EXHIBIT 10.1
Published CUSIP Number: 026602SAA3
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 10, 2006
among
AMERICAN HOME MORTGAGE INVESTMENT CORP.,
AMERICAN HOME MORTGAGE SERVICING, INC.,
AMERICAN HOME MORTGAGE CORP.,
and
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.,
as the Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender, and a Lender
and
The Other Lenders Party Hereto
CALYON NEW YORK BRANCH and DEUTSCHE BANK SECURITIES INC.,
as Co-Syndication Agents
CITIBANK, N.A., JPMORGAN CHASE BANK, N.A.,
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA,
as Co-Documentation Agents
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
----
1. Warehouse Credit Facility...............................................5
1(a) Warehouse Lending Limit...............................................5
1(b) Calculation and Payment of Interest...................................6
1(c) Payment of Principal..................................................6
2. Servicing Rights Credit Facility........................................6
2(a) Servicing Rights Lending Limit........................................6
2(b) Calculation and Payment of Interest...................................6
2(c) Payment of Principal..................................................7
2(d) Term-Out of Principal.................................................7
3. Working Capital Credit Facility.........................................7
3(a) Working Capital Lending Limit.........................................7
3(b) Calculation and Payment of Interest...................................7
3(c) Payment of Principal..................................................8
4. Swing Line Credit Facility..............................................8
4(a) Swing Line Lending Limit..............................................8
4(b) Funding of Swing Line Loans...........................................8
4(c) Refunding of Swing Line Loans by Lenders..............................8
4(d) Calculation and Payment of Interest...................................8
4(e) Payment of Principal..................................................9
4(f) Absolute Obligation to Refund.........................................9
5. Interest Rate and Yield-Related Provisions..............................9
5(a) Initial Rate..........................................................9
5(b) Payment of Interest and Fees..........................................9
5(c) Inability to Determine Rate..........................................11
5(d) Illegality...........................................................11
5(e) Requirements of Law; Increased Costs.................................11
5(f) Funding..............................................................12
5(g) Yield Protection.....................................................12
5(h) Buy-Down Provisions..................................................12
5(i) Computations.........................................................13
5(j) Post-Default Interest................................................13
5(k) Facility Fee.........................................................13
6. Miscellaneous Lending Provisions.......................................13
6(a) Use of Proceeds......................................................13
6(b) Request For New Loans; Determination of Availability; Making of New
Loans..............................................................13
6(c) Notes and Evidence of Debt...........................................15
6(d) Borrowing Base Conformity............................................16
6(e) Nature and Place of Payments.........................................17
6(f) Prepayments..........................................................18
6(g) Allocation of Payments Received......................................18
6(h) Reduction of Commitments.............................................20
6(i) Increase of Aggregate Credit Limit...................................20
6(j) Obligations Joint and Several........................................21
6(k) Foreign Lender Certifications........................................21
i
Amended and Restated Credit Agreement
7. Collateral Security; Guaranty; Additional Documents....................22
7(a) Security Agreement...................................................22
7(b) Guaranty.............................................................22
7(c) Further Documents....................................................22
8. Conditions to Effectiveness and Making of Loans........................22
8(a) Conditions to Occurrence of Effective Date...........................22
8(b) Conditions to each Loan..............................................25
9. Representations and Warranties of the Borrowers........................26
9(a) Financial Condition..................................................26
9(b) No Change............................................................26
9(c) Corporate Existence; Compliance with Law.............................26
9(d) Corporate Power; Authorization; Enforceable Obligations..............27
9(e) No Legal Bar.........................................................27
9(f) No Material Litigation...............................................27
9(g) Taxes................................................................27
9(h) Investment Company Act...............................................27
9(i) Subsidiaries.........................................................27
9(j) Federal Reserve Board Regulations....................................27
9(k) ERISA................................................................28
9(l) Assets; Insurance....................................................28
9(m) Securities Acts....................................................28
9(n) Consents, etc........................................................28
9(o) REIT Status..........................................................28
9(p) Full Disclosure......................................................28
9(q) Seller/Servicer Status...............................................28
9(r) Environmental Matters................................................29
9(s) No Default...........................................................29
9(t) MERS Membership......................................................29
10. Affirmative Covenants..................................................29
10(a) Financial Statements...............................................29
10(b) Certificates; Reports; Other Information...........................30
10(c) Payment of Indebtedness............................................32
10(d) Maintenance of Existence and Properties............................33
10(e) Inspection of Property; Books and Records; Audits..................33
10(f) Notices............................................................33
10(g) Expenses...........................................................34
10(h) Loan Documents.....................................................34
10(i) Insurance..........................................................34
10(j) Indemnification....................................................34
10(k) Payments to Settlement Account.....................................35
10(l) Compliance with Laws...............................................35
10(m) MERS...............................................................35
10(n) Risk Management Policies...........................................36
10(o) Shipment of Collateral.............................................36
10(p) Compliance with Lending Regulations................................36
11. Negative Covenants.....................................................36
11(a) Liens..............................................................36
11(b) Indebtedness.......................................................37
11(c) Consolidation and Merger...........................................37
11(d) Acquisitions.......................................................37
ii
Amended and Restated Credit Agreement
11(e) Payment of Dividends...............................................38
11(f) Investments; Advances..............................................38
11(g) Sale of Assets.....................................................38
11(h) Minimum Tangible Net Worth.........................................38
11(i) Collateral Value to Adjusted Consolidated Funded Debt Ratio........38
11(j) Maximum Servicing Delinquency and Foreclosure Percentages..........39
11(k) Minimum Net Income.................................................39
11(l) Modification of Policies and Procedures............................39
11(m) Transactions with Affiliates.......................................39
11(n) MERS...............................................................39
11(o) REIT Status........................................................39
11(p) Seller/Servicer Status.............................................40
11(q) Mandatory Commitments..............................................40
12. Events of Default......................................................40
13. The Administrative Agent...............................................42
13(a) Appointment and Authority..........................................42
13(b) Rights as a Lender.................................................42
13(c) Exculpatory Provisions.............................................42
13(d) Reliance by Administrative Agent...................................43
13(e) Delegation of Duties...............................................43
13(f) Resignation of Administrative Agent................................43
13(g) Non-Reliance on Administrative Agent and Other Lenders.............44
13(h) No Other Duties....................................................44
13(i) Administrative Agent May File Proofs of Claim......................44
13(j) Collateral Matters.................................................45
13(k) Reimbursement by Lenders...........................................45
14. Assignment and Participations..........................................46
14(a) Assignments by Lenders.............................................46
14(b) Register...........................................................47
14(c) Participations.....................................................47
14(d) Limitations upon Participant Rights................................47
14(e) Certain Pledges....................................................47
15. Miscellaneous Provisions...............................................48
15(a) No Assignment by Loan Parties......................................48
15(b) Amendments.........................................................48
15(c) Cumulative Rights; No Waiver.......................................49
15(d) Entire Agreement...................................................49
15(e) Survival...........................................................49
15(f) Notices............................................................50
15(g) Severability.......................................................51
15(h) Governing Law; Jurisdiction; Etc...................................51
15(i) Counterparts.......................................................52
15(j) Right of Setoff....................................................52
15(k) Sharing of Payments................................................52
15(l) Waiver of Jury Trial...............................................53
15(m) Limitation on Interest.............................................53
15(n) USA PATRIOT Act Notice.............................................53
15(o) Treatment of Certain Information; Confidentiality..................53
15(p) Replacement of Lenders.............................................54
15(q) Existing Credit Agreement..........................................54
iii
Amended and Restated Credit Agreement
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement") is
entered into as of the 10th day of August, 2006, by and among AMERICAN HOME
MORTGAGE INVESTMENT CORP., a Maryland corporation ("AHMIC"), AMERICAN HOME
MORTGAGE SERVICING, INC., a Maryland corporation ("AHMS"), AMERICAN HOME
MORTGAGE CORP., a New York corporation ("AHMC"), AMERICAN HOME MORTGAGE
ACCEPTANCE, INC., a Maryland corporation ("AHMA") (AHMIC, AHMS, AHMC and AHMA
each, a "Borrower" and, collectively, the "Borrowers"), the lenders from time to
time party hereto, together with their respective successors and assigns (each,
a "Lender" and, collectively, the "Lenders"), and BANK OF AMERICA, N.A., as
administrative agent, or any successor administrative agent (in such capacity,
the "Administrative Agent").
RECITALS
A. Borrowers are the borrowers under that certain Amended and Restated
Credit Agreement dated as of August 12, 2005 (as amended to date, the "Existing
Credit Agreement"), which Existing Credit Agreement was executed and delivered
in amendment and restatement of that certain Credit Agreement dated August 30,
2004.
B. Borrowers and Lenders desire to amend and restate the Existing Credit
Agreement, in the form of this Second Amended and Restated Credit Agreement, to,
among other things, extend credit to the Borrowers on the terms and conditions
set forth herein and in the documents, instruments and agreements executed and
delivered in connection herewith.
C. This amendment and restatement of the Existing Credit Agreement is not
intended by the parties to constitute a novation, a discharge or a satisfaction
of the indebtedness outstanding under the Existing Credit Agreement, which
indebtedness shall remain outstanding hereunder on the terms and conditions
hereinafter provided.
NOW, THEREFORE, in consideration of the above Recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree that, effective upon the Effective
Date (as hereinafter defined), the Existing Credit Agreement is amended and
restated in its entirety as follows:
AGREEMENT
1. Warehouse Credit Facility.
1(a) Warehouse Lending Limit. On the terms and subject to the
conditions set forth herein, the Lenders severally agree that they shall from
time to time to but not including the Maturity Date make loans (the "Warehouse
Loans" or a "Warehouse Loan"), pro rata in accordance with their respective
Percentage Share, to the Borrowers in amounts not to exceed, in the aggregate at
any one time outstanding (taking into account any then outstanding Warehouse
Loans), the lesser of:
(1) The Aggregate Credit Limit minus the aggregate amount of
Servicing Rights Loans, Working Capital Loans and Swing Line Loans
outstanding on such date (including all Servicing Rights Loans, Working
Capital Loans and Swing Line Loans to be funded on the proposed date of
funding of the requested Warehouse Loans but excluding Loans which will be
repaid with proceeds of Loans to be funded on such date); and
4
Second Amended and Restated Credit Agreement
(2) The Collateral Value of the Warehouse Borrowing Base minus
the aggregate amount of all Swing Line Loans outstanding on such date
(including all Swing Line Loans to be funded on the proposed date of
funding of the requested Warehouse Loans but excluding Loans which will be
repaid with the proceeds of the Loans to be funded on such date).
1(b) Calculation and Payment of Interest. Warehouse Loans shall bear
interest from the date disbursed to but not including the date of payment
calculated on the principal amount of Warehouse Loans outstanding from time to
time hereunder at a per annum rate equal to, at the option of and as selected by
the Borrowers from time to time (subject to the provisions of Paragraphs 5(c),
5(d) and 5(e)), (1) the Eurodollar Rate for the applicable Interest Period plus
the Applicable Margin or (2) the Base Rate during the applicable interest
computation period plus the Applicable Margin, said interest to be payable as
provided more particularly in Paragraph 5(b).
1(c) Payment of Principal. Subject to the prepayment requirements of
Paragraph 6(f) and the conversion and continuation provisions of Paragraph 5(c),
the Borrowers shall pay the principal amount of each Warehouse Loan being
maintained as a Eurodollar Loan on the last day of the applicable Interest
Period and shall pay the principal amount of each Warehouse Loan being
maintained as a Base Rate Loan on the Maturity Date.
2. Servicing Rights Credit Facility.
2(a) Servicing Rights Lending Limit. On the terms and subject to the
conditions set forth herein, the Lenders severally agree that they shall from
time to time to but not including the Maturity Date make loans (the "Servicing
Rights Loans" or a "Servicing Rights Loan"), pro rata in accordance with their
respective Percentage Share, to the Borrowers in amounts not to exceed, in the
aggregate at any one time outstanding (taking into account any then outstanding
Servicing Rights Loans), the least of:
(1) The Aggregate Credit Limit minus the aggregate amount of
Warehouse Loans, Working Capital Loans and Swing Line Loans outstanding on
such date (including all Warehouse Loans, Working Capital Loans and Swing
Line Loans to be funded on the proposed date of funding of the requested
Servicing Rights Loans but excluding Loans which will be repaid with
proceeds of Loans to be funded on such date);
(2) The Collateral Value of the Servicing Rights Borrowing
Base; and
(3) The Servicing Rights Credit Sublimit.
2(b) Calculation and Payment of Interest. Servicing Rights Loans
shall bear interest from the date disbursed to but not including the date of
payment calculated on the principal amount of Servicing Rights Loans outstanding
from time to time hereunder at a per annum rate equal to, at the option of and
as selected by the Borrowers from time to time (subject to the provisions of
Paragraphs 5(c), 5(d) and 5(e)), (1) the Eurodollar Rate for the applicable
Interest Period plus the Applicable Margin or (2) the Base Rate during the
applicable interest computation period plus the Applicable Margin, said interest
to be payable as provided more particularly in Paragraph 5(b).
2(c) Payment of Principal. Subject to the prepayment requirements of
Paragraph 6(f), the conversion and continuation provisions of Paragraph 5(c) and
the provisions of Paragraph 2(d), the Borrowers shall pay the principal amount
of each Servicing Rights Loan being
5
Second Amended and Restated Credit Agreement
maintained as a Eurodollar Loan on the last day of the applicable Interest
Period and shall pay the principal amount of each Servicing Rights Loan being
maintained as a Base Rate Loan on the Maturity Date.
2(d) Term-Out of Principal. Provided that (1) no Potential Default
or Event of Default has occurred and is continuing on the Maturity Date, (2) all
representations and warranties of the Borrowers contained in Paragraph 9 of this
Agreement and the other Loan Documents are true and correct as of the Maturity
Date (except to the extent that they were expressly made with respect to an
earlier date, in which case they were true and correct as of such earlier date)
and (3) no later than the Maturity Date, the Borrowers pay to the Administrative
Agent, for the account of the Lenders in accordance with their respective
Percentage Share on the Maturity Date, a fee in the amount of .25% of the
principal balance of the Servicing Rights Loans that the Borrowers elect to
convert to a term loan pursuant to this Paragraph 2(d), the Borrowers may, by
giving the Administrative Agent written notice not less than 15 days prior to
the Maturity Date, elect to convert all or any part of the Servicing Rights
Loans outstanding on the Maturity Date to a term loan, the principal balance of
which shall, subject to the prepayment requirements of Paragraph 6(f), be
payable in eight equal installments, commencing on the last Business Day of the
first calendar quarter ending after the Maturity Date and continuing on the last
Business Day of each calendar quarter thereafter until paid in full. Upon the
request of any Lender, Borrowers shall execute a replacement promissory note, in
form and substance acceptable to Administrative Agent, such requesting Lender,
and Borrowers evidencing any such Obligation that Borrower has elected to
convert to a term loan.
3. Working Capital Credit Facility.
3(a) Working Capital Lending Limit. On the terms and subject to the
conditions set forth herein, the Lenders severally agree that they shall from
time to time to but not excluding the Maturity Date make loans (the "Working
Capital Loans" or a "Working Capital Loan"), pro rata in accordance with their
respective Percentage Share, to the Borrowers in amounts not to exceed, in the
aggregate at any one time outstanding (taking into account any then outstanding
Working Capital Loans), the least of:
(1) The Aggregate Credit Limit minus the aggregate amount of
Warehouse Loans, Servicing Rights Loans and Swing Line Loans outstanding
on such date (including all Warehouse Loans, Servicing Rights Loans and
Swing Line Loans to be funded on the proposed date of funding of the
requested Working Capital Loans but excluding Loans which will be repaid
with proceeds of Loans to be funded on such date);
(2) The Collateral Value of the Working Capital Borrowing
Base; and
(3) The Working Capital Credit Sublimit.
3(b) Calculation and Payment of Interest. Working Capital Loans
shall bear interest from the date disbursed to but not including the date of
payment calculated on the principal amount of Working Capital Loans outstanding
from time to time hereunder at a per annum rate equal to, at the option of and
as selected by the Borrowers from time to time (subject to the provisions of
Paragraphs 5(c), 5(d) and 5(e)), (1) the Eurodollar Rate for the applicable
Interest Period plus the Applicable Margin or (2) the Base Rate during the
applicable interest computation period plus the Applicable Margin, said interest
to be payable as provided more particularly in Paragraph 5(b).
6
Second Amended and Restated Credit Agreement
3(c) Payment of Principal. Subject to the prepayment requirements of
Paragraph 6(f) and the conversion and continuation provisions of Paragraph 5(c),
the Borrower shall pay the principal amount of each Working Capital Loan being
maintained as a Eurodollar Loan on the last day of the applicable Interest
Period and shall pay the principal amount of each Working Capital Loan being
maintained as a Base Rate Loan on the Maturity Date.
4. Swing Line Credit Facility.
4(a) Swing Line Lending Limit. On the terms and subject to the
conditions set forth herein and in reliance upon the agreements of the other
Lenders set forth in this Paragraph 4, the Swing Line Lender agrees, that it
shall from time to time to but not including the Maturity Date make loans (the
"Swing Line Loans" or a "Swing Line Loan") to the Borrowers in amounts not to
exceed, in the aggregate at any one time outstanding (taking into account any
then outstanding Swing Line Loans), the least of:
(1) The Aggregate Credit Limit minus the aggregate amount of
Warehouse Loans, Servicing Rights Loans and Working Capital Loans
outstanding on such date (including all Warehouse Loans, Servicing Rights
Loans and Working Capital Loans to be funded on the proposed date of
funding of the requested Swing Line Loans but excluding Loans which will
be repaid with proceeds of Loans to be funded on such date);
(2) The Collateral Value of the Warehouse Borrowing Base minus
the aggregate dollar amount of all Warehouse Loans outstanding on such
date (including all Warehouse Loans to be funded on the proposed date of
funding of the requested Swing Line Loans but excluding Loans which will
be repaid with proceeds of Loans to be funded on such date); and
(3) The Swing Line Credit Sublimit.
4(b) Funding of Swing Line Loans. Upon receipt by the Administrative
Agent of a Loan And/Or Interest Rate Election Request for a Swing Line Loan, it
shall so notify the Swing Line Lender thereof as provided in Paragraph 6(b), and
the Swing Line Lender shall advance the amount of the Swing Line Loan or Loans
requested for the purpose of funding the Borrowers' operations on a daily basis
without requiring pro rata fundings from the Lenders.
4(c) Refunding of Swing Line Loans by Lenders. Swing Line Loans
shall be refunded by the Lenders to the Swing Line Lender upon demand of the
Swing Line Lender in its sole discretion (and without regard to funding minimums
as required by Paragraph 6(b)(5)) through the Administrative Agent. All Swing
Line Loans shall be automatically designated as Warehouse Loans on and as of
such refunding date. Such refundings shall be made by the Lenders (including the
Swing Line Lender) in accordance with their respective Percentage Share and
shall, thereafter, be reflected as Warehouse Loans of the Lenders on the books
and records of the Administrative Agent and the Lenders, and, thereafter, each
Lender shall be entitled to receive its pro rata share of payments made in
respect of such Warehouse Loans. Subject to Paragraph 4(f), the Administrative
Agent shall, upon the occurrence of an Event of Default and acceleration of the
Obligations, request a refunding hereunder of all Swing Line Loans outstanding
as of such date.
4(d) Calculation and Payment of Interest. Swing Line Loans shall
bear interest from the date disbursed to but not including the earlier of the
refunding date or the date of payment calculated on the principal amount of
Swing Line Loans outstanding from time to time hereunder during
7
Second Amended and Restated Credit Agreement
the applicable interest calculation period at the Base Rate, said interest to be
payable as provided more particularly in Paragraph 5(b).
4(e) Payment of Principal. Subject to the prepayment requirements of
Paragraph 6(f) and earlier refunding pursuant to Paragraph 4(c), the Borrowers
shall pay the principal amount of each Swing Line Loan on the Maturity Date.
4(f) Absolute Obligation to Refund. It is expressly acknowledged and
agreed by the Lenders and the Borrowers that the obligation of the Lenders to
refund Swing Line Loans (or purchase participations in Swing Line Loans as
provided in this Paragraph 4(f)) shall be absolute and unconditional and shall
be effected by the Lenders upon telephonic request of the Administrative Agent
regardless of whether at the proposed refunding or participation acquisition
date the conditions precedent set forth in Paragraph 8(b) to the borrowing of a
Warehouse Loan on such date are satisfied; provided, however, that the
obligation of the Lenders to refund or purchase participations in Swing Line
Loans made by the Swing Line Lender on any date on which the Swing Line Lender's
personnel responsible for administering the credit facility hereunder had actual
knowledge of the non-satisfaction of such conditions precedent, shall be limited
to those Swing Line Loans made on such date with the consent (which may be
telephonic) of those Lenders having Percentage Shares sufficient to waive the
non-satisfaction of such conditions precedent; and provided, further, however,
that no Lender shall be obligated to make Loans in an aggregate principal amount
outstanding at any time in excess of its Maximum Commitment. In the event for
any reason the Lenders shall be prohibited from refunding their respective
ratable portion of Swing Line Loans as Warehouse Loans as provided herein (other
than any prohibition arising as a result of exceeding the Lenders' respective
Maximum Commitments), then instead of refunding Swing Line Loans as Warehouse
Loans, upon request of the Swing Line Lender and subject to the proviso of the
immediately preceding sentence, each Lender (other than the Swing Line Lender)
shall purchase and take from the Swing Line Lender an individual participation
interest in all Swing Line Loans outstanding hereunder in the amount of such
Lender's Percentage Share thereof, and, thereafter, each such Lender shall be
entitled to receive its pro rata share of payments made in respect of such Swing
Line Loans.
5. Interest Rate and Yield-Related Provisions.
5(a) Initial Rate. All Loans shall initially be funded as Base Rate
Loans and/or Eurodollar Loans and, thereafter, shall be maintained, at the
election of the Borrowers made from time to time as permitted herein, as Base
Rate Loans and/or Eurodollar Loans.
5(b) Payment of Interest and Fees. Interest accruing on Base Rate
Loans and Eurodollar Loans shall be payable monthly in arrears and on the
Maturity Date. The Administrative Agent shall, on or before the fifth Business
Day of each month, deliver to the Borrowers an interest and fee billing for the
immediately preceding month, which billing shall set forth interest accrued and
payable on Loans and fees payable hereunder to be collected by the
Administrative Agent for remittance to the Lenders and which billing shall be
payable no later than the second Business Day following receipt thereof by the
Borrowers.
8
Second Amended and Restated Credit Agreement
(1) The Borrowers may elect from time to time to convert Loans
outstanding as Base Rate Loans to Eurodollar Loans by giving the
Administrative Agent prior irrevocable notice of such election (A) no
later than 9:30 a.m. (Dallas time) on the third Eurodollar Business Day
preceding the proposed conversion date, in the case of a conversion to
Fixed Period Eurodollar Loans, and (B) no later than 9:30 a.m. (Dallas
time) on the proposed conversion date, in the case of a conversion to
Daily Floating Eurodollar Loans. The Administrative Agent shall promptly
notify the Lenders of each notice given pursuant to this Paragraph
5(b)(1).
(2) The Borrowers may elect to convert Loans outstanding as
Eurodollar Loans to Base Rate Loans effective upon the last day of the
applicable Interest Period by giving the Administrative Agent irrevocable
notice of such election (A) no later than 9:30 a.m. (Dallas time) on the
third Eurodollar Business Day preceding the proposed conversion date, in
the case of a conversion of Fixed Period Eurodollar Loans, and (B) no
later than 9:30 a.m. (Dallas time) on the proposed conversion date, in the
case of a conversion of Daily Floating Eurodollar Loans. The Borrowers may
elect to convert Loans outstanding as Fixed Period Eurodollar Loans to
Daily Floating Eurodollar Loans effective upon the last day of the
applicable Interest Period by giving the Administrative Agent irrevocable
notice of such election no later than 9:30 a.m. (Dallas time) on the third
Eurodollar Business Day preceding the proposed conversion date. The
Borrowers may elect to convert Loans outstanding as Daily Floating
Eurodollar Loans to Fixed Period Eurodollar Loans effective upon the last
day of the applicable Interest Period by giving the Administrative Agent
irrevocable notice of such election no later than 9:30 a.m. (Dallas time)
on the third Eurodollar Business Day preceding the proposed conversion
date. The Administrative Agent shall promptly notify the Lenders of each
notice given pursuant to this Paragraph 5(b)(2).
(3) Any Fixed Period Eurodollar Loan may be continued as such
upon the expiration of the Interest Period with respect thereto by the
Borrowers giving the Administrative Agent prior irrevocable notice of such
election no later than 9:30 a.m. (Dallas time) on the third Eurodollar
Business Day preceding the proposed continuation date (and Administrative
Agent shall promptly notify the Lenders of such notice). If the Borrowers
fail to give notice as provided above, the Borrowers shall be deemed to
have elected to convert any affected Fixed Period Eurodollar Loan to a
Base Rate Loan on the last day of the applicable Interest Period. Any
Daily Floating Eurodollar Loan shall automatically continue as a Daily
Floating Eurodollar Loan unless and until paid or converted to a Fixed
Period Eurodollar Loan or a Base Rate Loan in accordance herewith.
(4) No Loan shall be funded or continued as a Eurodollar Loan
and no Loan shall be converted into a Eurodollar Loan (but in each case
shall instead be funded or continued as, or converted into, a Base Rate
Loan) if an Event of Default or Potential Default has occurred and is
continuing (A) on the third Eurodollar Business Day prior to the date of,
or on the date of, any requested funding, continuation or conversion, in
the case of a Fixed Period Eurodollar Loan, or (B) the date of any
requested funding, continuation or conversion, in the case of a Daily
Floating Eurodollar Loan.
(5) All or any part of outstanding Loans may be converted
pursuant to this paragraph 5(b); provided, however, that partial
conversions shall be in the principal amount of $5,000,000 or whole
multiples of $1,000,000 in excess thereof, and in the case of conversions
into Eurodollar Loans, after giving effect thereto to the aggregate of
the then number of Eurodollar Loans of each Lender having a different
Interest Period shall not exceed three.
9
Second Amended and Restated Credit Agreement
(6) Each request for the funding, continuation or conversion
of a Loan shall be evidenced by the timely delivery by the Borrowers to
the Administrative Agent of a duly executed Loan and/or Interest Rate
Election Request (which delivery may be by facsimile transmission).
5(c) Inability to Determine Rate. In the event that the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrowers) that by reason of circumstances
affecting the London interbank eurodollar market adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate for any Interest Period or the
Eurodollar Rate for such Interest Period does not adequately and fairly reflect
the cost to the Lenders of funding or maintaining a Eurodollar Loan for such
Interest Period, the Administrative Agent shall forthwith give facsimile notice
of such determination, confirmed in writing, to each Lender and to the
Borrowers. If such notice is given, (1) any Loan that was to have been converted
to a Eurodollar Loan shall be continued as a Base Rate Loan, and (2) any
outstanding Eurodollar Loan shall be converted, on the last day of the then
current Interest Period with respect thereto, to a Base Rate Loan. Until such
notice has been withdrawn by the Administrative Agent, the Borrowers shall not
have the right to convert a Base Rate Loan to a Eurodollar Loan or to continue a
Eurodollar Loan; provided that such notice shall be withdrawn immediately after
the adverse circumstances affecting the London interbank eurodollar market cease
to exist (as reasonably determined by the Administrative Agent).
5(d) Illegality. Notwithstanding any other provisions herein, if any
law, regulation, treaty or directive, or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (1) the
commitment of such Lender hereunder to make or to continue Eurodollar Loans or
to convert Base Rate Loans to Eurodollar Loans shall forthwith be suspended, and
(2) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans at the end of their respective
Interest Periods or within such earlier period as is required by law. In the
event of a conversion of any Loan prior to the end of its applicable Interest
Period as provided herein, the Borrowers hereby agree to promptly pay any Lender
affected thereby, upon demand, the amounts required pursuant to Paragraph 5(g),
it being agreed and understood that such conversion shall constitute a
prepayment for all purposes hereof. The provisions hereof shall survive the
termination of this Agreement and payment of the outstanding Loans and all other
Obligations.
5(e) Requirements of Law; Increased Costs. In the event that any
applicable law, order, regulation, treaty or directive issued or amended after
the Effective Date by any applicable central bank or other Governmental
Authority, or any change after the Effective Date in the governmental or
judicial interpretation or application thereof, or compliance by any Lender with
any request or directive (whether or not having the force of law) issued
subsequent to the date hereof by any central bank or other Governmental
Authority:
(1) Does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement or any Loans made hereunder, or
change the basis of taxation of payments to such Lender of principal, fee,
interest or any other amount payable hereunder (except, in each case, for
a change in the rate of tax on the overall net income of, or franchise
taxes payable by, such Lender);
(2) Does or shall impose, modify or hold applicable any
reserve, capital requirement, special deposit, compulsory loan or similar
requirements against assets held by, or deposits or other liabilities in
or for the account of, advances or loans by, or other credit extended
10
Second Amended and Restated Credit Agreement
by, or any other acquisition of funds by, any applicable lending office of
such Lender making Loans hereunder; or
(3) Does or shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender
(as determined by such Lender in good faith using calculation methods customary
in the industry) of making, renewing or maintaining any Loan or to reduce any
amount receivable in respect thereof or to reduce the rate of return on the
capital of such Lender or any Person controlling such Lender, then, in any such
case, the Borrowers shall promptly pay to the Administrative Agent for
remittance to such Lender, upon its receipt of the certificate described below,
any additional amounts necessary to compensate such Lender for such additional
cost or reduced amounts receivable or rate of return as reasonably determined by
such Lender with respect to this Agreement or the Loans made hereunder. If a
Lender becomes entitled to claim any additional amounts pursuant to this
Paragraph 5(e), it shall promptly notify the Borrowers through the
Administrative Agent of the event by reason of which it has become so entitled,
and a certificate as to any additional amounts payable pursuant to the foregoing
sentence containing the calculation thereof in reasonable detail submitted by a
Lender, through the Administrative Agent, to the Borrowers shall be conclusive
in the absence of manifest error. The provisions hereof shall survive the
termination of this Agreement and payment of the outstanding Loans and all other
Obligations.
