the Originator
to the title insurance company, agent or attorney in any case where the Mortgage
Loan to be created at settlement is intended to be warehoused by the Lenders
pursuant hereto.
6.21. Special Affirmative Covenants Concerning Collateral.
(a) The Borrower shall at all times warrant and defend the right,
title and interest of the Lenders, the Collateral Agent and the Administrative
Agent in and to the Collateral against the claims and demands of all Persons
whomsoever.
(b) The Borrower and the Servicer shall each service or cause to
be serviced all Eligible Mortgage Loans in accordance with the standard
requirements of the issuers of Take-Out Commitments covering the same and all
applicable ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae requirements, including without
limitation taking all actions necessary to enforce the obligations of the
Obligors under such Eligible Mortgage Loans. The Borrower and the Servicer shall
each
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hold all escrow funds collected in respect of Eligible Mortgage Loans in trust,
without commingling the same with any other funds, and apply the same for the
purposes for which such funds were collected.
(c) The Borrower shall, no less than on an annual basis, review
financial statements, compliance with financial parameters, ▇▇▇▇▇▇ ▇▇▇/▇▇▇▇▇▇▇
Mac approvals (if applicable), and state licenses of all Persons from whom the
Originator acquires Mortgage Loans.
6.22. Corporate Separateness.
(a) The Borrower covenants to take the following actions, and the
Servicer covenants to use its best efforts to cause the Borrower to take the
following actions: The Borrower shall at all times maintain at least one
Independent Director (as such term is defined in the Charter).
(b) The Borrower shall not direct or participate in the management
of any of the operations of the Other Companies.
(c) The Borrower shall allocate fairly and reasonably any overhead
for shared office space. The Borrower shall have stationery and other business
forms separate from that of the Other Companies.
(d) The Borrower shall at all times be adequately capitalized in
light of its contemplated business.
(e) The Borrower shall at all times provide for its own operating
expenses and liabilities from its own funds.
(f) The Borrower shall maintain its assets and transactions
separately from those of the Other Companies and reflect such assets and
transactions in financial statements separate and distinct from those of the
Other Companies and evidence such assets and transactions by appropriate entries
in books and records separate and distinct from those of the Other Companies.
The Borrower shall hold itself out to the public under the Borrower's own name
as a legal entity separate and distinct from the Other Companies. The Borrower
shall not hold itself out as having agreed to pay, or as being liable, primarily
or secondarily, for, any obligations of the Other Companies.
(g) The Borrower shall not maintain any joint account with any
Other Company or become liable as a guarantor or otherwise with respect to any
Indebtedness or contractual obligation of any Other Company.
(h) The Borrower shall not ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its assets to
secure any obligation of any Other Company.
(i) The Borrower shall not make loans, advances or otherwise
extend credit to any of the Other Companies.
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(j) The Borrower shall conduct its business in its own name and
strictly comply with all organizational formalities to maintain its separate
existence.
(k) The Borrower shall have bills of sale (or similar instruments
of assignment) and, if appropriate, UCC-1 financing statements, with respect to
all assets purchased from any of the Other Companies.
(l) The Borrower shall not engage in any transaction with any of
the Other Companies, except as permitted by this Second Restated Loan Agreement
or the Charter and as contemplated by the Second Restated Repurchase Agreement.
(m) The Borrower will limit its activities to those specified in
the Charter and has no Subsidiaries.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower and the Servicer shall each at all times comply with
the covenants applicable to it contained in this Article VII, from the date
hereof until the later of the Drawdown Termination Date and the date all of the
Obligations are paid in full:
7.1. Limitations on Mergers and Acquisitions.
(a) The Servicer (so long as the Servicer and the Originator are
the same entity) shall not (i) merge or consolidate with or into any corporation
or other entity unless the Servicer is the surviving entity of any such merger
or consolidation or (ii) liquidate or dissolve.
(b) The Borrower will not merge with or into or consolidate with
or into, or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions), all or substantially all of its
assets (whether now owned or hereafter acquired) to, or acquire all or
substantially all of the assets or capital stock or other ownership interest of,
or enter into any joint venture or partnership agreement with, any Person, other
than as contemplated by this Second Restated Loan Agreement and the Second
Restated Repurchase Agreement.
7.2. Fiscal Year.
Neither the Borrower nor, so long as the Servicer and the Originator
are the same entity, the Servicer shall change its fiscal year other than to
conform with changes that may be made to the Performance Guarantor's fiscal year
and then only after notice to the Managing Agents and after whatever amendments
are made to this Second Restated Loan Agreement as may be required by the
Managing Agents, in order that the reporting criteria for the financial
covenants contained in Articles VI and VII remain substantially unchanged.
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7.3. Business.
The Borrower will not engage in any business other than as set forth
in Article V of the Charter.
7.4. Use of Proceeds.
The Borrower shall not permit the proceeds of the Advances to be
used for any purpose other than those permitted by Section 6.11 hereof. The
Borrower shall not, directly or indirectly, use any of the proceeds of the
Advances for the purpose, whether immediate, incidental or ultimate, of buying
any "margin stock" or of maintaining, reducing or retiring any Indebtedness
originally incurred to purchase a stock that is currently any "margin stock," or
for any other purpose that might constitute this transaction a "purpose credit,"
in each case within the meaning of Regulation U, or otherwise take or permit to
be taken any action that would involve a violation of such Regulation U or of
Regulation T or Regulation Z (12 C.F.R. 224, as amended) or any other regulation
promulgated by the Federal Reserve Board.
7.5. Actions with Respect to Collateral.
Neither the Borrower nor the Servicer shall:
(a) Compromise, extend, release, or adjust payments on any
Mortgage Collateral, accept a conveyance of mortgaged Property in full or
partial satisfaction of any Mortgage debt or release any Mortgage securing or
underlying any Mortgage Collateral, except as permitted by the related Approved
Investor or as contemplated in the servicing guidelines distributed thereby;
(b) Agree to the amendment or termination of any Take-Out
Commitment in which the Administrative Agent has a security interest or to
substitution of a Take-Out Commitment for a Take-Out Commitment in which the
Administrative Agent has a security interest hereunder, if such amendment,
termination or substitution may reasonably be expected (as determined by the
Collateral Agent or the Administrative Agent in either of their sole discretion)
to have a Material Adverse Effect or to result in a Default or Event of Default;
(c) Transfer, sell, assign or deliver any Mortgage Loan Collateral
pledged to the Administrative Agent to any Person other than the Administrative
Agent, except pursuant to a Take-Out Commitment or pursuant to either Section
3.3 or Section 3.4;
(d) Grant, create, incur, permit or suffer to exist any Lien upon
any Mortgage Loan Collateral except for (i) Liens granted to the Administrative
Agent to secure the Notes and Obligations and (ii) any rights created by the
Second Restated Repurchase Agreement; or
(e) With respect to any Mortgage Loans constituting Collateral,
permit the payment instructions relating to a Take-Out Commitment to provide for
payment to any Person except directly to the Cash and Collateral Account.
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7.6. Liens.
The Borrower will not sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any Lien upon
or with respect to, any Mortgage Asset, or upon or with respect to any account
to which any Collections of any Mortgage Asset are sent, or assign any right to
receive income in respect thereof except as contemplated hereby.
7.7. Employee Benefit Plans.
Neither the Borrower nor, so long as the Servicer and the Originator
are the same entity, the Servicer may permit any of the events or circumstances
described in Section 5.3(b) to exist or occur.
7.8. Change of Principal Office or Jurisdiction.
The Borrower shall not move its principal office, executive office
or principal place of business from the address set forth in Section 5.2(g)
without 30-days' prior written notice to the Administrative Agent and the
Managing Agents. The Borrower shall not change its place of organization or add
a new jurisdiction of organization without 30 days' prior written notice to the
Administrative Agent.
7.9. No Commercial, A&D, Etc. Loans.
The Borrower shall not make or acquire any direct outright ownership
interest, participation interest or other creditor's interest in any commercial
real estate loan, acquisition and/or development loan, unimproved real estate
loan, personal property loan, oil and gas loan, commercial loan, wrap-around
real estate loan, unsecured loan, acquisition, development or construction loan.
7.10. Maximum Leverage.
If the Servicer is the Originator, the Servicer shall never permit
its Adjusted Liabilities to exceed 12 times its Adjusted Net Worth.
