EXHIBIT 10(b)
SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
by and among
PULTE MORTGAGE LLC,
THE LENDERS PARTY HERETO,
and
JPMORGAN CHASE BANK, N.A.,
AS ADMINISTRATIVE AGENT
And
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
AS LEAD ARRANGER AND SOLE BOOKRUNNER
And
LASALLE BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT
dated as of May __, 2006
TABLE OF CONTENTS
Article I DEFINITIONS................................................................................. 1
Article II THE CREDITS................................................................................ 31
2.1 Commitment, Sublimits and Types of Advances............................................. 31
2.2 LIBOR Advances.......................................................................... 33
2.3 Buy Down Loans.......................................................................... 33
2.4 Swingline Advances...................................................................... 33
2.5 Fees.................................................................................... 34
2.6 Method of Requesting New Advances....................................................... 35
2.7 Changes to Aggregate Commitment......................................................... 35
2.8 Principal Payments...................................................................... 36
2.9 Changes in Interest Rate, etc........................................................... 37
2.10 Rates Applicable After Default.......................................................... 37
2.11 Method of Payment....................................................................... 37
2.12 Noteless Agreement; Evidence of Indebtedness............................................ 37
2.13 Telephonic Notices...................................................................... 38
2.14 Interest Payment Dates; Interest and Fee Basis.......................................... 38
2.15 Notification by the Agent............................................................... 38
2.16 Lending Installations................................................................... 38
2.17 Non-Receipt of Funds by the Agent....................................................... 39
Article III CHANGE IN CIRCUMSTANCES................................................................... 39
3.1 Yield Protection........................................................................ 39
3.2 Changes in Capital Adequacy Regulations................................................. 40
3.3 Availability of Types of Advances....................................................... 40
3.4 Taxes................................................................................... 40
3.5 Mitigation Obligations; Replacement of Lenders.......................................... 41
Article IV CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION............................................ 42
4.1 Effectiveness........................................................................... 42
4.2 Each Advance............................................................................ 43
Article V REPRESENTATIONS AND WARRANTIES.............................................................. 43
5.1 Existence and Standing.................................................................. 43
5.2 Authorization and Validity.............................................................. 44
5.3 No Conflict; Government Consent......................................................... 44
5.4 Financial Statements.................................................................... 44
5.5 Material Adverse Change................................................................. 44
5.6 Taxes................................................................................... 44
5.7 Litigation and Contingent Obligations................................................... 45
5.8 Subsidiaries............................................................................ 45
5.9 ERISA................................................................................... 45
5.10 Accuracy of Information................................................................. 45
5.11 Regulation U............................................................................ 45
5.12 Material Agreements..................................................................... 45
5.13 Compliance With Laws.................................................................... 46
5.14 Ownership of Properties................................................................. 46
5.15 Plan Assets; Prohibited Transactions.................................................... 46
5.16 Investment Company Act.................................................................. 46
5.17 Public Utility Holding Company Act...................................................... 46
5.18 GNMA, FHA, VA, FNMA, and FHLMC Eligibility.............................................. 46
5.19 Approved Investor Commitments........................................................... 46
5.20 Accuracy of Representations and Warranties.............................................. 47
5.21 No Defaults............................................................................. 47
5.22 USA Patriot Act Notice.................................................................. 47
Article VI COVENANTS.................................................................................. 47
6.1 Financial Reporting..................................................................... 47
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6.2 Use of Proceeds......................................................................... 49
6.3 Notice of Default....................................................................... 49
6.4 Conduct of Business..................................................................... 50
6.5 Taxes................................................................................... 50
6.6 Insurance............................................................................... 50
6.7 Compliance with Laws.................................................................... 50
6.8 Maintenance of Properties............................................................... 50
6.9 Inspection.............................................................................. 51
6.10 Dividends............................................................................... 51
6.11 Intentionally Omitted................................................................... 51
6.12 Merge................................................................................... 51
6.13 Sale of Assets.......................................................................... 51
6.14 Investments and Acquisitions............................................................ 51
6.15 Liens................................................................................... 52
6.16 Affiliates.............................................................................. 54
6.17 Financial Covenants..................................................................... 54
6.18 Compliance with Security Agreement...................................................... 54
6.19 Recourse Servicing...................................................................... 55
6.20 Federal Agency Approvals................................................................ 55
6.21 Approved Investor Commitments........................................................... 55
6.22 Negative Pledges........................................................................ 55
6.23 Keeping of Records and Books of Account................................................. 55
6.24 Hedging Program......................................................................... 55
6.25 Agreements to Pledge Mortgage Loans..................................................... 56
Article VII DEFAULTS.................................................................................. 56
Article VIII COLLATERAL, ACCELERATION AND OTHER REMEDIES.............................................. 58
8.1 Security and Collateral Agency Agreement................................................ 58
8.2 AP Mortgages............................................................................ 58
8.3 Release of Collateral................................................................... 58
8.4 Cash and Collateral Account; Settlement Account; Reconciliation Process................. 59
8.5 Termination............................................................................. 60
8.6 Acceleration............................................................................ 60
8.7 Other Remedies.......................................................................... 60
8.8 Application of Proceeds................................................................. 61
8.9 Preservation of Rights.................................................................. 62
8.10 Actions Under Acknowledgement Agreements................................................ 62
8.11 Transition from Prior Facility.......................................................... 63
Article IX AMENDMENTS; WAIVERS; GENERAL PROVISIONS.................................................... 63
9.1 Amendments and Waivers.................................................................. 63
9.2 Survival of Representations............................................................. 64
9.3 Governmental Regulation................................................................. 64
9.4 Headings................................................................................ 64
9.5 Entire Agreement........................................................................ 64
9.6 Several Obligations; Benefits of this Agreement......................................... 64
9.7 Expenses; Indemnification............................................................... 64
9.8 Nonliability of Lenders................................................................. 65
9.9 Severability of Provisions.............................................................. 65
9.10 Numbers of Documents.................................................................... 65
9.11 Accounting.............................................................................. 66
9.12 Confidentiality......................................................................... 66
9.13 Nonreliance............................................................................. 66
9.14 Disclosure.............................................................................. 67
Article X THE AGENT AND THE COLLATERAL AGENT.......................................................... 67
10.1 Appointment; Nature of Relationship..................................................... 67
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10.2 Powers.................................................................................. 67
10.3 General Immunity........................................................................ 67
10.4 No Responsibility for Loans, Recitals, etc.............................................. 67
10.5 Action on Instructions of Lenders....................................................... 68
10.6 Employment of Agents and Counsel........................................................ 68
10.7 Reliance on Documents; Counsel.......................................................... 68
10.8 Agent's Reimbursement and Indemnification............................................... 68
10.9 Notice of Default....................................................................... 69
10.10 Rights as a Lender...................................................................... 69
10.11 Lender Credit Decision.................................................................. 69
10.12 Successor Agent......................................................................... 69
10.13 Delegation to Affiliates................................................................ 70
10.14 Collateral Releases..................................................................... 70
Article XI SETOFF; RATABLE PAYMENTS................................................................... 70
11.1 Setoff.................................................................................. 70
11.2 Ratable Payments........................................................................ 70
11.3 Custodial Accounts...................................................................... 70
Article XII ASSIGNMENTS; PARTICIPATIONS; COMMITMENT INCREASES......................................... 71
12.1 Successors and Assigns.................................................................. 71
12.2 Participations.......................................................................... 71
12.3 Assignments............................................................................. 72
12.4 Intentionally Omitted................................................................... 72
12.5 Dissemination of Information............................................................ 73
12.6 Tax Treatment........................................................................... 73
Article XIII NOTICES.................................................................................. 73
13.1 Notices................................................................................. 73
13.2 Change of Address....................................................................... 73
Article XIV COUNTERPARTS.............................................................................. 73
Article XV CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL............................... 73
15.1 CHOICE OF LAW........................................................................... 73
15.2 CONSENT TO JURISDICTION................................................................. 74
15.3 WAIVER OF JURY TRIAL.................................................................... 74
RECITALS.............................................................................................. 23
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SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This SIXTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of May
__, 2006 is among PULTE MORTGAGE LLC, a Delaware limited liability company (the
"Borrower"), the Banks identified on the signature pages hereof (together with
any successors and assigns thereof, hereinafter referred to individually as a
"Lender" and collectively as the "Lenders"), and JPMORGAN CHASE BANK, N.A., a
national banking association, as Administrative Agent for the Lenders.
RECITALS
Borrower, JPMorgan Chase Bank, N.A. (Individually and as Administrative
Agent) and the Lenders are party to that certain Fifth Amended And Restated
Revolving Credit Agreement dated as of June 30, 2004 (as amended, the "Prior
Agreement").
The Borrower has requested that the termination date of the Prior
Agreement be extended and that certain changes be made to the Prior Agreement
and the Agent and the Lenders have agreed to do so.
The Revolving Credit Facility made available to the Borrower pursuant to
this Agreement shall be used for residential mortgage loan origination and
acquisition, for mortgage servicing origination and for other general corporate
purposes. In consideration of the foregoing and for other good and valuable
consideration, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acknowledgement Agreements" means, as of any date, acknowledgement
agreements executed by the Collateral Agent, the Borrower and FNMA or FHLMC
recognizing and consenting to any security interest subsequently created, at the
Borrower's sole election, in the Pledged Servicing.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Additional Required Mortgage Documents" means the instruments and
documents described in Schedule B to the Security Agreement.
"Advance" means a borrowing hereunder consisting of the aggregate amount
of the several Loans made on the same Borrowing Date.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Affiliated Special Ventures" means entities which are Affiliates of the
Borrower engaged in the mortgage business and in which both the Borrower and
another Person have made equity Investments (e.g. a limited liability company
engaged in the mortgage banking business and owned in part by each of the
Borrower and an unrelated third party).
"Agent" means JPMorgan Chase Bank, N.A., in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Agent appointed pursuant to Article X.
"Aggregate Commitment" means, as of any date, the aggregate of the
Lenders' then-current Commitments under this Agreement, as reduced or increased
from time to time in accordance with Section 2.7 of this Agreement. The
Aggregate Commitment as of the date hereof is $405,000,000, as shown on Schedule
1.