5(f) Funding. Each Lender shall be entitled to fund all or any
portion of Loans held by it in any manner it may determine in its sole
discretion, including, without limitation, in the Grand Cayman inter-bank
market, the London inter-bank market and within the United States, but all
calculations and transactions hereunder in respect of Eurodollar Loans shall be
conducted as though all Lenders actually fund all Eurodollar Loans through the
purchase in London of offshore dollar deposits in the amount of the relevant
Eurodollar Loan in maturities corresponding to the applicable Interest Period.
5(g) Yield Protection. In addition to all other payment obligations
hereunder, in the event: (1) any Eurodollar Loan is paid prior to the last day
of the applicable Interest Period, as applicable, whether following a voluntary
prepayment, mandatory prepayment, application of proceeds from the sale of
Collateral or otherwise (including pursuant to Paragraph 15(p)), (2) the
Borrowers shall fail to continue or to make a conversion to a Eurodollar Loan
after the Borrowers have given notice thereof as provided in Paragraph 5(c), or
(3) the Borrowers shall fail to prepay a Eurodollar Loan after the Borrowers
have given notice thereof as provided in Paragraph 6(f)(1), then the Borrowers
shall promptly pay to the Lenders holding the Loans prepaid or not continued or
converted, through the Administrative Agent, an additional sum compensating each
such Lender (as determined by such Lender in good faith using calculation
methods customary in the industry) for losses, costs and expenses incurred by
such Lender in connection with such prepayment, including any loss of
anticipated profits and any loss or expense arising from the liquidation or
re-employment of funds obtained by it to maintain such Eurodollar Loan or from
fees payable to terminate the deposits from which such funds were obtained. A
certificate as to any additional amounts payable pursuant to the foregoing
sentence containing a calculation thereof in reasonable detail submitted by a
Lender, through the Administrative Agent, to the Borrowers shall be conclusive
in the absence of manifest error.
5(h) Buy-Down Provisions. Notwithstanding anything contained in this
Agreement, the Borrowers and any individual Lender (as used in this Paragraph
5(i), a "Buy-Down Lender") may notify the Administrative Agent in writing that
the Borrowers and such Buy-Down Lender have entered into a Buy-Down Agreement
with respect to all or a portion of the Loans from time to time outstanding held
by such Buy-Down Lender, and that, pursuant to said Buy-Down Agreement, the
interest otherwise payable by the Borrowers to such Buy-Down Lender during any
interest calculation period shall be
11
Second Amended and Restated Credit Agreement
reduced to the Applicable Margin based on the amount of Available Deposits
maintained by the Borrowers with such Buy-Down Lender. Prior to the occurrence
of an Event of Default and acceleration of the Obligations, each Buy-Down Lender
shall ▇▇▇▇ the Borrowers directly for all interest accrued and payable to such
Buy-Down Lender on account of Loans from time to time outstanding held by such
Buy-Down Lender. The Administrative Agent, in rendering any monthly interest
billing pursuant to Paragraph 5(b) shall have no obligation to ▇▇▇▇ any interest
payable to a Buy-Down Lender or to verify the amount of any Available Deposits
supporting the pricing of Loans held by any Buy-Down Lender or the monthly
interest amount payable to any Buy-Down Lender, including without limitation,
any deficiency fees or other amounts payable to such Lender by the Borrowers
under the applicable Buy-Down Agreement. The Borrowers shall pay all interest,
and any deficiency fees or other amounts payable under their Buy-Down Agreement
with each Buy-Down Lender, directly to such Buy-Down Lender within two Business
Days of receipt of a billing statement from such Buy-Down Lender. Any Buy-Down
Lender may elect not to make demand for the payment of deficiency fees accruing
in respect of Available Deposits from time to time and it is expressly agreed
and understood that: (1) any such deficiency fee shall not, by reason of such
failure of such Buy-Down Lender or otherwise, be deemed to have been waived by
such Buy-Down Lender (except as such waiver is expressly acknowledged in writing
by such Buy-Down Lender from time to time), and (2) all deficiency fees accrued
and unpaid hereunder and not so expressly waived, whether or not previously
declared due and owing by any such Buy-Down Lender, shall automatically be due
and payable in full upon the Maturity Date.
5(i) Computations. Other than computations in respect of interest
based on the prime rate of Bank of America (which shall be based upon a year of
365 or 366, as the case may be, days for the actual number of days elapsed), all
computations of interest and fees payable hereunder shall be based upon a year
of 360 days for the actual number of days elapsed.
5(j) Post-Default Interest. Following the occurrence and during the
continuance of an Event of Default, all Obligations shall bear interest at a
rate equal to 2% plus the otherwise applicable rate or, if there is no otherwise
applicable rate, then at a rate equal to 2% plus the Base Rate.
5(k) Facility Fee.The Borrowers shall pay to the Administrative
Agent, to be allocated to the Lenders pro rata in accordance with their
respective Percentage Shares for the applicable calculation period, quarterly in
arrears, on the last Business Day of each September, December, March and June,
commencing September 30, 2006, and on the Maturity Date, a non-refundable
facility fee equal to (1) the Aggregate Credit Limit in effect on the payment
date therefor, multiplied by (2) 0.100% per annum.
6. Miscellaneous Lending Provisions.
6(a) Use of Proceeds. The Borrowers represent, warrant, covenant and
agree that, other than the initial Loans funded hereunder on the Effective Date
which shall be utilized to refinance and extend in full all Indebtedness of the
Borrowers outstanding under the Existing Credit Agreement (including to allow
any Lender to purchase a ratable share of the outstanding Loans of any "Lender"
under the Existing Credit Agreement that is not extending its Commitment under
this Agreement), the proceeds of all Loans shall be utilized by the Borrowers
solely for the purpose of originating and/or acquiring Mortgage Loans and
Mortgage-Backed Securities (and to repay Swing Line Loans) and rights under
Servicing Contracts that will be part of the Eligible Servicing Portfolio and to
support working capital needs.
6(b) Request For New Loans; Determination of Availability; Making of
New Loans.
12
Second Amended and Restated Credit Agreement
(1) On any Business Day that the Borrowers desire to borrow a
Base Rate Loan or a Daily Floating Eurodollar Loan hereunder, they shall
deliver a Loan And/Or Interest Rate Election Request to the Administrative
Agent no later than: (i) in the case of a Base Rate Loan other than a
Swing Line Loan, or a Daily Floating Eurodollar Loan, 10:30 a.m. (Dallas
time) on such date, and (ii) in the case of a Swing Line Loan, 4:00 p.m.
(Dallas time) on such date. On the third Business Day prior to the
Business Day that Borrowers desire to borrow a Fixed Period Eurodollar
Loan hereunder, they shall deliver a Loan And/Or Interest Rate Election
Request to the Administrative Agent no later than 10:30 a.m. (Dallas
time). Except for a request for a Swing Line Loan or a Eurodollar Loan for
the third Business Day following such date made after 10:30 a.m. (Dallas
time) on a given date, only one Loan And/Or Interest Rate Election Request
shall be submitted to the Administrative Agent on any date.
(2) Promptly after receipt of a Loan And/Or Interest Rate
Election Request, the Administrative Agent shall make a Determination of
Availability with respect to any requested Loans, which Determination of
Availability shall be based upon information provided to the
Administrative Agent by the Collateral Agent promptly after receipt of the
Loan And/Or Interest Rate Election Request provided in Paragraph 6(b)(1)
above and pursuant to Paragraph 5 of the Security Agreement. In the event
the Administrative Agent shall have determined that the Collateral Value
of the Warehouse Borrowing Base, the Collateral Value of the Servicing
Rights Borrowing Base or the Collateral Value of the Working Capital
Borrowing Base, as applicable, is sufficient to support the requested
borrowing, the Administrative Agent shall: (i) in the case of any Loan
other than a Swing Line Loan, promptly so notify the Lenders (which
notification may be telephonic) on the date of the delivery of such Loan
and/or Interest Rate Election Request of each Lender's respective
Percentage Share thereof, and (ii) in the case of a Swing Line Loan,
promptly so notify the Swing Line Lender (which notification may be
telephonic) on the date of delivery of such Loan and/or Interest Rate
Election Request of the Swing Line Loan to be funded with respect thereto.
Thereafter, if so notified by the Administrative Agent, each Lender shall
make its Percentage Share of the requested Loan other than a Swing Line
Loan and the Swing Line Lender shall make the amount of the requested
Swing Line Loan available by wiring such amount in immediately available
same day funds to the Administrative Agent no later than: (i) in the case
of Loans other than Swing Line Loans, 1:30 p.m. (Dallas time) on the
proposed funding date, and (ii) in the case of Swing Line Loans, 4:00 p.m.
(Dallas time) on the proposed funding date.
(3) Unless the Administrative Agent shall have received notice
from a Lender prior to a proposed funding deadline that such Lender will
not make available to the Administrative Agent such Lender's portion of
the proposed Loan or Loans, the Administrative Agent may assume that such
Lender has made such portion available on the proposed funding date in
accordance with this Paragraph 6(b) and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrowers on such
date a corresponding amount. If and to the extent such Lender shall not
have so made such portion available, the Borrowers jointly and severally
and such Lender agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrowers by the
Administrative Agent until the date such amount is repaid to the
Administrative Agent, in the case of the Borrowers at the interest rate
applicable at the time to such Loan or Loans, and in the case of such
Lender at the greater of the Federal Funds Rate and a rate determined by
Administrative Agent in accordance with banking industry rules on
interbank transactions. If any Borrower and such Lender shall pay such
interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to such Borrower the
amount of such value paid by such Borrower. If such
13
Second Amended and Restated Credit Agreement
Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's applicable Percentage
Share of such Loan or Loans for all purposes of this Agreement as of the
date such amount is made available to the Borrowers. Any payment by any
Borrower shall be without prejudice to any claim such Borrower may have
against the Lender that shall have failed to make such payment to
Administrative Agent.
(4) The obligations of the Lenders hereunder to make Loans, to
fund participations in Swing Line Loans, and to make payments pursuant to
Paragraph 13(k) are several and not joint. The failure of any Lender to
make any Loan, to fund any such participation, or to make any payment
under Paragraph 13(k) on any date required hereunder shall not relieve any
other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make
its Loan, to purchase its participation, or to make its payment under
Paragraph 13(k).
(5) The Administrative Agent shall make the principal amount
of Loans requested in accordance with this Paragraph 6(b) available to the
Borrowers by promptly wiring such amount in immediately available same day
funds to the Funding Account on the proposed funding date therefor.
(6) Each request for a Loan shall be in the minimum amount of
$1,000,000; each request for a Swing Line Loan shall be in a minimum
amount of $500,000.
(7) The Borrowers may elect to convert or continue Base Rate
Loans and/or Eurodollar Loans outstanding on any date consistent with the
timing requirements set forth in Paragraph 5(c).
6(c) Notes and Evidence of Debt.
(1) The obligation of the Borrowers to repay the Loans shall
be evidenced by a note or notes payable to the order of each Lender, as
applicable, in the forms of those attached hereto as Exhibit A-1 (the
"Committed Note") and Exhibit A-2 (the "Swing Line Note"). Loans made by
each Lender shall be evidenced by one or more loan accounts or records
maintained by the Administrative Agent and such Lender in the ordinary
course of business. Each Lender may also attach schedules to its Note and
indorse thereon the date, amount and maturity of its Loans and payments
with respect thereto. Any failure to so indorse or any error in doing so
shall not, however, limit or otherwise affect the obligation of the
Borrowers hereunder to pay any amount owing with respect to the
Obligations. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the
amount of the Loans made by the Lenders to the Borrowers and the interest
and payments thereon. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest
error.
(2) In addition to the accounts and records referred to in
subparagraph (1) preceding, each Lender and the Administrative Agent shall
maintain, in accordance with its usual practice, accounts or records
evidencing the Obligations, and purchases and sales by such Lender of
participations in Swing Line Loans. In the event of any conflict between
the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the
accounts and records of the Administrative Agent shall control in the
absence of manifest error.
14
Second Amended and Restated Credit Agreement
(3) Each Lender acknowledges that, on the Effective Date (i)
except to the extent repaid pursuant to clause (iii) below, loans made by
each Lender that was a lender under the Existing Credit Agreement shall
continue to be held by such Lender as Loans under this Agreement, (ii) new
Loans will be made by the Lenders under this Agreement, and (iii) loans
outstanding under the Existing Credit Agreement shall be repaid, such
that, after giving effect thereto, each lender under the Existing Credit
Agreement that is not a Lender under this Agreement shall no longer hold
any loans or commitments under the Existing Credit Agreement, each Lender
under this Agreement shall have a Maximum Commitment and Percentage Share
as described on Schedule I, and the Lenders under this Agreement shall
hold the Loans outstanding under this Agreement in accordance with their
respective Percentage Shares.
6(d) Borrowing Base Conformity.
(1) In support of their obligation to repay Warehouse Loans
and Swing Line Loans, the Borrowers shall cause the Collateral Value of
the Warehouse Borrowing Base to be not less than, at any date, the
aggregate principal amount of Warehouse Loans and Swing Line Loans
outstanding on such date (including any Warehouse Loans and Swing Line
Loans to be funded on such date but excluding any Warehouse Loans and
Swing Line Loans which will be repaid with proceeds of any Loans to be
funded on such date). The Borrowers shall further cause the sum of the
aggregate Unit Collateral Values of all Mortgage-Backed Securities
included in the Warehouse Borrowing Base to be not less than the sum of
the aggregate outstanding amount of the Loans advanced for the account of
AHMIC.
(2) In support of their obligations to repay Servicing Rights
Loans hereunder, the Borrowers shall cause the Collateral Value of the
Servicing Rights Borrowing Base to be not less than, at any date, the
aggregate principal amount of Servicing Rights Loans outstanding on such
date (including any Servicing Rights Loans to be funded on such date but
excluding any Servicing Rights Loans which will be repaid with proceeds of
any Loans to be funded on such date).
(3) In support of their obligations to repay Working Capital
Loans hereunder, the Borrowers shall cause the Collateral Value of the
Working Capital Borrowing Base to be not less than, at any date, the
aggregate principal amount of Working Capital Loans outstanding on such
date (including any Working Capital Loans to be funded on such date but
excluding any Working Capital Loans which will be repaid with proceeds of
any Loans to be funded on such date).
(4) The Borrowers shall promptly (and in any event no later
than one Business Day after such demand) prepay, upon telephonic demand by
the Administrative Agent: (i) Warehouse Loans and/or Swing Line Loans to
the Administrative Agent on behalf of the Lenders or the Swing Line
Lender, as the case may be, on any day in the amount of any shortfall in
the Collateral Value of the Warehouse Borrowing Base or the aggregate Unit
Collateral Values of the Eligible Mortgage-Backed Securities included in
the Warehouse Borrowing Base, as determined pursuant to subparagraph (1)
above, (ii) Servicing Rights Loans to the Administrative Agent on behalf
of the Lenders on any day in the amount of any shortfall in the Collateral
Value of the Servicing Rights Borrowing Base, as determined pursuant to
subparagraph (2) above (including after any of the Servicing Rights Loans
are converted to a term loan pursuant to Paragraph 2(d)), and (iii)
Working Capital Loans to the Administrative Agent on behalf of the Lenders
on any day in the amount of any shortfall in the Collateral Value of the
Working Capital Borrowing Base, as determined pursuant to subparagraph (3)
above.
15
Second Amended and Restated Credit Agreement
(5) If, but only if, at such time as the Borrowers shall be
required to prepay Loans under subparagraph (4)(i) of this Paragraph 6(d)
there shall not have occurred and be continuing an Event of Default or
Potential Default, in lieu of prepaying the Warehouse Loans or Swing Line
Loans, the Borrowers may deliver to the Collateral Agent additional
Eligible Mortgage Loans or Eligible Mortgage-Backed Securities (to support
Loans for the account of AHMIC) with aggregate Unit Collateral Values such
that the Borrowers shall be in compliance with the requirement of
subparagraph (1) above.
6(e) Nature and Place of Payments.
(1) All payments made on account of the Obligations shall be
made to the Administrative Agent for distribution to the Lenders, and the
Administrative Agent is hereby irrevocably authorized to receive amounts
deposited in the Settlement Account and distribute such amounts as
provided in Paragraph 6(g) on account thereof. All payments made on
account of the Obligations including payments made to the Administrative
Agent from the Settlement Account pursuant to Paragraph 6(c) of the
Security Agreement shall be made without condition or deduction for any
setoff, counterclaim, recoupment, or defense, in lawful money of the
United States of America in immediately available same day funds, free and
clear of and without deduction for any taxes, fees or other charges of any
nature whatsoever imposed by any taxing authority (and in the event any
such deduction is required to be made by applicable law from any such
payment, such payment shall be grossed-up so that the affected Lender
receives the same amount (on an after-tax basis) that such Lender would
have received if such deduction had not been required) and must be
received by the Administrative Agent (i) by 10:00 a.m. (Dallas time) on
the day of payment on account of Obligations other than Swing Line Loans
and (ii) by 2:00 p.m. (Dallas time) in the case of payments on account of
Swing Line Loans, it being expressly agreed and understood that if a
payment is received after 10:00 a.m. (for payments on account of
Obligations other than Swing Line Loans) or after 2:00 p.m. (for payments
on account of Swing Line Loans) (Dallas time), as applicable, by the
Administrative Agent, such payment will be considered to have been made on
the next succeeding Business Day and interest thereon shall be payable at
the then applicable rate during such extension. Except as otherwise
provided in Paragraph 5(h), all payments on account of the Obligations
shall be made to the Administrative Agent through its office located at
the address listed on Schedule II hereof. If any payment required to be
made by the Borrowers hereunder becomes due and payable on a day other
than a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and interest thereon shall be payable at the then
applicable rate during such extension. All amounts received by the
Administrative Agent on account of the Obligations shall be disbursed by
the Administrative Agent promptly to the Lenders by wire transfer on the
date of receipt if received by the Administrative Agent before 10:00 a.m.
Dallas time (for payments on account of Obligations other than Swing Line
Loans) or before 2:00 p.m. Dallas time (for payments on account of Swing
Line Loans), as applicable, or if received later, by 12:00 noon (Dallas
time) on the next succeeding Business Day, without further interest
payable by the Administrative Agent. Each payment shall be accompanied by
a Notice of Payment or Prepayment executed by the Borrowers.
(2) Unless the Administrative Agent shall have received notice from a
Borrower prior to a deadline for a payment that the Borrowers will not make
such payment prior to such deadline, the Administrative Agent may assume
that such payment has been timely made and the Administrative Agent may, in
reliance upon such assumption, make available to the Lenders or the Swing
Line Lender, as the case may be, their shares of such payment. If and to
the extent the Borrowers shall not have so made such payment, each Lender
or the Swing Line
16
Second Amended and Restated Credit Agreement
Lender, as the case may be, agrees to repay its share of such payment to
the Administrative Agent forthwith on demand, together with interest
thereon, for each day such share is made available to such Lender or the
Swing Line Lender, as the case may be, until the date such share is repaid
to the Administrative Agent, at the Federal Funds Rate.
6(f) Prepayments.
(1) Subject to the provisions of Paragraph 5(g), the Borrowers
may prepay Base Rate Loans in whole or in part at any time and the
Borrowers may prepay Eurodollar Loans in whole or in part upon three
Business Days' notice to the Administrative Agent.
(2) Loans are subject to mandatory prepayment pursuant to
Paragraph 6(d) and, in addition, by application of proceeds of the sale or
other disposition of Collateral as provided in the Security Agreement.
(3) The Borrowers shall pay in connection with any prepayment
hereunder all interest accrued but unpaid on the Loans to which such
prepayment is applied (including any amount that may be due under
Paragraph 2(d) and 5(g)) concurrently with payment to the Administrative
Agent of any principal amounts.
(4) On and after a conversion to a term loan pursuant to
Paragraph 2(d), all prepayments of principal shall be applied to
installments under the term loan in the inverse order of maturity.
(5) Each optional or mandatory prepayment shall be accompanied
by a Notice of Payment or Prepayment executed by the Borrowers.
6(g) Allocation of Payments Received.
(1) Prior to the occurrence of an Event of Default or
acceleration of all Loans outstanding hereunder or termination of the
commitments of the Lenders to advance Loans hereunder, amounts received by
the Administrative Agent as proceeds of the sale or other disposition of
Eligible Mortgage Loans, Eligible Mortgage-Backed Securities, or REO
Property, including, without limitation, all amounts from time to time
deposited in the Settlement Account, shall be allocated among the Lenders
as follows:
(i) First, to the Swing Line Lender to repay all
outstanding Swing Line Loans;
(ii) Then, to the Lenders until the principal amount of
the Warehouse Loan or Loans initially advanced against such Eligible
Mortgage Loans, Eligible Mortgage-Backed Securities, or REO Property
(as identified by the Borrowers on the applicable Notice of Payment
or Prepayment) has been paid in full, allocated ratably among the
Lenders in proportion to the respective amounts described in this
clause(ii) held by them; and
(iii) Then, the balance, if any, to the Borrowers.
(2) Prior to the occurrence of an Event of Default or
acceleration of all Loans outstanding hereunder or termination of the
commitments to advance Loans hereunder,
17
Second Amended and Restated Credit Agreement
amounts received by the Administrative Agent for application to the
Servicing Rights Loans or the Working Capital Loans (as identified by the
Borrowers on the applicable Notice of Payment or Prepayment), as the case
may be, shall be distributed to the Lenders until the principal amount of
the applicable Loans have been paid in full, allocated ratably among the
Lenders in proportion to the respective amounts of the Servicing Rights
Loans or the Working Capital Loans (as the case may be) held by them; and
(3) Prior to the occurrence of an Event of Default or
acceleration of all Loans outstanding hereunder, but on and after the
conversion of any portion of the Obligations to a term loan pursuant to
Paragraph 2(d), amounts received by the Administrative Agent for
application to such term loan shall be distributed:
(i) First, to the next scheduled installment payable on
such term loan to the Lenders, said amounts to be allocated first to
interest and then, but only after all accrued interest has been paid
in full, to principal of such term loan installment; and to be
allocated among the Lenders ratably in proportion to the amounts
described in this clause (i) payable to them;
(ii) Then, to such Lenders in respect of the remaining
scheduled term loan installments in the inverse order of maturity;
and to be allocated among the Lenders ratably in proportion to the
amounts described in this clause (ii) payable to them;
(iii) Then, to such Persons as may be legally entitled
thereto.
(4) Following the occurrence of an Event of Default or
acceleration of all Loans outstanding hereunder or termination of the
commitments of the Lenders to advance Loans hereunder, all amounts
received by the Administrative Agent on account of the Obligations shall
be disbursed by the Administrative Agent as follows:
(i) First, to the payment of fees owing to and expenses
incurred by the Administrative Agent, the Collateral Agent and the
Lenders in the performance of their respective duties and
enforcement of their respective rights under the Loan Documents,
including, without limitation, all costs and expenses of collection,
attorneys' fees, court costs and foreclosure expenses;
(ii) Then, to the Lenders, until all outstanding Loans
and interest accrued thereon and all other Obligations have been
paid in full, said amounts to be allocated first to interest and
then, but only after all accrued interest has been paid in full, to
principal of Loans and then, but only after all accrued interest and
principal has been paid in full, to all other Obligations; and to be
allocated among the Lenders ratably in proportion to the amounts
described in this clause (ii) payable to them;
(iii) Then, to such Persons as may be legally entitled
thereto.
6(h) Reduction of Commitments. The Borrowers may, upon notice to the
Administrative Agent, from time to time, permanently reduce (in whole or in
part) the Aggregate Credit Limit; provided that (1) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. (Dallas time)
five Business Days prior to the date of termination or reduction, (2) any such
partial reduction shall be in the aggregate amount of $10,000,000 or an integral
multiple of $1,000,000 in
18
Second Amended and Restated Credit Agreement
excess thereof, (3) the Borrowers may not reduce the Aggregate Credit Limit if,
after giving effect thereto and to any concurrent prepayments hereunder, the
outstanding principal balance of the Loans would exceed the Aggregate Credit
Limit, and (4) if, after giving effect to any reduction of the Aggregate Credit
Limit, the Working Capital Credit Sublimit or the Swing Line Credit exceeds the
Aggregate Credit Limit, such Sublimit shall be automatically reduced by the
amount of such excess. The Administrative Agent will promptly notify the Lenders
of any such notice of reduction of the Aggregate Credit Limit. Any reduction of
the Aggregate Credit Limit shall be applied to the Maximum Commitment of each
Lender according to its Percentage Share. All fees accrued until the effective
date of any reduction to $0 of the Aggregate Credit Limit shall be paid on the
effective date of such reduction and, in the case of a partial reduction in the
Aggregate Credit Limit, the facility fee payable pursuant to Paragraph 5(k)
shall be reduced accordingly.
6(i) Increase of Aggregate Credit Limit.
(1) Provided there exists no Event of Default or Potential
Default, upon notice to the Administrative Agent (which shall promptly
notify the Lenders), the Borrowers may, from time to time, request an
increase in the Aggregate Credit Limit by an amount (for all such
requests) not exceeding $250,000,000; provided that (i) any such request
for an increase shall be in a minimum amount of $25,000,000, and (ii) the
Borrowers may make a maximum of four such requests. At the time of
delivering such notice, the Borrowers (in consultation with the
Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten
Business Days from the date of delivery of such notice to the Lenders).
(2) Each Lender shall notify the Administrative Agent within
such time period whether or not it agrees to increase its Maximum
Commitment and, if so, whether by an amount equal to, greater than, or
less than its Percentage Share of such requested increase. No Lender shall
have any obligation to increase its Maximum Commitment. Any Lender not
responding within such time period shall be deemed to have declined to
increase its Maximum Commitment.
(3) The Administrative Agent shall promptly notify the
Borrowers and each Lender of the Lenders' responses to each request made
hereunder. To achieve the full amount of a requested increase and subject
to the approval of the Administrative Agent and the Swing Line Lender
(which approvals shall not be unreasonably withheld), the Borrowers may
also invite additional Eligible Assignees to become Lenders pursuant to a
Joinder Agreement.
(4) If the Maximum Aggregate Credit Limit is increased in
accordance with this Paragraph 6(i), the Administrative Agent and the
Borrowers shall determine the effective date (the "Increase Effective
Date") and the final allocation of such increase. The Administrative Agent
shall promptly notify the Borrowers and the Lenders of the final
allocation of such increase and the Increase Effective Date.
(5) As a condition precedent to such increase, each of the
Loan Parties shall deliver to the Administrative Agent a certificate of
each Loan Party dated as of the Increase Effective Date (in sufficient
copies for each Lender) signed by a duly authorized officer of such Loan
Party (i) certifying and attaching the resolutions adopted by such Loan
Party approving or consenting to such increase, and (ii) in the case of
the Borrowers, certifying that, before and after giving effect to such
increase, (A) the representations and warranties contained in Paragraph 9
and the other Loan Documents are true and correct on and as of the
Increase Effective Date,
19
Second Amended and Restated Credit Agreement
except to the extent that such representations and warranties specifically
refer to an earlier date, in which case they were true and correct as of
such earlier date and (B) no Event of Default or Potential Default exists.
The Borrowers shall prepay any Loans outstanding on the Increase Effective
Date (and pay any additional amounts required pursuant to Paragraph 5(g))
to the extent necessary to keep the outstanding Loans ratable with any
revised Percentage Share of the Lenders arising from any nonratable
increase in the Aggregate Credit Limit under this paragraph.
6(j) Obligations Joint and Several. The Borrowers represent and
warrant that the Borrowers are Affiliates of each other and are engaged in
complementary lines of business, that each Loan made hereunder will benefit each
of the Borrowers and that such benefit will be reasonably equivalent to the
liability of each of the Borrowers in respect of such Loan. Accordingly, the
Borrowers request and agree that the Borrowers shall be jointly and severally
liable for the payment and performance of all Loans and other Obligations, and
that all representations, warranties and covenants made by the Borrowers
hereunder or under any other Loan Document shall be made by the Borrowers
jointly and severally. While such liability shall be joint and several, the
Borrowers hereby agree among themselves that each of the Borrowers shall be
liable as among themselves and the other Loan Parties only for its Proportionate
Share of the Obligations. If at any time any of the Borrowers (the "Indemnified
Borrower") makes any payment in respect of the Obligations (an "Indemnified
Outlay"), the Indemnified Borrower shall have the right to make demand on any or
all of the other Borrowers (each an "Indemnifying Borrower") for the payment to
the Indemnified Borrower of the amount (the "Excess Amount") by which the
Indemnified Outlay exceeds the Indemnified Borrower's Proportionate Share of the
Indemnified Outlay and thereupon the Indemnifying Borrowers upon which demand
has been so made shall pay to the Indemnified Borrower the Excess Amount;
provided that no Indemnifying Borrower shall be liable to pay to the Indemnified
Borrower more than its Proportionate Share of the Excess Amount. The term
"Proportionate Share," as used above, shall mean, with respect to any
Indemnifying Borrower, the percentage derived by dividing (1) the amount of the
Loans directly benefiting such Indemnifying Borrower, together with all accrued
interest thereon and all other amounts owing under the Loan Documents in
connection therewith plus the net worth of such Indemnifying Borrower by (2) the
amount of all of the Obligations plus the combined net worth of the Borrowers,
all as of a particular time. Each Borrower hereby subordinates the payment of
any such Excess Amount, whenever arising, to the indefeasible payment in full of
the Obligations to the Lenders and the termination of the Maximum Commitments of
the Lenders hereunder. None of the Borrowers shall exercise any right of
subrogation, contribution or similar right with respect to any payments of any
such Excess Amount until all of the Obligations are indefeasibly paid in full to
the Lenders and the Maximum Commitments of the Lenders hereunder are terminated.