7.11. Indebtedness.
The Borrower will not incur any Indebtedness, other than any
Indebtedness incurred pursuant to this Second Restated Loan Agreement or the
Second Restated Repurchase Agreement or permitted to be incurred pursuant to the
Charter.
7.12. Deposits to Collection Account.
Neither the Borrower nor the Servicer shall deposit or otherwise
credit, or cause or permit to be so deposited or credited, to the Collection
Account, cash or cash proceeds other than Collateral Proceeds.
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7.13. Transaction Documents.
The Borrower will not amend, waive, terminate or modify any
provision of any Transaction Document to which it is a party (provided that the
Borrower may extend the "Facility Termination Date" or waive the occurrence of
any "Event of Default" under the Second Restated Repurchase Agreement) without,
in each case, the prior written consent of the Managing Agents. The Borrower
will perform all of its obligations under each Transaction Document to which it
is a party and will enforce each Transaction Document to which it is a party in
accordance with its terms in all respects.
7.14. Distributions, Etc.
The Borrower will not declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on
account of any equity ownership interests of the Borrower, or return any capital
to its members as such, or purchase, retire, defease, redeem or otherwise
acquire for value or make any payment in respect of any equity ownership
interests of the Borrower or any warrants, rights or options to acquire any such
interests, now or hereafter outstanding; provided, however, that the Borrower
may declare and pay cash distributions on its equity ownership interests to its
members so long as (a) no Event of Default shall then exist or would occur as a
result thereof, (b) such distributions are in compliance with all applicable law
including the corporate law of the state of Borrower's organization, and (c)
such distributions have been approved by all necessary and appropriate action of
the Borrower.
7.15. Charter.
The Borrower will not amend or delete (a) Articles V through XX or
(b) the definition of "Independent Director" set forth in the Charter. The
Borrower will perform all of its obligations under the Charter.
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Nature of Event.
An "Event of Default" shall exist if any one or more of the
following occurs:
(a) the Borrower fails (i) to make any payment of principal of or
interest on any of the Notes when due, or (ii) to make any payment, five (5)
Business Days after written notice thereof, of any fee, expense or other amount
due hereunder, under the Notes or under any other Transaction Document or, so
long as the Servicer and the Originator are the same entity, the Servicer fails
to make any payment or deposit to be made by it under this Second Restated Loan
Agreement by the third Business Day after the date such payment is due; or
(b) the Borrower, the Originator or, so long as the Servicer and
the Originator are the same entity, the Servicer fails to keep or perform any
covenant or agreement contained in this Second Restated Loan Agreement (other
than as referred to in Section 8.1(a) and such failure
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continues unremedied beyond the expiration of any applicable grace or notice
period that may be expressly provided for in such covenant or agreement (or, if
no grace or notice period is provided for thirty days after written notice
thereof); or
(c) the Borrower, the Originator, the Servicer (so long as the
Servicer and the Originator are the same entity) or the Performance Guarantor
defaults in the due observance or performance of any of the covenants or
agreements contained in any Transaction Document other than this Second Restated
Loan Agreement, and (unless such default otherwise constitutes a Default or an
Event of Default pursuant to other provisions of this Section 8.1) such default
continues unremedied for five (5) calendar days after notice thereof beyond the
expiration of any applicable grace or notice period that may be expressly
provided for in such Transaction Document (or, if no grace or notice is
provided, for thirty days after written notice thereof); or
(d) any statement, warranty or representation by or on behalf of the
Borrower, the Originator, the Servicer (so long as the Servicer and the
Originator are the same entity) or the Performance Guarantor contained in this
Second Restated Loan Agreement, the Notes or any other Transaction Document or
any Borrowing Request, officer's certificate or other writing furnished in
connection with this Second Restated Loan Agreement, proves to have been
incorrect or misleading in any material respect as of the date made or deemed
made; or
(e) (i) the Borrower, the Originator, the Servicer (so long as the
Servicer and the Originator are the same entity) or the Performance Guarantor
fails to make when due or within any applicable grace period any payment on any
other Indebtedness with an unpaid principal balance of over $1,000,000.00
($10,000,000.00 in the case of the Performance Guarantor); or (ii) any event or
condition occurs under any provision contained in any such obligation or any
agreement securing or relating to such obligation (or any other breach or
default under such obligation or agreement occurs) if the effect thereof is to
cause or permit with the giving of notice or lapse of time or both the holder or
trustee of such obligation to cause such obligation to become due prior to its
stated maturity; or (iii) any such obligation becomes due (other than by
regularly scheduled payments) prior to its stated maturity; or (iv) any of the
foregoing occurs with respect to any one or more items of Indebtedness of the
Borrower, the Originator, the Servicer (so long as the Servicer and the
Originator are the same entity) or the Performance Guarantor with unpaid
principal balances exceeding, in the aggregate, $1,000,000.00 ($10,000,000.00 in
the case of the Performance Guarantor); or
(f) the Borrower, the Originator, the Servicer (so long as the
Servicer and the Originator are the same entity) or the Performance Guarantor
generally shall not pay its debts as they become due or shall admit in writing
its inability to pay its debts, or shall make a general assignment for the
benefit of creditors; or
(g) the Borrower, the Originator, the Servicer (so long as the
Servicer and the Originator are the same entity) or the Performance Guarantor
shall (i) apply for or consent to the appointment of a receiver, trustee,
custodian, intervenor or liquidator of it or of all or a substantial part of its
assets, (ii) file a voluntary petition in bankruptcy, (iii) file a petition or
answer seeking reorganization or an arrangement with creditors or to take
advantage of any Debtor Laws, (iv) file an answer admitting the allegations of,
or consent to, or default in
74
answering, a petition filed against it in any bankruptcy, reorganization or
insolvency proceeding, or (v) take action for the purpose of effecting any of
the foregoing; or
(h) an involuntary petition or complaint shall be filed against the
Borrower, the Originator, the Servicer (so long as the Servicer and the
Originator are the same entity) or the Performance Guarantor seeking bankruptcy
or reorganization of the Borrower, the Originator, the Servicer or the
Performance Guarantor or the appointment of a receiver, custodian, trustee,
intervenor or liquidator of the Borrower, the Originator, the Servicer or the
Performance Guarantor, or all or substantially all of the assets of either the
Borrower, the Originator, the Servicer or the Performance Guarantor, and such
petition or complaint shall not have been dismissed within 60 days of the filing
thereof; or an order, order for relief, judgment or, decree shall be entered by
any court of competent jurisdiction or other competent authority approving a
petition or complaint seeking reorganization of the Borrower, the Originator,
the Servicer (so long as the Servicer and the Originator are the same entity) or
the Performance Guarantor or appointing a receiver, custodian, trustee,
intervenor or liquidator of the Borrower, the Originator, the Servicer or the
Performance Guarantor, or of all or substantially all of assets of the Borrower,
the Originator, the Servicer or the Performance Guarantor; or
(i) the Borrower, the Originator, the Servicer (so long as the
Servicer and the Originator are the same entity) or the Performance Guarantor
shall fail within 30 days to pay, bond or otherwise discharge any final judgment
or order for payment of money in excess of $1,000,000.00; or the Borrower, the
Originator or, so long as the Servicer and the Originator are the same entity,
the Servicer shall fail within 30 days to pay, bond or otherwise discharge final
judgments or orders for payment of money which exceed in the aggregate
$1,000,000.00 ($10,000,000.00 with respect to the Performance Guarantor); or the
Borrower, the Originator, the Servicer (so long as the Servicer and the
Originator are the same entity) or the Performance Guarantor shall fail within
30 days to timely appeal or pay, bond or otherwise discharge any judgments or
orders for payment of money which exceed, in the aggregate, $1,000,000.00
($10,000,000.00 with respect to the Performance Guarantor) and which the
Borrower, the Originator, the Servicer or the Performance Guarantor may appeal;
or
(j) any Person shall levy on, seize or attach all or any material
portion of the assets of the Borrower, the Originator, the Servicer (so long as
the Servicer and the Originator are the same entity) or the Performance
Guarantor and within thirty (30) days thereafter the Borrower, the Originator,
the Servicer or the Performance Guarantor shall not have dissolved such levy or
attachment, as the case may be, and, if applicable, regained possession of such
seized assets; or
(k) if an event or condition specified in Section 5.3(b) shall occur
or exist; or
(l) the Borrower, the Originator or the Servicer (so long as the
Servicer and the Originator are the same entity) becomes ineligible to
originate, sell or service Mortgage Loans to ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
Mae, or ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae shall impose any sanctions upon or