"Aggregate Servicing Value" means, as of any date, an amount equal to (A)
the sum of (1) the then-current Servicing Take-Out Value of all Eligible
Mortgage Servicing Rights set forth in the most recent Servicing Rights
Certificate, plus (2) the then-current amount of Eligible Servicing Sale
Receivables set forth in the most recent Servicing Rights Certificate, minus (B)
the sum of the following, without duplication (1) any applicable reductions from
the total amount of the Take-Out Value of Eligible Mortgage Servicing Rights and
Eligible Sale Receivables set forth in (A) above which result from any payment
made on account of any Eligible Servicing Rights which are sold or the receipt
of any Eligible Servicing Sale Receivable if the applicable sold Eligible
Mortgage Servicing Rights or Servicing Sale Receivables are removed from the
Borrowing Base in accordance with Paragraph 6(c) of the Security Agreement, (2)
any applicable reductions in the amount of Take-Out Value of Eligible Mortgage
Servicing Rights set forth in (A) above which are set forth in a Servicing
Transfer Report, and (3) any applicable reductions in the amount of Take-Out
Value of Eligible Mortgage Servicing Rights and Eligible Sale Receivables set
forth in (A) above which are set forth in a Reduced Servicing Notice, plus (C)
any applicable increases in the amount of Eligible Sale Receivables described in
(A) above which are set forth in a Servicing Transfer Report; provided, however,
if the Agent or the Collateral Agent at any time determines that the amount of
the Servicing Take-Out Value of all Eligible Mortgage Servicing Rights or the
amount of Eligible Servicing Sale Receivables is less than the amount set forth
in (A) above and such discrepancy has not already been accounted for pursuant to
(B) above (e.g. because the Agent or the Collateral Agent has determined that
certain Pledged Servicing or Pledged Servicing Sale Receivables no longer meet
the applicable eligibility criteria, then the Agent or Collateral Agent, as
applicable, shall notify the Borrower of the amount by which the Servicing
Take-Out Value of all Eligible Mortgage Servicing Rights or the amount of
Eligible Servicing Sale Receivables, as applicable, should accordingly be
reduced, and the Servicing Take-Out Value of Eligible Mortgage Servicing Rights
or the amount of Eligible Servicing Sale Receivables, as applicable, shall be so
reduced.
"Agreement" means this credit agreement, as it may be amended or modified
and in effect from time to time.
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"Agreement Accounting Principles" means GAAP, applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 5.4.
"Agreement to Pledge" means a written pledge substantially in the form of
Exhibit E to this Agreement executed by the Borrower and delivered by facsimile,
electronically or by another means acceptable to Agent and Borrower to the
Collateral Agent, specifically identifying all Mortgage Loans with respect to
which the Required Mortgage Documents are not being delivered on or before the
Pledge Date of such Mortgage Loan.
"AP Mortgage" means, on any date, any Mortgage Loan which has been
identified in an Agreement to Pledge and for which the Collateral Agent has not
received the Required Mortgage Documents for such Mortgage Loan by such date.
"Applicable Margin" means, as of any day with respect to various portions
of the Advances outstanding on such day, the following percentages per annum
which shall be added to the LIBOR Rate for such day to determine the interest
rate applicable to such portions of the Advances. The portion of the Advances to
which a specific percentage applies shall be determined by matching various
components of the Borrowing Base for such day to outstanding Advances in the
following order until all the outstanding Advances have been matched with one of
such Borrowing Base components:
Borrowing Base Component Matched to Advances Outstanding Applicable Margin
------------------------------------------------------------ -----------------
First, in an amount equal to the Gestation Borrowing Base 0.525%
Then, in an amount equal to the Non-Gestation Borrowing Base 0.75%
Finally, in an amount equal to the Servicing Borrowing Base 0.90%
"Approved Investor" means, as of any time, any of the institutions listed
on Schedule 2 attached hereto and any other institution approved in writing by
the Agent (with prompt notice to the Lenders), such approval not to be
unreasonably withheld; provided that (i) the Agent shall give the Lenders
immediate notice of the approval of any institution not listed on Schedule 2,
and if any Lender objects to such approval within three (3) Business Days after
such notice then such institution shall cease to be an Approved Investor at the
election of the Required Lenders, and (ii) any such institutions listed on
Schedule 2 or previously approved by the Agent may be eliminated as an Approved
Investor (or as an Approved Investor of a specific type) by written notice to
the Borrower from the Agent, which elimination notice shall be given only for
reasonable cause and any commitments issued by any such formerly-Approved
Investor after such elimination shall not constitute Approved Investor
Commitments, but commitments of such formerly-Approved Investor existing at the
time of such elimination shall continue to be Approved Investor Commitments.
"Approved Investor Commitment" means a commitment, issued by an Approved
Investor of the required type, to purchase Mortgage Loans, to exchange
Securities for Mortgage Loans or to purchase Securities.
"Approved MBS Custodian" is defined in Paragraph 7(b) of the Security
Agreement.
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"Approved Recourse Servicing" means , as of any time, any of the Recourse
Servicing described on Exhibit M and any other Recourse Servicing reasonably
approved by the Agent; provided that (i) the Agent shall give the Lenders
immediate notice of the approval of any Recourse Servicing not listed on Exhibit
M, and if any Lender objects to such approval within three (3) Business Days
after such notice then such Recourse Servicing shall cease to be Approved
Recourse Servicing at the election of the Required Lenders, and (ii) any such
Recourse Servicing listed on Exhibit M or previously approved by the Agent may
be eliminated as Approved Recourse Servicing by written notice to the Borrower
from the Agent, in which case the Borrower shall not allow any Mortgage Loans
thereafter generated or acquired by the Borrower to be subject to any such
formerly-Approved Recourse Servicing.
"Approved Servicing Purchaser" means any of the entities listed on Exhibit
L hereto and any other Servicing Purchaser approved by the Required Lenders.
"Approved Servicing Sale Agreement" means any of the sale agreements
listed on Exhibit L hereto and any other agreements approved by the Agent for
the sale of Pledged Servicing from the Borrower to an Approved Servicing
Purchaser.
"ARM Mortgage Loan" means a Mortgage Loan which bears interest at a rate
that may be adjusted at one or more times during the term of such Mortgage Loan.
"Arranger" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment" means a duly executed assignment for the benefit of the
Lenders of a Mortgage, of the indebtedness secured thereby, and of all documents
and rights related to the Mortgage Loan secured by such Mortgage in accordance
with the requirements of the Security Agreement.
"Authorized Officer" means any of the president, chairman, chief financial
officer, treasurer or other officer of the Borrower, acting singly.
"Available Deposits" means those free collected balances maintained in
accounts in the name of the Borrower (or held by the Borrower 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
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 arrangements between such Lender and the Borrower.
"Basic Eligibility Requirements" means a Pledged Item with respect to
which each of the following statements is accurate and complete in all material
respects:
(i) The Borrower is the legal and equitable owner and holder of such
Pledged Item and has full power and authority to pledge such Pledged Item.
Such Pledged Item and each commitment of a Person to purchase Mortgage
Loans and Securities from the Borrower (including Approved Investor
Commitments) has been duly and validly issued to the Borrower, and each
Pledged Item constitutes Eligible Collateral, has been duly and validly
pledged to the Collateral Agent for the benefit of the Secured Parties and
is subject to no Lien other than the lien of the Security Agreement in
favor of the Agent for the benefit of the Lenders.
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(ii) Each requirement of any federal, state or local law including,
without limitation, usury, truth-in-lending (including without limitation
compliance with the limitations established by Section 32 of Regulation
Z), real estate settlement procedures, consumer credit protection, equal
credit opportunity or disclosure laws applicable to such Pledged Item, has
been complied with in all material respects.
(iii) With respect to each Pledged Item which is a Pledged Mortgage:
(1) it is a Residential Mortgage Loan that has been duly
executed and delivered by the parties thereto at a closing,
(2) it is valid and enforceable in accordance with its terms,
without defense or offset, subject to bankruptcy and similar laws
and other general restrictions on creditors' rights and equitable
principles (whether raised in an equity proceeding or an action at
law),
(3) the property covered by said Mortgage Loan is free and
clear of all Liens except those in favor of the Borrower subject
only to (a) the Lien of current real property taxes and assessments
not yet due and payable; (b) 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 said Mortgage
Loan and (i) referred to or otherwise considered in the appraisal
made for the originator of said Mortgage Loan or (ii) which do not
materially adversely affect the appraised value of such property as
set forth in such appraisal; (c) other matters to which like
properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by said
Mortgage Loan or the use, enjoyment, value or marketability of the
related property; and (d) if said Mortgage Loan is a second priority
Lien, a first Lien to the extent permitted under the other
eligibility criteria for said Mortgage Loan,
(4) it has been correctly described in the Collateral
Transmittal submitted to the Collateral Agent in respect of such
Pledged Mortgage,
(5) it has been fully funded to the mortgagor or to an escrow
or closing agent by wire transfer, transmittal through the
"Automated Clearing House" or any similar private clearing house for
interbank transfers of funds, cashier's check or a company check,
(6) the Collateral Agent has in its possession (other than
with respect to Pledged Mortgages which are then the subject of an
Agreement to Pledge) all Required Mortgage Documents other than
those documents and instruments which are in the possession of the
Borrower pursuant to a Trust Receipt or in the possession of a
Person to whom delivery was made pursuant to an Investor Transmittal
Letter,
(7) it has been or will be promptly duly recorded where
necessary and complies with all applicable state or local recording,
registration and filing laws and regulations in all material
respects,
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(8) there are no defenses, counterclaims or offsets of any
nature whatsoever with respect to such Pledged Mortgage or the
indebtedness evidenced and secured thereby or with respect to any
Required Mortgage Document and, other than the related Required
Mortgage Documents and Additional Required Mortgage Documents, there
are no instruments or documents evidencing, securing or guaranteeing
payment of the indebtedness constituting such Pledged Mortgage,
(9) each Assignment (a) has been duly authorized by all
necessary corporate action by the Borrower, duly executed and
delivered by the assignor thereunder and is the legal, valid and
binding obligation of such assignor enforceable in accordance with
its terms, subject to bankruptcy and similar laws and other general
restrictions on creditors' rights and equitable principles, and (b)
complies with all applicable laws including all applicable
recording, filing and registration laws and regulations and upon
insertion by the Agent or Collateral Agent of the name of the
assignee thereunder and the information needed to properly identify
the Pledged Mortgage, as described in the Security Agreement, will
be adequate and legally sufficient for the purpose intended to be
accomplished thereby, including, without limitation, the assignment
of the rights, powers and benefits of the applicable mortgagee,
(10) upon insertion of such information into each Assignment
and the recordation thereof, and assuming the possession of the
Required Mortgage Documents by the Collateral Agent and filing of
Uniform Commercial Code financing statements in proper form in the
applicable filing offices, the Collateral Agent, for the benefit of
the Lenders, will have a valid and perfected first priority security
interest in such Pledged Item and all proceeds, products and profits
derived therefrom, including, without limitation, all moneys, goods,
insurance proceeds and other tangible or intangible property
received upon liquidation thereof, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and to general principles
of equity,
(11) the Borrower has complied in all material respects with
all laws, rules and regulations in respect of such Pledged Mortgage
if it is insured by FHA or guaranteed by VA and the related
insurance or guarantee is in full force and effect. Such Mortgage
Loan complies in all material respects with all applicable
requirements for purchase under the GNMA standard form of selling
contract for FHA insured and VA guaranteed loans and any supplement
thereto then in effect,
(12) except to the extent an appraisal is neither required by
any law or any governmental rule, regulation, policy, guideline or
direction nor any Approved Investor that may purchase such Pledged
Mortgage, the Borrower has received an appraisal on the property
underlying such Pledged Mortgage, which appraisal shall be in
conformity with the applicable requirements of any law or any
governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any interpretation
thereof, including, without limitation, the provisions of Title XI
of the Financial Institutions Reform, Recovery and Enforcement Act
of 1989, as amended, reformed or otherwise modified from time to
time, and any rules promulgated to implement such provisions,
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(13) all fire and casualty policies covering the premises
encumbered by each Pledged Mortgage (a) name the Borrower as the
insured under a standard mortgagee clause not less favorable in
coverage to the mortgagee than is customarily used in the state
where such premises is located, (b) are in full force and effect,
and (c) afford insurance against fire and such other risks as are
usually insured against in the broad form of extended coverage
insurance from time to time available, as well as insurance against
flood hazards as required by FHA or VA, and
(14) except for Qualifying HELOC Loans, it is not a revolving
credit facility.