If any amounts are paid in violation of the foregoing, then such amounts shall
be held by such Borrower in trust for the benefit of the Lenders.
6(k) Foreign Lender Certifications. Each Lender that is not
incorporated under the laws of the United States of America or a state thereof
agrees that it will deliver to the Borrowers and the Administrative Agent (1)
two duly completed copies of the United States Internal Revenue Service Form
W-8ECI or W-8BEN or successor applicable form, as the case may be, or other
manner of certification, establishing that payments of interest hereunder are
either not subject to or totally exempt from United States Federal withholding
tax and (2) an Internal Revenue Service Form W-8 or W-9 or successor applicable
form. Each such Lender also agrees to deliver to the Borrowers and the
Administrative Agent two further copies of the said Form W-8ECI or W-8BEN and
Form W-8 or W-9, or successor applicable forms or other manner of certification,
as the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by such Lender to the Borrowers and the
Administrative Agent, and such extensions or renewals thereof as may reasonably
be requested by the Borrowers or the
20
Second Amended and Restated Credit Agreement
Administrative Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it and such Lender so advises each
of the Borrowers and the Administrative Agent. Such Lender shall certify (1) in
the case of a Form W-8ECI or W-8BEN, that it is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes and (2) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withhold tax.
7. Collateral Security; Guaranty; Additional Documents.
7(a) Security Agreement. As collateral for the Obligations, the
Borrowers have executed and delivered to the Administrative Agent: (1) a
Security Agreement, pursuant to which the Borrowers shall pledge, assign and
grant to the Administrative Agent for the pro rata, pari passu benefit of the
Lenders a first priority security interest in and lien upon the Collateral, and
(2) such UCC financing statements as the Administrative Agent may reasonably
require in order to cause such security interest to be perfected.
7(b) Guaranty. As further security for the Obligations, the
Borrowers have caused AHMIC and AHMH to execute and deliver, a Guaranty.
7(c) Further Documents. The Borrowers agree to execute and deliver,
and to cause to be executed and delivered, to the Administrative Agent on behalf
of the Lenders from time to time, at the Borrowers' expense, such confirmatory
or supplementary security agreements, financing statements and other documents,
instruments and agreements as the Administrative Agent may reasonably request,
which are in the Administrative Agent's judgment reasonably necessary or
desirable to obtain and maintain for the Lenders and the Administrative Agent
the benefit of the Loan Documents and the Collateral.
8. Conditions to Effectiveness and Making of Loans.
8(a) Conditions to Occurrence of Effective Date. The occurrence of
the Effective Date is subject to the satisfaction of the following conditions
precedent:
(1) The Administrative Agent's receipt of the following, each
of which shall be originals or telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible
Officer of the signing Loan Party, each dated the Effective Date (or, in
the case of certificates of governmental officials, a recent date before
the Effective Date) and each in form and substance satisfactory to the
Administrative Agent:
(i) A duly executed copy of this Agreement;
(ii) Duly executed originals of each of the Notes;
(iii) A Ratification and Acknowledgement of the Security
Agreement and Guaranty;
(iv) All financing statements and other documents,
instruments and agreements, properly executed, as appropriate,
deemed necessary or appropriate by the Administrative Agent,
in its reasonable discretion, to create in favor of the
21
Second Amended and Restated Credit Agreement
Administrative Agent for the pro rata, pari passu benefit of
the Lenders a first priority perfected security interest in
and lien upon the Collateral;
(v) Certified copies of resolutions of the Board of
Directors of each of the Loan Parties approving the execution
and delivery of the Loan Documents to which it is a party, the
performance of the Obligations and the consummation of the
transactions contemplated thereby;
(vi) A certificate of the Secretary or an Assistant
Secretary of each of the Loan Parties certifying the names and
true signatures of the officers of such Loan Party authorized
to execute the Loan Documents to which it is a party;
(vii) A copy of the Articles or Certificate of
Incorporation of each of the Loan Parties, certified by the
Secretary of State of the state of its incorporation as of a
recent date, or, if previously delivered, a certificate of a
Secretary or Assistant Secretary certifying that there have
been no changes since the copy thereof previously delivered;
(viii) A copy of the Bylaws of each of the Loan Parties,
certified by the Secretary or an Assistant Secretary of such
Loan Party as of the date of this Agreement as being accurate
and complete, or, if previously delivered, a certificate of a
Secretary or Assistant Secretary certifying that there have
been no changes since the copy thereof previously delivered;
(ix) A certificate of the appropriate Governmental
Authority of each state in which each of the Loan Parties is
required to be authorized to do business to the effect that
such Loan Party is so qualified and in good standing as of a
recent date;
(x) A certificate executed by a duly authorized officer
of each of the Loan Parties in the form of that attached
hereto as Exhibit D dated as of the date of this Agreement;
(xi) A certificate of a Responsible Financial Officer of
each of the Loan Parties, demonstrating in detail satisfactory
to the Administrative Agent such Loan Party's compliance with
the financial covenants set forth in Paragraphs 11(h), (i),
(j) and (k) at and as of May 31, 2006;
(xii) Evidence in form and substance reasonably
satisfactory to the Administrative Agent that AHMH continues
to be a MERS Member and that the Borrowers, as affiliates of
AHMH, continue to be approved by MERS as authorized users of
the MERS System pursuant to the membership of AHMH;
(xiii) A duly executed copy of the Electronic Tracking
Agreement or if previously delivered, a certificate of an
authorized officer certifying that there have been no changes
since the copy thereof previously delivered;
(xiv) Evidence reasonably satisfactory to the
Administrative Agent of the payment by the Borrowers of all
interest, fees and other amounts (other than
22
Second Amended and Restated Credit Agreement
principal of Loans) accrued to the Effective Date under the
Existing Credit Agreement, under this Agreement or under the
Fee Letter;
(xv) An opinion of counsel to the Loan Parties with
respect to such matters as the Administrative Agent may
request;
(xvi) A duly completed and executed Borrowing Base
Certificate dated as of the Effective Date hereunder or if
previously delivered, a certificate of an authorized officer
certifying that there have been no changes since the Borrowing
Base Certificate most recently delivered;
(xvii) A certificate executed by a duly authorized
officer of AHMIC certifying as to the policies and procedures
relating to the Borrowers' Hedging Arrangements and the
Borrowers' underwriting and servicing guidelines or if
previously delivered, a certificate of an authorized officer
certifying that there have been no changes since such policies
and procedures were previously delivered;
(xviii) A certified corporate resolution adopted by
board of directors of MERS appointing agents of AHMH to
execute and deliver assignments of deeds of trust or mortgages
on behalf of MERS or if previously delivered, a certificate of
an authorized officer certifying that there have been no
changes since the resolutions previously delivered; and
(xix) Such other documents, instruments, agreements,
certificates and evidences as the Administrative Agent may
reasonably request, including without limitation, blank
assignments of deeds of trust and mortgages.
(2) All acts and conditions precedent (including, without
limitation, the obtaining of any necessary regulatory approvals and the
making of any required filings, recordings or registrations) required to
be done and performed and to have happened prior to the execution,
delivery and performance of the Loan Documents and to constitute the same
legal, valid and binding obligations of the Loan Parties, enforceable in
accordance with their respective terms, shall have been done and performed
and shall have happened in due and strict compliance with all applicable
laws.
(3) All documentation, including, without limitation,
documentation for corporate and legal proceedings in connection with the
transactions contemplated by the Loan Documents, shall be satisfactory in
form and substance to the Administrative Agent and the Lenders.
(4) Since December 31, 2005, there shall not have occurred a
material adverse change (i) in the business, assets, liabilities (actual
or contingent), operations, condition (financial or otherwise), or
prospects of the Loan Parties taken as a whole or (ii) in the facts and
information regarding such entities as represented by the Borrowers in
writing on or prior to the Effective Date.
Without limiting the generality of the provisions of Paragraph 13(d), for
purposes of determining compliance with the conditions specified in this
Paragraph 8(a), each Lender that has signed this Agreement shall be deemed to
have consented to, approved, or accepted or to be satisfied
23
Second Amended and Restated Credit Agreement
with, each document or other matter required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed
Effective Date specifying its objection thereto
8(b) Conditions to each Loan. As conditions precedent to each
Lender's obligation or agreement to make any Loan hereunder on or after the
Effective Date (other than any Warehouse Loan advanced by the Lenders to repay
any Swing Line Loan, subject to the provisos set forth in Paragraph 4(f)),
including the first Loan and including the conversion of any Loan from or into a
Eurodollar Loan or the continuation of any Eurodollar Loan after the end of the
applicable Interest Period, at and as of the date of the funding, conversion, or
continuation:
(1) There shall have been delivered to the Administrative
Agent a Loan and/or Interest Rate Election Request therefor and, if such
Loan and/or Interest Rate Election Request requests a Loan, a Borrowing
Base Certificate dated as of the date of the requested Loan;
(2) The representations and warranties of the Borrowers
contained in the Loan Documents shall be true and correct in all material
respects as if made on and as of the date of such funding, conversion or
continuance (except to the extent that they were expressly made with
respect to an earlier date, in which case they were true and correct in
all material respects as of such earlier date);
(3) There shall not have occurred and be continuing an Event
of Default or Potential Default;
(4) Following the funding of the requested Loan:
(i) The aggregate principal amount of Loans advanced by
any Lender will not exceed its respective Maximum Commitment;
(ii) (A) The aggregate principal amount of Loans
outstanding will not exceed the Aggregate Credit Limit; (B) the
applicable limitations of Paragraphs 1(a), 2(a), 3(a), 4(a) and 6(d)
will not be exceeded; (C) the aggregate principal amount of
Warehouse Loans and Swing Line Loans outstanding will not exceed the
Collateral Value of the Warehouse Borrowing Base; (D) the aggregate
principal amount of Servicing Rights Loans outstanding will not
exceed the Collateral Value of the Servicing Rights Borrowing Base;
(E) the aggregate principal amount of Working Capital Loans
outstanding will not exceed the Collateral Value of the Working
Capital Borrowing Base; and (F) the aggregate principal amount of
Warehouse Loans and Swing Line Loans outstanding for the account of
AHMIC will not exceed the aggregate Unit Collateral Values of the
Eligible Mortgage-Backed Securities; and
(5) Since December 31, 2005, there shall not have occurred a
material adverse change in (i) the business, assets, liabilities (actual
or contingent), operations, condition (financial or otherwise), or
business prospects of the Loan Parties taken as a whole or (ii) in the
facts and information regarding such entities as represented by the
Borrowers in writing on or prior to the date of the requested funding,
conversion or continuation.
(6) By inclusion of any Mortgage Loan, Mortgage-Backed
Security, REO Property, Servicing Receivable, or Servicing Right, as
applicable, in any computation of the
24
Second Amended and Restated Credit Agreement
Collateral Value of the Warehouse Borrowing Base, the Collateral Value of
the Servicing Rights Borrowing Base, or the Collateral Value of the
Working Capital Borrowing Base, as applicable, on any Borrowing Base
Certificate delivered to the Collateral Agent or the Administrative Agent,
the Borrowers shall be deemed to represent and warrant to the
Administrative Agent, the Collateral Agent, and the Lenders at and as of
the date of such computation that each of the criteria specifically set
forth in the respective definitions of each Collateral Type is true and
correct; provided that, in the event that any Mortgage Loan,
Mortgage-Backed Security, REO Property, Servicing Receivable, or Servicing
Right fails to meet the criteria set forth in the respective definitions
of such Collateral Type, such Collateral Type shall be deemed to have an
Appraisal Value or Unit Collateral Value (as the case may be) of $0, but
such failure shall not, in and of itself, constitute an Event of Default.
This representation and warranty by the Borrowers shall be deemed to have
been made on any day that a Warehouse Loan is made to refund a Swing Line
Loan.
By delivering a Loan and/or Interest Rate Election Request to
the Administrative Agent hereunder, the Borrowers shall be deemed to have
represented and warranted the accuracy and completeness of the statements
set forth in subparagraphs (b)(2) through (b)(5) above.
9. Representations and Warranties of the Borrowers. As an inducement to
the Administrative Agent and each Lender to enter into this Agreement and to
make Loans as provided herein, the Borrowers represent and warrant to the
Administrative Agent and each Lender that:
9(a) Financial Condition. The consolidated and consolidating
financial statements of AHMIC dated the Statement Date and the Interim Date,
copies of which have heretofore been furnished to each Lender, are true and
correct and present fairly in accordance with GAAP the financial condition of
each of the Loan Parties and, as applicable, its Subsidiaries at such dates and
the results of their operations and changes in financial position for the fiscal
periods then ended, subject, in the case of the Interim Date financial
statements, to normal year-end adjustments.
9(b) No Change. Since the Statement Date there has been no material
adverse change in the business, assets, liabilities (actual or contingent),
operations, financial condition or business prospects of the Loan Parties taken
as a whole.
9(c) Corporate Existence; Compliance with Law. Each of the Loan
Parties (1) is duly organized, validly existing and in good standing as a
corporation under the laws of the state of its incorporation as reflected in the
preamble to, or elsewhere in, this Agreement, and is qualified to do business in
such state and in each other jurisdiction where its ownership of property or
conduct of business requires such qualification and where failure to qualify
could reasonably be expected to have a Material Adverse Effect, (2) has the
corporate power and authority to own and operate its property and to conduct
business in the manner in which it does and proposes so to do, and (3) is in
compliance with all Requirements of Law and Contractual Obligations if the
failure to so comply could reasonably be expected to have a Material Adverse
Effect.
9(d) Corporate Power; Authorization; Enforceable Obligations. Each
of the Loan Parties has the corporate power and authority to execute, deliver
and perform the Loan Documents to which it is a party and to obtain extensions
of credit hereunder (in the case of the Borrowers), and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents and the borrowings hereunder (in the case of the Borrowers). The
Loan Documents to which it is a party have been duly executed and delivered by
each of the Loan Parties and constitute the legal, valid and binding obligations
of the Loan Parties party thereto, enforceable against such Loan Parties in
25
Second Amended and Restated Credit Agreement
accordance with their respective terms, subject to the effect of applicable
bankruptcy and other similar laws affecting the rights of creditors generally
and the effect of equitable principles whether applied in an action at law or a
suit in equity.
9(e) No Legal Bar. The execution, delivery and performance of the
Loan Documents, the borrowings hereunder and the use of the proceeds thereof,
will not violate any Requirement of Law applicable to, or any Contractual
Obligation of, or the articles or certificate of incorporation or bylaws of, any
of the Loan Parties or create or result in the creation of any Lien (except the
Lien created by the Security Agreement) on any assets of any of the Loan
Parties.
9(f) No Material Litigation. Except as disclosed on Schedule IV
hereto, no litigation, investigation or proceeding of or before any arbitrator,
court or Governmental Authority is pending (or, to the knowledge of any of the
Borrowers, threatened) by or against any of the Loan Parties or any of its
Subsidiaries or against any of such parties' properties or revenues which is
reasonably likely to be adversely determined and which, if adversely determined,
could reasonably be expected to have a Material Adverse Effect.
9(g) Taxes. Each of the Loan Parties and its Subsidiaries have filed
or caused to be filed in a timely manner all tax returns (or timely extensions
therefor) that are required to be filed and have paid all taxes shown to be due
and payable on said returns or on any assessments made against them or any of
their property prior to the time that a penalty arises with respect thereto,
other than taxes which are being contested in good faith by appropriate
proceedings and as to which the applicable Loan Party or Subsidiary has
established adequate reserves in conformity with GAAP.
9(h) Investment Company Act. None of the Borrowers is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
9(i) Subsidiaries. Attached hereto as Schedule V is an accurate and
complete list of all Subsidiaries of each of the Loan Parties existing on the
Effective Date, their respective jurisdictions of incorporation and the
percentage of their capital stock owned by each of the Loan Parties or its
Subsidiaries. All of the issued and outstanding shares of capital stock of such
Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.
9(j) Federal Reserve Board Regulations. None of the Borrowers is
engaged or will engage, principally or as one of its important activities, in
the business of extending credit for the purpose of "purchasing" or "carrying"
any "margin stock" within the respective meanings of such terms under Regulation
U. No part of the proceeds of any Loan will be used for "purchasing" or
"carrying" "margin stock" as so defined or for any purpose which violates, or
which would be inconsistent with, the provisions of the Regulations of the Board
of Governors of the Federal Reserve System.
9(k) ERISA. Each of the Loan Parties and its Subsidiaries are in
compliance in all material respects with the requirements of ERISA and no
Reportable Event has occurred under any Plan maintained by any of the Loan
Parties or its Subsidiaries which could reasonably be expected to result in the
termination of such Plan for purposes of Title IV of ERISA.
9(l) Assets; Insurance. Each of the Loan Parties and its
Subsidiaries have good and marketable title to all property and assets reflected
in the financial statements referred to in Paragraph 9(a), except property and
assets sold or otherwise disposed of in the ordinary course of business
subsequent to the respective dates thereof. Except as permitted under Paragraph
11(a), neither
26
Second Amended and Restated Credit Agreement
any of the Loan Parties nor its Subsidiaries has outstanding Liens on any of its
properties or assets nor are there any security agreements to which any of the
Loan Parties or its Subsidiaries is a party, or title retention agreements,
whether in the form of leases or otherwise, of any personal property. Each of
the Loan Parties and its Subsidiaries maintains insurance with responsible
companies in such amounts and against such risks as are usually carried by
corporations engaged in similar businesses similarly situated, including,
without limitation, errors and omissions coverage and fidelity coverage.
9(m) Securities Acts. Neither any of the Loan Parties nor its
Subsidiaries has issued any unregistered securities in violation of the
registration requirements of Section 5 of the Securities Act of 1933, as
amended, or any other law, and is not violating any rule, regulation or
requirement under the Act or the Securities Exchange Act of 1934, as amended.
None of the Borrowers is required to qualify an indenture under the Trust
Indenture Act of 1939, as amended, in connection with its execution and delivery
of the Notes.
9(n) Consents, etc. Except for consents, approvals and
authorizations previously obtained, no consent, approval or authorization of, or
registration, declaration or filing with, any Person is required in connection
with the execution and delivery by any of the Loan Parties of the Loan Documents
to which it is a party or the borrowings hereunder (other than filings to
perfect the Liens granted by the Borrowers pursuant to the Security Agreement)
or the performance by any of the Loan Parties of or compliance by any of the
Loan Parties with the terms, provisions and conditions hereof or thereof.
9(o) REIT Status. AHMIC has elected to be treated as a REIT for U.S.
federal income tax purposes. AHMH is a taxable REIT Subsidiary of AHMIC. AHMS
and AHMC are taxable REIT Subsidiaries of AHMIC. AHMA is a qualified REIT
Subsidiary of AHMIC. Each of AHMIC, AHMH, AHMS, AHMC and AHMA is in compliance
with the provisions of the Internal Revenue Code of 1986, as amended, governing
its REIT status, as applicable.
9(p) Full ▇▇▇▇▇▇▇▇▇▇.▇▇ information, exhibit or report furnished by
or on behalf of any of the Loan Parties to the Administrative Agent or any of
the Lenders in connection with the execution and delivery of the Loan Documents
or pursuant to the requirements of the Loan Documents contained or contains any
material misstatement of fact or omitted or omits to state a material fact or
any fact necessary to make the statements contained therein not misleading, and
there is no fact known to any of the Borrowers that has not been disclosed to
the Administrative Agent in writing that could reasonably be expected to have a
Material Adverse Effect.
9(q) Seller/Servicer Status. Except as otherwise designated, each of
AHMIC, AHMC, AHMS, and AHMA is (1) a HUD-approved mortgagee, eligible to
originate, purchase, hold, sell and service FHA fully insured Mortgage Loans
(other than AHMA), (2) a GNMA-approved seller/servicer of Mortgage Loans and
issuer of Mortgage-Backed Securities guaranteed by GNMA (other than AHMA), (3) a
FNMA-approved seller/servicer of Mortgage Loans, eligible to originate,
purchase, hold, sell and service Mortgage Loans to be sold to FNMA (other than
AHMA), (4) a FHLMC approved seller/servicer of Mortgage Loans, eligible to
originate, purchase, hold, sell and service Mortgage Loans to be sold to FHLMC,
and (5) a VA-approved mortgagee and lender in good standing under the VA loan
guarantee program, eligible to originate, purchase, hold, sell and service
VA-guaranteed Mortgage Loans (other than AHMA). AHMS is licensed and/or approved
as a seller/servicer under state-sponsored residential housing agencies in each
state where the failure to be so licensed and/or approved could adversely affect
Servicing Rights having an aggregate Collateral Value of more than $5,000,000 of
the aggregate Collateral Value of all Servicing Rights.
27
Second Amended and Restated Credit Agreement
9(r) Environmental Matters. The Loan Parties have reasonably
concluded that there could not reasonably be a Material Adverse Effect based on
any violation of any environmental law in connection with the conduct of their
respective businesses, operations, and properties.
9(s) No Default. No Event of Default or Potential Default has
occurred and is continuing.
9(t) MERS Membership. As of the Effective Date, AHMH is a MERS
Member, the Borrowers are authorized users of the MERS System pursuant to the
membership of AHMH, and AHMH and the Borrowers are in compliance with all terms
and conditions of membership in MERS.
10. Affirmative Covenants. The Borrowers hereby covenant and agree with
the Administrative Agent and each Lender that, as long as any Obligations remain
unpaid or any Lender has any obligation to make Loans hereunder and thereafter
as provided in Paragraphs 10(g) and 10(j), each of the Borrowers shall:
10(a) Financial Statements. Furnish or cause to be furnished (either
electronically with receipt confirmation or otherwise) to the Administrative
Agent (and Administrative Agent shall deliver or make available to each Lender):
(1) Promptly after available, but in any event within 90 days
after the end of each fiscal year of AHMIC, a consolidated and
consolidating balance sheet of AHMIC and its Subsidiaries as at the end of
such fiscal year, and the related consolidated and consolidating
statements of income or operations for such fiscal year and the related
consolidated statements of shareholders' equity and cash flows for such
fiscal year, setting forth in each case (on and after December 31, 2005)
the corresponding figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with GAAP and with any FNMA, FHLMC and
GNMA requirements, such consolidated statements to be audited and
accompanied by a report and opinion of an independent certified public
accountant of national standing reasonably acceptable to the
Administrative Agent, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be
subject to any "going concern" or like qualification or exception or
exception as to the scope of such audit;
(2) Promptly after available, but in any event within 45 days
after the end of each calendar quarter of each fiscal year of AHMIC, a
consolidated and consolidating balance sheet of AHMIC and its Subsidiaries
as at the end of such fiscal quarter, and the related consolidated and
consolidating statements of income or operations, shareholders' equity and
cash flows for the portion of AHMIC's fiscal year then ended, setting
forth in comparative form the figures as of the end of and for the
corresponding portion of the year then ended for the previous fiscal year,
all in reasonable detail, certified by a Responsible Financial Officer of
AHMIC in the accompanying Covenant Compliance Certificate as fairly
presenting the financial condition, results of operation, shareholders'
equity and cash flows of AHMIC and its Subsidiaries in accordance with
GAAP and with any FNMA, FHLMC and GNMA requirements, subject only to
normal year-end audit adjustments and the absence of footnotes; and
(3) With each financial statement delivered pursuant to clause
(1) and (2) preceding, a Covenant Compliance Certificate executed by a
Responsible Financial Officer of AHMIC demonstrating in detail
satisfactory to the Administrative Agent compliance with the financial
covenants set forth in Paragraphs 11(h), (i), (j) and (k).
28
Second Amended and Restated Credit Agreement
10(b) Certificates; Reports; Other Information. Furnish or cause to
be furnished (either electronically with receipt confirmation or otherwise) to
the Administrative Agent (and Administrative Agent shall deliver or make
available to each Lender):
(1) At the time any such report is filed with the Securities
and Exchange Commission (and which delivery may be electronic with
confirmation of receipt), a copy of AHMIC's annual 10-K report, proxy
statements, quarterly 10-Q reports and any 8-K report as so filed;
(2) Daily, a Borrowing Base Report with respect to the
Warehouse Borrowing Base;
(3) On each day on which a Servicing Rights Loan is requested,
and within two days after the Borrowers' receipt of an Appraisal of the
Eligible Servicing Portfolio, a Borrowing Base Certificate with respect to
the Servicing Rights Borrowing Base;
(4) Daily by 10:00 a.m. (Dallas time), so long as any Working
Capital Loan is outstanding, and, otherwise, within ten days after the
last day of each month, a Borrowing Base Certificate with respect to the
Working Capital Borrowing Base that, among other things, specifically
lists each Securitization Receivable and the owner of the Mortgage-Backed
Security under which the Securitization Receivable arises;
(5) Within 45 days after the last day of each month, a
servicing report, in form and substance reasonably satisfactory to the
Administrative Agent, with respect to Mortgage Loans serviced by any of
the Borrowers under Servicing Contracts or subserviced by any of the
Borrowers under Sub-Servicing Contracts, including with respect to
Mortgage Loans that are part of the Warehouse Borrowing Base as of such
last day;
(6) Within 45 days after the last day of each month (or, more
frequently as Administrative Agent may otherwise reasonably request), an
Appraisal of the Eligible Servicing Portfolio as of such last day;
(7) Within 15 days after the last day of each fiscal quarter
(or, more frequently as Administrative Agent may otherwise reasonably
request), a loan production report, in form and substance reasonably
satisfactory to the Administrative Agent, with respect to Mortgage Loans
originated and closed or purchased by any of the Borrowers during such
month;
(8) Within 15 days after the last day of each fiscal quarter
(or, more frequently as Administrative Agent may otherwise reasonably
request), a commitment summary and pipeline report, in form and substance
reasonably satisfactory to the Administrative Agent, as of such last day;
(9) Promptly after the receipt thereof, true and correct
copies of all audits and reports prepared by or on behalf of FNMA, FHLMC,
GNMA, FHA, VA or HUD relating to the operations or lending or servicing
practices of any of the Borrowers or relating to any licenses or approvals
issued to any of the Borrowers by FNMA, FHLMC, GNMA, FHA, VA or HUD;
(10) Promptly after entering into any Servicing Contract after
the Effective Date that will be valued in determining the Collateral Value
of the Servicing Rights Borrowing
29
Second Amended and Restated Credit Agreement
Base, a consent from the investor party to such Servicing Contract
consenting to the Lien in favor of the Administrative Agent for the
benefit of Lenders in the rights of the applicable Borrower under such
Servicing Contract;
(11) Within 15 days after the last day of each fiscal quarter
(or, more frequently as Administrative Agent may otherwise reasonably
request), an REO Property sales report, in form and substance reasonably
satisfactory to the Administrative Agent, with respect to REO Property
sold during such month;
(12) Within 45 days after the last day of each month, a
delinquency and foreclosure report, in form and substance reasonably
satisfactory to the Administrative Agent, with respect to the status of
Mortgage Loans serviced or subserviced by any of the Borrowers that are
delinquent more than 30 days or in the process of foreclosure, including
such Mortgage Loans that are part of the Eligible Servicing Portfolio;
(13) Within 15 days after the last day of each fiscal quarter
(or, more frequently as Administrative Agent may otherwise reasonably
request), a Hedging Arrangement report, in form and substance reasonably
satisfactory to the Administrative Agent, with respect to the Hedging
Arrangements of the Borrowers in effect as of such last day;
(14) Within 15 days after the last day of each fiscal quarter
(or, more frequently as Administrative Agent may otherwise reasonably
request), a Mortgage Loan repurchase report, in form and substance
reasonably satisfactory to the Administrative Agent, with respect to
Mortgage Loans repurchased during such month by any of the Borrowers from
an investor or out of a pool supporting a Mortgage-Backed Security
pursuant to a Servicing Contract or otherwise;
(15) Within 45 days after the last day of each month, a
Servicing Receivable report, in form and substance reasonably satisfactory
to the Administrative Agent, with respect to advances made by any of the
Borrowers during such month that gave rise to Servicing Receivables;
(16) Within 15 days after the last day of each month, a
Permitted Other Debt and Permitted Other Secured Debt report, in form and
substance reasonably satisfactory to the Administrative Agent, with
respect to Permitted Other Debt and Permitted Other Secured Debt
outstanding on such last day of such immediately preceding month;
(17) At any time as Administrative Agent may request in its
reasonable, sole discretion, an "agreed-upon procedures report," in form
and substance reasonably satisfactory to the Administrative Agent, with
respect to the operations of Borrowers, the operations of Collateral Agent
(with 48 hours prior notice to the Collateral Agent) with respect to its
services provided pursuant to the Security Agreement, and to advances made
by any of the Borrowers that give rise to Servicing Receivables, prepared
by an independent consultant reasonably acceptable to the Administrative
Agent in accordance with procedures, guidelines and standards mutually
agreeable to the Borrowers and the Administrative Agent; and
(18) Promptly, such additional financial and other
information, including, without limitation, financial statements of any of
the Loan Parties and information regarding the Collateral as any Lender,
through the Administrative Agent, may from time to time reasonably
request, including, without limitation, such information as is necessary
for any Lender to
30
Second Amended and Restated Credit Agreement
participate out any of its interests in Loans hereunder or to enable an
Eligible Assignee to become a party hereto and information relating to the
risk management policies of the Loan Parties.