terminate or revoke any rights of the Borrower, the Servicer (so long as the
Servicer and the Originator are the same entity) or the Originator; or
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(m) if (x) any Governmental Authority cancels the Originator's right
to be either a seller or servicer of such Governmental Authority's insured or
guaranteed Mortgage Loans or mortgage-backed securities, (y) any Approved
Investor cancels for cause any servicing or underwriting agreement between the
Borrower or the Originator and such Approved Investor or (z) the Originator
receives notice from a Governmental Authority that such Governmental Authority
intends to revoke the Originator's right to be a seller or servicer of such
Governmental Authority's insured or guaranteed Mortgage Loans or
mortgaged-backed securities and such notice is not withdrawn within 30 days of
the receipt thereof; or
(n) failure of the Borrower or the Originator to correct an
imbalance in any escrow account established with Borrower or the Originator as
either an originator, purchaser or servicer of Mortgage Loans, which imbalance
may have a Material Adverse Effect, within two (2) Business Days after demand by
any beneficiary of such account or by the Administrative Agent; or
(o) failure of the Originator to meet, at all times, the minimum net
worth requirements of ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae as an originator,
seller or servicer; or
(p) any provision of this Second Restated Loan Agreement, the Notes
or any other Transaction Document shall for any reason cease to be in full force
and effect, or be declared null and void or unenforceable in whole or in part;
or the validity or enforceability of any such document shall be challenged or
denied; or
(q) a "change in control," with respect to the ownership of the
Performance Guarantor shall have occurred (and as used in this subparagraph, the
term "change in control" shall mean an acquisition by any Person, partnership or
group, as defined under the Securities Exchange Act of 1934, as amended, of a
direct or indirect beneficial ownership of 30% or more of the then-outstanding
voting stock of the Performance Guarantor); or the Performance Guarantor shall
cease at any time to own, directly or indirectly, at least 75% of each class of
the outstanding capital stock of the Originator; or
(r) the total Collateral Value of all Eligible Mortgage Collateral
shall be less than the Principal Debt at any time, and the Borrower shall fail
either to provide additional Eligible Mortgage Collateral with a sufficient
Collateral Value, or to pay Principal Debt, in an amount sufficient to correct
the deficiency within one Business Day after such failure; or
(s) if, as a result of the Borrower's failure to obtain and deliver
to the Collateral Agent, Principal Mortgage Documents as required by Section
2.3(c), the Administrative Agent shall determine that the continuation of such
condition may have a Material Adverse Effect on the Borrower or the Lenders; or
(t) there shall have occurred any event that adversely affects the
enforceability or collectability of any significant portion of the Mortgage
Loans or the Take-Out Commitments (provided that to the extent such event gives
rise to an obligation by the Originator to repurchase such Mortgage Loans
pursuant to the Second Restated Repurchase Agreement and the Originator does so
repurchase in accordance with the provisions of the Second Restated Repurchase
Agreement, no Event of Default shall occur under this Section 8.1(t) or there
shall
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have occurred any other event that adversely affects the ability of the
Borrower, the Servicer or the Collateral Agent to collect a significant portion
of Mortgage Loans or Take-Out Commitments or the ability of the Borrower or, so
long as the Servicer and the Originator are the same entity, the Servicer to
perform hereunder or a Material Adverse Effect has occurred in the financial
condition or business of the Borrower since inception or, so long as the
Servicer and the Originator are the same entity, the Servicer since June 30,
2005; or
(u) (i) any litigation (including, without limitation, derivative
actions), arbitration proceedings or governmental proceedings not disclosed in
writing by the Borrower to the Lenders, the Administrative Agent and the
Managing Agents prior to the date of execution and delivery of this Second
Restated Loan Agreement is pending against the Borrower or any Affiliate
thereof, or (ii) any development not so disclosed has occurred in any litigation
(including, without limitation, derivative actions), arbitration proceedings or
governmental proceedings so disclosed, which, in the case of either clause (i)
and/or (ii), in the good faith opinion of the Administrative Agent, is likely to
materially adversely affect the financial position or business of the Borrower,
the Originator, the Servicer or the Performance Guarantor or materially impair
the ability of the Borrower, the Originator, the Servicer or the Performance
Guarantor to perform its obligations under this Second Restated Loan Agreement
or any other Transaction Document; or
(v) the Internal Revenue Service shall file notice of a lien
pursuant to Section 6323 of the Code with regard to any of the assets of the
Borrower or the Originator and such lien shall not have been released within 30
days and, with respect to the Originator only, such lien is in an amount
exceeding $500,000, or the PBGC shall, or shall indicate its intention to, file
notice of a lien pursuant to Section 4068 of ERISA with regard to any of the
assets of the Borrower, the Originator or the Performance Guarantor and as to
the Originator or the Performance Guarantor only, such lien is or will be in an
amount exceeding $500,000; or
(w) as at the end of any Collection Period, the Default Ratio shall
exceed 1%; or
(x) a successor Collateral Agent shall not have been appointed and
accepted such appointment within 180 days after the retiring Collateral Agent
shall have given notice of resignation pursuant to Section 4.4 of the Collateral
Agreement; or
(y) an "Event of Default" shall occur under the Second Restated
Repurchase Agreement, or the Second Restated Repurchase Agreement shall cease to
be in full force and effect; or
(z) all of the outstanding equity ownership interests of the
Borrower shall cease to be owned, directly or indirectly, by Pulte; or
(aa) the Borrower shall cease or otherwise fail to have a good and
valid title to (or, to the extent that Article 9 of the UCC is applicable to the
Borrower's acquisition thereof, a valid perfected security interest in) a
significant portion of the Collateral (other than Collateral released in
accordance with Section 3.3 or the Security Instruments shall for any reason
(other than pursuant to the terms hereof) fail or cease to create a valid and
perfected first priority
77
security interest in the Mortgage Loans and the other Collateral for the benefit
of the holders of the Obligations; or
(bb) the Originator's Net Worth shall be less than $30,000,000; or
(cc) as at the end of any Collection Period the amount of the Excess
Spread is not positive, and the Excess Spread is not made positive within five
(5) Business Days; or
(dd) as of the Settlement Date following any withdrawal from the
Reserve Account pursuant to Section 2.8(e)(i) (after giving effect to any
deposit to the Reserve Account pursuant to Section 2.7(c)(iii)(D) on such
Settlement Date) the amount on deposit in the Reserve Account shall be less than
the Required Reserve Account Amount and such deficiency is not funded within
five (5) Business days; or
(ee) any of ▇▇▇▇▇'▇, S&P or Fitch shall rate any publicly traded
investment securities evidencing senior unsecured debt of the Performance
Guarantor at less than Ba1, BBB-or BBB-, respectively.
8.2. Default Remedies.
(a) Upon the occurrence and continuation of an Event of Default
under Sections 8.1(f), (g) or (h) of this Second Restated Loan Agreement, the
entire unpaid balance of the Obligations shall automatically become due and
payable, the Drawdown Termination Date shall immediately occur and the Maximum
Facility Amount shall immediately terminate, all without any notice or action of
any kind whatsoever.
(b) Intentionally Omitted.
(c) Upon the occurrence and continuation of an Event of Default
under any provision of Section 8.1 other than those set forth in Section 8.2(a),
the Administrative Agent may, but need not, do any one or both of the following:
(i) declare the entire unpaid balance of the Obligations immediately due and
payable, whereupon it shall be due and payable; and (ii) declare the Drawdown
Termination Date to have occurred and terminate the Maximum Facility Amount.
(d) Upon the occurrence of an Event of Default under any provision
of Section 8.1 and the acceleration of the unpaid balance of the Obligations
pursuant to Section 8.2(a) or (c), the Administrative Agent may (and shall at
the direction of the Majority Banks) do any one or more of the following: (i)
reduce any claim to judgment; (ii) exercise the rights of offset or banker's
Lien against the interest of the Borrower in and to every account and other
Property of the Borrower that are in the possession of the Lenders, the Managing
Agents, the Collateral Agent or the Administrative Agent to the extent of the
full amount of the Obligations (the Borrower being deemed directly obligated to
the Lenders and the Administrative Agent in the full amount of the Obligations
for such purposes); (iii) foreclose or direct the Collateral Agent to foreclose
any or all Liens or otherwise realize upon any and all of the rights the
Administrative Agent may have in and to the Collateral, or any part thereof; and
(iv) exercise any and all other legal or equitable rights afforded by the
Transaction Documents, applicable Governmental Requirements, or otherwise,
including, but not limited to, the right to
78
bring suit or other proceedings before any Governmental Authority either for
specific performance of any covenant or condition contained in any of the
Transaction Documents or in aid of the exercise of any right granted to the
Lenders, the Managing Agents or the Administrative Agent in any of the
Transaction Documents.