(iv) There shall be no breach of the covenants contained in
Paragraph 13 of the Security Agreement and there shall be no breach of any
of the following covenants (the sole remedy for which shall be the removal
of such Pledged Item as Eligible Collateral):
(1) The Borrower shall not (a) amend or modify, or waive any
of the terms and conditions of, or settle or compromise any claim in
respect of, any Pledged Item or any rights related to any of the
foregoing, if such amendment, modification or waiver materially and
adversely affects the Collateral Value of such Pledged Item, or
impairs the marketability of such Pledged Item or (b) release any
security or obligor, or, through any other activity or inactivity,
cause any Pledged Mortgage which shall have been eligible for
purchase to become ineligible for purchase in accordance with the
Approved Investor Commitment related to such Pledged Mortgage.
(2) The Borrower shall not sell, assign, transfer or otherwise
dispose of, or grant any option with respect to, or pledge or
otherwise encumber (except pursuant to the Security Agreement), any
of the Collateral or any interest therein, except as provided in
Section 8.3 with respect to releases of Pledged Items.
(3) The Borrower is the servicer for and shall service all
Pledged Mortgages in accordance with the requirements of the
Approved Investor Commitments. The Borrower shall service all
Mortgage Loans which are the subject of Pledged Securities in
accordance with the standard requirements of the Federal Agency
issuing or guaranteeing such Securities and all applicable FHA and
VA requirements. The Borrower shall perform all of its obligations
under the Servicing Agreements governing Pledged Servicing in
accordance with the standard requirements of FNMA and FHLMC.
(4) The Borrower shall hold all escrow funds collected in
respect of Pledged Items in trust, without commingling the same with
any other fund, and apply the same for the purposes for which such
funds were collected provided that such obligation with respect to
Pledged Mortgages shall not arise until 30 days after the
origination or acquisition of the applicable Mortgage Loan.
(5) The Borrower shall observe and perform all of its
obligations in connection with each Approved Investor Commitment
related to any Pledged Mortgage or Pledged Security in all material
respects. Within forty-eight (48) hours after a request therefor by
the Agent, a copy of each Approved Investor Commitment certified by
the Borrower, or if requested by the Agent at any time after a
Default has occurred, the originals of such Approved Investor
Commitments shall be delivered to the Agent.
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(6) The Borrower shall promptly notify the Agent and the
Collateral Agent if and when the Borrower receives any prepayment
(which term excludes the principal portion of scheduled monthly
payments made on a Mortgage Loan) arising from or relating to any
Pledged Mortgage and at the Borrower's option either hold the same
in trust, as security for the Lenders, until such Mortgage Loan is
removed from the Borrowing Base in accordance with this Agreement or
remit to the Agent such prepayments (and all interest and earnings
thereon or with respect thereto) for application to the Advances,
provided that the Borrower must so remit such amount if a Default
has occurred and is continuing under this Agreement.
(7) The Borrower shall do, execute, acknowledge and deliver,
or cause to be done, executed, acknowledged and delivered, all such
other acts, instruments and transfers (including, without
limitation, Assignments) as the Agent or the Collateral Agent may
reasonably request from time to time in order to create and maintain
a perfected first priority security interest in the Collateral in
favor of the Lenders and to create, maintain and preserve the
security and benefits intended to be afforded by this Agreement,
subject to no prior or equal security interest, lien, charge or
encumbrance, or agreement purporting to grant to any Person a
security interest in the Collateral.
(8) The Borrower shall promptly notify the Agent and the
Collateral Agent of the occurrence of any event which would cause
any Eligible Collateral to become Ineligible Collateral. "Borrower"
means Pulte Mortgage LLC, a Delaware limited liability company, and
its permitted successors and assigns.
"Borrowing Base" means, as of any date, subject to the Borrowing Base
Sublimits, the sum of the amounts determined by applying the following
percentages to the Collateral Values of the following categories of Eligible
Collateral, without duplication as any asset is converted from one category to
another and except for Eligible Mortgage Servicing Rights which are valued based
upon the Servicing Take-Out Value of such rights and Eligible Servicing Sale
Receivables which are valued based on the amount of such receivables, as
described below (and the Borrower, by including any Pledged Item in any
computation of the Borrowing Base, shall be deemed to represent and warrant to
the Agent, the Collateral Agent and the Lenders that such Pledged Item
constitutes Eligible Collateral):
(i) ninety-nine percent (99%) of the Collateral Value of Eligible
Conforming Mortgage Loans which constitute Gestation Collateral or
Eligible Securities;
(ii) ninety-eight percent (98%) of the Collateral Value of Eligible
Conforming Mortgage Loans which do not constitute Gestation Collateral;
(iii) ninety-eight percent (98%) of the Collateral Value of Eligible
Conforming Jumbo Mortgage Loans;
(iv) ninety-five percent (95%) of the Collateral Value of Eligible
Conforming Super Jumbo Mortgage Loans;
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(v) ninety-five percent (95%) of the Collateral Value of Eligible
Non-Conforming Mortgage Loans (including without limitation Eligible
Non-Conforming Jumbo Mortgage Loans and Eligible Non-Conforming Super
Jumbo Mortgage Loans);
(vi) seventy-five percent (75%) of the Collateral Value of Eligible
Investment Loans, provided that the Collateral Value of Eligible
Investment Loans shall be determined and adjusted for any additions or
deletions to such category of Collateral only on one day in each month,
pursuant to a monthly Eligible Investment Loan report to be prepared by
Borrower and such Collateral Value shall remain in effect for purposes of
calculating the Borrowing Base until the next such monthly determination
and adjustment; and
(vii) eighty percent (80%) of Aggregate Servicing Value;
provided that, if the Agent has elected to use the market value of any item of
Eligible Collateral as its Collateral Value pursuant to clause (D) of section
(ii) of the definition of Collateral Value, the percentage applied to such
Collateral Value for purposes of calculating the advance rates reflected in the
Borrowing Base shall be the lesser of ninety-seven percent (97%) or the
applicable percentage stated in clauses (i) through (vii) of this definition.
In connection with the Borrowing Base, the Agent is hereby authorized by the
Lenders to grant temporary waivers of strict compliance by the Borrower with the
eligibility requirements regarding qualification of any Collateral as Eligible
Collateral or with the Lending Sublimits and Borrowing Base Sublimits when the
Agent deems it appropriate, in its sole discretion, (i) as to all matters (other
than (y) those described in the definition "Basic Eligibility Requirements"
(except that temporary waivers may be granted for any of clauses (iii)(6), (9)
or (10) or (iv) of such definition) or (z) those described in the definition of
"Residential Mortgage Loan"), if the aggregate amount of deviation from strict
compliance, based on the Collateral Value so included in the Borrowing Base and
the amount of excess permitted over the Lending Sublimits or Borrowing Base
Sublimits does not exceed $10,000,000 at any time, or (ii) as to any matter, up
to any amount for up to three (3) Business Days, if the satisfaction of such
eligibility requirements or sublimits cannot be independently determined because
of events beyond the reasonable control of the Borrower (i.e. natural disasters,
transmission failures, etc.), provided that, if such determination cannot be
made for more than one (1) Business Day, the Borrower certifies in writing that
all such eligibility requirements and sublimits are in fact satisfied.
"Borrowing Base Certificate" means a system generated report, initially in
the form attached hereto as Exhibit G, prepared by the Collateral Agent to
reflect the Collateral Value Determination at the times required by (and as such
term is defined in) the Security Agreement, the form of which report may be
modified from time to time by the Collateral Agent.
"Borrowing Base Sublimits" is defined in Section 2.1.3.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.6.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of LIBOR Advances, a day (other than a Saturday or Sunday) on which
banks generally are open in Houston and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the
9
London interbank market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Houston for the conduct
of substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.
"Buy-Down Agreement" means a written agreement between the Borrower and a
Lender setting forth the terms and conditions under which such Lender has agreed
to a reduced interest rate on account of LIBOR Loans or Swingline Loans
outstanding hereunder based upon Available Deposits maintained by the Borrower
with such Lender.
"Buy-Down Lender" is defined in Section 2.3.
"Buy-Down Rate" means 0.525 percent (52.5 basis points) per annum.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash and Collateral Agreement" is defined in Section 8.4.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of deposit
issued by, money market funds of, and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of
$100,000,000; provided in each case that the same provides for payment of both
principal and interest (and not principal alone or interest alone) and is not
subject to any contingency regarding the payment of principal or interest.
"Change in Control" means (i) Parent shall cease to be a wholly-owned
direct or indirect Subsidiary of Pulte Homes (it being understood that a name
change of Pulte Homes shall not of itself constitute a violation of this
requirement); or (ii) Parent shall cease to own, free and clear of all Liens or
other encumbrances, at least 100% of the outstanding shares of voting stock of
the Borrower on a fully diluted basis.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all right, title and interest of the Borrower, of every
kind and nature, in and to all of the following property, assets and rights of
the Borrower wherever located, whether now existing or hereafter arising, and
whether now or hereafter owned, acquired by or accruing or owing to the
Borrower, and all proceeds and products thereof:
(i) all Pledged Mortgages and Pledged Securities, whether Eligible
Collateral or Ineligible Collateral, including all Required Mortgage
Documents related thereto;
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(ii) any commitments or other agreements issued by any private
mortgage insurer or by the FHA or VA to insure or guarantee any Pledged
Mortgage;
(iii) all Approved Investor Commitments to purchase Pledged
Securities or Pledged Mortgages (or any Securities to be issued based on
such Pledged Mortgages) from the Borrower;
(iv) any options to sell or purchase Securities, future contracts,
or any other interest rate protection products which directly or
indirectly protect the Borrower against reductions in value of such
Pledged Mortgages or Pledged Securities due to changes in mortgage
interest rates;
(v) the Settlement Account, the Cash and Collateral Account, and all
uncollected deposits into the Settlement Account and the Cash and
Collateral Account, together with any Custodian Settlement Accounts then
in existence with Approved MBS Custodians, as described in Paragraph 7(c)
of the Security Agreement, and all uncollected deposits in such accounts;
(vi) all Pledged Servicing identified by the Borrower from time to
time and included in Collateral including without limitation all rights of
the Borrower to sell or assign its interest therein and all amounts
payable to the Borrower thereunder arising out of any termination thereof,
and all files, surveys, certificates, correspondence, appraisals, computer
programs (excluding programs owned and licensed to the Borrower by third
parties), tapes, disks, cards, accounting records and other records and
data of the Borrower related to the Mortgage Loans covered by such Pledged
Servicing;
(vii) all Pledged Servicing Sale Receivables including without
limitation all rights of the Borrower related to such receivables;
(viii) all cash and Cash Equivalents;
(ix) all Servicing Hedge Contracts;
(x) all property related to the foregoing, including without
limitation, the right to service Pledged Mortgages while owned by the
Borrower, all accounts and general intangibles of whatsoever kind so
related and all documents or instruments delivered to the Collateral Agent
in respect of any Pledged Item, including, without limitation, the right
to receive all insurance proceeds and condemnation awards which may be
payable in respect of the premises encumbered by any Pledged Mortgage; and
(xi) all proceeds and products of any of the foregoing.