The Borrowers hereby acknowledge that (i) the Administrative Agent may make
available to the Lenders materials and/or information provided by or on behalf
of the Loan Parties hereunder (collectively, "Loan Party Materials") by posting
the Loan Party Materials on IntraLinks or another similar electronic system (the
"Platform") and (ii) certain of the Lenders may be "public-side" Lenders (i.e.,
Lenders that do not wish to receive material non-public information with respect
to the Loan Parties or their securities) (each, a "Public Lender"). The
Borrowers hereby agree that (w) all Loan Party Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked "PUBLIC"
which, at a minimum, shall mean that the word "PUBLIC" shall appear prominently
on the first page thereof; (x) by marking Loan Party Materials "PUBLIC," the
Borrowers shall be deemed to have authorized the Administrative Agent and the
Lenders to treat such Loan Party Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Loan Parties or their securities for purposes
of United States Federal and state securities laws; (y) all Loan Party Materials
marked "PUBLIC" are permitted to be made available through a portion of the
Platform designated "Public Investor," and (z) the Administrative Agent shall be
entitled to treat any Loan Party Materials that are not marked "PUBLIC" as being
suitable only for posting on a portion of the Platform not designated "Public
Investor." All Loan Party Materials not specifically designated as "PUBLIC"
shall be considered non-public, other than 10-K reports, 10-Q reports, and 8-K
and other reports filed with the Securities and Exchange Commission.
10(c) Payment of Indebtedness. Pay, discharge or otherwise satisfy
at or before maturity or before it becomes delinquent, defaulted or accelerated,
as the case may be, all its Indebtedness (including taxes), except: (1)
Indebtedness being contested in good faith by appropriate proceedings so long as
adequate reserves are being maintained for the payment thereof in accordance
with GAAP and (2) Indebtedness consisting of taxes so long as the same are paid
prior to the time that a penalty arises with respect thereto or are being
contested in good faith by appropriate proceedings and adequate reserves are
being maintained for the payment thereof in accordance with GAAP; provided that
the failure to have paid such taxes has not resulted in the existence of a Lien
on any Collateral included in the computation of the Collateral Value of the
Warehouse Borrowing Base, the Collateral Value of the Servicing Rights Borrowing
Base or the Collateral Value of the Working Capital Borrowing Base.
10(d) Maintenance of Existence and Properties. Maintain its
corporate existence and obtain and maintain all rights, privileges, licenses,
approvals, franchises, properties and assets necessary or desirable in the
normal conduct of its business, including, without limitation, all approvals
with respect to GNMA, FNMA, FHLMC, HUD, FHA and VA, and comply with each
Contractual Obligation of and Requirement of Law applicable to any of the
Borrowers, the failure to maintain or comply with which could reasonably be
expected to have a Material Adverse Effect.
10(e) Inspection of Property; Books and Records; Audits.
(1) Keep proper books of record and account in which full,
true and correct entries in conformity with GAAP and all Requirements of
Law applicable to any of the Borrowers shall be made of all dealings and
transactions in relation to its business and activities; and
(2) Permit representatives of the Administrative Agent or any
Lender to: (i) visit and inspect any of its properties and examine and
make abstracts from any of its books
31
Second Amended and Restated Credit Agreement
and records at any reasonable time during normal business hours and upon
not less than 48 hours prior notice (which may be telephonic) and as often
as may reasonably be desired by the Administrative Agent or any Lender
(but, so long as no Event of Default exists, no more frequently than one
time per calendar quarter), (ii) discuss the business, operations,
properties and financial and other condition of any of the Loan Parties
with officers and employees of such parties, and with their independent
certified public accountants, and (iii) conduct periodic operational
audits of any of the Borrowers' business and/or operations at any
reasonable time during normal business hours and upon not less than 48
hours prior notice (which may be telephonic) and as often as may
reasonably be desired by the Administrative Agent or any Lender (but, so
long as no Event of Default exists, no more frequently than one time per
calendar quarter).
10(f) Notices. Promptly give written notice to the Administrative
Agent of:
(1) The occurrence of any Potential Default (of which any Loan
Party has knowledge or should be aware) or Event of Default;
(2) Any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including (i) any breach
or non-performance of, or any default under, a Contractual Obligation of
any of the Loan Parties, (ii) any adverse judgment in excess of $5,000,000
resulting from any litigation or proceeding affecting any of the Loan
Parties or any investigation affecting any of the Loan Parties by any
Governmental Authority, including any litigation, proceeding or
investigation involving any environmental laws, and (iii) any Reportable
Event or any other noncompliance with the requirements of ERISA applicable
to any Plan maintained by any of the Loan Parties;
(3) The receipt by any Loan Party of any notice from any
investor under a Servicing Contract or any Primary Servicer under a
Sub-Servicing Contract that alleges that such Loan Party is in material
default under such Servicing Contract or Sub-Servicing Contract or which
terminates or threatens to terminate such Servicing Contract or
Sub-Servicing Contract, if the aggregate principal amount of Mortgage
Loans serviced under the affected Servicing Contract or Sub-Servicing
Contract exceeds 5% of the Eligible Servicing Portfolio;
(4) The suspension, revocation or termination of any of the
Borrowers' status described in Paragraph 9(q);
(5) The receipt by any Loan Party of any notice from any
investor under a Take-Out Commitment or a counterparty under a Hedging
Arrangement covering Collateral with an aggregate Fair Market Value of
more than $5,000,000, that alleges that such Loan Party is in default
under such Take-Out Commitment or Hedging Arrangement or that terminates
or threatens to terminate such Take-Out Commitment or Hedging Arrangement;
(6) Any written notice from MERS of a default with respect to
or cancellation of any of AHMH's or the Borrowers' MERS membership; and
(7) Any change in the Chief Executive Officer or Chief
Financial Officer of any of the Loan Parties.
10(g) Expenses. Jointly and severally pay (1) all reasonable
out-of-pocket expenses and costs incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges
32
Second Amended and Restated Credit Agreement
and disbursements of outside counsel for the Administrative Agent), in
connection with the syndication of the credit facilities provided for herein,
the preparation, due diligence, negotiation, execution, delivery, and
administration of this Agreement and the other Loan Documents or any amendments,
modifications, or waivers of the provisions hereof or thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), and (2)
all out-of-pocket expenses incurred by the Administrative Agent or any Lender
(including the fees, charges and disbursements of any outside counsel for the
Administrative Agent or any Lender), in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other
Loan Documents, including its rights under this Paragraph, or (B) in connection
with the Loans made, including all such out-of-pocket expenses incurred during
any workout, restructuring, or negotiations in respect of such Loans. The
obligations of the Borrowers under this Paragraph 10(g) shall be effective and
enforceable whether or not any Loan is advanced by any Lender hereunder and
shall survive payment of all other Obligations.
10(h) Loan Documents. Comply with all terms and conditions of the
Loan Documents.
10(i) Insurance. Obtain and maintain insurance with responsible
companies in such amounts and against such risks as are usually carried by
corporations engaged in similar businesses similarly situated, including,
without limitation, errors and omissions coverage and fidelity coverage, and
furnish the Administrative Agent on request full information as to all such
insurance.
10(j) Indemnification. Indemnify the Administrative Agent (and any
sub-agent thereof), each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all actual losses, claims, damages,
liabilities and related reasonable expenses (including the fees, charges, and
disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by any Borrower or any
other Loan Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, any other Loan Document, or any
agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or the use or proposed use of the proceeds therefrom, (iii) any presence or
release of hazardous materials on or from any property owned or operated by any
Borrower or any of its Subsidiaries, or any environmental liability related in
any way to any Borrower or any of its Subsidiaries, or (iv) any claim,
litigation, investigation, or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by any Borrower or any other Loan Party; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities, or related expenses (x) are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of such Indemnitee; (y) result
from a claim brought by any Borrower or any other Loan Party against an
Indemnitee for breach of such Indemnitee's obligations hereunder or under any
other Loan Document, if such Borrower or other Loan Party has obtained a final
and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction; or (z) result from a claim brought by an Indemnitee
against any other Indemnitee for breach of such Indemnitee's obligations
hereunder or under any other Loan Document, if such Borrower or other Loan Party
has obtained a final and nonappealable judgment in its favor on such claim as
determined by a court of competent jurisdiction. The indemnification obligations
of the Borrowers under this Paragraph 10(j) shall survive termination of this
Agreement and payment in full of the Obligations. Each Borrower also agrees not
to assert any claim against the Administrative Agent, the Collateral Agent, or
any Lender or any of their respective Related Parties, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
or otherwise relating to any facility contemplated hereby, the actual or
33
Second Amended and Restated Credit Agreement
proposed use of proceeds of any Loan, the Loan Documents or any of the
transactions contemplated thereby.
10(k) Payments to Settlement Account. Direct each purchaser of any
REO Property to pay the purchase price for such REO Property directly to the
Settlement Account.
10(l) Compliance with Laws. Comply with all Requirements of Law to
the extent that any failure to do so could reasonably be expected to have a
Material Adverse Effect.
10(m) MERS.
(1) Subject to the proviso in Paragraph 11(o), at all times,
maintain its status as a MERS Member (or as an authorized user of the MERS
System) and at all times remain in compliance with all terms and
conditions of membership in MERS, including the MERSCORP, Inc. "Rules of
Membership" most recently promulgated by MERSCORP, Inc., the "MERS
Procedures Manual" most recently promulgated by MERS, and any and all
other guidelines or requirements set forth by MERS or MERSCORP, as each of
the foregoing may be modified from time to time, including, but not
limited to, compliance with guidelines and procedures set forth with
respect to technological capabilities, drafting and recordation of deeds
of trust or mortgages, registration of deeds of trust or mortgages on the
MERS System, including registration of the interest of the Administrative
Agent and the Lenders in such mortgages and membership requirements.
(2) Promptly, upon the request of the Administrative Agent,
execute and deliver to the Administrative Agent an assignment of mortgage,
in blank, with respect to any MERS Mortgage that the Administrative Agent
reasonably determines shall be removed from the MERS System.
(3) Upon the registration of any Mortgage on the MERS System,
designate the Collateral Agent in the Custodian Category and the
Administrative Agent in the Interim Funder Category with respect to such
Mortgage.
(4) Not de-register or attempt to de-register any deed of
trust or mortgage from the MERS System unless the Borrowers have complied
with the requirements set forth in the Electronic Tracking Agreement and
the requirements hereof and the Security Agreement relating to a release
of Collateral.
(5) Employ officers who have the authority, pursuant to a
corporate resolution of MERS, to execute assignments of deeds of trust and
mortgages in the name of MERS in the event de-registration of a deed of
trust or mortgage from the MERS System is necessary or desirable.
(6) Execute and deliver to the Administrative Agent such blank
assignments of deeds of trust and mortgages as the Administrative Agent
may require.
10(n) Risk Management Policies. Maintain Hedging Arrangements in
accordance with its written risk management policies that are designed to reduce
changes in the value of its assets, including the Collateral, and other interest
rate risks caused by interest rate fluctuations, such Hedging Arrangements and
other policies to be in form and substance acceptable to the Administrative
34
Second Amended and Restated Credit Agreement
Agreement, and furnish a copy of any modifications thereto or renewals thereof
to the Administrative Agent.
10(o) Shipment of Collateral. Direct the Collateral Agent to deliver
Mortgage Loans included in the Warehouse Borrowing Base only to Approved
Investors or otherwise consistent with the provisions of the Loan Documents.
10(p) Compliance with Lending Regulations. Require the originator of
each Mortgage Loan to represent, with respect to each Eligible Mortgage Loan
that such Eligible Mortgage Loan has been originated in compliance with all
requirements of any federal, state or local law which may be applicable to such
Mortgage Loan (including, without limitation, all usury, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws), and that such Mortgage Loan is not a "high
cost" loan (as such term may be defined in any applicable federal, state or
local law, including, without limitation, HOEPA).
11. Negative Covenants. The Loan Parties hereby agree that, as long as any
Obligations remain unpaid or any Lender has any obligation to make Loans
hereunder, none of the Loan Parties shall, nor shall any of the Loan Parties
permit any Subsidiary of any of the Loan Parties to, at any time, directly or
indirectly:
11(a) Liens. Create, incur, assume or suffer to exist, any Lien upon
the Collateral except as contemplated by the Security Agreement; or create,
incur, assume or suffer to exist any Lien upon any of its other property and
assets (including servicing rights) except:
(1) Liens or charges for current taxes, assessments or other
governmental charges which are not delinquent or which remain payable
without penalty, or the validity of which are contested in good faith by
appropriate proceedings upon stay of execution of the enforcement thereof,
provided the applicable Loan Party shall have set aside on its books and
shall maintain adequate reserves for the payment of same in conformity
with GAAP;
(2) Liens, deposits or pledges made to secure statutory
obligations, surety or appeal bonds, or bonds for the release of
attachments or for stay of execution, or to secure the performance of
bids, tenders, contracts (other than for the payment of borrowed money),
leases or for purposes of like general nature in the ordinary course of
the applicable Loan Party's business;
(3) Purchase money security interests for property hereafter
acquired, conditional sale agreements, or other title retention
agreements, with respect to property hereafter acquired; provided,
however, that no such security interest or agreement shall affect any
servicing rights or extend to any property other than the property
acquired;
(4) Nonconsensual Liens, and Liens created by delinquent real
estate taxes or delinquent condominium charges, on REO Property, which do
not materially affect the value or marketability of such REO Property or a
Borrower's title thereto; and
(5) Liens securing Permitted Other Secured Debt.
11(b) Indebtedness. Create, incur, assume or suffer to exist, or
otherwise become or be liable in respect of, any Indebtedness except:
35
Second Amended and Restated Credit Agreement
(1) The Obligations;
(2) Trade debt incurred in the ordinary course of business,
paid within 90 days after the same has become due and payable or which is
being contested in good faith by appropriate proceedings so long as
adequate reserves are being maintained for the payment thereof in
accordance with GAAP;
(3) Contingent obligations and off-balance sheet Indebtedness
not to exceed $5,000,000 in the aggregate to the extent such contingent
obligations or other Indebtedness would not be recorded as a liability on
the consolidated balance sheet of AHMIC.
(4) Indebtedness secured by Liens permitted under Paragraph
11(a); and
(5) Permitted Other Debt, including Permitted Other Secured
Debt.
11(c) Consolidation and Merger. Liquidate or dissolve, or enter into
any consolidation, merger, partnership, joint venture, syndicate or other
combination unless: (1) a Loan Party is the survivor in any consolidation,
merger, partnership, joint venture, syndicate, or other combination to which it
is a party, (2) a Subsidiary of a Loan Party is the survivor in any
consolidation, merger, partnership, joint venture, syndicate, or other
combination to which it is a party if a Loan Party is not also a party thereto,
and (3) no Potential Default or Event of Default would exist after giving effect
to such consolidation, merger, partnership, joint venture, syndicate or other
combination.
11(d) Acquisitions. Purchase or acquire or incur liability for the
purchase or acquisition of any or all of the assets of any Person, other than,
so long as no Event of Default or Potential Default would exist after giving
effect thereto, (i) of a Loan Party or any Subsidiary of a Loan Party by a Loan
Party, (ii) in the ordinary course of business (it being expressly agreed and
understood that acquisitions of Mortgage Loans and Servicing Rights and
servicing rights under Sub-Servicing Contracts and of Persons owning Mortgage
Loans and Servicing Rights and servicing rights under Sub-Servicing Contracts
are ordinary course of business activities), or (iii) the purchase or
acquisition of other assets or businesses which are the same or similar to
current business activities of the Loan Parties or are businesses or assets
closely related to the current businesses of the Loan Parties; provided,
however, that in the case of clause (iii) the aggregate purchase price of all
such purchases or acquisitions from and after the date of this Agreement (x)
shall not exceed $50,000,000 without the prior written consent of the
Administrative Agent and (y) shall not exceed $100,000,000 without the prior
written consent of the Administrative Agent and the Majority Lenders.
11(e) Payment of Dividends. (1) Repurchase any of its capital stock,
(2) declare or pay any dividends upon any shares of any Loan Party's stock now
or hereafter outstanding, except dividends payable in the capital stock of the
applicable Loan Party, or (3) make any distribution of assets to its
stockholders as such, whether in cash, property or securities, except to the
extent necessary to maintain the REIT status described in Paragraph 9(o) or as
otherwise reasonably necessary to obtain favorable tax and/or financial
treatment for the conduct of their businesses, but only so long as no Event of
Default or Potential Default then exists or would exist after payment thereof.
11(f) Investments; Advances. Make or commit to make any advance,
loan or extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of, or make any other investment
in, any Person, other than in the ordinary course of business (which shall
include investments in newly formed Subsidiaries, but only so long as the
aggregate capital
36
Second Amended and Restated Credit Agreement
contributions or other investments in all such Subsidiaries does not exceed
$5,000,000 after the Effective Date), but only so long as no Event of Default or
Potential Default would exist after giving effect thereto.
11(g) Sale of Assets. Sell, lease, assign, transfer or otherwise
dispose of any of its assets (other than (i) obsolete or worn out property, (ii)
to another Loan Party, provided that Collateral may not be sold, leased,
assigned, transfered, or otherwise disposed of to a Loan Party that is not a
debtor party to the Security Agreement, or (iii) assets having an aggregate net
book value not to exceed $5,000,000), whether now owned or hereafter acquired,
other than in the ordinary course of business and at fair market value (it being
expressly agreed and understood that the sale or other disposition of Mortgage
Loans with or without servicing released, Mortgage-Backed Securities, REO
Properties, Servicing Rights and servicing rights under Sub-Servicing Contracts
are ordinary course of business activities), but only so long as no Event of
Default or Potential Default would exist after giving effect thereto.
11(h) Minimum Tangible Net Worth.
(1) Permit at any time the Tangible Net Worth of AHMIC, to be
less than $914,000,000, plus 75% of the Net Cash Proceeds of any capital
stock (including preferred stock) issued by AHMIC after June 30, 2006.
(2) Permit at any time the Tangible Net Worth of AHMS to be
less than $30,000,000.
(3) Permit at any time the Tangible Net Worth of AHMC to be
less than $21,000,000.
(4) Permit at any time the Tangible Net Worth of AHMA to be
less than $41,000,000.
(5) Permit at any time the Tangible Net Worth of AHMS, AHMC
and AHMA, on a combined basis, to be less than $147,000,000.
11(i) Collateral Value to Adjusted Consolidated Funded Debt Ratio.
Permit at any time the ratio of the Aggregate Collateral Value to the Adjusted
Consolidated Funded Debt of AHMIC to be less than 1.00 to 1.00.
11(j) Maximum Servicing Delinquency and Foreclosure Percentages.
(1) Permit the Borrowers' Servicing Delinquencies, on a
combined basis, at any time to be greater than 4% of the Eligible
Servicing Portfolio (without regard to the Servicing Delinquencies with
respect to Bond Program Mortgage Loans).
(2) Permit the Borrowers' Servicing Foreclosures, on a
combined basis at any time, to be greater than 2% of the Eligible
Servicing Portfolio (without regard to the Servicing Foreclosures with
respect to Bond Program Mortgage Loans).
11(k) Minimum Net Income. Permit the cumulative consolidated net
income of AHMIC, determined in accordance with GAAP, to be less than $1.00
during any two consecutive fiscal quarters ending after June 30, 2005.
37
Second Amended and Restated Credit Agreement
11(l) Modification of Policies and Procedures. Make any change in
(1) its underwriting or servicing policies and procedures or (2) its hedging
policies relating to Mortgage Loans and other assets and interest rates, as such
are in effect on the Effective Date, which in any case could be reasonably
expected to have a Material Adverse Effect.
11(m) Transactions with Affiliates. Purchase, acquire or lease any
property from, or sell, transfer or lease any property to, lend or advance any
money to, borrow any money from, guarantee any obligation of (except to the
extent otherwise permitted under this Agreement), acquire any stock, obligations
or securities of, or enter into any management or similar fee arrangement with,
any Affiliate (other than a Subsidiary), other than on an arms-length basis upon
terms and conditions comparable to those that could be reached with an
unaffiliated third party.
11(n) MERS. Fail to maintain its status as a MERS Member (or as an
authorized user of the MERS System) or at any time fail to remain in full
compliance with all terms and conditions of membership in MERS, including the
MERSCORP, Inc. "Rules of Membership" most recently promulgated by MERSCORP.,
Inc., the "MERS Procedures Manual" most recently promulgated by MERS, and any
and all other guidelines or requirements set forth by MERS or MERSCORP, as each
of the foregoing may be modified from time to time, including, but in no way
limited to compliance with guidelines and procedures set forth with respect to
technological capabilities, drafting and recordation of deeds of trust or
mortgages, registration of deeds of trust or mortgages on the MERS System,
including registration of the interest of the Administrative Agent and the
Lenders in such mortgages and membership requirements; provided, however, that
any of the Borrowers may resign from the MERS System (or cease to be an
authorized user of the MERS System) so long as the applicable Borrower has
delivered to the Administrative Agent: (1) written notice that the applicable
Borrower intends to resign from the MERS System (or cease to be an authorized
user of the MERS System) no later than 60 days prior to the proposed effective
date of such resignation or cessation, and (2) such evidence as the
Administrative Agent may request that upon the effective date of the applicable
Borrower's resignation from the MERS System (or cessation as an authorized user
of the MERS System) and at all times thereafter, no deed of trust or mortgage
shall be registered to the applicable Borrower on the MERS System unless the
applicable Borrower shall be a MERS Member (or an authorized user of the MERS
System).
11(o) REIT Status. Fail or permit any of the Loan Parties to fail to
maintain the taxable or qualified REIT status, as the case may be, described in
Paragraph 9(o).
11(p) Seller/Servicer Status. Fail or permit any of the Loan Parties
to fail to maintain their respective status described in Paragraph 9(q).
11(q) Mandatory Commitments. Fail to hold Take-Out Commitments
and/or Hedging Arrangements in an aggregate amount necessary to provide for the
aggregate Unit Collateral Value of all Mortgage Loans included in the Warehouse
Borrowing Base.
12. Events of Default. Upon the occurrence of any of the following events
(an "Event of Default"):
12(a) Any of the Borrowers shall fail to pay (1) when and as
required to be paid herein, any amount of principal of any Loan, (2) within
three days after the same becomes due, any interest on any Loan or any fee due
hereunder or (3) within five days after the same becomes due, any other amount
payable hereunder or under any other Loan Document.
38
Second Amended and Restated Credit Agreement
12(b) Any representation or warranty made or deemed made by any of
the Borrowers in any Loan Document or in connection with any Loan Document shall
be inaccurate or incomplete in any respect on or as of the date made or deemed
made; or
12(c) Any of the Borrowers shall fail to maintain its corporate
existence (except as permitted in Paragraph 11(c)), or shall fail to observe or
perform any covenant or agreement contained in Paragraph 6(a), Paragraph
10(f)(1) or Paragraph 11; or
12(d) Any of the Borrowers shall fail to observe or perform any
other term or provision contained in the Loan Documents and such failure shall
continue for 30 days; or
12(e) Any of the Loan Parties shall default in any payment of
principal of or interest on any Indebtedness (other than the Obligations) having
a principal balance of $1,500,000 or any other event shall occur (including any
"termination event" or similar event under any Loan Parties' (or any affiliate
thereof) single seller program, other than such "termination events" which
relate to (1) any failure to maintain an agreement with a "Rated Bidder" as set
forth in Section 11(2)(n) of either (i) the Mortgage Loan Purchase and Servicing
Agreement dated as of May 27, 2004, by and among Broadhollow Funding, LLC, as
purchaser, American Home Mortgage Corp., as seller, Columbia National,
Incorporated, as servicer, and American Home Mortgage Investment Corp., as
performance guarantor, or (ii) the Mortgage Loan Purchase and Servicing
Agreement dated as of May 27, 2004, by and among Melville Funding, LLC, as
purchaser, American Home Mortgage Acceptance, Inc., as seller, Columbia
National, Incorporated, as servicer, and American Home Mortgage Investment
Corp., as performance guarantor (collectively, the "Purchase Agreements"), and
(2) any failure to extend a "Swap Counterparty Agreement" as set forth in
Section 11(2)(o) of the Purchase Agreements) the effect of which other event is
to cause or permit such Indebtedness to be declared or otherwise to become due
prior to its stated maturity or such single seller program to be terminated
(after giving effect to any applicable cure periods and except as otherwise
provided above); or
12(f) (1) Any of the Loan Parties shall commence any case,
proceeding or other action (i) under any existing or future law of any
applicable jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (ii) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets, or any
of the Loan Parties shall make a general assignment for the benefit of its
creditors; or (2) there shall be commenced involuntarily against any of the Loan
Parties any case, proceeding or other action of a nature referred to in clause
(1) above which (i) results in the entry of an order for relief or any such
adjudication or appointment, or (ii) remains undismissed, undischarged or
unbonded for a period of 60 days; or (3) there shall be commenced against any of
the Loan Parties any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
substantially all of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, stayed, satisfied or
bonded pending appeal within 60 days from the entry thereof; or (4) any of the
Loan Parties shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in (other than in connection with a final
settlement), any of the acts set forth in clauses (1), (2) or (3) above; or (5)
any of the Loan Parties shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they become due; or
12(g) (1) Any of the Loan Parties shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the Internal
Revenue Code) involving any Plan of
39
Second Amended and Restated Credit Agreement
any of the Loan Parties, (2) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or nor waived, shall exist with respect to any
Plan, (3) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan of any of the Loan Parties,
which Reportable Event or institution of proceedings is, in the reasonable
opinion of the Administrative Agent, likely to result in the termination of such
Plan for purposes of Title IV of ERISA, and, in the case of a Reportable Event,
the continuance of such Reportable Event unremedied for 30 days after notice of
such Reportable Event pursuant to Section 4043(a), (c) or (d) of ERISA is given
or the continuance of such proceedings for ten days after commencement thereof,
as the case may be, (4) any Single Employer Plan of any of the Loan Parties
shall terminate for purposes of Title IV of ERISA, (5) any withdrawal liability
to a Multiemployer Plan of any of the Loan Parties shall be incurred by any of
the Loan Parties or (6) any other event or condition shall occur or exist; and
in each case in clauses (1) through (6) above, such event or condition, together
with all other such events or conditions, if any, is likely to subject any of
the Loan Parties to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or financial or other
condition of any of the Loan Parties; or
12(h) Any final money judgment or decree in the amount of $5,000,000
or more shall be entered against any of the Loan Parties and shall not have been
vacated, discharged, stayed, satisfied or bonded pending appeal within sixty
(60) days from the entry thereof; or
12(i) Any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction of the Obligations, or any Lien created thereunder,
ceases to be in full force and effect; or any of the Loan Parties contests in
writing in any manner the validity or enforceability of any Loan Document; or
any of the Loan Parties denies in writing that it has any or further liability
or obligation under any Loan Document or purports to revoke, terminate or
rescind any Loan Document; or
12(j) There occurs a Change of Control;
THEN,
(1) Automatically upon the occurrence of an Event of Default
under Paragraph 12(f), and
(2) In all other cases, at the option of the Majority Lenders,
each Lender's obligation to make Loans hereunder shall terminate and/or the
principal balance of outstanding Loans and interest accrued but unpaid thereon
and all other Obligations shall become immediately due and payable, without
demand upon or presentment or notice of acceleration to the Borrowers, which are
expressly waived by the Borrowers.
40
Second Amended and Restated Credit Agreement
13. The Administrative Agent.
13(a) Appointment and Authority. Each of the Lenders hereby
irrevocably appoints Bank of America to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Paragraph are solely for the benefit of the
Administrative Agent and the Lenders, and the Borrowers shall not have rights as
a third party beneficiary of any of such provisions.
13(b) Rights as a Lender. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Loan Parties or other Affiliate thereof as if such
Person were not the Administrative Agent hereunder and without any duty to
account therefor to the Lenders.
13(c) Exculpatory Provisions. The Administrative Agent shall not
have any duties or obligations except those expressly set forth herein and in
the other Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(1) shall not be subject to any fiduciary or other implied
duties, regardless of whether an Event of Default or Potential Default has
occurred and is continuing;
(2) shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that
the Administrative Agent is required to exercise as directed in writing by
the Majority Lenders (or such other number or percentage of the Lenders as
shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document
or applicable law; and
(3) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Loan Parties
or any of their Affiliates that is communicated to or obtained by the
Person serving as the Administrative Agent or any of its Affiliates in any
capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Majority Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Paragraph 15(b)) or (ii) in the absence of its own
gross negligence or willful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Event of Default or Potential Default unless and
until notice describing such Event of Default or Potential Default is given to
the Administrative Agent by the Borrowers or a Lender.
41
Second Amended and Restated Credit Agreement
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Event of Default or Potential
Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in Paragraph 8 or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
13(d) Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document
or other writing (including any electronic message, Internet or intranet website
posting or other distribution) believed by it to be genuine and to have been
signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan that by its terms must be fulfilled to the
satisfaction of a Lender, the Administrative Agent may presume that such
condition is satisfactory to such Lender unless the Administrative Agent shall
have received notice to the contrary from such Lender prior to the making of
such Loan. The Administrative Agent may consult with legal counsel (who may be
counsel for any of the Loan Parties), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
13(e) Delegation of Duties. The Administrative Agent may perform any
and all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through its respective Related Parties. The exculpatory provisions of this
Paragraph shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
13(f) Resignation of Administrative Agent. The Administrative Agent
may at any time give notice of its resignation to the Lenders and the Borrowers.