(e) Notwithstanding anything to the contrary herein, the Obligations
of the Borrower under this Second Restated Loan Agreement shall be recourse
solely to the Mortgage Assets, and the Borrower shall have no obligation in
respect of any deficiencies.
8.3. Paydowns.
Immediately upon the occurrence of an Event of Default, and without
any requirement for notice or demand (including, without limitation, any notice
or demand otherwise required under Section 8.1), the Borrower shall (a) make a
payment to the Administrative Agent equal to the Collateral Deficiency and (b)
deliver to the Collateral Agent additional Take-Out Commitments in an amount
equal to unrepaid Advances that have been made against any Uncovered Mortgage
Loans. Take-Out Commitments for Conforming Loans that are delivered pursuant to
clause (b), above, in addition to conforming with all other criteria of this
Second Restated Loan Agreement, shall also substantially conform to the interest
rates and "terms to maturity" for all Uncovered Mortgage Loans. This is a
special, and not an exclusive, right or remedy, and any demand for performance
under this Section 8.3 shall not waive or affect the Lenders' or the
Administrative Agent's rights to enforce any security interest in the
Collateral, collect a deficiency or to pursue damages or any other remedy, as
herein provided or as permitted at law or in equity, until all Obligations have
been fully paid and performed.
8.4. Waivers of Notice, Etc.
Except as otherwise provided in this Second Restated Loan Agreement,
the Borrower and each surety, endorser, guarantor and other party ever liable
for payment of any sum or sums of money that may become due and payable, or the
performance or any undertaking that may be owed, to the Lenders, the Managing
Agents or the Administrative Agent pursuant to this Second Restated Loan
Agreement, the Notes, or the other Transaction Documents, including the
Obligations, jointly and severally waive demand for payment, presentment,
protest, notice of protest and nonpayment or other notice of default, notice of
acceleration and notice of intention to accelerate, and agree that its or their
liability under this Second Restated Loan Agreement, the Notes or other
Transaction Documents shall not be affected by any renewal or extension of the
time or place of payment or performance hereof, or any indulgences by the
Lenders, the Managing Agents or the Administrative Agent, or by any release or
change in any security for the payment of the Obligations, and hereby consent to
any and all renewals, extensions, indulgences, releases or changes, regardless
of the number of such renewals, extensions, indulgences, releases or changes.
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ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1. Authorization.
Each Lender has appointed the Administrative Agent as its agent to
take such action as agent on its behalf and to exercise such powers under this
Second Restated Loan Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Second Restated
Loan Agreement (including, without limitation, enforcement of this Second
Restated Loan Agreement), the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Banks, and such instructions
shall be binding upon all Lenders; provided, however, that the Administrative
Agent shall not be required to take any action that exposes the Administrative
Agent to personal liability or that is contrary to this Second Restated Loan
Agreement or applicable law.
9.2. Reliance by Administrative Agent.
Notwithstanding anything to the contrary in this Second Restated
Loan Agreement or any other Transaction Document, neither the Administrative
Agent nor any of its directors, managers, officers, agents, representatives,
employees, attorneys-in-fact or Affiliates shall be liable for any action taken
or omitted to be taken by it or them (in their capacity as or on behalf of the
Administrative Agent) under or in connection with this Second Restated Loan
Agreement or the other Transaction Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of the Notes as the
holder thereof; (b) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it or
the Borrower and shall not be liable for any action taken or omitted to be taken
in good faith by it in accordance with the advice of such counsel, accountants
or experts; (c) makes no warranty or representation to any Lender or Managing
Agent and shall not be responsible to any Lender or Managing Agent for any
statements, warranties or representations made in or in connection with this
Second Restated Loan Agreement or the other Transaction Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Second Restated Loan Agreement
on the part of the Borrower or to inspect the Property (including the books and
records) of the Borrower; (e) shall not be responsible to any Lender or Managing
Agent for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Second Restated Loan Agreement or any other
instrument or document furnished pursuant hereto or the enforceability or
perfection or priority of any Collateral; and (f) shall incur no liability under
or in respect of this Second Restated Loan Agreement or any other Transaction
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, cable or telex) believed by the
Administrative Agent to be genuine and signed or sent by the proper Person or
party.
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9.3. Administrative Agent and Affiliates.
With respect to any Advance made by Calyon New York, Calyon New York
shall have the same rights and powers under this Second Restated Loan Agreement
as would any Lender and may exercise the same as though it were not the
Administrative Agent. Calyon New York and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower, the Managing Agents, any of the
Borrower's Affiliates and any Person who may do business with or own securities
of the Borrower, the Managing Agents or any such Affiliate, all as if Calyon New
York were not the Administrative Agent and without any duty to account therefor
to the Lenders. If Calyon New York is removed as Administrative Agent, such
removal will not affect Calyon New York's rights and interests as a Lender.
9.4. Lender Decision.
Each Lender (including each Lender that becomes a party hereto by
assignment) acknowledges that it has, independently and without reliance on the
Administrative Agent, any of its Affiliates or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
evaluation and decision to enter into this Second Restated Loan Agreement. Each
Lender also acknowledges that it will, independently and without reliance on the
Administrative Agent, any of its Affiliates or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under this
Second Restated Loan Agreement.
9.5. Rights of the Administrative Agent.
Each right and remedy expressly provided by this Second Restated
Loan Agreement as being available to the Administrative Agent shall be exercised
by the Administrative Agent only at the direction of the Majority Banks.
9.6. Indemnification of Administrative Agent.
Each Bank agrees to indemnify the Administrative Agent (to the
extent not reimbursed by or on behalf of the Borrower), ratably according to the
respective principal amounts held by it (or if no Advances are then outstanding,
each Bank shall indemnify the Administrative Agent ratably according to the
amount of its Bank Commitment), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Second Restated Loan Agreement or the other
Transaction Documents or any action taken or omitted by the Administrative Agent
under this Second Restated Loan Agreement or the other Transaction Documents,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct.
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9.7. UCC Filings.
The Lenders and the Borrower expressly recognize and agree that the
Administrative Agent may be listed as the assignee or secured party of record on
the various UCC filings made hereunder in order to perfect the security interest
in the Collateral granted by the Borrower for the benefit of the holders of the
Obligations and that such listing is for administrative convenience only in
creating a record-holder or nominee to take certain actions hereunder on behalf
of the holders of the Obligations.
ARTICLE X
INDEMNIFICATION
10.1. Indemnities by the Borrower.
(a) General Indemnity. Without limiting any other rights that any
such Person may have hereunder or under applicable law, the Borrower hereby
agrees to indemnify each of the Lenders, each Managing Agent, the agents, any
Affected Party, their respective successors, transferees, participants and
assigns and all affiliates, officers, directors, managers, shareholders,
controlling persons, employees and agents of any of the foregoing (each an
"Indemnified Party"), forthwith on demand, from and against any and all damages,
losses, claims, liabilities and related costs and expenses, including attorneys'
fees and disbursements (all of the foregoing being collectively referred to as
"Indemnified Amounts") awarded against or incurred by any of them arising out of
or relating to this Second Restated Loan Agreement or the exercise or
performance of any of its or their powers or duties, in respect of any Mortgage
Loan or Take-Out Commitment, or related in any way to its or their possession
of, or dealings with, the Collateral, excluding, however, (i) Indemnified
Amounts to the extent resulting from gross negligence or willful misconduct on
the part of such Indemnified Party, (ii) internal costs and expenses incurred in
the ordinary course of business and (iii) income taxes.
10.2. Contribution.
If for any reason the indemnification provided above in this Section
10.1 is unavailable to an Indemnified Party or is insufficient to hold an
Indemnified Party harmless, then the Borrower shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by such Indemnified Party on the one hand and
Borrower on the other hand but also the relative fault of such Indemnified Party
as well as any other relevant equitable considerations.