"Collateral Agent" means LaSalle Bank National Association in its capacity
as contractual representative of the Lenders pursuant to the Security Agreement,
and any successor Collateral Agent appointed pursuant to Paragraph 19 of the
Security Agreement.
"Collateral Agent Review Procedure" means the required review steps set
forth in Exhibit "1" to the Security Agreement.
"Collateral Transmittal" means a transmittal from the Borrower to the
Collateral Agent in electronic form (or in written form delivered by fax in the
event that the Borrower is unable -- due to a
11
system failure or other event beyond the Borrower's control -- to transmit such
information electronically) and, if required by the Collateral Agent, written
form containing the following information for the following submissions or
special treatment of different types of Collateral: (i) the information
described on Exhibit D for each AP Mortgage covered by any Agreement to Pledge,
(ii) the information described on Exhibit D (other than the entry thereon for
"AP Status Code") for each Pledged Mortgage not covered by an Agreement to
Pledge, (iii) change of any Pledged Mortgage from wet to dry (open) status, dry
to gestation status, open to shipped status, shipped to paid and any
cancellation of wet status, (iv) the information described on Exhibit 3 to the
Security Agreement for each Pledged Mortgage to be treated as a Gestation
Mortgage Loan, (v) whether the Mortgage Loan is to be funded by wire or check or
(vi) such information as may be required from time to time by the Collateral
Agent for any Pledged Security.
"Collateral Value" means, with respect to each of the following assets
included in Eligible Collateral on any given day, a value determined as follows:
(i) Each Security shall be valued based upon the Collateral Value of
the underlying Pledged Mortgages as otherwise determined hereunder; and
(ii) Each Pledged Mortgage shall be valued at the lowest of (A) the
unpaid principal balance of such Mortgage Loan on its Pledge Date (or, in
the case of Eligible Investment Loans only, on the date of the most recent
monthly report from the Borrower with respect to Eligible Investment
Loans), or (B) the net acquisition cost (including any discounts and
excluding any servicing released premium) of such Mortgage Loan, if
acquired by the Borrower, or (C) the weighted average purchase price
(expressed as a percentage of par) committed to under those Approved
Investor Commitments which could cover such Mortgage Loan applied to the
unpaid principal balance of such Mortgage Loan on its Pledge Date or (D)
market value, as determined by the Agent in its sole discretion, as and
when the Agent, in its sole discretion, chooses to calculate market value.
The values described in (A), (B) and (C) of the preceding sentence shall
be as determined by the Borrower as of the Pledge Date of the applicable
Pledged Mortgage and reported to the Collateral Agent.
"Collection and Paying Agreement" means that certain Collection and Paying
Agreement dated as of August 23, 2002 among Borrower, Agent, the Collateral
Agent, Pulte Funding, Inc. and Calyon New York Branch, as amended by an
Amendment No. 1 thereto dated as of August 19, 2005.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans not exceeding the amount set forth as its "Commitment" on Schedule 1
attached hereto or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
"Commitment Percentage" means, for each Lender as of any date, the
percentage of the Aggregate Commitment represented by such Lender's Commitment,
as it may be amended from time to time, which initially shall be as set forth on
Schedule 1.
"Conforming Mortgage Loan" means a first priority Residential Mortgage
Loan which (i) either is insured by the FHA or guaranteed by the VA or which
fully conforms to all underwriting and other requirements for sale to FNMA or
FHLMC and (ii) if said Mortgage Loan has a loan-to-value ratio which is greater
than eighty percent (80%), said Mortgage Loan is covered by a policy of private
mortgage insurance acceptable to FNMA.
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"Consolidated Tangible Net Worth" means, as of any date of determination
thereof, Net Worth, less the sum of the following (without duplication): (a) the
book value of all Investments in the Borrower's non-consolidated Affiliates, (b)
any other assets of the Borrower and its consolidated Subsidiaries which would
be treated as intangibles under Agreement Accounting Principles (other than
capitalized mortgage servicing rights) including, without limitation, any
write-up of assets, good-will, research and development costs, trade-marks,
trade names, copyrights, patents and unamortized debt discount and expenses, (c)
loans or other extensions of credit to officers of the Borrower or of any of its
Subsidiaries or Affiliates other than Mortgage Loans made to such Persons in the
ordinary course of business, (d) the Investment of the Borrower in Joliet
Mortgage Reinsurance Company (determined in accordance with Agreement Accounting
Principles as required by the definition of Investment herein), and(e) the
Investment of the Borrower in Pulte Funding, Inc. or similar funding vehicles in
excess of $4,000,000.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414 of the Code.
"Custodian Settlement Accounts" is defined in the Security Agreement.
"Deduction" means, at any time, the amount by which a Pledged Servicing
Sale Receivable may, under the terms of the applicable servicing sale agreement,
be reduced (e.g. due to the fact that any of the Mortgage Loans covered by the
applicable sold servicing rights do not meet the eligibility criteria set forth
in the applicable servicing sale agreement), whether such reduction is by way of
deduction, set-off, credit, or otherwise.
"Default" means an event described in Article VII.
"Effective Date" is defined in Section 4.1.
"Eligible Collateral" means, as of any date, all Eligible Non-Conforming
Mortgage Loans, Eligible Non-Conforming Jumbo Mortgage Loans, Eligible
Non-Conforming Super Jumbo Mortgage Loans, Eligible Conforming Mortgage Loans,
Eligible Conforming Jumbo Mortgage Loans, Eligible Conforming Super Jumbo
Mortgage Loans, Eligible Investment Loans, Eligible Mortgage Servicing Rights,
Eligible Servicing Sale Receivables and Eligible Securities.
"Eligible Conforming Jumbo Mortgage Loan" means an Eligible Mortgage Loan
which: (i) is a Jumbo Mortgage Loan; (ii) is a Conforming Mortgage Loan in all
respects except for its original principal balance; and (iii) is either (x)
included in a group of Eligible Conforming Jumbo Mortgage Loans covered by a
Qualifying Rate Hedge or (y) subject to an Approved Investor Commitment issued
by an Approved Investor.
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"Eligible Conforming Mortgage Loan" means an Eligible Mortgage Loan which:
(i) is a Conforming Mortgage Loan; and (ii) is subject to an Approved Investor
Commitment.
"Eligible Conforming Super Jumbo Mortgage Loan" means an Eligible Mortgage
Loan which (i) is a Super Jumbo Mortgage Loan, (ii) is a Conforming Mortgage
Loan in all respects except for its original principal balance; and (iii) is
either (x) included in a group of Eligible Conforming Super Jumbo Mortgage Loans
covered by a Qualifying Rate Hedge or (y) subject to an Approved Investor
Commitment issued by an Approved Investor.
"Eligible Investment Loan" means a Pledged Mortgage which (i) is a first
priority Mortgage Loan; (ii) is not an AP Mortgage; (iii) meets the Basic
Eligibility Requirements; (iv) if such Pledged Mortgage had an original
principal balance that exceeded 80% of the appraised value of the real estate
and improvements securing such Pledged Mortgage, was covered by a policy of
private mortgage insurance acceptable to FNMA at origination which is still in
full force and effect; and (v) has no monthly installment principal and/or
interest which is more than 59 days past due.
"Eligible Mortgage Loan" means any Pledged Mortgage:
(i) which meets the Basic Eligibility Requirements;
(ii) which has no monthly installment of principal and/or interest
which is more than 59 days past due;
(iii) has been included in the Borrowing Base for (1) 180 days or
less after the Pledge Date thereof in the case of a Conforming Mortgage
Loan or a Conforming Jumbo Mortgage Loan or a Non-Conforming Mortgage Loan
(other than a Conforming Super Jumbo Mortgage Loan), (2) 90 days or less
after the Pledge Date thereof in the case of a Conforming Super Jumbo
Mortgage Loan and (3) 60 days or less after the Pledge Date thereof in the
case of a Negatively Amortizing Loan;
(iv) has been originated less than (1) 180 days prior to its Pledge
Date in the case of a Conforming Mortgage Loan or a Conforming Jumbo
Mortgage Loan and (2) 90 days prior to its Pledge Date in the case of a
Non-Conforming Mortgage Loan or any Super Jumbo Mortgage Loan;
(v) for which, if it is an AP Mortgage:
(1) the Borrower expects such AP Mortgage to close on the
Pledge Date and become a valid lien securing actual indebtedness by
funding to the order of the mortgagor thereunder, has not learned of
any information to the contrary and has not received any returned
proceeds of such AP Mortgage from the escrow or closing agent for
such Pledged Mortgage;
(2) if an AP Mortgage is not closed and funded as required
pursuant to clause (v) (1) above, the Borrower shall so notify the
Collateral Agent as soon as the Borrower becomes aware of that fact
but in any event no later than 12:00 noon the next Business Day,
unless the AP Mortgage has closed and funded by that time, and the
Collateral Agent shall delete said AP Mortgage from the Borrowing
Base;
14
(3) if an AP Mortgage was previously included in the Borrowing
Base and was subsequently deleted as required pursuant to clause (v)
(2) above, such AP Mortgage has not been submitted for inclusion in
the Borrowing Base for a total of more than three times;
(4) the Collateral Agent has received the Required Mortgage
Documents within nine (9) Business Days after the date of the
related Agreement to Pledge;
(5) the Collateral Value attributable to all AP Mortgages
included in any category of the Borrowing Base does not exceed sixty
percent (60%) of the Aggregate Commitment during the first and last
five Business Days in any calendar month, and
(6) the Collateral Value attributable to all AP Mortgages
included in any category of the Borrowing Base does not exceed
twenty-five percent (25%) of the Aggregate Commitment for any day
other than the first and last five Business Days of any calendar
month;
(vi) which, if subject to an Investor Transmittal Letter or Trust
Receipt and if said Pledged Mortgage was:
(1) withdrawn by the Borrower for purposes of correcting
clerical or other non-substantive documentation problems: (i) the
promissory note and other documents relating to said Pledged
Mortgage were returned to the Collateral Agent within fifteen
business days from the date of withdrawal, (ii) said Pledged
Mortgage was released to the Borrower pursuant to a Trust Receipt
and (iii) the Collateral Value of said Pledged Mortgage when added
to the Collateral Value of all other Pledged Mortgages which have
been similarly released to the Borrower does not exceed one percent
(1%) of the Aggregate Commitment; or
(2) shipped by the Collateral Agent directly to an Approved
Investor for purchase pursuant to an Investor Transmittal Letter
which is a "Whole Loan Sale Transmittal Letter" substantially in the
form of Exhibit "4" to the Security Agreement, the full purchase
price therefor has been received by the Collateral Agent (or said
Pledged Mortgage has been returned to the Collateral Agent) within
forty-five (45) business days (or ninety (90) days for deliveries to
state bond agencies) from the date of shipment by the Collateral
Agent; or
(3) shipped by the Collateral Agent directly to a custodian
for purposes of formation of a pool supporting a Security, the
Security is issued and sold and the purchase price therefor has been
received by the Collateral Agent (or said Pledged Mortgage has been
returned to the Collateral Agent) within forty-five (45) business
days (or ninety (90) days for deliveries to state bond agencies)
from the date of shipment by the Collateral Agent; and
(vii) which has not previously been included in the Borrowing Base,
then shipped to an investor and returned, for whatever reason, to the
Collateral Agent.