Upon receipt of any such notice of resignation, the Majority Lenders shall have
the right, in consultation with the Borrowers, to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such
bank with an office in the United States. If no such successor shall have been
so appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may on behalf of the Lenders
appoint a successor Administrative Agent meeting the qualifications set forth
above; provided that if the Administrative Agent shall notify the Borrowers and
the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents (except that in the
case of any Collateral held by the Administrative Agent on behalf of the Lenders
under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender directly, until such time as the
Majority Lenders appoint a successor Administrative Agent as provided
42
Second Amended and Restated Credit Agreement
for above in this paragraph. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrowers to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrowers and such successor. After the retiring
Administrative Agent's resignation hereunder and under the other Loan Documents,
the provisions of this Article and Paragraph 10(j) shall continue in effect for
the benefit of such retiring Administrative Agent, its sub agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Paragraph 13(f) shall also constitute its resignation as Swing Line Lender.
Upon the acceptance of a successor's appointment as Administrative Agent
hereunder, (i) such successor shall succeed to and become vested with all of the
rights, powers, privileges, obligations, and duties of the retiring Swing Line
Lender and (ii) the retiring Swing Line Lender shall thereafter be discharged
from all of their respective duties and obligations hereunder or under the other
Loan Documents.
13(g) Non-Reliance on Administrative Agent and Other Lenders. Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
13(h) No Other Duties. Anything herein to the contrary
notwithstanding, the Sole Lead Arranger, the Sole Book Manager, the
Co-Syndication Agents, and the Co-Documentation Agents listed on the cover page
hereof shall have no powers, duties or responsibilities under this Agreement or
any of the other Loan Documents, other than as Lenders.
13(i) Administrative Agent May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Borrowers) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(1) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans and all
other Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under the Loan Documents) allowed in such judicial proceeding; and
43
Second Amended and Restated Credit Agreement
(2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under the Loan Documents.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
13(j) Collateral Matters. The Lenders hereby consent and agree to
the terms and provisions of the Security Agreement, including the appointment of
the Collateral Agent to act as secured party, agent, bailee and custodian for
the benefit of the Administrative Agent and the Lenders thereunder. The Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion, to release, or to direct the Collateral Agent to release, any Lien
on any property granted to or held by the Administrative Agent or the Collateral
Agent under any Loan Document (1) upon termination of the Maximum Commitments
and payment in full of all Obligations (other than contingent indemnification
obligations), (2) that is sold or to be sold as part of or in connection with
any sale permitted hereunder or under any other Loan Document or that is
otherwise permitted to be released under any Loan Document, or (3) subject to
Paragraph 15(b)(9), if approved, authorized or ratified in writing by the
Majority Lenders. Upon request by the Administrative Agent at any time, the
Majority Lenders will confirm in writing the Administrative Agent's and
Collateral Agent's authority to release its interest in particular types or
items of property pursuant to this paragraph.
Upon request by the Administrative Agent at any time, the Majority Lenders
will confirm in writing the Administrative Agent's authority to release its
interest in particular types or items of property pursuant to this Paragraph
13(j).
13(k) Reimbursement by Lenders. To the extent that the Borrowers for
any reason fail to indefeasibly pay any amount required under Paragraphs 10(g)
or 10(j) to be paid by them to the Administrative Agent (or any sub-agent
thereof), or any Related Party of any of the foregoing, each Lender severally
agrees to pay to the Administrative Agent (or any such sub-agent) or such
Related Party, as the case may be, such Lender's Percentage Share (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) in connection with such capacity.
The obligations of the Lenders under this Paragraph 13(k) are subject to the
provisions of Paragraph 6(b)(4).
44
Second Amended and Restated Credit Agreement
14. Assignment and Participations.
14(a) Assignments by Lenders. Any Lender may at any time assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Maximum Commitment and
the Loans (including for purposes of this Paragraph 14(a), participations in
Swing Line Loans) at the time owing to it); provided that
(1) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Maximum Commitment and the
Loans at the time owing to it or in the case of an assignment to a Lender
or an Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Maximum Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Maximum Commitment is
not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if "Trade Date" is specified in
the Assignment and Assumption, as of the Trade Date, shall not be less
than $10,000,000 unless each of the Administrative Agent and, so long as
no Event of Default has occurred and is continuing, the Borrowers
otherwise consent (each such consent not to be unreasonably withheld or
delayed);
(2) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and obligations
under this Agreement and the other Loan Documents;
(3) any assignment of all or a portion of a Maximum Commitment
must be approved by the Administrative Agent and the Swing Line Lender
unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and
(4) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 (unless waived by the
Administrative Agent in its sole discretion), and the Eligible Assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to Paragraph 14(b), from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Paragraphs 5(e), 5(g) and 10(j) with respect
to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrowers (at their expense) shall execute and
deliver Notes to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
Paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
Paragraph 14(c).
45
Second Amended and Restated Credit Agreement
14(b) Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrowers, shall maintain at the Administrative
Agent's office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Maximum Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive absent manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding any notice to the contrary. The
Register shall be available for inspection by each of the Borrowers at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.
14(c) Participations. Any Lender may at any time, without the
consent of, or notice to, any of the Borrowers or the Administrative Agent, sell
participations to any Person (other than a natural person or any of the
Borrowers or any of the Borrowers' Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of such Lender's rights and/or obligations
under this Agreement (including all or a portion of its Maximum Commitment
and/or the Loans (including such Lender's participations in Swing Line Loans)
owing to it); provided that (1) such Lender's obligations under this Agreement
shall remain unchanged, (2) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (3) the
Borrowers, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Paragraph 15(b) that affects such Participant. Subject to Paragraph 14(d), the
Borrower agrees that each Participant shall be entitled to the benefits of
Paragraph 5(e) and 5(g) to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to Paragraph 14(a). To the extent
permitted by law, each Participant also shall be entitled to setoff rights as
though it were a Lender, provided such Participant agrees to be subject to
Paragraph 15(j) as though it were a Lender.
14(d) Limitations upon Participant Rights. A Participant shall not
be entitled to receive any greater payment under Paragraph 5(e) and 5(g) than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent.
14(e) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Notes) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
46
Second Amended and Restated Credit Agreement
15. Miscellaneous Provisions.
15(a) No Assignment by Loan Parties. None of the Loan Parties may
assign or otherwise transfer its rights or obligations under this Agreement or
the other Loan Documents without the prior written consent of the Administrative
Agent and all of the Lenders. Any purported assignment or other transfer in
violation of this Paragraph 15(a) shall automatically be deemed null and void.
Subject to the foregoing, all provisions contained in this Agreement and the
other Loan Documents or any document or agreement referred to herein or relating
hereto shall inure to the benefit of each Lender, its successors and assigns,
and shall be binding upon each Lender and upon the Loan Parties and their
respective successors and assigns.
15(b) Amendments. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by any of
the Borrowers or any other Loan Party therefrom, shall be effective unless in
writing signed by the Majority Lenders and the Borrower or the applicable Loan
Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no such
amendment, waiver or consent shall:
(1) waive any condition set forth in Paragraph 8(a) without
the written consent of each Lender;
(2) extend or increase the Maximum Commitment of any Lender
(or reinstate any Maximum Commitment terminated pursuant to Paragraph 12)
without the written consent of such Lender;
(3) postpone any date fixed by this Agreement or any other
Loan Document for any payment or mandatory prepayment of principal,
interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby;
(4) reduce the principal of, or the rate or amount of interest
specified herein on, any Loan or (subject to clause (iii) of the second
proviso to this Paragraph 15(b)) any fees or other amounts payable
hereunder or under any other Loan Document without the written consent of
each Lender directly affected thereby; provided, however, that only the
consent of the Majority Lenders shall be necessary to waive the obligation
of the Borrower to pay interest at the rate set forth in Paragraph 5(j);
(5) change or waive any provision in a manner that would alter
the pro rata sharing of payments required thereby to or by the Lenders
without the written consent of each Lender;
(6) change or waive (except as specifically permitted in the
definition of Eligible Mortgage Loan) the definition of any of the
following terms, or the limitations on the aggregate principal amount of
Loans that may be outstanding based on the Warehouse Borrowing Base, the
Servicing Rights Borrowing Base or the Working Capital Borrowing Base, in
each case without the written consent of each Lender: Maximum Aggregate
Credit Limit, Aged Warehoused Mortgage Loan, Aged Wet Mortgage Loan,
Aggregate Credit Limit, Alt-A Mortgage Loan, Bond Program Mortgage Loan,
Collateral Value of the Servicing Rights Borrowing Base,
Construction-to-Perm Mortgage Loan, EBO Mortgage Loan, Eligible
Foreclosure Advance Receivable, Eligible Mortgage Loan, Eligible P&I
Advance Receivable-
47
Second Amended and Restated Credit Agreement
EBO Loans, Eligible P&I Advance Receivable-Pooled Loans, Eligible
Securitization Receivable, Eligible Servicing Portfolio, Eligible
Servicing Receivable, Eligible T&I Advance Receivable, HUD 203(k) Mortgage
Loans, Impaired Mortgage Loan, Jumbo Loan, Prime Mortgage Loan, REO
Property, Repurchased Maturing Mortgage Loan, Servicing Rights Borrowing
Base, Subprime Mortgage Loan, Unit Collateral Value, Warehouse Borrowing
Base, Wet Mortgage Loan, and Working Capital Borrowing Base:
(7) change any provision of this Paragraph or the definition
of "Majority Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender;
(8) release any Borrower from its obligations under the Loan
Documents or any Guarantor from its obligations under the Guaranty without
the written consent of each Lender; or
(9) release any material part of the Collateral, except as
contemplated by the Loan Documents, without the written consent of each
Lender;
and, provided further, that (i) no amendment, waiver, or consent shall, unless
in writing and signed by the Swing Line Lender in addition to the Lenders
required above, affect the rights or duties of the Swing Line Lender under this
Agreement; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; and (iii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver, or consent hereunder,
except that the Maximum Commitment of such Lender may not be increased or
extended without the consent of such Lender.
15(c) Cumulative Rights; No Waiver. The rights, powers and remedies
of the Administrative Agent and the Lenders hereunder and under the other Loan
Documents are cumulative and in addition to all rights, powers and remedies
provided under any and all agreements among the Borrowers, the Administrative
Agent and the Lenders relating hereto and thereto, at law, in equity or
otherwise. Any delay or failure by the Administrative Agent and the Lenders to
exercise any right, power or remedy shall not constitute a waiver thereof by the
Administrative Agent and the Lenders, and no single or partial exercise by the
Administrative Agent and the Lenders of any right, power or remedy shall
preclude any other or further exercise thereof or any exercise of any other
rights, powers or remedies.
15(d) Entire Agreement. This Agreement and the other Loan Documents
and the documents and agreements referred to herein embody the entire agreement
and understanding between the parties hereto and supersede all prior agreements
and understandings relating to the subject matter hereof and thereof.
15(e) Survival. All representations and warranties made hereunder
and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and
delivery hereof and thereof. Such representations and warranties have been or
will be relied upon by the Administrative Agent and each Lender, regardless of
any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Event of Default
48
Second Amended and Restated Credit Agreement
or Potential Default at the time of any Loan, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain
unpaid or unsatisfied.
15(f) Notices.
(1) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone or
electronically (and except as provided in Subparagraph (2) below), all
notices and other communications provided for herein or in any other Loan
Document shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrowers, the Administrative Agent or the
Swing Line Lender, to the address, telecopier number, electronic
mail address or telephone number specified for such Person on
Schedule II (it being understood and agreed that any such notice or
other communication so given to the Borrowers shall be deemed to
have been given to each of the Borrowers); and
(ii) if to any other Lender, to the address, telecopier
number, electronic mail address or telephone number specified in its
Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given
when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business
on the next business day for the recipient). Notices delivered through
electronic communications to the extent provided in Subparagraph (2)
below, shall be effective as provided in such Subparagraph (2). Any notice
or consent required or permitted to be given by the Borrowers herein or in
any other Loan Document may be given by any of the Borrowers and shall be
binding on all of the Borrowers.
(2) Electronic Communications. Notices and other
communications from the Administrative Agent to the Lenders hereunder may
be delivered or furnished by electronic communication (including e-mail
and Internet or intranet websites) pursuant to procedures approved by the
Administrative Agent, provided that the foregoing shall not apply to
notices to any Lender if such Lender has notified the Administrative Agent
that it is incapable of receiving notices by electronic communication. The
Administrative Agent and each of the Borrowers may, in its discretion,
agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.
Unless the Administrative Agent otherwise prescribes, (i)
notices and other communications sent to an e-mail address shall be deemed
received upon the sender's receipt of an acknowledgement from the intended
recipient (such as by the "return receipt requested" function, as
available, return e-mail or other written acknowledgement), provided that
if such notice or other communication is not sent during the normal
business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next business
day for the recipient, and (ii) notices or communications posted to an
Internet or
49
Second Amended and Restated Credit Agreement
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is available
and identifying the website address therefor.
(3) Change of Address, Etc. Each of the Borrowers, the
Administrative Agent and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrowers, the Administrative
Agent and the Swing Line Lender.
(4) Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled in good faith to
rely and act upon any notices (including telephonic requests for Loans)
purportedly given by or on behalf of any of the Borrowers even if (i) such
notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified
herein, or (ii) the terms thereof, as understood by the recipient, varied
from any confirmation thereof. The Borrowers shall indemnify the
Administrative Agent, each Lender and the Related Parties of each of them
in accordance with Paragraph 10(j) resulting from the reliance by such
Person on each notice purportedly given by or on behalf of any of the
Borrowers. All telephonic notices to and other telephonic communications
with the Administrative Agent may be recorded by the Administrative Agent,
and each of the parties hereto hereby consents to such recording.
15(g) Severability. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, (1) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired thereby
and (2) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
15(h) Governing Law; Jurisdiction; Etc.
(1) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(2) SUBMISSION TO JURISDICTION. EACH OF THE BORROWERS
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO
THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
50
Second Amended and Restated Credit Agreement
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT
ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST ANY OF THE BORROWERS OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION.
(3) WAIVER OF VENUE. EACH OF THE BORROWERS IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (2) OF THIS
PARAGRAPH. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(4) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS
TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN PARAGRAPH
15(F). NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
15(i) Counterparts. This Agreement and the other Loan Documents may
be executed in any number of counterparts, all of which together shall
constitute one agreement.
15(j) Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
applicable law, to set off and apply in good faith any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender or any such Affiliate to or for the credit or the account of any of the
Borrowers or any other Loan Party against any and all of the obligations of the
Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or any other Loan
Document and although such obligations of any of the Borrowers or such Loan
Party may be contingent or unmatured or are owed to a branch or office of such
Lender different from the branch or office holding such deposit or obligated on
such indebtedness. The rights of each Lender and their respective Affiliates
under this Paragraph are in addition to other rights and remedies (including
other rights of setoff) that such Lender or its Affiliates may have. Each Lender
agrees to notify the Borrowers and the Administrative Agent promptly after any
such setoff and application; provided that the failure to give such notice shall
not affect the validity of such set off and application.
15(k) Sharing of Payments. If any Lender shall receive and retain
any payment, whether by setoff, application of deposit balance or security, or
otherwise, in respect of the Obligations in excess of such Lender's Percentage
Share or, as applicable, Post-Default Percentage Share, then such Lender shall
purchase from the other Lenders for cash and at face value and without recourse,
such participation in the Obligations held by them as shall be necessary to
cause such excess payment to be
51
Second Amended and Restated Credit Agreement
shared ratably as aforesaid with each of them; provided that if such excess
payment or part thereof is thereafter recovered from such purchasing Lender, the
related purchases from the other Lenders shall be rescinded ratably and the
purchase price restored as to the portion of such excess payment so recovered,
but without interest.
15(l) Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT, OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
15(m) Limitation on Interest. The Lenders, the Administrative Agent
and the Loan Parties intend to contract in strict compliance with applicable
usury law from time to time in effect. In furtherance thereof, such Persons
stipulate and agree that none of the terms and provisions contained in the Loan
Documents shall ever be construed to create a contract to pay, for the use,
forbearance or detention of money, interest in excess of the maximum amount of
interest permitted to be charged by applicable law from time to time.
15(n) USA PATRIOT Act Notice. Each Lender that is subject to the Act
(as hereinafter defined) and the Administrative Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies the Loan Parties, which information includes the
name and address of the Loan Parties and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Loan Parties
in accordance with the Act.
15(o) Treatment of Certain Information; Confidentiality. Each of the
Administrative Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed (a)
to its Affiliates and to its and its Affiliates' respective partners, directors,
officers, employees, agents, advisors and representatives (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or
the enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Paragraph, to (i)
any assignee of or participant in, or any prospective assignee of or participant
in, any of its rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction
relating any of the Borrowers and their obligations, (g) with the consent of the
applicable Loan Party or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Paragraph or (y) becomes
available to the
52
Second Amended and Restated Credit Agreement
Administrative Agent, any Lender or any of their respective Affiliates on a
nonconfidential basis from a source other than any Loan Party.
For purposes of this Paragraph, "Information" means all information
received from any Loan Party relating to any Loan Party or any of their
respective businesses, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the applicable Loan Party, provided that, in the case of
information received from any Loan Party after the date hereof, such information
is hereby deemed to be confidential unless such information was available to the
Administrative Agent or any Lender on a non-confidential basis prior to
disclosure by the applicable Loan Party. Any Person required to maintain the
confidentiality of Information as provided in this Paragraph shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
15(p) Replacement of Lenders. If any Lender requests compensation
under Paragraph 5(e) or Paragraph 5(g) or if any Lender is a Defaulting Lender,
then any Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Paragraph 14(a), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:
(1) the Borrower shall have paid to the Administrative Agent
the assignment fee specified in Paragraph 15;
(2) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under Paragraph 5(g) from the
assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts);
(3) in the case of any such assignment resulting from a claim
for compensation under Paragraph 5(e), such assignment will result in a
reduction in such compensation or payments thereafter; and
(4) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
15(q) Existing Credit Agreement.
This Agreement entirely amends and restates the Existing Credit
Agreement, and each Borrower, the Administrative Agent, and each Lender that is
party to the Existing Credit Agreement agrees that, effective as of the
Effective Date, the obligation to extend any credit under the Existing Credit
Agreement is amended and superceded by this Agreement. However, any fees
previously paid to the Lenders for periods through August 11, 2006, are fully
earned and non-refundable.
53
Second Amended and Restated Credit Agreement
[SIGNATURE PAGES FOLLOW]
54
Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
AMERICAN HOME MORTGAGE AMERICAN HOME MORTGAGE
INVESTMENT CORP., as a Borrower INVESTMENT CORP., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------- -------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
AMERICAN HOME MORTGAGE AMERICAN HOME MORTGAGE
SERVICING, INC., as a Borrower HOLDINGS, INC., as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------- -------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and Title: Executive Vice President and
Chief Financial Officer Chief Financial Officer
AMERICAN HOME MORTGAGE CORP.,
as a Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
AMERICAN HOME MORTGAGE
ACCEPTANCE, INC., as a Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Anthea Del ▇▇▇▇▇▇
----------------------------------
Name: Anthea Del ▇▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
BANK OF AMERICA, N.A., as a Lender and as
the Swing Line Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
CALYON NEW YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
CITIGROUP GLOBAL MARKETS REALTY
CORP., as a Lender
By: /s/ ▇▇▇▇▇▇ Theivakumaran
----------------------------------
Name: ▇▇▇▇▇▇ Theivakumaran
Title: Authorized Agent
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
ABN AMRO BANK N.V., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
BARCLAYS BANK PLC, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Associate Director
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
COMMERZBANK AKTIENGESELLSCHAFT
NEW YORK AND GRAND CAYMAN BRANCHES,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
SOCIETE GENERALE, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
US BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
BNP PARIBAS, as a Lender
By: /s/ Laurent Vanderzyppe
----------------------------------
Name: Laurent Vanderzyppe
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇. Foigenbaum
----------------------------------
Name: ▇▇▇▇▇ ▇. Foigenbaum
Title: Managing Director
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
SOVEREIGN BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
WESTLB AG, NEW YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Title: Executive Director
By: /s/ ▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Director
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
KBC BANK N.V., as a Lender
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ Diels
----------------------------------
Name: ▇▇▇▇-▇▇▇▇▇▇ Diels
Title: First Vice President
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
BANK HAPOALIM B.M., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
NATIONAL AUSTRALIA BANK LIMITED,
A.B.N. 12 004 044 937, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to Second Amended and Restated Credit Agreement
Signature Page to that certain Second Amended and Restated Credit Agreement
dated as of the date first set forth above, among American Home Mortgage
Investment Corp., American Home Mortgage Servicing, Inc., American Home Mortgage
Corp., and American Home Mortgage Acceptance, Inc., as the Borrowers, Bank of
America, N.A., as the Administrative Agent and the Swing Line Lender, and the
other Lenders party thereto.
FORTIS CAPITAL CORP., as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Signature Page to Second Amended and Restated Credit Agreement
APPENDIX I
GLOSSARY
THIS GLOSSARY is attached to and incorporated by reference in that certain
Second Amended and Restated Credit Agreement dated as of August 10, 2006, by and
among AMERICAN HOME MORTGAGE INVESTMENT CORP., AMERICAN HOME MORTGAGE SERVICING,
INC., AMERICAN HOME MORTGAGE CORP., and AMERICAN HOME MORTGAGE ACCEPTANCE, INC.,
as the Borrowers, the Lenders from time to time party thereto, and BANK OF
AMERICA, N.A., as Administrative Agent for such Lenders (the "Agreement"). For
purposes of the Agreement and the other Loan Documents, the following
capitalized terms shall have the following meanings:
"Additional Required Documents" shall mean with respect to any
Mortgage Loan those documents described on Schedule VII attached to the
Agreement.
"Adjusted Consolidated Funded Debt" on any date of determination
shall mean the sum of (a) the Consolidated Funded Debt of AHMIC and any other
Person which would be reflected on the consolidated balance sheet of AHMIC
prepared in accordance with GAAP if such balance sheet were prepared as of such
date of determination, less (b) 50% of any Subordinated Debt (including
Subordinated Debt incurred in connection with the issuance of "trust preferred
securities"), less (c) the mortgage debt associated with the building and the
land located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇.
"Administrative Agent" shall have the meaning given such term in the
introductory paragraph of the Agreement.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean, as to any Person, any other Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with such Person. "Control" as used herein means the power to direct the
management and policies of such Person.
"Aged Mortgage Loans" on any date shall mean, collectively, all Aged
Shipped Mortgage Loans, Aged Wet Mortgage Loans, and Aged Warehoused Mortgage
Loans.
"Aged Shipped Mortgage Loan" shall mean a Mortgage Loan shipped by
the Collateral Agent pursuant to Paragraph 6 of the Security Agreement for which
settlement to the Administrative Agent has not been made (or such Mortgage Loan
has not been returned to the Collateral Agent) for a period that exceeds 45 days
from the date of shipment of such Mortgage Loan, but does not exceed 60 days
from such date of shipment.
"Aged Warehoused Mortgage Loan" shall mean a Mortgage Loan with
respect to which each of the following is true and correct:
(a) Such Mortgage Loan is an Eligible Mortgage Loan that satisfies
all requirements of a Prime Mortgage Loan or a Subprime Mortgage Loan,
except that such Mortgage Loan has been included in the Warehouse
Borrowing Base for a period in excess of 180 days;
(b) Such Mortgage Loan has not been included in the Warehouse
Borrowing Base for more than 360 days; and
(c) If, on the day any Mortgage Loan satisfies the criteria set
forth in this definition, the aggregate Unit Collateral Values of Aged
Warehoused Mortgage Loans exceeds the applicable sublimits for Aged
Warehoused Mortgage Loans as specified in the "Collateral Value of the
Warehouse Borrowing Base," then the Borrowers shall prepay a portion of
the Warehouse Loans made with respect to the Aged Warehoused Mortgage
Loans in an amount at least equal to such excess.
"Aged Wet Mortgage Loan" shall mean a Wet Mortgage Loan that has
been included in the Warehouse Borrowing Base for a period of more than 15
calendar days, but not more than 20 calendar days.
"Agency Custodial Agreements" shall mean the FHLMC Custodial
Agreement, the FNMA Custodial Agreement and the GNMA Custodial Agreement, as
applicable.
"Agency Guide" shall mean the FHLMC Guide, the FNMA Guide or the
GNMA Guide, as applicable.
"Aggregate Collateral Value" shall mean an amount equal to the sum
of the products of the book values (as determined in accordance with GAAP) of
the consolidated assets of AHMIC and its Subsidiaries, such assets being
categorized in the classes set forth on the Calculation Schedule that is part of
Exhibit E attached to the Agreement, times the percentage multiplier for each
such class set forth on such Calculation Schedule.
"Aggregate Credit Limit" shall mean at any date the sum of the
Maximum Commitments of the Lenders as the same may be increased or decreased
from time to time as permitted hereunder, with the "Aggregate Credit Limit" on
the Effective Date being $1,250,000,000; provided, however, that in no event
shall the Aggregate Credit Limit be increased to an amount in excess of the then
current Maximum Aggregate Credit Limit.
"Agreement" shall mean this Second Amended and Restated Credit
Agreement dated as of August 10, 2006 (which amends and restates that certain
Amended and Restated Credit Agreement dated as of August 12, 2005, as amended)
by and among the Borrowers, the Administrative Agent and certain Lenders, as the
same may be amended, extended or replaced from time to time.
"AHMA" shall mean American Home Mortgage Acceptance, Inc., a
Maryland corporation.
"AHMC" shall mean American Home Mortgage Corp., a New York
corporation.
"AHMH" shall mean American Home Mortgage Holdings, Inc., a Delaware
corporation.
"AHMIC" shall mean American Home Mortgage Investment Corp., a
Maryland corporation.
"AHMS" shall mean American Home Mortgage Servicing, Inc., a Maryland
corporation.
"Alt-A Mortgage Loan" shall mean a First Mortgage Loan that
satisfies the requirements of an Eligible Mortgage Loan, except that such
Mortgage Loan (a) does not comply with all applicable requirements for purchase
by FHLMC, FNMA, or GNMA; (b) is underwritten to "Alt-A" investor specifications;
and (c) has a Fair, ▇▇▇▇▇ and Co. ("FICO") score of greater than 620.
"Applicable Margin" shall mean, with respect to the principal
balance of Loans that have been advanced against the following types of
Collateral, the per annum rate set forth opposite each such
- 2 -
Collateral type (provided that, in the event that on any day a particular item
of Collateral may be categorized as more than one type of Collateral, then the
Applicable Margin with respect to such item of Collateral shall be the highest
of the Applicable Margins applicable to such item of Collateral):
-------------------------------------------------------------------------------
Collateral Type Applicable Margin
-------------------------------------------------------------------------------
LIBOR Base Rate
-------------------------------------------------------------------------------
Prime First Mortgage Loans..................... 0.75% 0.00%
Prime Second Mortgage Loans.................... 1.00% 0.00%
Subprime Mortgage Loans........................ 1.00% 0.00%
Impaired Mortgage Loans or Aged Mortgage Loans. 1.25% 0.00%
HUD 203(k) Mortgage Loans...................... 0.75% 0.00%
Construction-to-Perm Mortgage Loans............ 1.40% 0.00%
Bond Program Mortgage Loans.................... 1.00% 0.00%
Repurchased Maturing Mortgage Loans............ 1.00% 0.00%
REO Property................................... 1.00% 0.00%
EBO Mortgage Loans............................. 1.00% 0.00%
Mortgage-Backed Securities (AAA or Agency) .... 0.50% 0.00%
Servicing Rights............................... 1.750% 1.00%
Servicing Receivable........................... 1.125% 0.00%
-------------------------------------------------------------------------------
; provided that, to the extent the Borrower elects to convert any Servicing
Rights Loans to a term loan pursuant to Paragraph 2(d), then the Applicable
Margin for Servicing Rights Loans will be increased on and after such conversion
date by .25%.
"Applicable Take-Out Price" shall mean at any date with respect to
any Mortgage Loan, the weighted average net unfilled purchase price of all
Take-Out Commitments held by any of the Borrowers under which such Mortgage Loan
is committed to be sold (assuming the simultaneous shipment of all other
Mortgage Loans owned by any of the Borrowers under such Take-Out Commitments);
provided, however, that unless otherwise directed in writing by the
Administrative Agent, the Collateral Agent may assume that, with respect to any
such Mortgage Loan, the "Applicable Take-Out Price" on any date is that
percentage shown for Mortgage Loans of similar type, maturity, and interest rate
on the Borrowing Base Certificate most recently delivered by any Borrower to the
Administrative Agent and the Collateral Agent pursuant to the Agreement.
"Appraisal" shall mean a certificate of independent certified public
accountants or independent financial consultants of recognized standing selected
by the Borrowers and reasonably satisfactory to the Administrative Agent as to
the Appraisal Value of the Servicing Contracts included in the Eligible
Servicing Portfolio. An Appraisal must evaluate the Borrowers' Servicing
Contracts based upon reasonably determined categories of the Mortgage Loans and
must give effect to any subservicing agreements to which any Mortgage Loan is or
will be subject. Each Appraisal must be in form, substance and detail
satisfactory to the Administrative Agent.
"Appraisal Value" shall mean, at any date of determination, the fair
market value of the Borrowers' rights to service Mortgage Loans under the
Servicing Contracts included in the Eligible Servicing Portfolio as determined
in the Appraisal. Appraisal Value must be calculated as a percentage of the
unpaid principal amount of each category of Mortgage Loans serviced under those
Servicing Contracts as determined by the appraiser, or, if such appraiser
provides a range of Appraisal Values, the average of the low end and high end of
such range.
- 3 -
"Appraised Property Value" shall mean, with respect to an interest
in real property, the then current fair market value of the real property and
any improvements on such property, determined as of a recent date in accordance
with Title XI of FIRREA by a qualified appraiser who is a member of the American
Institute of Real Estate Appraisers or other group of professional appraisers,
or, with respect to REO Property, the most recent Broker's Price Opinion
received by the Administrative Agent.