ARTICLE XI
ADMINISTRATION AND COLLECTION OF MORTGAGE LOANS
11.1. Designation of Servicer.
The servicing, administration and collection of the Mortgage Assets
shall be conducted by the Servicer so designated hereunder from time to time.
Until the Administrative
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Agent gives notice to the Borrower and the Originator of the designation of a
new Servicer, the Originator is hereby designated as, and hereby agrees to
perform the duties and obligations of, the Servicer pursuant to the terms
hereof. The Administrative Agent may at any time following the occurrence of a
Servicer Default designate as Servicer any Person (including itself) to succeed
the Originator or any successor Servicer, if such Person shall consent and agree
to the terms hereof. The Servicer may, with the prior consent of the
Administrative Agent, subcontract with any other Person for the servicing,
administration or collection of the Mortgage Assets. Any such subcontract shall
not affect the Servicer's liability for performance of its duties and
obligations pursuant to the terms hereof.
11.2. Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such actions as
may be necessary or advisable to collect each Mortgage Asset from time to time,
all in accordance with applicable laws, rules and regulations, with care and
diligence, and in accordance with the servicing guide issued by the Governmental
Authority applicable to such Mortgage Asset or, in the case of Non-Conforming
Loans, the servicing criteria specified by the Approved Investor that has issued
a Take-Out Commitment with respect thereto. The Borrower and the Administrative
Agent hereby appoint the Servicer, from time to time designated pursuant to
Section 11.1, as agent for themselves and for the Lenders to enforce their
respective rights and interests in the Mortgage Assets and the Collections
thereof. In performing its duties as Servicer, the Servicer shall exercise the
same care and apply the same policies as it would exercise and apply if it owned
such Mortgage Loans and shall act in the best interests of the Borrower and the
Lenders.
(b) The Servicer shall administer the Collections in accordance with
the procedures described in Section 2.7 and shall service the Collateral in
accordance with Section 7.7.
(c) The Servicer shall hold in trust for the Borrower and the
Lenders, in accordance with their respective interests, all books and records
(including, without limitation, computer tapes or disks) that relate to the
Mortgage Assets.
(d) The Servicer shall, as soon as practicable following receipt,
turn over to the Borrower or the Originator, as appropriate, any cash
collections or other cash proceeds received with respect to Property not
constituting Mortgage Assets.
(e) The Servicer shall, from time to time at the request of the
Administrative Agent, furnish to the Administrative Agent (promptly after any
such request) a calculation of the amounts set aside for the Lenders pursuant to
Section 2.7(c).
(f) The Servicer shall perform the duties and obligations of the
Servicer set forth in the Second Restated Collateral Agency Agreement and the
other Security Instruments.
11.3. Certain Rights of the Administrative Agent.
At any time following the designation of a Servicer other than the
Originator pursuant to Section 11.1 or following an Event of Default:
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(a) The Administrative Agent may direct the Obligors that all
payments thereunder be made directly to the Administrative Agent or its
designee.
(b) At the Administrative Agent's request and at the Borrower's
expense, the Borrower shall notify each Obligor of the Lien on the Mortgage
Assets and direct that payments be made directly to the Administrative Agent or
its designee.
(c) At the Administrative Agent's request and at the Borrower's
expense, the Borrower and the Servicer shall (i) assemble all of the documents,
instruments and other records (including, without limitation, computer tapes and
disks) that evidence or relate to the Mortgage Assets and Collections and
Collateral, or that are otherwise necessary or desirable to collect the Mortgage
Assets, and shall make the same available to the Administrative Agent at a place
selected by the Administrative Agent or its designee, and (ii) segregate all
cash, checks and other instruments received by it from time to time constituting
Collections in a manner reasonably acceptable to the Administrative Agent and,
promptly upon receipt, remit all such cash, checks and instruments, duly
endorsed or with duly executed instruments of transfer, to the Administrative
Agent or its designee.
(d) The Borrower authorizes the Administrative Agent to take any and
all steps in the Borrower's name and on behalf of the Borrower that are
necessary or desirable, in the determination of the Administrative Agent, to
collect amounts due under the Mortgage Assets, including, without limitation,
endorsing the Borrower's name on checks and other instruments representing
Collections and enforcing the Mortgage Assets and the other Collateral.
11.4. Rights and Remedies.
(a) If the Servicer fails to perform any of its obligations under
this Second Restated Loan Agreement, the Administrative Agent may (but shall not
be required to) itself perform, or cause performance of, such obligation; and
the Administrative Agent's costs and expenses incurred in connection therewith
shall be payable by the Servicer.
(b) The Borrower and the Originator shall perform their respective
obligations under the Mortgage Loans to the same extent as if such Mortgage
Loans had not been sold by the Originator and the exercise by the Administrative
Agent on behalf of the Lenders of their rights under this Second Restated Loan
Agreement shall not release the Servicer or the Borrower from any of their
duties or obligations with respect to any Mortgage Loans. Neither the
Administrative Agent, nor the Lenders shall have any obligation or liability
with respect to any Mortgage Loans, nor shall any of them be obligated to
perform the obligations of the Borrower thereunder.
(c) In the event of any conflict between the provisions of this
Article XI of this Second Restated Loan Agreement and Article VI of the Second
Restated Repurchase Agreement, the provisions of this Second Restated Loan
Agreement shall control.
11.5. Indemnities by the Servicer.
Without limiting any other rights that the Administrative Agent, any
Lender or Managing Agent or any of their respective Affiliates (each, a "Special
Indemnified Party") may
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have hereunder or under applicable law, and in consideration of its appointment
as Servicer, the Servicer hereby agrees to indemnify each Special Indemnified
Party from and against any and all claims, losses and liabilities (including
attorneys' fees) (all of the foregoing being collectively referred to as
"Special Indemnified Amounts") arising out of or resulting from any of the
following (excluding, however, (x) Special Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of such
Special Indemnified Party, (y) recourse for Mortgage Assets that are not
collected, not paid or uncollectible on account of the insolvency, bankruptcy or
financial inability to pay of the applicable Obligor or (z) any income taxes or
any other tax or fee measured by income incurred by such Special Indemnified
Party arising out of or as a result of this Second Restated Loan Agreement or
the Borrowings hereunder):
(a) any representation or warranty or statement made or deemed made
by the Servicer under or in connection with this Second Restated Loan Agreement
that shall have been incorrect in any respect when made;
(b) the failure by the Servicer to comply in any material respect
with any applicable law, rule or regulation with respect to any Mortgage Asset
or the failure of any Mortgage Loan to conform to any such applicable law, rule
or regulation;
(c) the failure to have filed, or any delay in filing, financing
statements, Mortgages or assignments of Mortgages under the applicable laws of
any applicable jurisdiction with respect to any Mortgage Assets and the other
Collateral and Collections in respect thereof, whether at the time of any
purchase under the Second Restated Repurchase Agreement or at any subsequent
time;
(d) any failure of the Servicer to perform its duties or obligations
in accordance with the provisions of this Second Restated Loan Agreement;
(e) the commingling of Collections at any time by the Servicer with
other funds;
(f) any action or omission by the Servicer reducing or impairing the
rights of the Administrative Agent or the Lenders with respect to any Mortgage
Asset or the value of any Mortgage Asset;
(g) any Servicer Fees or other costs and expenses payable to any
replacement Servicer, to the extent in excess of the Servicer Fees payable to
the Servicer hereunder; or
(h) any claim brought by any Person other than a Special Indemnified
Party arising from any activity by the Servicer or its Affiliates in servicing,
administering or collecting any Mortgage Asset.
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ARTICLE XII
THE MANAGING AGENTS
12.1. Authorization.
The Calyon New York Group has appointed Calyon New York as its
Managing Agent to take such action as agent on its behalf and to exercise such
powers under this Second Restated Loan Agreement as are delegated to such
Managing Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. The JPMorgan Group has appointed JPMorgan as its Managing
Agent to take such action as agent on its behalf and to exercise such powers
under this Second Restated Loan Agreement as are delegated to such Managing
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this Second
Restated Loan Agreement (including, without limitation, enforcement of this
Second Restated Loan Agreement), each Managing Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of its Majority Group Banks, and such
instructions shall be binding upon all Lenders in its Group; provided, however,
that such Managing Agent shall not be required to take any action which exposes
such Managing Agent to personal liability or which is contrary to this Second
Restated Loan Agreement or applicable law.