"Eligible Mortgage Servicing Rights" means, as of any date, all Eligible
Pledged Servicing: (i) which is not subject to any security interest securing
any Debt other than the Obligations; (ii) except
15
for any Pledged Servicing which constitutes Recourse Servicing (other than
Approved Recourse Servicing) or a Subservicing Agreement; (iii) which meets the
Basic Eligibility Requirements; and (iv) which has not been released from
Collateral pursuant to Section 8.3 prior to such date.
"Eligible Non-Conforming Jumbo Mortgage Loan" means an Eligible
Non-Conforming Mortgage Loan that is a Jumbo Mortgage Loan.
"Eligible Non-Conforming Mortgage Loan" means an Eligible Mortgage Loan
which is a Non-Conforming Mortgage Loan.
"Eligible Non-Conforming Super Jumbo Mortgage Loan" means an Eligible
Non-Conforming Mortgage Loan that is a Super Jumbo Mortgage Loan.
"Eligible Pledged Servicing" means any Pledged Servicing with respect to
which each of the following statements is accurate and complete:
(i) Such Pledged Servicing is subject to an accepted Acknowledgment
Agreement.
(ii) Such Pledged Servicing does not constitute Recourse Servicing
other than Approved Recourse Servicing.
(iii) The Borrower is the legal and equitable owner and holder of
such Pledged Servicing and the rights thereunder and has full power and
authority to grant a security interest in such Collateral. Such Pledged
Servicing has been duly and validly made subject to the lien of the
Security Agreement and is subject to, and will continue to be subject to,
no Lien other than the liens created pursuant to the Security Agreement
and any rights reserved to the other party under such Pledged Servicing or
the related Acknowledgement Agreement.
(iv) The Servicing Agreement governing such Pledged Servicing has
been duly executed and delivered by the parties thereto, is not a
Subservicing Agreement and is valid and enforceable in accordance with its
terms, without defense or offset, subject to bankruptcy and similar laws
and other general restrictions on creditors' rights and equitable
principles (whether raised in an equity proceeding or an action at law).
(v) No default, nor any event which with notice or lapse of time or
both would become a default, has occurred and is continuing under the
Servicing Agreement governing such Pledged Servicing and no action has
been taken to terminate such Servicing Agreement.
(vi) No mortgage installment of principal and/or interest with
respect to the Mortgage Loans serviced under the applicable Servicing
Agreement are more than 59 days past due.
(vii) The Borrower has complied, and will continue to comply, in all
material respects, with all laws, rules and regulations, including but not
limited to all applicable FNMA, GNMA or FHLMC requirements, as the case
may be, in respect of such Servicing Agreement.
(viii) Such Pledged Servicing has been included in Eligible
Collateral for 150 days or less.
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"Eligible Servicing Sale Receivables" means Pledged Servicing Sale
Receivables as to which:
(i) the Agent and Collateral Agent have received a complete executed
copy of the related purchase agreement;
(ii) if requested by the Agent, the Agent and Collateral Agent have
received written confirmation from the Servicing Purchaser as to the
amount of such Pledged Servicing Sale Receivables;
(iii) the Servicing Purchaser of the applicable sold Servicing
Agreements is an Approved Servicing Purchaser, and the applicable sale
agreement is an Approved Servicing Sale Agreement;
(iv) the counterparties to the applicable sold Servicing Agreements
are either GNMA, FNMA or FHLMC;
(v) the Agent has reasonably determined that the counterparties to
the sold Servicing Agreements have or will consent to the sale of such
Servicing Agreements to the Servicing Purchaser, if such consent is
required;
(vi) the Borrower has assigned its rights to such Pledged Servicing
Sale Receivables to the Collateral Agent for the benefit of the Secured
Parties pursuant to an assignment in form and content satisfactory to the
Agent;
(vii) the Servicing Purchaser of the applicable sold Servicing
Agreements has executed an agreement (and, if the applicable Approved
Servicing Sale Agreement provides for repeated servicing sales under the
same agreement, such updates to such agreement as the Agent may reasonably
request) in form and content satisfactory to the Agent pursuant to which
such Servicing Purchaser has agreed to (A) pay such Pledged Servicing Sale
Receivable directly to the Agent for the benefit of the Secured Parties,
and (B) provide simultaneous written notice to the Agent and the
Collateral Agent of any claims made against or notices given to the
Borrower which would constitute an offset to or reduction in the amount of
such Pledged Servicing Sale Receivable;
(viii) no portion of such Pledged Servicing Sale Receivable or any
other Pledged Servicing Sale Receivable owed by the applicable Servicing
Purchaser is more than ten days past due (as determined under the
applicable Approved Servicing Sale Agreements);
(ix) such Pledged Servicing Sale Receivable is not evidenced by
chattel paper or an instrument of any kind;
(x) the Servicing Purchaser with respect to such Pledged Servicing
Sale Receivable is not insolvent or the subject of any bankruptcy or
insolvency proceedings of any kind and has not made an assignment for the
benefit of creditors or consented to or suffered the appointment of a
receiver, trustee, liquidator, custodian or the like for it or for a
significant portion of its assets or affairs;
17
(xi) the Borrower has observed and complied with all laws of the
jurisdiction in which the applicable Servicing Purchaser is located that,
if not observed and complied with, would deny to the Borrower access to
the courts of such jurisdiction; and
(xii) such Pledged Servicing Sale Receivable has been included in
Eligible Collateral for 150 days or less;
provided, however, that (1) Eligible Servicing Sale Receivables shall not
include any "holdback" amounts or deferred installments of the purchase price
payable by the applicable Servicing Purchaser which are not payable to the
Borrower within 150 days after the initial payment to the Borrower for the sale
of the applicable Servicing Agreements to such Servicing Purchaser, and (2)
Eligible Servicing Sale Receivables shall be reduced by the amount of any
Deductions (to the extent not already deducted from Eligible Servicing Sale
Receivables pursuant to the preceding provisions), whether claimed by the
applicable Servicing Purchaser, reported by the Borrower, or otherwise
determined by the Agent or Collateral Agent.
"Eligible Security" means any Pledged Security: (i) which is covered by an
Approved Investor Commitment; and (ii) for which the Collateral Agent shall have
received such evidence as may be required under the Security Agreement to
confirm the existence of the security interest in favor of the Collateral Agent
for the benefit of the Lenders in such Pledged Security.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Excess Pool Proceeds" is defined in Paragraph 6(d) of the Security
Agreement.
"Excluded Taxes" means, with respect to the Agent, any Lender, or any
other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 3.5), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 3.4(e)),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 3.4(a).
18
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"Facility Fee Rate" means 0.125 percent (12.5 basis points) per annum.
"Federal Agency" means FHLMC, FNMA, GNMA, FHA or VA.
"Federal Funds Effective Rate" means, for any day, an interest 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (New York
City time) on such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Fees" is defined in Section 2.5.
"FHA" means the Federal Housing Administration or other agency,
corporation or instrumentality of the United States to which the powers and
duties of the Federal Housing Administration have been transferred.
"FHA-Approved Mortgagee" means an institution that is approved by the FHA
to act as a servicer and mortgagee of record with respect to a Mortgage Loan
insured by the FHA.
"FHLMC" means the Federal Home Loan Mortgage Corporation or other agency,
corporation or instrumentality of the United States to which the powers and
duties of the Federal Home Loan Mortgage Corporation have been transferred.
"FHLMC-Approved Lender" means an institution that is approved by the FHLMC
to act as a lender in connection with the origination of any Mortgage Loan
purchased by the FHLMC.
"FHLMC Security" means a security representing an undivided fractional
interest in a pool of Mortgage Loans, which security is issued and guaranteed as
to full and timely payment of interest and full collection of principal by
FHLMC.
"FICO" means the "delinquency predictor" model established by Fair ▇▇▇▇▇
Co. and shown on a credit report prepared by Equifax, Experian, Trans Union, or
any other authorized national agency.
"FNMA" means the Federal National Mortgage Association or other agency,
corporation or instrumentality of the United States to which the powers and
duties of the Federal National Mortgage Association have been transferred.
"FNMA-Approved Lender" means an institution that is approved by the FNMA
to act as a lender in connection with the origination of any Mortgage Loan
purchased by the FNMA.
"FNMA Security" means a security representing an undivided fractional
interest in a pool of Mortgage Loans, which security is issued and guaranteed as
to full and timely payment of principal and interest by FNMA.
19
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Funded Debt" means as of any date of determination thereof, the sum of
all obligations of the Borrower for borrowed money, including but not limited to
money borrowed from any Parent, Subsidiary or Affiliate of the Borrower, whether
or not evidenced by a promissory note.
"GAAP" means generally accepted accounting principles as in effect from
time to time, consistently applied.
"GAAP Carrying Value" means, with respect to any asset of the Borrower,
the value at which such asset is carried on the books of the Borrower in
accordance with GAAP. Any changes in the methodology used for adjusting such
book value shall be subject to the prior approval of the Agent.
"Gestation Borrowing Base" means, for any day, that portion of the
Borrowing Base on such day attributable to Gestation Collateral.
"Gestation Collateral" means that portion of the Collateral which consists
of Gestation Mortgage Loans (identified by the Borrower in accordance with
Paragraph 2(d) of the Security Agreement) and Securities issued in exchange for
Gestation Mortgage Loans.
"Gestation Mortgage Loans" means, as of any date, any Pledged Mortgages
which the Borrower has identified as fully qualified for initial certification
for the purpose of creating a pool of Mortgage Loans to support the issuance of
a Security and with respect to which the Borrower has requested that the
Collateral Agent either (i) acting in its capacity as pool custodian, initially
certify for inclusion in such a pool or (ii) acting in its capacity as
Collateral Agent, ship to a Federal Agency to obtain initial certification by
such Federal Agency for inclusion in such a pool.
"GNMA" means the Government National Mortgage Association or other agency,
corporation or instrumentality of the United States as to which the powers and
duties of the Governmental National Mortgage Association have been transferred.
"GNMA Security" means a security representing an undivided fractional
interest in a pool of Mortgage Loans, which security is issued by the Borrower
and guaranteed as to full and timely payment of principal and interest by GNMA
without regard as to whether the Borrower collects any payments on such Mortgage
Loans.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Hedging Program" means a program for hedging interest rate risks of the
Borrower, which program shall provide, without limitation, that all Servicing
Hedge Agreements will be entered into or placed with one or more financial
institutions, futures commission merchants or clearing houses acceptable to the
Lenders in their reasonable discretion and with whom the Borrower has written,
assignable agreements.
20
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) Capitalized Lease Obligations, (vi) Contingent Obligations,
(vii) Letters of Credit, (viii) Sale and Leaseback Transactions, (ix) any
financing inherent in any Servicing Hedge Agreement, (x) obligations of such
Person to purchase securities or other Property arising out of or in connection
with the sale of the same or substantially similar securities or Property, and
(xi) any other obligation for borrowed money or other financial accommodation
which in accordance with Agreement Accounting Principles would be shown as a
liability on the consolidated balance sheet of such Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Ineligible Collateral" means any Pledged Item that does not at the time
constitute Eligible Collateral.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other securities owned by such Person; any
deposit accounts and certificate of deposit owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or similar
contracts owned by such Person. The amount of any Investment shall be determined
in accordance with Agreement Accounting Principles.