"Approved Fund" shall mean any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
"Approved Investor" shall mean FNMA, FHLMC, GNMA, or any other
financial institution pre-approved in writing by the Administrative Agent to
purchase Collateral included in the Warehouse Borrowing Base (with the schedule
of Approved Investors as of the Effective Date attached to the Agreement as
Schedule III), and which approval has not been revoked by the Administrative
Agent in its sole discretion, any such revocation notice to be given no later
than ten Business Days prior to its intended effective date, after which date no
additional commitments shall be made by any of the Borrowers to ship Collateral
from the Warehouse Borrowing Base to the financial institution whose approved
status has been so revoked.
"As Completed Appraised Value" shall mean the value given by a
state-certified appraiser to the real property underlying a Mortgage Loan and
improvements on the real property underlying a Mortgage Loan based on the Total
Hard Costs and plans and specifications for the improvements on such real
property prior to the beginning of any construction or rehabilitation.
"Assignment and Assumption" shall mean an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent of any party
whose consent is required by Paragraph 14 of the Agreement), and accepted by the
Administrative Agent, in substantially the form of Exhibit G attached to the
Agreement.
"Available Deposits" shall mean those free collected balances
maintained in accounts in the name of any of the Borrowers (or held by any of
the Borrowers in trust for third parties) with a Lender (after deducting float
and balances required by such Lender under its normal practices to compensate
such Lender for the maintenance (including any service fees) of such accounts
and taking into consideration reserve requirements applicable to such accounts)
and which balances are not included in determining "Available Deposits" under
any other credit arrangements between such Lender and any of the Borrowers, or
as may be further defined by any Lender.
"Bank of America" shall mean Bank of America, N.A. or its successor.
"Base Rate" shall mean for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its "prime rate." The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some of its loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loans" shall mean Loans at such time as they are made
and/or maintained at a rate of interest based upon the Base Rate.
- 4 -
"Bond Program Mortgage Loan" shall mean a Mortgage Loan with respect
to which each of the following is true and correct:
(a) The Mortgage Loan is an Eligible Mortgage Loan (except with
respect to those requirements that by their terms are not applicable to
Bond Program Mortgage Loans, if any);
(b) The Mortgage Loan is a First Mortgage Loan originated under the
State of Maryland Community Development Program, or under any comparable
program of any other agency hereafter approved by Administrative Agent for
the purpose of this definition (each an "Approved Agency");
(c) The loan underwriting package with respect to such Mortgage Loan
has been submitted to the Approved Agency for pre-approval and the
Borrowers have received a commitment or certificate of mortgage insurance;
and
(d) The Mortgage Loan has not been included in the Warehouse
Borrowing Base for more than 360 days.
"Book-Entry MBS" shall mean a Mortgage-Backed Security (a) which is
not represented by a written instrument, and (b) the ownership and transfer of
which is entered upon books maintained for such purpose by the issuer of such
Mortgage-Backed Security or its trustee, transfer agent, or other depository.
"Borrowers" shall mean AHMIC, AHMS, AHMC, and AHMA; "Borrower" shall
mean any of AHMIC, AHMS, AHMC, or AHMA.
"Borrowing Base Certificate" shall mean a certificate in form and
detail reasonably acceptable to the Administrative Agent, setting forth the
Collateral Value of the Warehouse Borrowing Base, the Collateral Value of the
Servicing Rights Borrowing Base, and/or the Collateral Value of the Working
Capital Borrowing Base as of the date of such certificate.
"Broker's Price Opinion" shall mean, with respect to any REO
Property, an opinion as to the current market value of the Property, as
determined by an appraiser approved by Administrative Agent.
"Business Day" shall mean any day other than a Saturday, a Sunday,
or a day on which banks in any of New York, New York, Dallas, Texas, Santa Ana,
California, and San Francisco, California are authorized or obligated to close
their regular banking business.
"Buy-Down Agreement" shall mean a written agreement between any of
the Borrowers and a Lender setting forth the terms and conditions under which
such Lender has agreed to credit against interest otherwise payable to such
Lender on account of Loans outstanding hereunder certain amounts calculated
based upon Available Deposits maintained by any of the Borrowers with such
Lender.
"Buy-Down Lender" shall have the meaning given such term in
Paragraph 5(h) of the Agreement.
"Capitalized Lease Obligations" shall mean, as of any date, any
lease of property, real or personal, which would be capitalized on a balance
sheet of the lessee prepared as of such date in accordance with GAAP, together
with any other lease by such lessee which is in substance a financing lease,
including without limitation, any lease under which (i) such lessee has or will
have an option to
- 5 -
purchase the property subject thereto at a nominal amount or an amount less than
a reasonable estimate of the fair market value of such property as of the date
such lease is entered into, or (ii) the term of the lease approximates or
exceeds the expected useful life of the property leased thereunder.
"Certificating Custodian" shall mean any Person acting as any of the
Borrowers' "document custodian," "custodian" or "certificating custodian," as
such terms are used in the applicable Agency Guide, for purposes of (a)
certifying that the documentation relating to Mortgage Loans received by such
Person from any of the Borrowers (or the Collateral Agent) is complete and
acceptable under the applicable Agency Guide for purposes of including such
Mortgage Loan in a pool of Mortgage Loans in which Mortgage-Backed Securities
will represent interests and (b) holding such documentation following formation
of such pools and issuance of such Mortgage-Backed Securities. The Certificating
Custodian shall at all times be party to the applicable Agency Custodial
Agreement.
"Change of Control" shall mean an event or series of events by
which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such
right, an "option right"), whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of 25% or more
of the equity securities of AHMIC entitled to vote for members of the
board of directors or equivalent governing body of the AHMIC on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right);
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
AHMIC ceases to be composed of individuals (i) who were members of that
board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting
at the time of such election or nomination at least a majority of that
board or equivalent governing body or (iii) whose election or nomination
to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or
on behalf of the board of directors); or
(c) any of the Borrowers or AHMH shall cease to be a wholly-owned
Subsidiary of AMHIC (except as otherwise permitted under Paragraph 11(c)
regarding consolidation and merger).
"Collateral" shall have the meaning given to such term in the
Security Agreement and in any other Collateral Documents.
- 6 -
"Collateral Agent" shall mean such Person as may be designated as
such in accordance with the terms of the Security Agreement, with the Collateral
Agent as of the Effective Date being Deutsche Bank National Trust Company.
"Collateral Confirmation Agreement" shall mean an agreement in the
form of that attached to the Agreement as Exhibit H.
"Collateral Documents" shall mean the Security Agreement and any and
all other security agreements, pledge agreements, mortgages, deeds of trust,
financing statements, assignments, or Guaranties at any time delivered to the
Administrative Agent or the Collateral Agent to create or evidence Liens
securing the Obligations, together with all reaffirmations, amendments, and
modifications thereof or supplements thereto made in accordance with the Loan
Documents.
"Collateral Type" shall mean any of the following types of
Collateral:
(a) Aged Warehoused Mortgage Loan;
(b) Bond Program Mortgage Loan;
(c) Construction-to-Perm Mortgage Loan;
(d) EBO Mortgage Loan;
(e) Eligible Foreclosure Advance Receivable;
(f) Eligible P&I Advance Receivable-EBO Loans;
(g) Eligible P&I Advance Receivable-Pooled Loans;
(h) Eligible Securitization Receivable;
(i) Eligible Servicing Portfolio;
(j) Eligible Servicing Receivable;
(k) Eligible T&I Advance Receivable;
(l) HUD 203(k) Mortgage Loan;
(m) Impaired Mortgage Loan;
(n) Prime Mortgage Loan;
(o) REO Property;
(p) Repurchased Maturing Mortgage Loan;
(q) Subprime Mortgage Loan;
(r) Wet Mortgage Loan; and
- 7 -
(s) Eligible Mortgage-Backed Securities.
"Collateral Value of the Servicing Rights Borrowing Base" shall mean
at any date an amount equal to 70% of the most recent Appraisal Value of the
Servicing Contracts included in the Eligible Servicing Portfolio, adjusted to
reflect additions to and deletions from the Eligible Servicing Portfolio since
the most recent Appraisal.
"Collateral Value of the Warehouse Borrowing Base" shall mean at any
date the sum, without duplication, of the following:
(a) the lesser of (i) the aggregate Unit Collateral Values of all
Prime First Mortgage Loans (other than HELOCs) included in the Warehouse
Borrowing Base and (ii) an amount equal to 100% of the Aggregate Credit
Limit;
(b) the lesser of (i) the aggregate Unit Collateral Values of all
Prime Second Mortgage Loans and HELOCs included in the Warehouse Borrowing
Base and (ii) an amount equal to 25% of the Aggregate Credit Limit;
(c) the lesser of (i) the aggregate Unit Collateral Values of all
Subprime Mortgage Loans included in the Warehouse Borrowing Base and (ii)
an amount equal to 25% of the Aggregate Credit Limit;
(d) the lesser of (i) the aggregate Unit Collateral Values of all
Construction-to-Perm Mortgage Loans included in the Warehouse Borrowing
Base and (ii) an amount equal to $50,000,000;
(e) the lesser of (i) the aggregate Unit Collateral Values of all
Bond Program Mortgage Loans included in the Warehouse Borrowing Base and
(ii) an amount equal to 15% of the Aggregate Credit Limit;
(f) the lesser of (i) the aggregate Unit Collateral Values of all
Repurchased Maturing Mortgage Loans included in the Warehouse Borrowing
Base and (ii) $10,000,000;
(g) the lesser of (i) the aggregate Unit Collateral Values of all
EBO Mortgage Loans included in the Warehouse Borrowing Base and (ii)
$30,000,000;
(h) the lesser of (i) the aggregate Unit Collateral Values of all
REO Property included in the Warehouse Borrowing Base and (ii)
$15,000,000;
(i) the lesser of (i) the aggregate Unit Collateral Values of all
HUD 203(k) Mortgage Loans included in the Warehouse Borrowing Base and
(ii) an amount equal to 1.5% of the Aggregate Credit Limit;
(j) the lesser of (i) the aggregate Unit Collateral Values of all
Mortgage-Backed Securities included in the Warehouse Borrowing Base and
(ii) an amount equal to 100% of the Aggregate Credit Limit; and
(k) the amount of the cash then on deposit in the Settlement
Account;
provided that, notwithstanding the foregoing:
- 8 -
(A) the sum of (i) the aggregate Unit Collateral Values of all
Jumbo Loans included in the Warehouse Borrowing Base and (ii) the
aggregate Unit Collateral Values of all Alt-A Mortgage Loans
included in the Warehouse Borrowing Base may not exceed an amount
equal to 50% of the Aggregate Credit Limit; provided further, that
the aggregate Unit Collateral Values of all Jumbo Loans with an
original principal balance of greater than $1,000,000 may not exceed
an amount equal to 10% of the Aggregate Credit Limit;
(B) the aggregate Unit Collateral Values of all Wet Mortgage
Loans included in the Warehouse Borrowing Base may not exceed an
amount equal to 40% of the Aggregate Credit Limit, and the aggregate
Unit Collateral Values of all Aged Wet Mortgage Loans included in
the Warehouse Borrowing Base may not exceed $10,000,000;
(C) the aggregate Unit Collateral Values of all Impaired
Mortgage Loans included in the Warehouse Borrowing Base may not
exceed an amount equal to 2.5% of the Aggregate Credit Limit, and,
when combined with the aggregate Unit Collateral Values of all Aged
Mortgage Loans included in the Warehouse Borrowing Base, may not
exceed an amount equal to 5% of the Aggregate Credit Limit;
(D) the aggregate Unit Collateral Values of all Aged Mortgage
Loans included in the Warehouse Borrowing Base may not exceed an
amount equal to 5% of the Aggregate Credit Limit, and when combined
with the aggregate Unit Collateral Values of all Impaired Mortgage
Loans included in the Warehouse Borrowing Base, may not exceed an
amount equal to 5% of the Aggregate Credit Limit;
(E) the aggregate Unit Collateral Values of all Prime First
Mortgage Loans which are either Co-op Loans or are secured by a Lien
on a Manufactured Home and which are included in the Warehouse
Borrowing Base may not exceed an amount equal to 10% of the
Aggregate Credit Limit; and
(F) the sum of the aggregate Unit Collateral Values of all
Prime Second Mortgage Loans, HELOCs, Subprime Mortgage Loans,
Impaired Mortgage Loans, and Aged Mortgage Loans included in the
Warehouse Borrowing Base may not exceed an amount equal to 40% of
the Aggregate Credit Limit.
"Collateral Value of the Working Capital Borrowing Base" shall mean,
at any date, the sum, without duplication, of the aggregate Unit Collateral
Values of each of the following Collateral Types to the extent included in the
Working Capital Borrowing Base on such date: (a) Eligible P&I Advance
Receivable-Pooled Loans; (b) Eligible P&I Advance Receivable-EBO Loans; (c)
Eligible T&I Advance Receivable; (d) the lesser of (i) the aggregate Unit
Collateral Values of all Eligible Securitization Receivables, and (ii)
$15,000,000; and (e) Eligible Foreclosure Advance Receivable.
"Commitment Schedule" shall mean a schedule setting forth the
current Aggregate Credit Limit, Servicing Rights Credit Sublimit, and, for each
Lender, such Lender's Maximum Commitment and Percentage Share, as such schedule
may be modified from time to time consistent with the Loan Documents, with the
initial Commitment Schedule being attached to the Agreement as Schedule I.
"Committed Notes" shall have the meaning given such term in
Paragraph 6(c) of the Agreement.
- 9 -
"Commonly Controlled Entity" of a Person shall mean a Person,
whether or not incorporated, which is under common control with such Person
within the meaning of Section 414(c) of the Internal Revenue Code.
"Consolidated Funded Debt" of any Person shall mean Indebtedness in
any of the following categories:
(a) Indebtedness for borrowed money, including the Obligations;
(b) Indebtedness constituting an obligation to pay the deferred
purchase price of property;
(c) Indebtedness evidenced by a bond, debenture, note or similar
instrument;
(d) Indebtedness constituting Capitalized Lease Obligations;
(e) Indebtedness constituting a non-contingent obligation to
reimburse the issuer of any letter of credit or any guarantor or surety
for payments made by such issuer, guarantor or surety; and
(f) Any obligation under any guaranty with respect to Indebtedness
of any other Person of the types described in clauses (a) through (e)
above.
"Construction-to-Perm Mortgage Loan" shall mean a Mortgage Loan with
respect to which each of the following is true and correct:
(a) The Mortgage Loan is an Eligible Mortgage Loan (except with
respect to those requirements that by their terms are not applicable to
Construction-to-Perm Mortgage Loans);
(b) The Mortgage Loan is a First Mortgage Loan for new construction
of real property which, upon completion of the construction, converts to a
permanent Mortgage Loan;
(c) The Mortgage Loan has not been included in the Warehouse
Borrowing Base for more than 18 months; and
(d) The maximum principal amount of all Warehouse Loans advanced
against such Mortgage Loan may not exceed $2,000,000.
"Contractual Obligation" as to any Person shall mean any provision
of any security issued by such Person or of any material agreement, material
instrument, or material undertaking to which such Person is a party or by which
it or any of its property is bound.
"Co-op Loan" shall mean a First Mortgage Loan evidenced by a co-op
note and committed for purchase by an Approved Investor.
"Cost Breakdown" shall mean a list of the costs and expenses to be
financed by Warehouse Loans against a Construction-to-Perm Mortgage Loan,
including, without limitation, real property acquisition costs, construction
costs, architectural fees, and any other costs and expenses budgeted to
construct and complete the improvements.
- 10 -
"Covenant Compliance Certificate" shall mean a certificate
substantially in the form of Exhibit E attached to the Agreement.
"Custodian Category" shall mean the category of the same name on the
MERS System that reflects the custodial party which is in possession of the
mortgage loans pledged by borrowers to mortgage warehouse lenders.
"Daily Floating Eurodollar Loans" shall mean Loans at such time as
they are made and/or being maintained at a rate of interest based upon the Daily
Floating Eurodollar Rate.
"Daily Floating Eurodollar Rate" shall mean, with respect to any
Daily Floating Eurodollar Loan for each day that it is a Daily Floating
Eurodollar Loan, the rate per annum equal to the British Bankers Association
LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m. (London
time) on such day (if such day is a Eurodollar Business Day) or the immediately
preceding Eurodollar Business Day (if such day is not a Eurodollar Business
Day), for U.S. dollar deposits with a term equivalent to one (1) month. If such
rate is not available at such time for any reason, then the "Daily Floating
Eurodollar Rate" shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in U.S. dollars in same day funds in the
approximate amount of the Daily Floating Eurodollar Loan being made, continued
or converted by Bank of America and with a term equivalent to one (1) month
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) on such day (if such day is a Eurodollar Business Day) or the immediately
preceding Eurodollar Business Day (if such day is not a Eurodollar Business
Day).
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans or participations in Swing Line Loans required to be funded
by it under the Loan Documents within one Business Day of the date required to
be funded by it thereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute, or (c) has been deemed insolvent or become the subject of
a bankruptcy or insolvency proceeding.
"Determination of Availability" shall mean a good faith
determination made by the Administrative Agent upon receipt by the
Administrative Agent of a request for a Loan or Loans under the Agreement that
upon the funding of such Loan or Loans the Borrowers will be in compliance with
the requirements of Paragraphs 6(d)(1), 6(d)(2), 6(d)(3), and 6(d)(4) of the
Agreement.
"Early Buyout Mortgage Loan" shall mean a closed-end First Mortgage
Loan that (i) is either HUD/FHA insured (other than a HUD 203(k) Mortgage Loan)
or VA guaranteed and (ii) has been repurchased from an Approved Investor or a
Mortgage Pool pursuant to a Servicing Contract.
"EBO Mortgage Loan" shall mean a Mortgage Loan with respect to which
each of the following is true and correct:
(a) The Mortgage Loan is an Eligible Mortgage Loan (except with
respect to any requirement for an Eligible Mortgage Loan that specifically
states that it is not applicable to an EBO Mortgage Loan);
(b) The Mortgage Loan is an Early Buyout Mortgage Loan; and
- 11 -
(c) The Mortgage Loan has not been included in the Warehouse
Borrowing Base for a period that extends after the first Business Day of
the month immediately succeeding the month in which the Warehouse Loan
against such Mortgage Loan was made.
"Effective Date" shall mean August 10, 2006, or such subsequent date
on which each of the conditions set forth in Paragraph 8(a) of the Agreement is
satisfied.
"Electronic Tracking Agreement" shall mean that certain Electronic
Tracking Agreement dated as of even date with the Agreement among the
Administrative Agent, MERS, MERSCORP, and the Borrowers.
"Eligible Assignee" shall mean (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent and the Swing Line Lender, and
(ii) unless an Event of Default has occurred and is continuing, the Borrowers
(each such approval not to be unreasonably withheld or delayed); provided that,
notwithstanding the foregoing, "Eligible Assignee" shall not include any of the
Borrowers or any Affiliate or Subsidiary of any of the Borrowers.
"Eligible Foreclosure Advance Receivable" shall mean a Foreclosure
Advance Receivable with respect to which each of the following is true and
correct:
(a) Such Foreclosure Advance Receivable is an Eligible Servicing
Receivable;
(b) Such Foreclosure Advance Receivable is related to a Mortgage
Loan that (i) has been foreclosed or a deed in lieu of foreclosure has
been executed, (ii) is not held by any Borrower as "other real estate
owned," and (iii) and if the claim is against the VA, is in "Bid" status;
and
(c) Such Foreclosure Advance Receivable has not been included in the
Working Capital Borrowing Base for more than 180 days; provided that
Foreclosure Advance Receivables having Unit Collateral Values that do not
exceed $3,000,000 in the aggregate may be included in the Working Capital
Borrowing Base for up to 364 days.
"Eligible Mortgage Loan" shall mean a Mortgage Loan with respect to
which each of the following statements shall be true and correct:
(a) Such Mortgage Loan is a binding and valid obligation of the
Obligor thereon, in full force and effect and enforceable in accordance
with its terms;
(b) Such Mortgage Loan (1) is denominated and payable in United
States dollars, and (2) is genuine in all respects as appearing on its
face and as represented in the books and records of the Borrowers (and if
such Mortgage Loan is registered on the MERS System, on the books and
records of MERSCORP, Inc.); and all information set forth therein is true
and correct;
(c) Such Mortgage Loan (other than an EBO Mortgage Loan or an
Impaired Mortgage Loan) is free of any default of any party thereto
(including the Borrowers), counterclaims, offsets and defenses and from
any rescission, cancellation or avoidance, and all right thereof, whether
by operation of law or otherwise;
- 12 -
(d) No payment under such Mortgage Loan (other than an EBO Mortgage
or an Impaired Mortgage Loan) is more than 30 days past the payment due
date set forth in the underlying promissory note and Mortgage;
(e) Such Mortgage Loan contains the entire agreement of the parties
thereto with respect to the subject matter thereof, has not been modified
or amended in any respect, and is free of concessions or understandings
with the Obligor thereon of any kind not expressed in writing therein.
(f) Such Mortgage Loan has been originated in compliance with and is
in all respects as required by and in accordance with all applicable
federal, state, or local laws and regulations governing the same,
including, without limitation, the federal Consumer Credit Protection Act
and the regulations promulgated thereunder and all applicable usury,
truth-in-lending, real estate settlement procedures, equal credit
opportunity, or disclosure laws);and all notices, disclosures and other
statements or information required by law or regulation to be given, and
any other act required by law or regulation to be performed, in connection
with such Mortgage Loan have been given and performed as required such
that and to the extent necessary to ensure that the obligor under said
Mortgage Loan does not have an enforceable right of rescission or
forfeiture under any such law with respect to said Mortgage Loan, and (ii)
is not classified as (a) a "high cost" loan under HOEPA or (b) a "high
cost," "threshold," "covered," or "predatory" loan under any other
applicable state, federal or local law (or a similarly classified loan
using different terminology under a law, regulation or ordinance imposing
heightened regulatory scrutiny or additional legal liability for
residential mortgage loans having high interest rates, points and/or
fees).
(g) All advance payments and other deposits on such Mortgage Loan
have been paid in cash, and no part of said sums has been loaned, directly
or indirectly, by the Borrowers to the Obligor thereon and, other than as
disclosed to the Administrative Agent in writing, there have been no
prepayments on such Mortgage Loan;
(h) Such Mortgage Loan is subject to a first priority perfected Lien
in favor of the Administrative Agent or the Collateral Agent for the
benefit of the Lenders and will be free and clear of all other Liens;
(i) The Property covered by such Mortgage Loan is insured against
loss or damage by fire and all other hazards normally included within
standard extended coverage in accordance with the provisions of such
Mortgage Loan with a Borrower named as a loss payee thereon; if such
Property is located in a special flood hazard area designated as such by
the Director of the Federal Emergency Management Agency, then such
Property is covered by special flood insurance under the Natural Flood
Insurance Program, with a Borrower named as loss payee thereon;
(j) The Property covered by such Mortgage Loan is located in the
United States and is free and clear of all Liens except in favor of a
Borrower, subject only to (1) the Lien of current real property taxes,
condominium charges, and assessments not yet due and payable; (2)
covenants, conditions and restrictions, rights of way, easements and other
matters of the public record, as of the date of recording, as are
acceptable to mortgage lending institutions generally and specifically
referred to in a lender's title insurance policy delivered to the
originator of such Mortgage Loan and (i) referred to or otherwise
considered in the appraisal made for the originator of such Mortgage Loan
or (ii) which do not materially adversely affect the appraised value of
such Property as set forth in such appraisal; (3) other matters to which
like properties are
- 13 -
commonly subject which do not materially interfere with the benefits of
the security intended to be provided by such Mortgage Loan or the use,
enjoyment, value or marketability of the related Property; and (4) if such
Mortgage Loan is a Second Mortgage Loan or a HELOC, a prior Mortgage;
(k) If such Mortgage Loan has been withdrawn from the possession of
the Collateral Agent on terms and subject to conditions set forth in the
Security Agreement:
(1) If such Mortgage Loan was withdrawn by any Borrower
for purposes of correcting clerical or other non-substantive
documentation problems pursuant to a Trust Receipt, the
promissory note and other documents relating to such Mortgage
Loan were returned to the Collateral Agent within ten Business
Days from the date of withdrawal and the Unit Collateral Value
of such Mortgage Loan when added to the aggregate Unit
Collateral Values of all other Mortgage Loans included in the
computation of the Collateral Value of the Warehouse Borrowing
Base which have been similarly withdrawn does not exceed
$2,000,000.00; and
(2) If such Mortgage Loan was shipped by the Collateral
Agent pursuant to Paragraph 6 of the Security Agreement, the
full amount required to be paid on account thereof (as set
forth on the schedule attached to the related transmittal
letter) has been received into the Settlement Account (or said
Mortgage Loan has been returned to the Collateral Agent)
within 45 calendar days (or 60 calendar days if such Mortgage
Loan is an Aged Shipped Mortgage Loan) from the date of
shipment by the Collateral Agent;
(l) The date of the underlying promissory note is no earlier than 90
days prior to the date such Mortgage Loan is first included in the
Warehouse Borrowing Base, unless such Mortgage Loan is a
Construction-to-Perm Mortgage Loan, an EBO Mortgage Loan, or a
modification resulting from an extension of a Mortgage Loan with a final
balloon payment or with an adjustable interest rate;
(m) The improvements on the related Property consist of a completed
one-to-four family residence (and as to which there are no commercial
operations, other than in the nature of an in-home office, conducted on
such Property) or a unit in a condominium or planned unit development or,
solely in the case of a First Mortgage Loan, a Manufactured Home;
(n) The Required Documents for such Mortgage Loan have been
delivered to the Collateral Agent prior to the inclusion of such Mortgage
Loan in the Warehouse Borrowing Base (or, if such items have not been
delivered to the Collateral Agent, the Collateral Agent has received a
Collateral Confirmation Agreement, including a complete Mortgage-Related
Collateral Schedule (as defined in the Security Agreement), relating to
said Mortgage Loan on or prior to the date said Mortgage Loan is first
included in the Warehouse Borrowing Base and the Required Documents are
received by the Collateral Agent within 15 calendar days (or 20 calendar
days if such Mortgage Loan is an Aged Wet Mortgage Loan) after such
Mortgage Loan is first included in the Warehouse Borrowing Base and the
Unit Collateral Value of said Mortgage Loan when added to the aggregate
Unit Collateral Values of all other Mortgage Loans included in the
computation of the Collateral Value of the Warehouse Borrowing Base for
which the Collateral Agent has not received the Required Documents does
not exceed 40% of the Aggregate Credit Limit;
- 14 -
(o) If so requested by the Administrative Agent, the Additional
Required Documents for such Mortgage Loan have been delivered to the
Collateral Agent;
(p) Such Mortgage Loan is not subject to any servicing arrangement
with any Person other than the Borrowers or a subservicer servicing said
Mortgage Loan on behalf of the Borrowers, nor are any servicing rights
relating to said Mortgage Loan subject to any Lien or negative pledge in
favor of any Person other than a first priority perfected Lien in favor of
the Administrative Agent or the Collateral Agent for the benefit of the
Lenders;
(q) If such Mortgage Loan has a Loan-to-Value Ratio greater than 80%
and such Mortgage Loan is not subject to a commitment by the VA or FHA to
guarantee or insure repayment thereof, then said Mortgage Loan is covered
by a policy of private mortgage insurance acceptable to FNMA or the
Approved Investor issuing the Take-Out Commitment for such Mortgage Loan
or said Mortgage Loan has been pooled with other Mortgage Loans and such
pool of Mortgage Loans is covered by a binding and enforceable commitment
to provide mortgage insurance by a reputable insurance provider (and such
Mortgage Loan is covered by an actual policy of private mortgage insurance
within 60 days from the original closing of such Mortgage Loan);
(r) If such Mortgage Loan is a Third Party Originated Loan, then
such Mortgage Loan was not closed more than 90 days prior to the date such
Mortgage Loan is first included in the Warehouse Borrowing Base;
(s) The promissory note evidencing such Mortgage Loan is secured by
a first priority Lien on the related Property or in the case of Second
Mortgage Loans (including a HELOC), a second priority Lien on the related
Property;
(t) The proceeds of such Mortgage Loan (other than a
Construction-to-Perm Mortgage Loan, an EBO Mortgage Loan, HELOC, or a
Mortgage Loan that constitutes a modification of a Mortgage Loan with a
final balloon payment or an adjustable interest rate) have been, or will
within two Business Days following the date said Mortgage Loan is first
included in the computation of the Collateral Value of the Warehouse
Borrowing Base be, fully disbursed and the Obligor thereon has no
additional right to further borrowings thereunder;
(u) Such Mortgage Loan is covered by a lender's title insurance
policy (issued in standard form by a title insurance company authorized to
transact business in the state where the related Property is located) in
an amount at least equal to the original principal balance of the
promissory note evidencing such Mortgage Loan insuring the mortgagee's
interest under such Mortgage Loan as the holder of a first Lien of record
on the related Property (or in the case of a Second Mortgage Loan or a
HELOC, a second Lien of record on the related Property) (subject only to
such exceptions as are generally acceptable to mortgage lending
institutions, and such other exceptions to which similar properties are
commonly subject and which do not individually, or in the aggregate,
materially and adversely affect the benefits of the security intended to
be provided by such Mortgage Loan);
(v) The Property relating to such Mortgage Loan is undamaged by
waste, fire, earthquake or earth movement, windstorm, flood, tornado or
other casualty so as to affect adversely the value of such Property as
security for such Mortgage Loan or the use for which the premises were
intended, such Property is in good repair (ordinary wear and tear
excepted) and no condemnation proceeding has been commenced against such
Property;
- 15 -
(w) The Property related to such Mortgage Loan has been evaluated or
appraised in accordance with Title XI of FIRREA;
(x) The Obligor on such Mortgage Loan has not notified any of the
Borrowers, and none of the Borrowers has any knowledge, of any relief
requested or allowed to such Obligor under the Servicemembers Civil Relief
Act;
(y) Such Mortgage Loan (other than an Alt-A Mortgage Loan or a
Subprime Mortgage Loan), is insured by the FHA, guaranteed by the VA (or
subject to a binding commitment to issue such insurance or guarantee)
and/or fully conforms to all underwriting and other requirements of FNMA,
FHLMC, or GNMA or of another Approved Investor;
(z) If the deed of trust or mortgage underlying such Mortgage Loan
is a MERS Mortgage, the interest of the Administrative Agent or the
Collateral Agent and the Lenders in such MERS Mortgage has been registered
on the MERS System;
(aa) The original principal balance of such Mortgage Loan does not
exceed $2,000,000; and
(bb) None of the Obligors with respect to such Mortgage Loan is a
Person to which financial services may not be provided under applicable
Requirements of Law.