12.2. Reliance by Agent.
Notwithstanding anything to the contrary in this Second Restated
Loan Agreement or any other Transaction Document, neither of the Managing Agents
nor any of their respective directors, managers, officers, agents,
representatives, employees, attorneys-in-fact or Affiliates shall be liable for
any action taken or omitted to be taken by it or them (in their capacity as or
on behalf of such Managing Agent) under or in connection with this Second
Restated Loan Agreement or the other Transaction Documents, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, each Managing Agent: (a) may treat the payee of the
Notes as the holder thereof; (b) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it or any such party and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any
Lender or to the other Managing Agents and shall not be responsible to any
Lender or to the other Managing Agents for any statements, warranties or
representations made in or in connection with this Second Restated Loan
Agreement or the other Transaction Documents; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Second Restated Loan Agreement on the part of
the Borrower or to inspect the property (including the books and records) of the
Borrower; (e) shall not be responsible to any Lender or to the other Managing
Agents for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Second Restated Loan Agreement or any other
instrument or document furnished pursuant hereto or the enforceability or
perfection or priority of any Collateral; and (f) shall incur no liability under
or in respect of this Second Restated Loan Agreement or any other Transaction
Document by acting upon any notice, consent, certificate or
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other instrument or writing (which may be by telegram, cable or telex) believed
by such Managing Agent to be genuine and signed or sent by the proper Person or
party.
12.3. Agent and Affiliates.
With respect to any Advance made by a Managing Agent, such Managing
Agent shall have the same rights and powers under this Second Restated Loan
Agreement as would any Lender and may exercise the same as though it were not a
Managing Agent. The Managing Agents and their respective Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of the Borrower's
respective Affiliates and any Person who may do business with the Borrower or
any such Affiliates or own the Borrower's securities or those of any such
Affiliate, all as if no such Managing Agent were a Managing Agent and without
any duty to account therefor to the Lenders. If any Managing Agent is removed as
a Managing Agent, such removal will not affect the rights and interests of such
Managing Agent as a Lender.
12.4. Notices.
Each Managing Agent shall give each Lender in its Group prompt
notice of each written notice received by it from the Borrower pursuant to the
terms of this Second Restated Loan Agreement.
12.5. Lender Decision.
Each Lender (including each Lender that becomes a party hereto by
assignment) acknowledges that it has, independently and without reliance on any
Managing Agent, any Managing Agent's Affiliates or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
evaluation and decision to enter into this Second Restated Loan Agreement. Each
Lender also acknowledges that it will, independently and without reliance on any
Managing Agent, any Managing Agent's Affiliates or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under this
Second Restated Loan Agreement.
ARTICLE XIII
MISCELLANEOUS
13.1. Notices.
Any notice or request required or permitted to be given under or in
connection with this Second Restated Loan Agreement, the Notes or the other
Transaction Documents (except as may otherwise be expressly required therein)
shall be in writing and shall be mailed by first class or express mail, postage
prepaid, or sent by telex, telegram, telecopy or other similar form of rapid
transmission, confirmed by mailing (by first class or express mail, postage
prepaid) written confirmation at substantially the same time as such rapid
transmission, or personally delivered to an officer of the receiving party. With
the exception of certain administrative and collateral reports that may be
directed to specific departments of the
87
Administrative Agent, all such communications shall be mailed, sent or delivered
to the parties hereto at their respective addresses as follows:
Borrower: PULTE FUNDING, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with copies of any notices of Event of Default to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP
2290 First National Building
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Issuers: ATLANTIC ASSET SECURITIZATION LLC
c/o Calyon New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Conduit Securitization Group
With a copy to the Administrative Agent (except in the case
of notice from the Administrative Agent).
With a copy to the Administrative Agent (except in the case
of notice from the Administrative Agent).
JUPITER SECURITIZATION CORPORATION
c/o JPMorgan Chase Bank, National Association
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
LA FAYETTE ASSET SECURITIZATION LLC
c/o Calyon New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Conduit Securitization Group
With a copy to the Administrative Agent (except in the case
of notice from the Administrative Agent).
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Banks: CALYON NEW YORK BRANCH
Calyon Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Structured Finance
LLOYDS TSB BANK PLC
1251 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION
c/o JPMorgan Chase Bank, National Association
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Administrative CALYON NEW YORK BRANCH,
Agent: Calyon Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 62410
(Answerback: CRED A 62410 UW)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Conduit Securitization Group
Managing Agents: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 62410
(Answerback: CRED A 62410 UW)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Conduit Securitization Group
89
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
c/o JPMorgan Chase Bank, National Association
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Originator and PULTE MORTGAGE LLC
Servicer: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or at such other addresses or to such officer's, individual's or department's
attention as any party may have furnished the other parties in writing. Any
communication so addressed and mailed shall be deemed to be given when so
mailed, except that notices and requests given pursuant to Section 3.3(e).
Borrowing Requests and communications related thereto shall not be effective
until actually received by the Collateral Agent, the Administrative Agent, the
Issuers or the Borrower, as the case may be; and any notice so sent by rapid
transmission shall be deemed to be given when receipt of such transmission is
acknowledged, and any communication so delivered in person shall be deemed to be
given when receipted for by, or actually received by, an authorized officer of
the Borrower, the Collateral Agent, or the Administrative Agent.
13.2. Amendments, Etc.
No amendment or waiver of any provision of this Second Restated Loan
Agreement or consent to any departure by the Borrower therefrom shall be
effective unless in a writing signed by the Majority Banks, the Administrative
Agent (as agent for the Issuers) and the Administrative Agent (and, in the case
of any amendment, also signed by the Borrower), and then such amendment, waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. Notwithstanding the foregoing, unless an amendment,
waiver or consent shall be made in writing and signed by each of the Banks, the
Managing Agents, and the Administrative Agent, and each of the Rating Agencies
shall confirm that any amendment will not result in a downgrade or withdrawal of
the ratings assigned to any Commercial Paper Notes, no amendment, waiver or
consent shall do any of the following:
(a) amend the definitions of Eligible Mortgage Loan, Collateral
Value, Advance Rate or Majority Banks or
(b) amend, modify or waive any provision of this Second Restated
Loan Agreement in any way that would:
(i) reduce the amount of principal or interest that is payable
on account of any Advance or delay any scheduled date for payment thereof
or
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(ii) impair any rights expressly granted to an assignee or
participant under this Second Restated Loan Agreement or
(c) reduce the fees payable by the Borrower, the Managing Agents, to
the Administrative Agent or the Lenders or delay the dates on which such fees
are payable or
(d) amend or waive the Event of Default set forth in Sections
8.1(f), (g) or (h) relating to the bankruptcy of the Performance Guarantor, the
Originator or the Borrower or
(e) amend or waive the Event of Default set forth in Section 8.1(w)
relating to the maximum Default Ratio or
(f) amend clause (a) of the definition of Drawdown Termination Date
or
(g) amend this Section 13.2;
and provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Servicer in addition to the other parties required
above to take such action, affect the rights or duties of the Servicer under
this Second Restated Loan Agreement. No failure on the part of the Lenders, the
Managing Agents, or the Administrative Agent to exercise, and no delay in
exercising, any right thereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.
13.3. Invalidity.
In the event that any one or more of the provisions contained in the
Notes, this Second Restated Loan Agreement or any other Transaction Document
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of such document.
13.4. Restrictions on Informal Amendments.
No course of dealing or waiver on the part of the Administrative
Agent, the Managing Agents, the Collateral Agent, any Lender or any Affected
Party, or any of their officers, employees, consultants or agents, or any
failure or delay by any such Person with respect to exercising any right, power
or privilege under the Notes, this Second Restated Loan Agreement or any other
Transaction Document shall operate as an amendment to express written terms of
the Notes, this Second Restated Loan Agreement or any other Transaction Document
or shall act as a waiver of any right, power or privilege of any such Person.
13.5. Cumulative Rights.
The rights, powers, privileges and remedies of each of the Lenders,
the Collateral Agent, the Managing Agents, and the Administrative Agent under
the Notes, this Second Restated Loan Agreement, and any other Transaction
Document shall be cumulative, and the exercise or partial exercise of any such
right, power, privilege or remedy shall not preclude the exercise of any other
right or remedy.
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13.6. Construction; Governing Law.
THIS SECOND RESTATED LOAN AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO).