"Investor Transmittal Letter" means either a "Whole Loan Sale Transmittal
Letter" or a "Warehouse-Related MBS Transmittal Letter" substantially in the
form of Exhibits "4" and "5" to the Security Agreement.
"JPMC" means JPMorgan Chase Bank, N.A., in its individual capacity and its
successors.
"Jumbo Mortgage Loan" means a Residential Mortgage Loan which is a
Conforming Mortgage Loan in all respects except for its original principal
balance, provided that such original principal balance was less than or equal to
$750,000.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on a Schedule or otherwise selected by such Lender
or the Agent pursuant to Section 2.16.
"Lending Sublimits" is defined in Section 2.1.1.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
21
"Leverage Ratio" means, at any time, the ratio of (i) Funded Debt, plus
the sum of the face amount of all letters of credit issued by the Borrower and
outstanding at such time, to (ii) Consolidated Tangible Net Worth at such time.
"LIBOR Advance" means an Advance which bears interest at the LIBOR Rate.
"LIBOR Base Rate" means, for any day, the rate appearing on Page 3750 of
the Dow ▇▇▇▇▇ Market Service (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Agent from time to time for purposes of providing
quotations of interest rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time on that day, as the
rate for delivery on that day of one (1) month U.S. dollar deposits of One
Million Dollars ($1,000,000). In the event that such rate is not available at
such time for any reason, then the LIBOR Base Rate for the relevant day shall be
the rate at which one (1) month dollar deposits of One Million Dollars
($1,000,000) are offered by the principal London office of the Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time on that day.
"LIBOR Loan" means a Loan which bears interest at the LIBOR Rate.
"LIBOR Rate" means, a floating rate, to be determined and adjusted on a
daily basis, equal to the sum of (i) the LIBOR Base Rate for such day plus (ii)
the Applicable Margin with respect to the related portion of the outstanding
Advances on such day as determined in accordance with the definition of
"Applicable Margin".
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan made pursuant
to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, any Notes issued pursuant to
Section 2.12, the Security Agreement, the Buy-Down Agreements, the Collection
and Paying Agreement, and the other documents and agreements contemplated hereby
and executed by the Borrower or another Person in favor of the Agent or any
Lender.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, financial condition, or results of operations of the
Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower
to perform its obligations under the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or remedies of the
Agent or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Maximum Aggregate Commitment" means $600,000,000.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor to its
business.
22
"Mortgage" means a mortgage, deed of trust, security deed or similar
instrument purporting to create a first or second lien or similar interest in
real estate and improvements thereon.
"Mortgage Loan" means a loan of money evidenced by a Mortgage Note and
secured by a Mortgage.
"Mortgage Note" means a note evidencing the indebtedness secured by a
Mortgage.
"Multi-employer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions. "Negatively Amortizing Loan" means a Mortgage
Loan in which any portion of the interest due on such Mortgage Loan could be
accrued and added to the principal balance thereof.
"Net Worth" means as of any date of determination thereof, the net worth
of the Borrower and its Subsidiaries on a consolidated basis as determined in
accordance with Agreement Accounting Principles.
"Non-Agency Mortgage Loan" means any Mortgage Loan which is a
Non-Conforming Mortgage Loan, a Conforming Jumbo Mortgage Loan or a Conforming
Super Jumbo Mortgage Loan.
"Non-Conforming Mortgage Loan" means a Residential Mortgage Loan (other
than a Conforming Mortgage Loan, except as provided below with respect to
certain Conforming Jumbo Mortgage Loans and Conforming Super Jumbo Mortgage
Loans) that either qualifies as one of the following special types of Mortgage
Loan or includes all of the following characteristics:
(a) does not conform to the conventional underwriting standards of
FNMA, FHLMC or GNMA but is either underwritten in accordance with the
guidelines of an Approved Investor (other than FNMA, FHLMC or GNMA)
guidelines or is subject to an interest rate protection agreement
acceptable to Agent;
(b) is a first or second priority Mortgage Loan;
(c) may be a Non-Owner Occupied Loan;
(d) has an original principal amount which is less than or equal to
$750,000 (except that Conforming Jumbo Mortgage Loans and Conforming Super
Jumbo Mortgage Loans that have been excluded from calculation of the
Borrowing Base because they would cause the Borrowing Base Sublimit
applicable to such Mortgage Loans to be exceeded may be included as
Non-Conforming Mortgage Loans, provided that the Borrowing Base Sublimit
applicable to Non-Conforming Mortgage Loans is not thereby exceeded);
(e) is underwritten in accordance with the Borrower's underwriting
guidelines;
(f) is either (x) included in a group of Eligible Non-Conforming
Mortgage Loans covered by a Qualifying Rate Hedge or (y) subject to an
Approved Investor Commitment issued by an Approved Investor;
23
(f) is covered by private mortgage insurance if the loan to value
ratio exceeds 80%, unless it is as a Qualifying Negatively Amortizing Loan
or a Qualifying HLTV Loan;
(h) is a Qualifying Negatively Amortizing Loan;
(i) is a Qualifying HLTV Loan;
(j) is a Qualifying Non-Conforming Second Lien;
(k) is a Qualifying Under-560 Mortgage Loan; or
(l) is a Qualifying HELOC Loan.
"Non-Gestation Borrowing Base" means, for any day, that portion of the
Borrowing Base attributable to Eligible Collateral which is not Gestation Loan
Collateral, Eligible Mortgage Servicing Rights or Eligible Servicing Sale
Receivables.
"Non-Owner Occupied Loan" means a Residential Mortgage Loan secured by a
Single Family Residence at which the owner does not maintain his or her primary
place of residence.
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.12(iv) in substantially the form of Exhibit A attached
hereto, including any amendment, modification, renewal or replacement of any
such promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent, the Collateral Agent or any indemnified party
arising under the Loan Documents.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Parent" means Pulte Home Corporation, a Michigan corporation.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the first day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Pulte Holder" means (i) either of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, (ii) any of their respective Affiliates, parents, spouses,
descendants, and spouses of descendants, or (iii) any trusts or other entities
controlled by ▇▇. ▇▇▇▇▇ or ▇▇. ▇▇▇▇▇▇▇▇ and their respective estates, heirs,
administrators or personal representatives.
24
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, limited liability company, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pledge Date" means the date on which a Mortgage Loan, Security Pledge
Servicing or Pledged Servicing Sale Receivable is first delivered in pledge to
the Collateral Agent or is otherwise made subject to a security interest in
favor of the Agent or Collateral Agent for the benefit of the Lenders, provided
that (i) the date of delivery of a Mortgage Loan covered by an Agreement to
Pledge shall be deemed to be the date of delivery of such Agreement to Pledge
even after subsequent delivery of the related Required Mortgage Documents, (ii)
the "Pledge Date" for all Collateral previously held by the Collateral Agent
under the Prior Facilities shall be deemed to be the date on which such
Collateral was first delivered to the Collateral Agent under the Prior
Facilities even though such date is prior to the date of this Agreement and
(iii) any AP Mortgage which has been deleted and resubmitted as permitted
pursuant to clause (v)(3) of the definition of Eligible Mortgage Loan, shall
have a Pledge Date which is the date the Agreement to Pledge was so resubmitted.
"Pledged Item" means any Pledged Mortgage, Pledged Security, Pledged
Servicing or Pledged Servicing Sale Receivable.
"Pledged Mortgage" means all Mortgage Loans that are from time to time
delivered (or, in the case of AP Mortgages, are committed to be delivered) to
the Collateral Agent pursuant to this Agreement and the Security Agreement.
"Pledged Security" means all Securities that are from time to time
delivered to the Collateral Agent pursuant to this Agreement and the Security
Agreement.
"Pledged Servicing" means, with respect to any Servicing Agreements with
FNMA, GNMA or FHLMC, those loan pools subject to any such Servicing Agreement
which (a) do not contain any (i) Mortgage Loans that are Collateral, (ii)
commercial Mortgage Loans, or (iii) Mortgage Loans held for investment by the
Borrower, the Parent or any of their respective Subsidiaries, and (b) have been
specifically identified by the Borrower for inclusion in Collateral by executing
and delivering to the Agent (i) an Acknowledgement Agreement covering such
Pledged Servicing from FNMA, GNMA or FHLMC, as the case may be and (ii) an
amendment, in form and substance satisfactory to the Agent, to the UCC-1
financing statements described in Section 4.1(viii).
"Pledged Servicing Sale Receivables" means Servicing Sale Receivables
which are from time to time designated by the Borrower and pledged to the
Collateral Agent for the benefit of the Lenders in accordance with this
Agreement and the Security Agreement.
"Prior Agreement" is defined in the recitals of this Agreement.
"Prior Facility" means the facility contemplated by the Prior Agreement.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
25
"Pulte Change of Control" means the occurrence of any of the following
events: (i) the consummation of any consolidation, share exchange or merger of
Pulte Homes in which Pulte Homes is not the continuing or surviving corporation
or pursuant to which Pulte Homes' voting stock would be converted into cash,
securities or other property, other than, in any case, a merger of Pulte Homes
in which the holders of voting stock of Pulte Homes immediately prior to the
merger have the same or greater proportionate ownership, directly or indirectly,
of the voting stock of the surviving corporation immediately after such merger
as they had of the voting stock of Pulte Homes immediately before such merger;
or (ii) the filing of a report by any Person, including Affiliates of Pulte
Homes (other than Pulte Homes, its Subsidiaries, employee stock ownership plans
or employee benefit plans of Pulte Homes or its Subsidiaries, or a Permitted
Pulte Holder) on Schedule 13D or 14D-1 (or any successor schedule, form or
report under the Exchange Act) disclosing that such Person (for the purpose of
this definition of "Pulte Change in Control" only, the term "Person" shall
include a "person" within the meaning of Section 13(d)(3) and Section 14(d)(2)
of the Exchange Act or any successor provision to either of the foregoing) has
become the beneficial owner (as the term "beneficial owner" is defined under
Rule 13d-3 or any successor rule or regulation promulgated under the Exchange
Act) of 50% or more of Pulte Homes' voting stock; provided, however, that a
Person shall not be deemed the beneficial owner of, or to own beneficially (A)
any securities tendered pursuant to a tender or exchange offer made on behalf of
such Person or any of such Person's Affiliates until such tendered securities
are accepted for purchase or exchange thereunder or (B) any securities if such
beneficial ownership (1) arises solely as a result of a revocable proxy
delivered in response to a proxy or consent solicitation made pursuant to, and
in accordance with, the applicable rules and regulations under the Exchange Act,
and (2) is not also then reportable on Schedule 13D (or any successor schedule,
form or report) under the Exchange Act. A change of the legal name of Pulte
Homes shall not of itself (absent the occurrence of one of the events described
in the preceding sentence) constitute a Pulte Change of Control.
"Pulte Homes" means Pulte Homes, Inc., the sole shareholder of Pulte
Diversified Companies, Inc., which is in turn the sole shareholder of the
Parent.
"Purchasers" is defined in Section 12.3.1.
"Qualifying HELOC Loan" means a Residential Mortgage Loan which is a
revolving home equity line of credit which at the time of its origination had a
FICO score of at least 620.