(cc) The originator of the Mortgage Loan has not advanced funds, or
induced, solicited, or knowingly received any advance of funds from a
party other than the owner of the related Property, directly or
indirectly, for the payment of any amount required by the Mortgage Loan.
(dd) The origination and collection practices used by the originator
of the Mortgage Loan with respect to each Mortgage Loan have been in all
respects legal, proper, prudent, and customarily in the mortgage
origination and servicing industry.
In determining the eligibility of any Mortgage Loan any of the
requirements for eligibility may be waived by the Administrative Agent;
provided, however, that any Mortgage Loan which is accepted by the
Administrative Agent pursuant to such a waiver shall cease to be an Eligible
Mortgage Loan upon notice of the retraction of such waiver given to the
Borrowers by the Administrative Agent unless at the time of giving such notice
the deficiency which originally required such waiver has been cured and such
Mortgage Loan meets all other requirements for an Eligible Mortgage Loan, and,
provided further, that the Unit Collateral Value of said Mortgage Loan, when
added to the aggregate Unit Collateral Values of all other Mortgage Loans
included in the computation of the Collateral Value of the Warehouse Borrowing
Base pursuant to a waiver hereunder, shall not exceed $10,000,000 at any date.
"Eligible Mortgage-Backed Security" shall mean a Mortgage-Backed
Security with respect to which each of the following are accurate and complete
(and the Borrowers by including such Mortgage-Backed Security in any computation
of the Collateral Value of the Warehouse Borrowing Base shall be deemed to so
represent and warrant to the Administrative Agent, the Collateral Agent, and the
Lenders at and as of the date of such computation):
(a) Such Mortgage-Backed Security is in full force and effect, and
is valid, binding, and enforceable, in accordance with its terms, without
offset, counterclaim, defense, or right of rescission or avoidance of any
kind, whether by operation of law or otherwise;
- 16 -
(b) Such Mortgage-Backed Security is issued or guaranteed by GNMA,
FNMA, or FHLMC, or, in the alternative, has a rating of no less than AAA
(or its equivalent) by each of (and at least two of) Fitch Investors
Service, L.P., ▇▇▇▇▇'▇ Investors Service, Inc., or Standard & Poor's
Ratings Services, a division of The McGraw Hill Companies, Inc., or any of
their respective successors, except to the extent that one (but not more
than one) of the above-listed rating agencies has not issued a rating for
such Mortgage-Backed Security;
(c) Such Mortgage-Backed Security is owned by AHMIC;
(d) Such Mortgage-Backed Security is free from default;
(e) Such Mortgage-Backed Security has either been deposited with and
is held by the Collateral Agent or an agent, bailee, and custodian of the
Collateral Agent under the Security Agreement (or by a Person who has
executed a custodial agreement acceptable to Administrative Agent),
properly endorsed in blank for transfer or, if such Mortgage-Backed
Security is a Book-Entry MBS, such Mortgage-Backed Security is the subject
of a Perfected Assignment;
(f) Such Mortgage-Backed Security is free and clear of all Liens,
encumbrances, charges, rights and interests of any kind, except in favor
of the Administrative Agent or the Collateral Agent for the benefit of the
Lenders, and there are (i) no outstanding rights, options, warrants or
agreements for a purchase, sale or issuance, of such Mortgage-Backed
Security, (ii) no agreements on the part of any Borrower to issue, sell or
distribute such Mortgage-Backed Security, and (iii) no obligations on the
part of any Borrower (contingent or otherwise) to purchase, redeem or
otherwise acquire any securities or any interest therein or to pay any
dividend or make any distribution in respect of such Mortgage-Backed
Security;
(g) If such Mortgage-Backed Security is certificated and has been
withdrawn from the possession of the Collateral Agent on terms and subject
to conditions set forth in the Security Agreement, and if such
certificated Mortgage-Backed Security was shipped by the Collateral Agent
directly to a permanent investor for purchase, the full amount required to
be paid on account thereof (as set forth on the schedule attached to the
related transmittal letter) has been received into the Settlement Account
(in which case such Mortgage-Backed Security shall cease to be an Eligible
Mortgage-Backed Security), or such Mortgage-Backed Security has been
returned to the Collateral Agent, in either case within two (2) days from
the date of shipment by the Collateral Agent;
(h) The Required Documents for such Mortgage-Backed Security have
been delivered to the Collateral Agent prior to the inclusion of such
Mortgage-Backed Security in the Warehouse Borrowing Base such that such
Mortgage-Backed Security is a Warehouse-Related MBS;
(i) Either (1) such Mortgage-Backed Security was issued at least 31
days prior to such Mortgage-Backed Security being deposited with the
Collateral Agent or otherwise being subject to a Perfected Assignment, or
(2) if such Mortgage-Backed Security was issued within such aforementioned
31 day period, no Lender or Affiliate of any Lender was a member of the
selling syndicate or group with respect to such Mortgage-Backed Security,
as described in Section 11(d)(1) of the Securities Exchange Act of 1934,
as amended;
(j) Such Mortgage-Backed Security is not an interest-only security
or strip;
- 17 -
(k) To the best of each Borrower's knowledge the Governing Agreement
for such Mortgage-Backed Security and any other agreement executed and
delivered in connection with such Mortgage-Backed Security are genuine,
and each is the legal, valid and binding obligation of the maker thereof
enforceable in accordance with its terms. The Governing Agreement for such
Mortgage-Backed Security is in full force and effect, and the
enforceability of such Governing Agreement has not been contested by the
Trustee;
(l) The terms of the Governing Agreement for such Mortgage-Backed
Security and such Mortgage-Backed Security have not been impaired, altered
or modified in any material respect other than as disclosed to the
Administrative Agent;
(m) The related Borrower has not waived the performance by the
Trustee of any action, if the Trustee's failure to perform such action
would cause the Governing Agreement for such Mortgage-Backed Security to
be in default, nor has the related Borrower waived any default resulting
from any action or inaction by the Trustee;
(n) To the best of the related Borrower's knowledge there is no
default, breach, violation or event of acceleration existing under the
Governing Agreement for such Mortgage-Backed Security and no event has
occurred which, with the passage of time or giving of notice or both and
the expiration of any grace or cure period, would constitute a default,
breach, violation or event of acceleration thereunder, and neither the
related Borrower nor its predecessors in interest have waived any such
default, breach, violation or event of acceleration; and
(o) Such Mortgage-Backed Security is assignable to the
Administrative Agent or the Collateral Agent for the benefit of the
Lenders subject to any documents required to be delivered pursuant to the
Governing Agreement for such Mortgage-Backed Security, and the Governing
Agreement for such Mortgage-Backed Security permits the related Borrower
to pledge such Mortgage-Backed Security to the Administrative Agent or the
Collateral Agent for the benefit of the Lenders.
"Eligible P&I Advance Receivable-EBO Loans" shall mean a P&I Advance
Receivable-EBO Loans with respect to which each of the following is true and
correct:
(a) Such P&I Advance Receivable-EBO Loans is an Eligible Servicing
Receivable; and
(b) Such P&I Advance Receivable-EBO Loans has not been included in
the Working Capital Borrowing Base for a period that extends after the
first Business Day of the month immediately succeeding the month in which
the Working Capital Loan against such Servicing Receivable was made.
"Eligible P&I Advance Receivable-Pooled Loans" shall mean a P&I
Advance Receivable-Pooled Loans with respect to which each of the following is
true and correct:
(a) Such P&I Advance Receivable-Pooled Loans is an Eligible
Servicing Receivable; and
(b) Such P&I Advance Receivable-Pooled Loans has not been included
in the Working Capital Borrowing Base for a period that extends after the
first Business Day of the month immediately succeeding the month in which
the Working Capital Loan against such Servicing Receivable was made.
- 18 -
"Eligible Securitization Receivable" shall mean a Securitization
Receivable with respect to which each of the following is true and correct:
(a) Such Securitization Receivable arises under a Mortgage-Backed
Security which has a risk rating of AA or better by at least two of
Standard and Poor's Ratings Services, ▇▇▇▇▇'▇ Investors Service, Inc. and
Fitch Ratings (determined using underwriting standards that comply with
industry standards in the sole judgment of Administrative Agent);
provided, however that, in the event that risk ratings are provided on
such Mortgage-Backed Security by only one of the above rating agencies,
such Mortgage-Backed Security must have a risk rating of AA or better from
such rating agency providing the rating;
(b) One of the Borrowers is either (i) the record owner of the
Mortgage-Backed Security under which such Securitization Receivable arises
and such Mortgage-Backed Security is free and clear of any Lien, or (ii)
entitled to receive a Securitization Receivable which arises under a
Mortgage-Backed Security that has been transferred pursuant to a
repurchase transaction with a repurchase financer acceptable to
Administrative Agent;
(c) Such Securitization Receivable is not subject to any deductions,
offset, or other reductions;
(d) Such Securitization Receivable arises under a Mortgage-Backed
Security that is current and not in default;
(e) Such Securitization Receivable is subject to a first priority
perfected Lien in favor of the Administrative Agent or the Collateral
Agent for the benefit of the Lenders, and is subject to no other Liens;
and
(f) Administrative Agent has received satisfactory evidence that
such Securitization Receivable is not subject to other security interests.
"Eligible Servicing Portfolio" shall mean all Servicing Rights of
any of the Borrowers under Servicing Contracts, with respect to which each of
the following statements is true and correct:
(a) Each related Servicing Contract is with an Approved Investor and
is satisfactory in form and content to the Administrative Agent;
(b) Each Servicing Contract is in full force and effect and is
legal, valid, and enforceable in accordance with its terms, and no default
or event that, with notice or lapse of time or both, would become a
default, exists thereunder.
(c) Each of the applicable Approved Investors (other than under
Servicing Contracts in effect as of the Effective Date and other than
FNMA, FHLMC, and GNMA) under such Servicing Contracts has consented to the
assignment of the related Servicing Rights to the Administrative Agent, or
its affiliate or designee, for the benefit of the Lenders pursuant to a
written consent in form and content satisfactory to the Administrative
Agent including, if and as requested, a Resignation Letter (or, in the
case of Servicing Contracts in effect as of the Effective Date or FNMA,
FHLMC, and GNMA, the Borrowers have obtained such written consent, or have
undertaken commercially reasonable efforts to obtain such written consent,
within 60 days following the Effective Date, or such longer period as
Administrative Agent may agree in writing), or in lieu of such written
consent, the Administrative Agent has received evidence
- 19 -
reasonably satisfactory to it that the Servicing Rights under the
applicable Servicing Contracts may be assigned to the Administrative
Agent, or its affiliate or designee, for the benefit of the Lenders
without such consent;
(d) The Mortgage Loans to be administered under any related
Servicing Contract must be secured by a mortgage on improved real property
on which is located a one-to-four family residence; but expressly
excluding such Mortgage Loans with respect to which any of the Borrowers
is obligated to repurchase or indemnify the holder of such Mortgage Loans
as a result of defaults on the Mortgage Loans at any time during the term
of such Mortgage Loans;
(e) Each related Servicing Contract is subject to a first priority
perfected Lien in favor of the Administrative Agent or the Collateral
Agent for the benefit of the Lenders, free and clear of all other Liens;
(f) None of the Servicing Rights arise under subservicing
arrangements;
(g) Each right to the payment of money under a Servicing Contract is
genuine and enforceable in accordance with its terms against the parties
obligated to pay the same, which terms have not been modified or waived in
any respect;
(h) The amount represented by any Borrower to Administrative Agent
as owing by an Obligor under each Mortgage Loan being serviced under any
Servicing Contract is the correct amount actually owing by that Obligor,
and to Borrower's knowledge, such Obligor has no defense, set off, claim,
or counterclaim against any Borrower that can be asserted against the
Administrative Agent or the Collateral Agent, whether in any proceeding to
enforce rights in the restated Mortgage Loan or otherwise; and
(i) The Borrowers have not sold, assigned, or otherwise transferred
any rights associated with the Mortgage Loans being serviced under any
Servicing Contract.
"Eligible Servicing Receivable" shall mean a Servicing Receivable
with respect to which each of the following statements is true and correct:
(a) Such Servicing Receivable arises under or pursuant to a
Servicing Contract with FHLMC, FNMA, GNMA, or an Approved Investor, or
under a Sub-Servicing Contract with a Primary Servicer, (i) under which
Servicing Contract or Sub-Servicing Contract FHLMC, FNMA, GNMA, such
Approved Investor, or such Primary Servicer, as the case may be, has
agreed to reimburse a Borrower for all or part of such amounts (to the
extent not reimbursed by the Obligor under the related Mortgage Loan) and
(ii) with respect to which Servicing Contract or Sub-Servicing Contract,
the Administrative Agent has received evidence reasonably satisfactory to
it that a Lien in favor of the Administrative Agent or Collateral Agent in
the applicable Borrower's rights under such Servicing Receivable may be
granted without such consent;
(b) Such Servicing Receivable is subject to a first priority
perfected Lien in favor of the Administrative Agent or the Collateral
Agent for the benefit of the Lenders, and is subject to no other Liens;
(c) All of the Collateral Documents with respect to such Servicing
Receivable have been timely delivered to the Administrative Agent or the
Collateral Agent pursuant to the Loan Documents;
- 20 -
(d) The applicable Borrower's claim for reimbursement with respect
to such Servicing Receivable (i) has been filed in accordance with the
applicable Servicing Contract or Sub-Servicing Contract, (ii) is valid,
enforceable, liquidated, currently due, and properly filed with FHLMC,
FNMA, GNMA, or an Approved Investor, as the case may be, (iii) is not
subject to any reduction or deduction for any setoff, counterclaim,
recoupment, or otherwise, and (iv) is expected by such Borrower to be
reimbursed in full in cash from the sources identified in the related
Collateral Documents; and
(e) The amount of such Servicing Receivable does not exceed the
amount so agreed to be reimbursed under the applicable Servicing Contract,
or Sub-Servicing Contract.
"Eligible T&I Advance Receivable" shall mean a T&I Advance
Receivable with respect to which each of the following is true and correct:
(a) Such T&I Advance Receivable is an Eligible Servicing Receivable;
(b) Such T&I Advance Receivable arises with respect to a Mortgage
Loan that is current except for the payment of taxes and insurance and is
not otherwise in default or in foreclosure; and
(c) Such T&I Advance Receivable has never been included in the
Working Capital Borrowing Base supporting any previous Working Capital
Loan and has not been included in the Working Capital Borrowing Base for
more than 180 days.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may from time to time be supplemented or amended.
"Eurodollar Business Day" shall mean a Business Day upon which
commercial banks in London, England are open for domestic and international
business.
"Eurodollar Loans" shall mean Fixed Period Eurodollar Loans or Daily
Floating Eurodollar Loans.
"Eurodollar Rate" shall mean the Fixed Period Eurodollar Rate or the
Daily Floating Eurodollar Rate.
"Event of Default" shall have the meaning given such term in
Paragraph 12 of the Agreement.
"Existing Credit Agreement" shall mean that certain Amended and
Restated Credit Agreement dated as of August 12, 2005, as amended, among the
Borrowers, the lenders party thereto and Bank of America, as Administrative
Agent for such lenders.
"Fair Market Value" shall mean at any date with respect to any
Mortgage Loan or Warehouse-Related MBS, the fair market value thereof as of such
date as determined by the Administrative Agent in its reasonable business
judgment in conformity with standard industry practice for valuing similar
Mortgage Loans and Mortgage-Backed Securities; provided, however, that in making
such determination the Administrative Agent may rely on information provided by
the Borrowers to the Administrative Agent pursuant to the Agreement or
otherwise.
- 21 -
"Federal Funds Rate" shall mean, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the
Administrative Agent.
"Fee Letter" shall mean that certain letter agreement dated July 7,
2006, among the Borrowers, Bank of America and Banc of America Securities LLC.
"FHA" shall mean the Federal Housing Authority and any successor
agency.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation and
any successor agency.
"FHLMC Custodial Agreement" shall mean the agreement, as amended,
modified or supplemented from time to time, among FHLMC, any of the Borrowers
and any Person meeting the eligibility requirements set forth in the FHLMC Guide
to serve as a "custodian," as such term is used in the FHLMC Guide, pursuant to
which such Person is authorized to act as a Certificating Custodian.
"FHLMC Guide" shall mean the "Sellers & Servicers' Guide" published
by FHLMC, as amended, modified or supplemented from time to time.
"FIRREA" shall mean the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 and all rules and regulations promulgated under that
statute, as amended, and any successor statute, rules, and regulations.
"First Mortgage Loan" shall mean a Mortgage Loan (including a Co-op
Loan) secured by a Mortgage that constitutes a first Lien on the Property and
improvements (including a Manufactured Home) described in or covered by that
Mortgage.
"Fixed Period Eurodollar Loans" shall mean Loans at such time as
they are made and/or being maintained at a rate of interest based upon the Fixed
Period Eurodollar Rate.
"Fixed Period Eurodollar Rate" shall mean, with respect to any Fixed
Period Eurodollar Loan for the Interest Period applicable to such Fixed Period
Eurodollar Loan, the rate per annum equal to the British Bankers Association
LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other commercially
available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Eurodollar Business Days prior to the commencement of such Interest
Period, for U.S. dollar deposits (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period. If such rate is not
available at such time for any reason, then the "Fixed Period Eurodollar Rate"
for such Interest Period shall be the rate per annum determined by the
Administrative Agent to be the rate at which deposits in U.S. dollars for
delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Fixed Period Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such Interest Period
would be offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00 a.m. (London
time) two Eurodollar Business Days prior to the commencement of such Interest
Period.
- 22 -
"FNMA" shall mean the Federal National Mortgage Association and any
successor agency.
"FNMA Custodial Agreement" shall mean the agreement, as amended,
modified or supplemented from time to time, among FNMA, any of the Borrowers and
any Person meeting the eligibility requirements set forth in the FNMA Guide to
serve as a "document custodian," as such term is used in the FNMA Guide,
pursuant to which such Person is authorized to act as a Certificating Custodian.
"FNMA Guide" shall mean, collectively, but as applicable, the
"Selling Guide" and the "Servicing Guide" published by FNMA, as amended,
modified or supplemented from time to time.
"Foreclosure Advance Receivable" shall mean an amount receivable by
any of the Borrowers with respect to payments owed by FHA, VA, or the applicable
investor or out of the first proceeds of foreclosure, as the case may be, as
reimbursement for advances made by any of the Borrowers pursuant to Servicing
Contracts or Sub-Servicing Contracts, which advances were made to repurchase or
foreclose an FHA-insured or VA-guaranteed first priority Mortgage Loan or a
first priority conventional Mortgage Loan out of a pool of Mortgage Loans
underlying GNMA, FNMA, or FHLMC Mortgage-Backed Securities or conventional
Mortgage-Backed Securities.
"Fund" shall mean any Person (other than a natural person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"Funding Account" shall mean an account, the last four digits of
which are 8044 (or such other account as Administrative Agent may agree to in
writing), maintained in the Borrowers' names alone with the Administrative
Agent.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"GNMA" shall mean the Government National Mortgage Association and
any successor agency.
"GNMA Custodial Agreement" shall mean the agreement, as amended,
modified or supplemented from time to time, among GNMA, any of the Borrowers and
any Person meeting the eligibility requirements set forth in the GNMA Guide to
serve as a "certificating custodian," as such term is used in the GNMA Guide,
pursuant to which such Person is authorized to act as a Certificating Custodian.
"GNMA Guide" shall mean, collectively, the "GNMA I Mortgage-Backed
Securities Guide" and the "GNMA II Mortgage-Backed Securities Guide" published
by HUD, as amended, modified or supplemented from time to time.
"Governing Agreement" shall mean, with respect to any Eligible
Mortgage-Backed Security, the agreement or agreements which govern the issuance
and the payment of such Eligible Mortgage-Backed Security, which may include
without limitation, any pooling and servicing agreement and any trust agreement.
- 23 -
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantors" shall mean AHMIC and AHMH.
"Guaranty" shall mean a Guaranty substantially in the form and upon
the terms of Exhibit C to the Agreement, executed and delivered by any Person
pursuant to the requirements of the Loan Documents, as amended, modified,
supplemented, restated, ratified, or reaffirmed in accordance with the Loan
Documents.
"Hedging Arrangements" shall mean, with respect to any Person, any
agreements or other arrangements (including interest rate swap agreements,
interest rate cap agreements, and forward sale agreements) entered into to
protect that Person against changes in interest rates or the market value of
assets.
"HELOC" shall mean an open-ended home equity line of credit, secured
by a Mortgage on improved real property on which is located a one-to-four family
residence, which satisfies the requirements of a Prime Mortgage Loan.
"HOEPA" shall mean the Home Ownership and Equity Protection Act.
"HUD" shall mean the Department of Housing and Urban Development and
any successor thereto.
"HUD 203(k) Mortgage Loan" shall mean a Mortgage Loan with respect
to which each of the following is true and correct:
(a) The Mortgage Loan is an Eligible Mortgage Loan;
(b) The Mortgage Loan is a First Mortgage Loan;
(c) The Mortgage Loan is covered by insurance from FHA;
(d) The Mortgage Loan satisfies the definition of a "rehabilitation
loan" in 24 C.F.R. 203.50(a); and
(e) The Mortgage Loan has not been included in the Warehouse
Borrowing Base for more than 120 days.
"Impaired Mortgage Loan" shall mean a Mortgage Loan with respect to
which each of the following is true and correct:
(a) The Mortgage Loan is an otherwise Eligible Mortgage Loan, except
that such Mortgage Loan fails to satisfy the requirements of clauses (c)
or (d) of the definition of "Eligible Mortgage Loan" (provided, however,
that any payment default shall not exceed 90 days) or clause (l) of the
definition of "Eligible Mortgage Loan", but only to the extent such
Mortgage Loan was originated by one of the Borrowers; and
(b) The Impaired Mortgage Loan has not been included in the
Warehouse Borrowing Base for more than 360 days.
- 24 -
"Indebtedness" of any Person shall mean all items of indebtedness
which, in accordance with GAAP, would be included in determining liabilities as
shown on the liability side of a balance sheet of such Person as of the date as
of which indebtedness is to be determined, including, without limitation, all
obligations for money borrowed, and shall also include all indebtedness and
liabilities of others assumed or guaranteed by such Person or in respect of
which such Person is secondarily or contingently liable (other than by
endorsement of instruments in the course of collection) whether by reason of any
agreement to acquire such indebtedness or to supply or advance sums or
otherwise.
"Interest Period" shall mean (a) with respect to any Fixed Period
Eurodollar Loan, the period commencing on the date such Fixed Period Eurodollar
Loan commences and ending one, two or three months thereafter, as designated in
the related Loan And/Or Interest Rate Election Request, or (b) with respect to
any Daily Floating Eurodollar Loan, the period commencing on the date such Daily
Floating Eurodollar Loan commences and ending one Eurodollar Business Day
thereafter or as otherwise made effective pursuant to this Agreement; provided,
however, that (w) any Interest Period applicable to any Fixed Period Eurodollar
Loan which would otherwise end on a day which is not a Eurodollar Business Day
shall be extended to the next succeeding Eurodollar Business Day unless by such
extension it would fall in another calendar month, in which case such Interest
Period shall end on the immediately preceding Eurodollar Business Day; (x) any
Interest Period applicable to any Daily Floating Eurodollar Loan which would
otherwise end on a day which is not a Eurodollar Business Day shall be extended
to the next succeeding Eurodollar Business Day; (y) any Interest Period
applicable to any Fixed Period Eurodollar Loan which begins on a day for which
there is no numerically corresponding day in the calendar month during which
such Interest Period is to end shall, subject to the provisions of clause (w)
above, end on the last day of such calendar month; and (z) no such Interest
Period shall extend beyond the regularly scheduled Maturity Date."
"Interim Date" shall mean May 31, 2006.
"Interim Funder Category" shall mean the category of the same name
on the MERS System that reflects the security interest of inter alia, mortgage
warehouse lenders, in the Mortgage Loans that have been pledged by borrowers of
such mortgage warehouse lender.
"Joinder Agreement" shall mean an agreement in the form of Exhibit K
attached to the Agreement.
"Jumbo Loan" shall mean a Prime Mortgage Loan (excluding a Prime
First Mortgage Loan secured by a Lien on a Manufactured Home) or a
Construction-to-Perm Mortgage Loan that complies with all applicable
requirements for purchase under the FNMA or FHLMC standard form of conventional
mortgage purchase contract then in effect, except that the amount of such
Mortgage Loan exceeds the maximum loan amount under those requirements and which
has an original principal balance that does not exceed $2,000,000.
"Lenders" shall have the meaning given such term in the introductory
paragraph of the Agreement and, as the context requires, includes the Swing Line
Lender.
"Lien" shall mean any security interest, mortgage, pledge, lien,
claim on property, charge or encumbrance (including any conditional sale or
other title retention agreement), any lease in the nature thereof, any agreement
to provide preference or priority in any collateral, any preferential right to
purchase securities, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction.
- 25 -
"Loan And/Or Interest Rate Election Request" shall mean a written
request in the form of Exhibit I attached to the Agreement.
"Loan Documents" shall mean this Agreement, the Collateral
Documents, the Guaranty, the Notes, the Electronic Tracking Agreement, and each
other document, instrument or agreement executed by any of the Borrowers or
Guarantors in connection herewith or therewith, as any of the same may be
amended, extended, restated, or replaced from time to time.
"Loan Parties" shall mean, collectively and severally, the Borrowers
and the Guarantors.
"Loans" shall mean, collectively and severally, Warehouse Loans,
Servicing Rights Loans, Working Capital Loans, and Swing Line Loans.
"Loan-to-Value Ratio" shall mean, with respect to any Mortgage Loan,
the ratio of the principal amount of such Mortgage Loan outstanding at the
origination plus all other mortgage notes secured by the Property thereof
divided by the lesser of (a) the most recent selling price of the related
Property, and (b) the Appraised Property Value.
"Majority Lenders" shall mean the Lenders holding not less than 51%
of the Percentage Shares, but in any event no fewer than two Lenders.
"Manufactured Home" shall mean a structure that is built on a
permanent chassis (steel frame) with the wheel assemble necessary for
transportation in one or more sections to a permanent site or semi-permanent
site.
"Material Adverse Effect" shall mean the occurrence of any event
which could reasonably be expected to have a material adverse effect on the
business, assets, liabilities (actual or contingent), operations, financial
condition, or business prospects of the Loan Parties, taken as a whole, or on
the ability of any of the Loan Parties to pay or perform the Obligations or on
the validity, value or marketability of the Collateral included in the most
recent computation of the Collateral Value of the Warehouse Borrowing Base, the
Servicing Rights Borrowing Base or the Working Capital Borrowing Base.
"Maturity Date" shall mean the earlier of: (a) August 9, 2007, as
such date may be extended from time to time in writing by 100% of the Lenders,
in their sole discretion, and (b) the date the Lenders terminate their
obligation to make further Loans hereunder pursuant to Paragraph 12.
"Maximum Aggregate Credit Limit" shall mean $1,500,000,000.00 as
such amount may be increased or decreased from time to time by written agreement
of the Administrative Agent, the Borrowers, and 100% of the Lenders.
"Maximum Commitment" shall mean, with respect to any Lender on any
date, the dollar amount specified as such Lender's "Maximum Commitment" on the
current Commitment Schedule as such amount may be increased by written agreement
of the Borrowers and any Lender (subject to the limitation on the Maximum
Aggregate Credit Limit), or decreased as a result of an assignment by such
Lender of some or all of such Maximum Commitment pursuant to Paragraph 14 of the
Agreement or by written agreement of the Administrative Agent, the Borrowers,
and 100% of the Lenders, with each Lender's initial Maximum Commitment set forth
on Schedule I of the Agreement.
- 26 -
"MBS Safekeeping Account" shall mean a safekeeping account
maintained by the Borrowers at the Administrative Agent.
"MERS" shall mean Mortgage Electronic Registration System, Inc.
"MERSCORP" shall mean MERSCORP, Inc.
"MERS Loan" shall mean any Mortgage Loan made or acquired by any of
the Borrowers which is secured by a MERS Mortgage.
"MERS Member" shall mean any entity which is a member of MERS, in
good standing and in compliance with all rules, regulations, procedures and
requirements set forth by MERS, including, but not limited to the payment of
membership dues.
"MERS Mortgage" shall mean any deed of trust or mortgage registered
to any of the Borrowers on the MERS System.
"MERS System" shall mean the Mortgage Electronic Registration
System.
"Mortgage" shall mean (i) other than with respect to a Co-op Loan, a
mortgage or deed of trust on real property that is improved and substantially
completed (including real property to which a Manufactured Home has been affixed
in a manner such that the Lien of a mortgage or deed of trust would attach to
the Manufactured Home under applicable real property law) and (ii) with respect
to a Co-op Loan, a security agreement, stock certificate (or other evidence of
ownership), recognition agreement, UCC financing statement, and assignments of
proprietary lease and recognition agreement, in blank.