13.7. Interest.
Any provisions herein, in the Notes, or in any other Transaction
Document, or any other document executed or delivered in connection herewith, or
in any other agreement or commitment, whether written or oral, expressed or
implied, to the contrary notwithstanding, the Lenders shall in no event be
entitled to receive or collect, nor shall or may amounts received hereunder be
credited, so that the Lenders shall be paid, as interest, a sum greater than the
maximum amount permitted by applicable law to be charged to the Person primarily
obligated to pay such Note at the time in question. If any construction of this
Second Restated Loan Agreement, any Note or any other Transaction Document, or
any and all other papers, agreements or commitments indicate a different right
given to a Lender to ask for, demand or receive any larger sum as interest, such
is a mistake in calculation or wording that this clause shall override and
control, it being the intention of the parties that this Second Restated Loan
Agreement, each Note, and all other Transaction Documents or other documents
executed or delivered in connection herewith shall in all things comply with
applicable law and proper adjustments shall automatically be made accordingly.
In the event that any of the Lenders shall ever receive, collect or apply as
interest, any sum in excess of the maximum nonusurious rate permitted by
applicable law (the "Maximum Rate"), if any, such excess amount shall be applied
to the reduction of the unpaid principal balance of the Note held by such
Lender, and if such Note is paid in full, any remaining excess shall be paid to
the Borrower. In determining whether or not the interest paid or payable, under
any specific contingency, exceeds the Maximum Rate, if any, the Borrower and
each of the Lenders shall, to the maximum extent permitted under applicable law:
(a) characterize any nonprincipal payment as an expense or fee rather than as
interest, (b) exclude voluntary prepayments and the effects thereof, and (c)
"spread" the total amount of interest throughout the entire term of the
respective Note; provided that if any Note is paid and performed in full prior
to the end of the full contemplated term hereof, and if the interest received
for the actual period of existence thereof exceeds the Maximum Rate, if any, the
respective Lender shall refund to the Borrower the amount of such excess, or
credit the amount of such excess against the aggregate unpaid principal balance
of all Advances made by such Lender hereunder at the time in question.
13.8. Right of Offset.
The Borrower hereby grants to each of the Lenders and the
Administrative Agent and to any assignee or participant a right of offset, to
secure the repayment of the Obligations, upon any and all monies, securities or
other Property of the Borrower, and the proceeds therefrom now or hereafter held
or received by or in transit to such Person, from or for the account of the
Borrower, whether for safekeeping, custody, pledge, transmission, collection or
otherwise, and also upon any and all deposits (general or special, time or
demand, provisional or
92
final) and credits of the Borrower, and any and all claims of the Borrower
against such Person at any time existing. Upon the occurrence of any Event of
Default, such Person is hereby authorized at any time and from time to time,
without notice to the Borrower, to offset, appropriate, and apply any and all
items hereinabove referred to against the Obligations. Notwithstanding anything
in this Section 13.8 or elsewhere in this Second Restated Loan Agreement to the
contrary, the Administrative Agent and the Lenders and any assignee or
participant shall not have any right to offset, appropriate or apply any
accounts of the Borrower that consist of escrowed funds (except and to the
extent of any beneficial interest of the Borrower in such escrowed funds) that
have been so identified by the Borrower in writing at the time of deposit
thereof.
13.9. Successors and Assigns.
(a) This Second Restated Loan Agreement and the Lenders' rights and
obligations herein (including ownership of each Advance) shall be assignable by
the Lenders and their successors and assigns to any Eligible Assignee. Each
assignor of an Advance or any interest therein shall notify the Administrative
Agent and the Borrower of any such assignment.
(b) Each Bank may assign to any Eligible Assignee or to any other
Bank all or a portion of its rights and obligations under this Second Restated
Loan Agreement (including, without limitation, all or a portion of its Bank
Commitment and any Advances or interests therein owned by it), provided however,
that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Second
Restated Loan Agreement,
(ii) the amount being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance
Agreement with respect to such assignment) shall in no event be less than
the lesser of (x) $20,000,000 and (y) all of the assigning Bank's Bank
Commitment,
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance Agreement, together with a
processing and recordation fee of $2,500, and
(iv) concurrently with such assignment, such assignor Bank
shall assign to such assignee Bank an equal percentage of its rights and
obligations under the related Liquidity Agreement.
Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance Agreement,
(x) the assignee thereunder shall be a party to this Second Restated Loan
Agreement and, to the extent that rights and obligations hereunder or under this
Second Restated Loan Agreement have been assigned to it pursuant to such
Assignment and Acceptance Agreement, have the rights and obligations of a Bank
hereunder and thereunder and (y) the assigning Bank shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance Agreement, relinquish such rights and be released from
such obligations under this Second
93
Restated Loan Agreement (and, in the case of an Assignment and Acceptance
Agreement covering all or the remaining portion of an assigning Bank's rights
and obligations under this Second Restated Loan Agreement, such Bank shall cease
to be a party thereto).
(c) The Administrative Agent shall maintain at its address referred
to in Section 13.1 a copy of each Assignment and Acceptance Agreement delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Banks and the Bank Commitment of, and aggregate outstanding
principal of Advances or interests therein owned by, each Bank from time to time
(the "Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Servicer, the
Managing Agents, the Administrative Agent and the Banks may treat each person
whose name is recorded in the Register as a Bank under this Second Restated Loan
Agreement for all purposes of this Second Restated Loan Agreement. The Register
shall be available for inspection by the Borrower, the Servicer, the Managing
Agents, the Administrative Agent or any Bank at any time and from time to time
upon prior notice.
(d) Each Bank may sell participations, to one or more banks or other
entities that are Eligible Assignees, in or to all or a portion of its rights
and obligations under this Second Restated Loan Agreement (including, without
limitation, all or a portion of its Bank Commitment and the Advances or
interests therein owned by it); provided, however, that:
(i) such Bank's obligations under this Second Restated Loan
Agreement (including, without limitation, its Bank Commitment to the
Borrower thereunder) shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other
parties to this Second Restated Loan Agreement for the performance of such
obligations, and
(iii) concurrently with such participation, the selling Bank
shall sell to such bank or other entity a participation in an equal
percentage of its rights and obligations under the related Liquidity
Agreement.
The Administrative Agent, the other Banks, the Managing Agents, the Servicer and
the Borrower shall have the right to continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Second Restated Loan Agreement.
(e) The Borrower may not assign its rights or obligations hereunder
or any interest herein without the prior written consent of the Administrative
Agent, each Managing Agent, and each Lender.
(f) The parties hereto acknowledge that Atlantic has granted to the
Atlantic Program Agent for the benefit of holders of its Commercial Paper Notes,
its liquidity banks, and certain other creditors of Atlantic, a security
interest in its right, title and interest in and to the Advances, the
Transaction Documents and the Collateral. Each reference herein or in any of the
other Transaction Documents to the Liens in the Collateral granted to Atlantic
under the Transaction Documents shall be deemed to include a reference to such
security interest of the Atlantic Program Agent.
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(g) The parties hereto acknowledge that La Fayette has granted to
the La Fayette Program Agent for the benefit of holders of its Commercial Paper
Notes, its liquidity banks, and certain other creditors of La Fayette, a
security interest in its right, title and interest in and to the Advances, the
Transaction Documents and the Collateral. Each reference herein or in any of the
other Transaction Documents to the Liens in the Collateral granted to La Fayette
under the Transaction Documents shall be deemed to include a reference to such
security interest of the La Fayette Program Agent.
13.10. Survival of Termination.
The provisions of Article X and Sections 2.12, 11.4, 13.14, 13.15,
13.20 and 13.21 shall survive any termination of this Second Restated Loan
Agreement.
13.11. Exhibits.
The exhibits attached to this Second Restated Loan Agreement are
incorporated herein and shall be considered a part of this Second Restated Loan
Agreement for the purposes stated herein, except that in the event of any
conflict between any of the provisions of such exhibits and the provisions of
this Second Restated Loan Agreement, the provisions of this Second Restated Loan
Agreement shall prevail.
13.12. Titles of Articles, Sections and Subsections.
All titles or headings to articles, sections, subsections or other
divisions of this Second Restated Loan Agreement or the exhibits hereto are only
for the convenience of the parties and shall not be construed to have any effect
or meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
13.13. Counterparts.
This Second Restated Loan Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of each of the
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all counterparts together shall constitute one
and the same instrument.