"Qualifying HLTV Loan" means a Residential Mortgage Loan which (i) had an
original principal balance that (together with, if it is a second priority
Mortgage Loan, the principal balance of the related senior Mortgage Loan as of
the time of the funding of the second Mortgage Loan) exceeded 100% of the
appraised value of the real estate and improvements securing such Mortgage Loan
but did not exceed 107% of such appraised value, and (ii) is subject to an
Approved Investor Commitment issued by an Approved Investor.
"Qualifying Negatively Amortizing Loan" means a first-priority Residential
Mortgage Loan which (i) is a Negatively Amortizing Loan; (ii) had a FICO score
of at least 620 at the time of origination; (iii) had an original principal
balance that was less than 95% of the appraised value of the real estate and
improvements securing such mortgage loan. Any Qualifying Negatively Amortizing
Loan with a FICO score of less than 660 or a loan-to-value ratio of greater than
90% is referred to herein as "Low End Qualifying Negatively Amortizing Loan".
"Qualifying Non-Conforming Second Lien" means a Residential Mortgage Loan
which (i) is a second priority Mortgage Loan, (ii) had a FICO score of at least
less than 600 and greater than or equal
26
to 560 at the time of origination, (iii) was originated in conjunction with a
first priority Mortgage Loan and (iv) is subject to an Approved Investor
Commitment issued by an Approved Investor.
Qualifying Rate Hedge" means, as of any date, with respect to any group of
Non-Agency Mortgage Loans having a similar rate type and duration (e.g., 15
year, 30 year or ARMs), that the impact of changes in interest rates on such
group of Non-Agency Mortgage Loans is mitigated by interest rate hedging
products of a type consistent with both the effective duration of such group of
Non-Agency Mortgage Loans and the Borrower's overall Hedging Program.
"Qualifying Under-560 Mortgage Loan" means a Residential Mortgage Loan
which (i) had a FICO score less than 560 at the time of origination and (ii) is
subject to an Approved Investor Commitment issued by an Approved Investor.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between
the Borrower and any Person which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
"Rate Management Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Reconciled Non-Servicing Proceeds" is defined in Paragraph 6(c) of the
Security Agreement.
"Recourse Servicing" means any servicing rights under a Servicing
Agreement which obligates the Borrower either to repurchase Mortgage Loans upon
default by the borrower thereunder or to indemnify any party having an interest
in such Mortgage Loans against any loss arising from such a default for reasons
other than a breach of any representations or warranties regarding the condition
of such Mortgage Loans at origination which were made by the Borrower as
originator of such Mortgage Loans.
"Reduced Servicing Notice" is defined in Section 6.1(xiii).
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Regulation Z" means Regulation Z of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
truth-in-lending.
27
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least 66 2/3%
of the Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lenders in the aggregate holding at least 66 2/3% of the aggregate unpaid
principal amount of the outstanding Advances.
"Required Mortgage Documents" means the instruments and documents
described in Schedule A to the Security Agreement, as applicable to a particular
Mortgage Loan, which are required to be delivered to the Collateral Agent.
"Residential Mortgage Loan" means a Mortgage Loan secured by a Mortgage on
a Single Family Residence, which is not a construction loan or a rehabilitation
loan.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor to its business.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Management Obligations owing to one or more Lenders.
"Secured Parties" is defined in Recital B of the Security Agreement.
"Security or Securities" means any FHLMC Security, FNMA Security or GNMA
Security.
"Security Agreement" means the Fifth Amended and Restated Security and
Collateral Agency Agreement as of even date herewith, substantially in the form
of Exhibit "I" attached hereto, by and among the Borrower, the Agent, and the
Collateral Agent, pursuant to which a security interest is created in favor of
the Collateral Agent for the Lenders under this Agreement in certain Collateral
to be pledged pursuant to this Agreement, as the same may, from time to time, be
further supplemented, modified or amended.
"Servicing Agreement" means a written contract of the Borrower with
another Person to act on behalf of such other Person to, among other things,
receive payments in respect of Mortgage Loans and to service Mortgage Loans.
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"Servicing Borrowing Base" means, for any day, that portion of the
Borrowing Base attributable to Eligible Mortgage Servicing Rights and Eligible
Servicing Sale Receivables.
"Servicing Hedge Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate floor, cap or collar protection
agreements, forward rate currency or interest rate options, puts and warrants.
"Servicing Portfolio" means all Mortgage Loans then being serviced by the
Borrower either for its own account with respect to Pledged Items or for others
under Servicing Agreements (excluding Subservicing Agreements).
"Servicing Purchaser" means a Person which has purchased Servicing
Agreements from the Borrower.
"Servicing Rights Certificate" is defined in Section 6.1(xiii).
"Servicing Sale Receivables" means funds due to the Borrower from a
Servicing Purchaser in connection with a sale of Servicing Agreements from the
Borrower to such Servicing Purchaser.
"Servicing Take-Out Value" means, with respect to any Mortgage Loan
serviced by the Borrower pursuant to a Servicing Agreement constituting Eligible
Mortgage Servicing Rights, the amount to be paid by the Approved Servicing
Purchaser under the applicable Approved Servicing Sale Agreement for the rights
to service such Mortgage Loan.
"Servicing Transfer Report" is defined in Section 6.1(xiv).
"Settlement Account" means the account which may be established pursuant
to Section 8.4.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Single Family Residence" means a one to four family dwelling unit, which
may be a condominium unit but which shall not be a mobile home, manufactured
housing (the general definition of which is that the majority of the structure
is constructed and assembled elsewhere and delivered to the site) or a dwelling
unit in a cooperative apartment building.
"Subservicing Agreement" means a Servicing Agreement between the Borrower
and a Person which does not own the Mortgage Loans being serviced thereunder but
only has servicing or other non-ownership rights with respect thereto, pursuant
to which the Borrower subservices loans for others.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
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"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 10% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the beginning of the twelve-month period ending with the month in which such
determination is made, and (ii) is responsible for more than 10% of the
consolidated net income of the Borrower and its Subsidiaries as reflected in the
financial statements referred to in clause (i) above.
"Super Jumbo Mortgage Loan" means a Residential Mortgage Loan which is a
Conforming Mortgage Loan in all respects except for its original principal
balance, provided that such original principal balance was in excess of $750,000
but was not more than $2,000,000.
"Swingline Advance" means an Advance made by the Swingline Lender under
the special availability provisions described in Section 2.4.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans not exceeding the amount set forth as its "Swingline
Commitment" on Schedule 1 hereto, as such amount may be modified from time to
time pursuant to the terms hereof.
"Swingline Lender" means JPMorgan Chase Bank, N.A.
"Swingline Loan" means a Loan that is a Swingline Advance.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing.
"Termination Date" means May __, 2009 or any earlier date on which the
Aggregate Commitment is reduced to zero or otherwise terminated pursuant to the
terms hereof.
"Transferee" is defined in Section 12.5.
"Trust Receipt" means a trust receipt substantially in the form of Exhibit
2 to the Security Agreement.
"Type" means, with respect to any Advance, its nature as a LIBOR Advance
or Swingline Advance.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"VA" means the Veterans Administration or other agency, corporation or
instrumentality of the United States as to which the powers and duties of the
Veterans Administration have been transferred.
"VA-Approved Lender" means an institution that is approved by the VA to
act as a lender in connection with the origination of any Mortgage Loan
guaranteed by the VA.
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"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries
of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of
such Person, or (ii) any partnership, limited liability company, association,
joint venture or similar business organization 100% of the ownership interests
having ordinary voting power of which shall at the time be so owned or
controlled.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Commitment, Sublimits and Types of Advances.
2.1.1 Commitment and Lending Sublimits. From and including the date
of this Agreement and prior to the Termination Date, each Lender severally
agrees, on the terms and conditions set forth in this Agreement (including the
lending sublimits (the "Lending Sublimits") set forth below), to make Loans to
the Borrower from time to time; provided that, on any date, after giving effect
to such Loans and all other loans that the Borrower has requested be made on
such date under this Agreement:
(1) the aggregate principal balance then outstanding under all
Loans then held by such Lender shall not exceed the amount of such
Lender's then-current Commitment;
(2) the aggregate principal balance of all outstanding
Swingline Loans held by any Swingline Lender on any date shall not
exceed such Swingline Lender's Swingline Commitment; and
(3) the aggregate principal balance of all outstanding
Advances under this Agreement on such date shall not exceed the
lesser of (i) the Aggregate Commitment and (ii) the Borrowing Base.
Subject to the terms of this Agreement, the Borrower may borrow, repay and
reborrow at any time prior to the Termination Date. The Commitments to lend
hereunder shall expire on the Termination Date.
2.1.2 Borrowing Base Sublimits by Category. The maximum amount that
can be credited toward the Borrowing Base from certain categories of Eligible
Collateral shall be limited so that the Borrowing Base value attributable to:
(i) Eligible Conforming Super Jumbo Mortgage Loans shall not
exceed twenty percent (20%) of the Aggregate Commitment;
(ii) Eligible Investment Loans shall not exceed five percent (5%)
of the Aggregate Commitment;
(iii) Aggregate Servicing Value shall not exceed ten percent (10%)
of the Aggregate Commitment; and
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(iv) Eligible Non-Conforming Mortgage Loans, Eligible Investment
Loans and Aggregate Servicing Value in the aggregate, shall
not exceed fifty percent (50%) of the Aggregate Commitment;
provided however that notwithstanding the foregoing, during
each month of December and each month of January, the
aggregate Borrowing Base value attributable to such three
types of Eligible Collateral may exceed such 50% sublimit so
long as the aggregate Borrowing Base value attributable to
such three types of Eligible Collateral does not at any time
exceed sixty percent (60%) of the Aggregate Commitment.
2.1.3 Borrowing Base Sublimits by Asset Type. The maximum amount
that can be credited toward the Borrowing Base from certain types of Collateral
shall be limited (collectively with the limits set forth in Section 2.1.2, the
"Borrowing Base Sublimits") so that the Borrowing Base value attributable to:
(i) Eligible Conforming Jumbo Mortgage Loans and Eligible
Conforming Super Jumbo Mortgage Loans, in the aggregate, shall
not exceed thirty five percent (35%) of the Aggregate
Commitment (subject to the inclusion of any such Mortgage
Loans in excess of this Borrowing Base Sublimit as Eligible
Non-Conforming Mortgage Loans);
(ii) Eligible Non-Conforming Jumbo Mortgage Loans and Eligible
Non-Conforming Super Jumbo Mortgage Loans, in the aggregate,
shall not exceed forty percent (40%) of the Aggregate
Commitment:,
(iii) Qualifying Negatively Amortizing Loans shall not exceed ten
percent (10%) of the Aggregate Commitment, provided further
that (i) Non-Owner Occupied Mortgage Loans shall not
constitute more than fifteen percent (15%) of such Qualifying
Negatively Amortizing Loans, based on principal balances and
(ii) Low End Qualifying Negatively Amortizing Loans, which
shall be included in calculating such 10% sublimit, shall also
not exceed a sub-sublimit of five percent (5%) of the
Aggregate Commitment;
(iv) Non-Owner Occupied Mortgage Loans shall not exceed twenty
percent (20%) of the Aggregate Commitment;
(v) Qualifying HLTV Loans shall not exceed five percent (5%) of
the Aggregate Commitment;
(vi) Qualifying Under-560 Mortgage Loans shall not exceed five
percent (5%) of the Aggregate Commitment; and
(vii) Qualifying Non-Conforming Second Liens shall not exceed two
percent (2%) of the Aggregate Commitment.