"Mortgage-Backed Security" shall mean any security (including,
without limitation, a participation certificate) (i) guaranteed by GNMA that
represents an interest in a pool of mortgages, deeds of trusts, or other
instruments creating a Lien on Property which is improved by a completed single
family residence, including but not limited to a condominium, planned unit
development, or townhouse, (ii) issued by FNMA or FHLMC that represent interests
in such a pool or any public or private security issued by any Borrower or any
other Person which is secured or otherwise supported by a pool of mortgages,
deeds of trust, or other instruments creating a lien on such property, or (iii)
issued by a Private Trust that represent an interest in a pool of mortgages,
deeds of trusts, or other instruments creating a Lien on Property which is
improved by a completed single family residence, including but not limited to a
condominium, planned unit development, or townhouse.
"Mortgage Identification Number" shall mean the unique number
assigned to any specific Mortgage Loan by the MERS System.
"Mortgage Loan" shall mean a residential real estate secured loan
(including loans secured by a one-to-four family unit, a condominium, a
Manufactured Home, or a planned unit development), as evidenced by a promissory
note and secured by a Mortgage; and including all right, title and interest of
any of the Borrowers in the Property covered by said Mortgage.
"Mortgage Pool" shall mean a pool of one or more Mortgage Loans on
the basis of which a Mortgage-Backed Security is to be issued.
"Multiemployer Plan" as to any Person shall mean a Plan of such
Person which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
- 27 -
"Net Cash Proceeds" shall mean, with respect to the issuance of any
capital stock by AHMIC, the amount of cash received by AHMIC in connection with
such transaction after deducting therefrom all fees (including, without
limitation, investment banking fees), commissions, costs and other expenses to
the extent attributable to such transaction.
"Notes" shall mean, collectively and severally, the Committed Notes
and the Swing Line Note.
"Notice of Payment or Prepayment" shall mean a written notice in the
form of Exhibit J attached to the Agreement.
"Obligations" shall mean any and all debts, obligations and
liabilities of the Loan Parties to the Administrative Agent and the Lenders
(whether now existing or hereafter arising, voluntary or involuntary, whether or
not jointly owed with others, direct or indirect, absolute or contingent,
liquidated or unliquidated, and whether or not from time to time decreased or
extinguished and later increased, created or incurred), arising out of or
related to the Loan Documents.
"Obligor" shall mean the Person or Persons obligated to pay the
Indebtedness which is the subject of a Mortgage Loan.
"P&I Advance Receivable-EBO Loans" shall mean, on any date, the
amount receivable by any of the Borrowers from the applicable mortgagor, the
FHA, the VA, or the applicable investor, or out of the first proceeds of
foreclosure, as the case may be, as reimbursement for an advance made by any of
the Borrowers pursuant to Servicing Contracts or Sub-Servicing Contracts, which
advance was made to pay principal and interest with respect to the servicing of
an Early Buyout Mortgage Loan and which advance is reimbursable by the FHA, the
VA, or the applicable investor or out of the first proceeds of foreclosure.
"P&I Advance Receivable-Pooled Loans" shall mean, on any date, the
amount receivable by any of the Borrowers from the applicable mortgagor, the
FHA, the VA, or the applicable investor or out of the first proceeds of
foreclosure, as the case may be, as reimbursement for an advance made by any of
the Borrowers pursuant to Servicing Contracts or Sub-Servicing Contracts, which
advance was made to pay principal and interest under Mortgage Loans underlying
Mortgage-Backed Securities and which advance is reimbursable by the applicable
investor or out of the first proceeds of foreclosure.
"Percentage Share" shall mean with respect to any Lender at any
time, the percentage (carried out to the ninth decimal place) which such
Lender's Maximum Commitment bears to the Aggregate Credit Limit, with the
initial Percentage Share of the Lenders being set forth on Schedule I attached
to the Agreement.
"Perfected Assignment" shall mean, as to any Book-Entry MBS, that
the Book-Entry MBS has been transferred or delivered to the Administrative Agent
so that the Administrative Agent has "control" of such Mortgage-Backed Security
under the Uniform Commercial Code and other applicable law through the MBS
Safekeeping Account, and the applicable Borrower has taken such other action as
the Administrative Agent may reasonably request to protect, maintain or perfect
the Administrative Agent's first priority perfected security interest for the
benefit of the Lenders in such Book-Entry MBS.
"Permitted Other Debt" shall mean that Indebtedness described on
Schedule VIII attached to the Agreement, as such Schedule is amended and
delivered monthly by Borrowers to Administrative Agent.
- 28 -
"Permitted Other Secured Debt" shall mean that Indebtedness
described as "Permitted Secured Debt" on Schedule VIII attached to the
Agreement, as such Schedule is amended and delivered monthly by Borrowers to
Administrative Agent; provided, however, that if such Indebtedness is secured by
Mortgage Loans owned by any Borrower, such Indebtedness shall only be Permitted
Other Secured Debt to the extent that the collateral agent or custodian for such
Indebtedness is the same Person as the Collateral Agent appointed under the Loan
Documents or such other collateral agent or custodian as may be approved by
Administrative Agent.
"Person" shall mean any corporation, natural person, firm, joint
venture, partnership, limited liability company, trust, unincorporated
organization or Governmental Authority.
"Plan" shall mean, as to any Person, any pension plan that is
covered by Title IV of ERISA and in respect of which such Person or a Commonly
Controlled Entity of such Person is an "employer" as defined in Section 3(5) of
ERISA.
"Post-Default Percentage Share" shall mean for any Lender that
percentage which (a) the principal dollar amount of Loans outstanding held by
such Lender bears to (b) the aggregate principal dollar amount of all Loans
outstanding.
"Potential Default" shall mean an event which but for the lapse of
time or the giving of notice, or both, would constitute an Event of Default.
"Primary Servicer" shall mean a Person who has entered into a
Servicing Contract (which need not be in the form of a written contract) for the
benefit of an investor, providing for the servicing of Mortgage Loans underlying
Mortgage-Backed Securities, and who has in turn entered into a Sub-Servicing
Contract with a Borrower, providing for the sub-servicing of such Mortgage Loans
by such Borrower, as sub-servicer for such Person.
"Prime First Mortgage Loan" shall mean a First Mortgage Loan that
satisfies the applicable requirements of a Prime Mortgage Loan.
"Prime Mortgage Loan" shall mean (i) a First Mortgage Loan
(including, without limitation, a HELOC), (ii) a Second Mortgage Loan
(including, without limitation, a HELOC, but excluding a Second Mortgage Loan
secured by a Manufactured Home or a Co-op Loan), or (iii) an Alt-A Mortgage
Loan, with respect to which Mortgage Loan each of the following is accurate and
complete:
(a) The Mortgage Loan is an Eligible Mortgage Loan;
(b) The Mortgage Loan is a First Mortgage Loan or a Second Mortgage
Loan;
(c) The Mortgage Loan (other than an Alt-A Mortgage Loan) fully
conforms to all underwriting and other requirements of FNMA or FHLMC;
provided that, (i) a First Mortgage Loan may also be insured by the FHA or
guaranteed by the VA (or is subject to a binding commitment to so insure
or guaranty); and (ii) in the case of an Alt-A Loan, the First Mortgage
Loan is underwritten to "Alt-A" investor specifications;
(d) The Mortgage Loan is covered by a Take-Out Commitment or a
Hedging Arrangement;
- 29 -
(e) The Mortgage Loan has not been included in the Warehouse
Borrowing Base for more than 180 days; and
(f) The Mortgage Loan has a Loan-to-Value Ratio (including any
related mortgage) not to exceed (x) 80% in the case of First Mortgage
Loans or (y) 100% in the case of Second Mortgage Loans; provided that, if
the Loan-to-Value Ratio for a First Mortgage Loan exceeds 80%, then such
excess is insured by or subject to a commitment for mortgage insurance.
"Prime Second Mortgage Loan" shall mean a Second Mortgage Loan that
satisfies the applicable requirements of a Prime Mortgage Loan.
"Private Trust" shall mean a special purpose trust created from time
to time by a wholly-owned Subsidiary of AHMIC for the purpose of securitizing
Mortgage Loans that are serviced by a Borrower pursuant to Servicing Contracts
or Sub-Servicing Contracts.
"Proceeds" shall mean whatever is receivable or received when
Collateral or proceeds are sold, collected, exchanged or otherwise disposed of,
whether such disposition is voluntary or involuntary, and includes, without
limitation, all rights to payment, including return premiums, with respect to
any insurance relating thereto.
"Property" shall mean the real property, including the improvements
thereon, and the personal property (tangible and intangible) which are
encumbered pursuant to a Mortgage Loan.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System, as the same may from time to time be amended,
supplemented or superseded.
"REIT" shall mean a "real estate investment trust" for purposes of
the Internal Revenue Code of 1986, as amended.
"Related Parties" shall mean, with respect to any Person, such
Persons, Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person's Affiliates.
"REO Property" shall mean real property owned by a Borrower, with
respect to which each of the following is accurate and complete:
(a) Such Property is improved by a one-to-four family dwelling that
is owned by such Borrower as the result of a foreclosure proceeding, the
acceptance of a deed in lieu of foreclosure, or another enforcement
proceeding with respect to an Impaired Mortgage Loan with respect to which
a Warehouse Loan has been previously made;
(b) Any Warehouse Loan made against such Property shall be approved
in advance by the Administrative Agent, in its sole discretion;
(c) The proceeds of any Warehouse Loan made against such Property
shall be used solely for the purpose of financing the repayment of a
Warehouse Loan outstanding against the Impaired Mortgage Loan secured by
such Property;
(d) The rights of any Borrower in and to such Property and the
proceeds thereof are free and clear of Liens, claims, and encumbrances,
except Liens in favor of the Administrative Agent or the Collateral Agent
for the benefit of the Lenders;
- 30 -
(e) Such Property is free from any environmental, title, compliance,
regulatory or survey defect or liability, and is not the subject of any
seizure or condemnation proceeding;
(f) All taxes and insurance payments with respect to such Property
are current; and
(g) The Property has not been included in the Warehouse Borrowing
Base for more than 360 days.
"Reportable Event" shall mean a reportable event as defined in Title
IV of ERISA, except actions of general applicability by the Secretary of Labor
under Section 110 of ERISA.
"Repurchased Maturing Mortgage Loan" shall mean a Mortgage Loan
serviced by a Borrower, with respect to which each of the following is accurate
and complete:
(a) The Mortgage Loan is an Eligible Mortgage Loan, (except with
respect to those requirements that by their terms are not applicable to
Repurchased Maturing Mortgage Loans);
(b) Such Borrower has received notice that such Mortgage Loan has
been repaid or will be repaid in the current month;
(c) Such Borrower has all rights to receive the proceeds of such
repayment;
(d) The rights of such Borrower in and to such Mortgage Loan and the
proceeds thereof are free and clear of Liens, claims, and encumbrances
(including, without limitation, claims of the Person for which such
Mortgage Loan was serviced), except Liens in favor of the Administrative
Agent or the Collateral Agent for the benefit of the Lenders; and
(e) No Warehouse Loan shall be requested or advanced with respect to
such Mortgage Loan during the period between the 8th day and the 28th day
of any calendar month.
"Required Documents" shall mean those documents described on
Schedule VI attached to the Agreement.
"Requirements of Law" shall mean, as to any Person, the Articles or
Certificate of Incorporation and Bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or a final
and binding determination of an arbitrator or a determination of a court or
other 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.
"Resignation Letter" shall mean, with respect to any Servicing
Contract covering Servicing Rights included in the Eligible Servicing Portfolio,
a letter to the applicable trustee or investor thereunder from the Borrower who
is party to such Servicing Contract, pursuant to which such Borrower resigns as
servicer and which letter is in a form acceptable to the Administrative Agent.
"Responsible Financial Officer" shall mean as to any Person the
chief financial officer, senior vice president, vice president or assistant vice
president of such Person, with any Person executing and delivering any
certificate hereunder on behalf of any of the Loan Parties which is required to
be executed and delivered by a "Responsible Financial Officer" being
acknowledged by such Loan Party as being a Person actively involved with and
knowledgeable with respect to all financial matters affecting such Loan Party.
- 31 -
"Second Mortgage" shall mean a Mortgage that constitutes a second
Lien on the Property and improvements described in or covered by that Mortgage.
"Second Mortgage Loan" shall mean a Mortgage Loan secured by a
Second Mortgage.
"Securitization Receivable" shall mean, on any date, the amount any
Borrower is entitled to receive (as a result of ownership or the terms of the
applicable repurchase financing documentation) with respect to principal
payments then due and owing under those Mortgage-Backed Securities which either
(i) are owned by such Borrower, or (ii) have been transferred by such Borrower
in a repurchase financing.
"Security Agreement" shall mean a Security Agreement, substantially
in the form and upon the terms of Exhibit B attached to the Agreement, executed
and delivered by any Person pursuant to the requirements of the Loan Documents,
and any amendments, modifications, supplements, ratifications, or restatements
of any such Security Agreement made in accordance with the Loan Documents.
"Servicing Contract" shall mean, as to any of the Borrowers, the
arrangement, whether or not in writing, under which such Borrower has the right
to service Mortgage Loans for an investor, and shall include all manuals,
guides, laws, rules, and regulations incorporated by reference in or otherwise
governing the terms of the relationship of such investor with the applicable
Borrower.
"Servicing Delinquencies" shall mean the aggregate outstanding
principal balance of Mortgage Loans included in the Borrowers' Eligible
Servicing Portfolio that are 30 days or more past due after the end of the month
in which such Mortgage Loans first became past due (other than any such Mortgage
Loans that are in the process of foreclosure).
"Servicing Foreclosures" shall mean the aggregate outstanding
principal balance of Mortgage Loans included in the Borrowers' Eligible
Servicing Portfolio that are in the process of foreclosure.
"Servicing Receivable" shall mean, collectively, all present and
future rights of any Borrower to receive P&I Advance Receivables-Pooled Loans,
Securitization Receivables, P&I Advance Receivables-EBO Loans, Foreclosure
Advance Receivables, and T&I Advance Receivables.
"Servicing Rights" shall mean all present and future rights of any
of the Borrowers to service, collect, and administer Mortgage Loans, and to
receive fees and other compensation therefor, under Servicing Contracts between
any Borrower and an Approved Investor.
"Servicing Rights Borrowing Base" shall mean, without duplication of
any amounts in the Warehouse Borrowing Base or the Working Capital Borrowing
Base, all Servicing Rights of any of the Borrowers which are part of the
Eligible Servicing Portfolio and in which the Administrative Agent or the
Collateral Agent holds (for the benefit of the Lenders) a first priority
perfected security interest at such time.
"Servicing Rights Credit Sublimit" shall mean, at any time, an
amount not to exceed 35% of the Aggregate Credit Limit.
"Servicing Rights Loans" shall have the meaning given such term in
Paragraph 2(a) of the Agreement.
- 32 -
"Settlement Account" shall mean a "no-access" account, the last four
digits of which are 2748 or 5450 (or such other account as may be agreed to in
writing by Administrative Agent and Collateral Agent), maintained by the
Collateral Agent for the benefit of the Administrative Agent on behalf of the
Lenders, which is designated for receipt of the proceeds of the sale or other
disposition of the Collateral.
"Single Employer Plan" shall mean as to any Person any Plan of such
Person which is not a Multiemployer Plan.
"Statement Date" shall mean December 31, 2005.
"Subordinated Debt" shall mean Indebtedness of AHMIC and its
Subsidiaries subordinated to the Obligations in the manner and to the extent
required by the Administrative Agent pursuant to written subordination
agreements satisfactory in form and substance to the Administrative Agent.
"Subprime Mortgage Loan" shall mean a Mortgage Loan with respect to
which each of the following is accurate and complete:
(a) The Mortgage Loan is an Eligible Mortgage Loan (except with
respect to those requirements that by their terms are not applicable to
Subprime Mortgage Loans);
(b) The Mortgage Loan is a First Mortgage Loan;
(c) The Mortgage Loan has a risk rating of "A-," "B," or "C"
(determined using underwriting standards that comply with industry
standards in the sole judgment of Administrative Agent);
(d) The Mortgage Loan is acceptable for purchase by at least two
Approved Investors; and
(e) The Mortgage Loan has not been included in the Warehouse
Borrowing Base for more than 180 days.
"Sub-Servicing Contract" shall mean the written agreement between a
Primary Servicer and any of the Borrowers, providing for the servicing by such
Borrower of a pool or pools of Mortgage Loans (including, without limitation,
Mortgage Loans underlying Mortgage-Backed Securities) and shall include all
manuals, guides, laws, rules and regulations incorporated by reference in or
otherwise governing the terms of the relationship of such Primary Servicer and
such Borrower thereunder, each of which Sub-Servicing Contracts shall be
substantially in the form approved by the Administrative Agent on or prior to
the date hereof and shall not contain material changes to such pre-approved form
without the prior consent of the Administrative Agent.
"Subsidiary" shall mean, with respect to any Person, any corporation
more than fifty percent (50%) of the stock of which having by the terms thereof
ordinary voting power to elect the board of directors, managers or trustees of
such corporation shall, at the time as of which any determination is being made,
be owned by such Person, either directly or through Subsidiaries of such Person
(irrespective of whether or not at such time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency).
"Swing Line Credit Sublimit" shall mean $50,000,000.
- 33 -
"Swing Line Lender" shall mean that Lender which has agreed, with
the consent of the Borrowers and the Administrative Agent, to act in such
capacity hereunder, with the Swing Line Lender at the Effective Date being Bank
of America.
"Swing Line Loan" shall have the meaning given such term in
Paragraph 4(a) of the Agreement.
"Swing Line Note" shall have the meaning given such term in
Paragraph 6(d) of the Agreement.
"T&I Advance Receivable" shall mean, on any date, the amount
receivable by any of the Borrowers from the applicable mortgagor, the FHA, the
VA, or the applicable investor or out of the first proceeds of foreclosure, as
the case may be, as reimbursement on a priority basis for an advance made by any
of the Borrowers pursuant to a Servicing Contract or Sub-Servicing Contract,
which advance was made to pay tax and insurance escrow amounts required to be,
but not, paid by the mortgagor under a Mortgage Loan serviced by the Borrowers
pursuant to such Servicing Contract or Sub-Servicing Contract and which advance
is eligible for reimbursement by the FHA, the VA, or the applicable investor or
out of the first proceeds of foreclosure.
"Take-Out Commitment" shall mean a bona fide current, unused and
unexpired whole loan commitment or forward sale mortgage-backed security
commitment issued in favor of and held by any of the Borrowers made by an
Approved Investor, under which said Approved Investor agrees, prior to the
expiration thereof, upon the satisfaction of certain terms and conditions
therein, to purchase the subject Mortgage Loan or related Mortgage-Backed
Security at a specified price, which commitment is not subject to any term or
condition which is not customary in commitments of like nature or which, in the
reasonably anticipated course of events, cannot be fully complied with prior to
the expiration thereof.
"Tangible Net Worth" shall mean, with respect to any Person, the
excess of total assets of such Person over the total liabilities of such Person
determined in accordance with GAAP, but excluding from the determination of
total assets: (a) all assets which would be classified as intangible assets
under GAAP, including, without limitation, goodwill (whether representing the
excess cost over book value of assets acquired or otherwise), patents,
trademarks, trade names, copyrights, franchises and deferred charges (including,
without limitation, unamortized debt discount and expense, organization costs
and research and product development costs), (b) loans or other extensions of
credit to officers, employees, shareholders or Affiliates of such Person (other
than a Loan Party), and (c) investments in Subsidiaries of such Person (other
than a Loan Party).
"Third Party Originated Loan" shall mean a Mortgage Loan originated
and funded by a third party (other than with funds provided by any of the
Borrowers at closing to purchase the Mortgage Loan) and subsequently purchased
by any of the Borrowers.
"Total Hard Costs" shall mean the total of the costs and expenses
listed on the Cost Breakdown.
"Trust Receipt" shall mean a trust receipt in a form approved by and
under which Administrative Agent may deliver any document relating to the
Collateral to any of the Borrowers for correction or completion or for
foreclosure.
"Trustee" shall mean the person responsible for administering a
Mortgage-Backed Security under its Governing Agreement.
- 34 -
"Unit Collateral Value" shall mean for each of the following types
of Collateral included in the Warehouse Borrowing Base or the Working Capital
Borrowing Base, as the case may be (provided that in the event that, on any day,
a particular item of Collateral may be categorized as more than one type of
Collateral, then the Unit Collateral Value with respect to such item of
Collateral shall be the lowest of the Unit Collateral Values applicable to such
item of Collateral):
(a) With respect to a Prime First Mortgage Loan (excluding a HELOC
secured by a First Mortgage), that is not an Impaired Mortgage Loan or an
Aged Mortgage Loan, 98% (including a First Mortgage Loan that is secured
by a Manufactured Home) of the least of (i) the unpaid principal balance
of such Mortgage Loan, (ii) the Applicable Take-Out Price multiplied by
the unpaid principal balance of such Mortgage Loans, and (iii) at the
election of the Administrative Agent or Majority Lenders, at any time, the
Fair Market Value of such Mortgage Loan;
(b) With respect to a Prime Second Mortgage Loan (including a HELOC
secured by a First or Second Mortgage) that is not an Impaired Mortgage
Loan or an Aged Mortgage Loan, 95% of the least of (i) the unpaid
principal balance of such Mortgage Loan, (ii) the Applicable Take-Out
Price multiplied by the unpaid principal balance of such Mortgage Loan,
and (iii) at the election of the Administrative Agent or Majority Lenders,
at any time, the Fair Market Value of such Mortgage Loan;
(c) With respect to a Subprime Mortgage Loan that is not an Impaired
Mortgage Loan or an Aged Mortgage Loan, 98% (or 95% in the case of a
Subprime Mortgage Loan that is secured by a Manufactured Home) of the
least of (i) the unpaid principal balance of such Mortgage Loan, (ii) the
Applicable Take-Out Price multiplied by the unpaid principal balance of
such Mortgage Loans, and (iii) at the election of the Administrative Agent
or Majority Lenders, at any time, the Fair Market Value of such Mortgage
Loan;
(d) With respect to an Impaired Mortgage Loan or an Aged Mortgage
Loan, 90% of the least of (i) the unpaid principal balance of such
Mortgage Loan, (ii) the applicable Borrower's acquisition cost for such
Mortgage Loan, (iii) the Appraised Property Value of the Property securing
such Mortgage Loan, and (iv) at the election of the Administrative Agent
or Majority Lenders, at any time, the Fair Market Value of such Mortgage
Loan;
(e) With respect to a Construction-to-Perm Mortgage Loan, 85% of the
least of (i) the unpaid principal balance of said Mortgage Loan, (ii) the
As Completed Appraised Value of the Property securing such Mortgage Loan,
(iii) Total Hard Costs, and (iv) at the election of the Administrative
Agent or Majority Lenders, at any time, the Fair Market Value of such
Mortgage Loan;
(f) With respect to a Bond Program Mortgage Loan, 98% of the least
of (i) the unpaid principal balance of such Mortgage Loan, (ii) the
Applicable Take-Out Price multiplied by the unpaid principal balance of
such Mortgage Loan, and (iii) at the election of the Administrative Agent
or Majority Lenders, at any time, the Fair Market Value of such Mortgage
Loan;
(g) With respect to a Repurchased Maturing Mortgage Loan, during the
period between the 29th day of a calendar month and the 7th day of the
immediately succeeding calendar month, 90% (and 0% during all other
periods) of the lesser of (i) the unpaid principal balance of such
Mortgage Loan, and (ii) at the election of the Administrative Agent or
Majority Lenders, at any time, the Fair Market Value of such Mortgage
Loan;
- 35 -
(h) With respect to an REO Property, 75% of the lesser of (i) the
amount advanced under the related Impaired Mortgage Loan and (ii) the
Appraised Property Value of the REO Property;
(i) With respect to an EBO Mortgage Loan, 87.5% of the least of (i)
the unpaid principal balance of such Mortgage Loan, (ii) the purchase
price of such Mortgage Loan, and (iii) at the election of the
Administrative Agent or Majority Lenders, at any time, the Fair Market
Value of such Mortgage Loan;
(j) With respect to a HUD 203(k) Mortgage Loan, 98% of the least of
(i) the unpaid principal balance of such Mortgage Loan, (ii) the lesser of
the amounts set forth on the "HUD 203(k) Mortgage Worksheet" (as
prescribed from time to time by HUD) as the "Contract Sales Price" and the
"As-Is Value," and (iii) the Applicable Take-Out Price multiplied by the
least of (A) such unpaid principal balance, (B) such "Contract Sales
Price", and (C) such "As-Is Value";
(k) With respect to an Eligible Foreclosure Advance Receivable, 90%
of the unpaid balance of such Servicing Receivable;
(l) With respect to an Eligible T&I Advance Receivable, 85% of the
unpaid balance of such Servicing Receivable;
(m) With respect to an Eligible P&I Advance Receivable-EBO Loans,
87.5% of the unpaid balance of such Servicing Receivable;
(n) With respect to an Eligible P&I Advance Receivable-Pooled Loans,
90% of the unpaid balance of such Servicing Receivable;
(o) With respect to an Eligible Securitization Receivable, during
the period from the 7th day of each calendar month to the 26th day of such
calendar month, 90% (and for the period from and including the 26th day of
each calendar month to the 7th day of the immediately succeeding calendar
month, 0%) of the unpaid balance of such Securitization Receivable; and
(p) With respect to an Eligible Mortgage-Backed Security, 95% of the
Fair Market Value of such Eligible Mortgage-Backed Security.
"VA" shall mean the Veterans Administration or any successor agency.
"Warehouse Borrowing Base" shall mean, at any date, all REO
Property, Eligible Mortgage Loans and Eligible Mortgage-Backed Securities in
which the Administrative Agent or the Collateral Agent holds for the benefit of
the Lenders a first priority perfected security interest at such date.
"Warehouse Loans" shall have the meaning given such term in
Paragraph 1(a) of the Agreement.
"Warehouse-Related MBS" shall have the meaning given such term in
Paragraph 2(a) of the Security Agreement.
"Wet Mortgage Loan" shall mean a Mortgage Loan with respect to which
each of the following is true and correct:
- 36 -
(a) The Mortgage Loan is an Eligible Mortgage Loan (except with
respect to those requirements that by their terms are not applicable to
Wet Mortgage Loans);
(b) The Mortgage Loan is a Prime Mortgage Loan, a Subprime Mortgage
Loan, a Construction-to-Perm Mortgage Loan, a Bond Program Mortgage Loan,
or an EBO Mortgage Loan for which all of the Required Documents have not
been delivered to the Collateral Agent in accordance with the Loan
Documents; and
(c) The Mortgage Loan has not been included in the Warehouse
Borrowing Base for more than 15 days (or more than 20 days if such
Mortgage Loan is an Aged Wet Mortgage Loan).
"Working Capital Borrowing Base" shall mean, without duplication of
any amounts in the Warehouse Borrowing Base or the Servicing Rights Borrowing
Base, at any date all Eligible Servicing Receivables in which the Administrative
Agent or the Collateral Agent holds for the benefit of the Lenders a first
priority perfected security interest at such time.
"Working Capital Credit Sublimit" shall mean $50,000,000.
"Working Capital Loans" shall have the meaning given such term in
Paragraph 3(a) of the Agreement.
- 37 -
SCHEDULE I
INITIAL COMMITMENT SCHEDULE
-------------------------------------------------------------------------------
Lender Maximum Commitment Percentage Share
-------------------------------------------------------------------------------
Bank of America, N.A $90,000,000.00 7.200000000%
-------------------------------------------------------------------------------
Calyon New York Branch $80,000,000.00 6.400000000%
-------------------------------------------------------------------------------
Citigroup Global Markets Realty Corp. $80,000,000.00 6.400000000%
-------------------------------------------------------------------------------
Deutsche Bank Trust Company Americas $80,000,000.00 6.400000000%
-------------------------------------------------------------------------------
JPMorgan Chase Bank, N.A $80,000,000.00 6.400000000%
-------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA $80,000,000.00 6.400000000%
-------------------------------------------------------------------------------
ABN AMRO Bank N.V $70,000,000.00 5.600000000%
-------------------------------------------------------------------------------
BNP Paribas $70,000,000.00 5.600000000%
-------------------------------------------------------------------------------
Fortis Capital Corp. $70,000,000.00 5.600000000%
-------------------------------------------------------------------------------
US Bank National Association $70,000,000.00 5.600000000%
-------------------------------------------------------------------------------
Barclays Bank PLC $60,000,000.00 4.800000000%
-------------------------------------------------------------------------------
Commerzbank Aktiengesellschaft
New York and Grand Cayman Branches $60,000,000.00 4.800000000%
-------------------------------------------------------------------------------
Societe Generale $60,000,000.00 4.800000000%
-------------------------------------------------------------------------------
Credit Suisse, Cayman Islands Branch $45,000,000.00 3.600000000%
-------------------------------------------------------------------------------
KBC Bank N.V $45,000,000.00 3.600000000%
-------------------------------------------------------------------------------
National Australia Bank Limited $45,000,000.00 3.600000000%
-------------------------------------------------------------------------------
Sovereign Bank $45,000,000.00 3.600000000%
-------------------------------------------------------------------------------
The Bank of New York $45,000,000.00 3.600000000%
-------------------------------------------------------------------------------
WestLB AG, New York Branch $45,000,000.00 3.600000000%
-------------------------------------------------------------------------------
Bank Hapoalim B.M $30,000,000.00 2.400000000%
-------------------------------------------------------------------------------
Total: $1,250,000,000.00 100.00%
-------------------------------------------------------------------------------
Schedule I