13.14. No Proceedings.
The Borrower, the Servicer, the Administrative Agent and each Bank
hereby agrees that it will not institute against the Issuers, or join any other
Person in instituting against the Issuers, any bankruptcy, reorganization,
arrangement, insolvency, or liquidation proceeding, or other proceeding under
any federal or state bankruptcy or similar law so long as any Commercial Paper
Notes issued by the either of the Issuers shall be outstanding or there shall
not have elapsed one year plus one day since the last day on which any such
Commercial Paper Notes shall have been outstanding. The foregoing shall not
limit the rights of the Borrower, the Servicer, any Managing Agent, the
Administrative Agent or any Bank to file any claim in or otherwise take any
action with respect to any insolvency proceeding that was instituted by any
other Person.
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13.15. Confidentiality.
The Borrower and the Servicer each hereby agrees that it will
maintain and cause its respective employees to maintain the confidentiality of
this Second Restated Loan Agreement, and the other Transaction Documents (and
all drafts thereof), and each Lender, each Managing Agent, and the
Administrative Agent agrees that it will maintain and cause its respective
employees to maintain the confidentiality of the Collateral and all other
non-public information with respect to the Borrower and the Servicer, and their
respective businesses obtained by such party in connection with the structuring,
negotiating and execution of the transactions contemplated herein, in each case
except (a) as may be required or appropriate in communications with its
respective independent public accountants, legal advisors, or with independent
financial rating agencies, (b) as may be required or appropriate in any report,
statement or testimony submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over it, (c) as may be required or
appropriate in response to any summons or subpoena or in connection with any
litigation, (d) as may be required by or in order to comply with any law, order,
regulation or ruling, (e) as may be required or appropriate in connection with
disclosures to any and all persons, without limitation of any kind, of
information relating to the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions and other tax analyses) that
are provided to the Borrower or the Originator relating to such tax treatment
and tax structure, (f) in the case of any Bank, any Issuer, each Managing Agent,
or the Administrative Agent, to any Liquidity Bank or provider of credit support
to either of the Issuers, either Managing Agent, any dealer or placement
Administrative Agent for either of the Issuers' commercial paper, and any actual
or potential assignee of, or participant in, any of the rights or obligations of
such Lender, or (g) in the case of any Issuer, any Managing Agent or the
Administrative Agent, to any Person whom any dealer or placement Administrative
Agent for either of the Issuers shall have identified as an actual or potential
investor in Commercial Paper Notes; provided that any proposed recipient under
clause (f) or (g) shall, as a condition to the receipt of any such information,
agree to maintain the confidentiality thereof.
13.16. Recourse Against Directors, Managers, Officers, Etc.
The Obligations are solely the corporate obligations of the
Borrower. No recourse for the Obligations shall be had hereunder against any
director, manager, officer, employee (in its capacity as such, and not as
Servicer), trustee, Administrative Agent or any Person owning, directly or
indirectly, any legal or beneficial interest in the Borrower (in its capacity as
such owner, and not as Servicer, Performance Guarantor or otherwise as a party
to any Transaction Document). This Section 13.16 shall not, however, (a)
constitute a waiver, release or impairment of the Obligations, or (b) affect the
validity or enforceability of the Restated Performance Guaranty or any other
Transaction Document to which the Originator, the Servicer, the Performance
Guarantor or any of their Affiliates may be a party.
13.17. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS SECOND RESTATED LOAN AGREEMENT, THE
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NOTES, ANY OTHER TRANSACTION DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT OR
DOCUMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH
OR ARISING FROM ANY BANKING OR OTHER RELATIONSHIP EXISTING IN CONNECTION WITH
THIS SECOND RESTATED LOAN AGREEMENT, THE NOTES OR ANY OTHER TRANSACTION DOCUMENT
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND
NOT BEFORE A JURY.
13.18. Consent to Jurisdiction; Waiver of Immunities.
EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT:
(a) IT IRREVOCABLY (i) SUBMITS TO THE JURISDICTION, FIRST, OF ANY
UNITED STATES FEDERAL COURT, AND, SECOND, IF FEDERAL JURISDICTION IS NOT
AVAILABLE, OF ANY NEW YORK STATE COURT, IN EITHER CASE SITTING IN NEW YORK CITY,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SECOND RESTATED
LOAN AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED ONLY IN SUCH NEW YORK STATE OR FEDERAL
COURT AND NOT IN ANY OTHER COURT, AND (iii) WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO MAINTENANCE OF SUCH
ACTION OR PROCEEDING.
(b) TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID TO EXECUTION,
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER OR IN
CONNECTION WITH THIS SECOND RESTATED LOAN AGREEMENT.
13.19. Costs, Expenses and Taxes.
In addition to its obligations under Articles II and X, the Borrower
agrees to pay on demand:
(a) (i) all out-of-pocket costs and expenses incurred by the
Administrative Agent, the Managing Agents and the Lenders, in connection with
the negotiation, preparation, execution and delivery or the administration
(including periodic auditing) of this Second Restated Loan Agreement, the Notes,
the other Transaction Documents, and, to the extent related to this Second
Restated Loan Agreement, the Program Documents (including any amendments or
modifications of or supplements to the Program Documents entered into in
connection herewith), and any amendments, consents or waivers executed in
connection therewith, including, without limitation, (A) the fees and expenses
of counsel to any of such Persons
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incurred in connection with any of the foregoing or in advising such Persons as
to their respective rights and remedies under any of the Transaction Documents
or (to the extent related to this Second Restated Loan Agreement) the Program
Documents, and (B) all out-of-pocket expenses (including fees and expenses of
independent accountants) incurred in connection with any review of the books and
records of the Borrower or the Servicer either prior to the execution and
delivery hereof or pursuant to Section 6.8, and (ii) all costs and expenses
incurred by the Administrative Agent, the Managing Agents and the Lenders, in
connection with the enforcement of, or any actual or claimed breach of, this
Second Restated Loan Agreement, the Notes, the other Transaction Documents and,
to the extent related to this Second Restated Loan Agreement, the Program
Documents (including any amendments or modifications of or supplements to the
Program Documents entered into in connection herewith), including, without
limitation, the fees and expenses of counsel to any of such Persons incurred in
connection therewith including without limitation, with respect to each Issuer,
the cost of rating the Commercial Paper Notes by the Rating Agencies and the
reasonable fees and out-of-pocket expenses of counsel to each Issuer; and
(b) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing and recording of this
Second Restated Loan Agreement, the Notes, the other Transaction Documents or
(to the extent related to this Second Restated Loan Agreement) the Program
Documents, and agrees to indemnify each Indemnified Party against any
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees.
13.20. Entire Second Restated Loan Agreement.
THE NOTES, THIS SECOND RESTATED LOAN AGREEMENT, AND THE OTHER
TRANSACTION DOCUMENTS EXECUTED AND DELIVERED AS OF EVEN DATE HEREWITH REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND THERETO ANY MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
13.21. Excess Funds.
An Issuer shall not be obligated to pay any amount pursuant to this
Second Restated Loan Agreement unless such Issuer has excess cash flow from
operations or has received funds with respect to such obligation which may be
used to make such payment and which funds or excess cash flow are not required
to repay when due its Commercial Paper Note or other short term funding backing
its Commercial Paper Notes. Any amount which such Issuer does not pay pursuant
to the operation of the preceding sentence shall not constitute a claim, as
defined in Section 101(5) of the United States Bankruptcy Code, against such
Issuer for any such insufficiency unless and until such Issuer does have excess
cash flow or excess funds.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Restated Loan Agreement to be duly executed as of the date first above written.
PULTE FUNDING, INC.,
as the Borrower
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
ATLANTIC ASSET SECURITIZATION LLC,
as an Issuer
By: Calyon New York Branch, as Attorney-in-
Fact
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
JUPITER SECURITIZATION CORPORATION,
as an Issuer
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
LA FAYETTE ASSET SECURITIZATION LLC,
as an Issuer
By: Calyon New York Branch, as Attorney-in-
Fact
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
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CALYON NEW YORK BRANCH,
as a Bank, the Administrative Agent and a Managing Agent
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as a Bank and a Managing Agent
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
LLOYDS TSB BANK PLC,
as a Bank
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
PULTE MORTGAGE LLC,
as the Servicer
By: ___________________________________________
Name: ___________________________________________
Title: ___________________________________________
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