2.1.4 Types of Advances. Each Advance hereunder shall consist of one
or more LIBOR Advances or Swingline Advances requested by the Borrower in
accordance with Section 2.6. LIBOR Advances shall be available as provided in
Section 2.2 and Swingline Advances shall be available as provided in Section
2.4.
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2.2 LIBOR Advances. Subject to the terms and conditions herein (including
the Lending Sublimits) the Borrower may request LIBOR Advances from the Lenders
on a pro rata basis in accordance with each such Lender's Commitment Percentage.
LIBOR Advances shall bear interest at a floating rate equal to the LIBOR Rate.
2.3 Buy Down Loans. Notwithstanding anything contained in this Agreement,
the Borrower and any individual Lender (a "Buy-Down Lender") may notify the
Agent in writing that the Borrower and such Buy-Down Lender have entered into a
Buy-Down Agreement with respect to all Loans from time to time outstanding and
held by such Buy-Down Lender, and, that, pursuant to said Buy-Down Agreement,
the interest rate applicable to such Loans during any interest calculation
period shall be the Buy-Down Rate with respect to such Loans and shall be based
on the assumption that the Borrower shall maintain sufficient Available Deposits
with such Buy-Down Lender. The Agent shall (until otherwise notified by the
Borrower and Buy-Down Lender to the contrary) accrue interest on such Loans at
the Buy-Down Rate and the Borrower shall pay such interest in accordance with
Section 2.14. The Agent shall have no obligation to verify the amount of any
Available Deposits supporting the pricing of such Loans held by any Buy-Down
Lender, including without limitation, any deficiency fees or other amounts
payable to such Lender by the Borrower under the applicable Buy-Down Agreement.
The Borrower shall pay all deficiency fees or other amounts payable under its
Buy-Down Agreement with each Buy-Down Lender directly to such Buy-Down Lender
within ten (10) calendar 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 any shortage 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 Termination Date.
2.4 Swingline Advances.
2.4.1 General. Subject to the terms and conditions herein (including
the Lending Sublimits), the Borrower may request Swingline Advances from the
Swingline Lender. On any Borrowing Date each Swingline Advance requested by the
Borrower shall be funded to the Borrower by the Swingline Lender and in such
amounts as designated in the Borrowing Notice.
2.4.2 Swingline Advances to Pay Amounts Due to Swingline Lender. If
any amounts are advanced by the Swingline Lender to cover checks or wire
transfers from Borrower accounts maintained with the Swingline Lender when there
are insufficient funds in such accounts to cover the applicable check or wire
transfer and sufficient funds are not deposited in the applicable account before
the close of business on the day on which the applicable check or wire transfer
request is honored, then the Borrower shall be deemed to have requested, and the
Swingline Lender may (but shall not be obligated to) elect to make, a Swingline
Advance to pay such overdraft amount (even if after giving effect to such a
Swingline Advance the aggregate amount of all outstanding Swingline Advances
would exceed the Swingline Commitment); provided however, that (i) the Swingline
Lender shall not make any such Swingline Advance to the extent such Advance
would cause (x) the aggregate unpaid principal amount outstanding under this
Agreement to exceed the Borrowing Base or (y) the aggregate principal balance of
all outstanding Advances under this Agreement to exceed the Aggregate
Commitment, and
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(ii) the reallocations of any such Swingline Advances among the Lenders shall be
as set forth in Section 2.4.3.
2.4.3 Reallocation of Swingline Advances. The Swingline Lender may
by written notice given to the Agent not later than 10:00 a.m., New York City
time, on any Business Day require the Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Advances outstanding. Such
notice shall specify the aggregate amount of Swingline Advances in which Lenders
will participate. Following receipt of such a notice, the Administrative Agent
will give notice thereof to each Lender by 12:30 p.m., New York City time,
specifying in such notice such Lender's Commitment Percentage of such Swingline
Loan. Each Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Agent, for the account of the Swingline
Lender, by 3:00 p.m., New York City time, such Lender's Commitment Percentage of
such Swingline Advances. Each Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Advances pursuant to this paragraph is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or reduction
or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each Lender
shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.6 with
respect to Loans made by such Lender (and Section 2.6 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Agent shall notify the Borrower of any participations in any
Swingline Advances acquired pursuant to this paragraph, and thereafter payments
in respect of such Swingline Advances shall be made to the Agent and not to the
Swingline Lender. Any amounts received by the Swingline Lender from the Borrower
(or other party on behalf of the Borrower) in respect of a Swingline Advances
after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear; provided that any such
payment so remitted shall be repaid to the Swingline Lender or to the Agent, as
applicable, if and to the extent such payment is required to be refunded to the
Borrower for any reason. If any Lender fails to provide its funds to the Agent
to repay its share of any Swingline Advances when due (including any such
failure caused by a fed funds wire delay), then that Lender shall also be
obligated to pay to the Agent for the account of the Swingline Lender interest
on the unpaid balance of principal so due to the Swingline Lender at the Federal
Funds Effective Rate from such due date until three (3) Business Days after such
due date, and at the Federal Funds Effective Rate plus two percent (2%) from
three (3) Business Days after such due date until the date of payment of such
principal sum. The purchase of participations in a Swingline Loan pursuant to
this paragraph shall not relieve the Borrower of any default in the payment
thereof.
2.5 Fees. The Borrower shall pay the following fees (the "Fees"):
2.5.1 Facility Fees. A facility fee based on the Aggregate
Commitment from time to time from and after the date hereof, calculated at the
Facility Fee Rate, expressed as a per diem rate on the actual Aggregate
Commitment for each day during the preceding full or partial calendar quarter,
payable in arrears, on the last day of each calendar quarter and on the
Termination Date. This fee shall be paid to the Agent and allocated among the
Lenders on a pro rata basis in accordance with their respective Commitments
during such quarter.
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2.5.2 Amendment Fee. An amendment fee of $2,500 to each Lender for
each material waiver or amendment (as determined in the sole and absolute
discretion of the Agent) to this Agreement other than amendments made to
increase or reduce the Aggregate Commitment under Section 2.7 of this Agreement
(provided that with respect to each waiver or amendment, such fee shall only be
due to Lenders that sign such waiver or amendment by the date requested by the
Agent).
2.5.3 Agent Fees. Any fees payable to the Agent pursuant to the
Borrower's letter agreement with the Agent dated April 7, 2006.
2.5.4 Collateral Agent Fees. Any fees payable to Collateral Agent
for its services rendered pursuant to the Security Agreement as agreed to by the
Borrower and charged by Collateral Agent from time to time.
2.5.5 Fees Payable in connection with Buy-Down Loans. The Borrower
shall pay any fees and other charges when due to any Buy-Down Lender under a
Buy-Down Agreement as described in Section 2.3.
2.6 Method of Requesting New Advances. The Borrower shall give the Agent
irrevocable notice in the form attached hereto as Exhibit B and made a part
hereof (a "Borrowing Notice") not later than (i) 5:00 p.m. (New York City time)
on the proposed Borrowing Date for each Swingline Advance, and (ii) noon (New
York City time) on the proposed Borrowing Date for each LIBOR Advance,
specifying:
(a) the Borrowing Date, which shall be a Business Day, of such Advance,
(b) the aggregate amount of such Advance, which, in the case of a LIBOR
Advance, shall be in an amount equal to $5,000,000 or a whole
multiple of $1,000,000 in excess thereof, or, in the case of a
Swingline Advance, shall be in a minimum amount of $100,000, but
need not be in multiples of $100,000 if in excess thereof; and
(c) the Type of Advance selected.
Not later than 3:00 p.m. (New York City time) on each Borrowing Date, each
Lender shall make available its Loan comprising the LIBOR Advance requested, in
funds immediately available in New York City to the Agent at its address
specified pursuant to Article XIII. Swingline Advances shall be made available
to the Borrower promptly after the Borrowing Notice is received prior to the
close of business. The Agent will make the funds so received from the Lenders
available to the Borrower at the Agent's aforesaid address.
2.7 Changes to Aggregate Commitment.
2.7.1 Reductions to Aggregate Commitment. The Borrower may from time
to time permanently reduce the Aggregate Commitment in whole, or in part ratably
among the Lenders in integral multiples of $5,000,000, upon at least five (5)
Business Days written notice to the Agent, which notice shall specify the amount
of any such reduction. On or before the effective date of any such reduction,
the Borrower shall, if necessary, repay sufficient Loans to prevent the
remaining outstanding Loans hereunder, after giving effect to such permanent
reduction, from exceeding the Lending Sublimits. Upon any reduction of the
Aggregate Commitment, upon the election of the Swingline
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Lender, the reduction in such Lender's Commitment may also reduce its Swingline
Commitment on a pro rata basis.
2.7.2 Temporary Increases in Aggregate Commitment. The Borrower
shall have the right to temporarily increase the Aggregate Commitment from its
then-current level to an amount not greater than the Maximum Aggregate
Commitment and for a period not in excess of 45 days, by obtaining an additional
Commitment or Commitments from one or more of the Lenders, provided that such
Lender has agreed, in its sole discretion, to provide such an additional
Commitment and provided further that the Borrower shall not be permitted to
temporarily increase the Aggregate Commitment more than four (4) times in any
calendar year. Each such increase shall be evidenced by an amendment in the form
attached hereto as Exhibit K, which amendment shall be executed by the Borrower,
the Agent and each Lender increasing its Commitment thereby. Each such amendment
shall amend Schedule 1 to the extent necessary to reflect the changes in the
Commitments hereunder, and the Agent shall promptly deliver a copy of such
amendment to each Lender. On the Business Day that any such increase becomes
effective, all outstanding LIBOR Advances shall be reallocated among the Lenders
in accordance with the Lenders' respective Commitment Percentages.
2.7.3 Permanent Increases to Aggregate Commitment. The Borrower
shall have the right to permanently increase the Aggregate Commitment to an
amount not greater than the Maximum Aggregate Commitment by obtaining additional
Commitments, either from one or more of the Lenders or from another lending
institution provided that (A) such Lender or other lending institution has
agreed, in its sole discretion, to provide such additional Commitment, (B) the
Agent has approved the identity of any such new Lender, such approval not to be
unreasonably withheld, (C) any such new Lender assumes all of the rights and
obligations of a "Lender" hereunder, and (D) the Borrower may so permanently
increase the Aggregate Commitment not more than two (2) times between the
Effective Date and the date eighteen (18) months after the Effective Date. Each
such increase shall be evidenced by an amendment in the form attached hereto as
Exhibit N and shall only require the written signatures of the Agent, the
Borrower and Lender being added or increasing its Commitment. In addition, each
such amendment shall revise Schedule 1 reflecting such increase and the Agent
shall promptly distribute such amendment and revised Schedule to each of the
Lenders and the Borrower. On the Business Day that any such increase becomes
effective, all outstanding LIBOR Advances shall be reallocated among the Lenders
(including any newly added Lenders) in accordance with the Lenders' respective
revised Commitment Percentages.
2.8 Principal Payments.
2.8.1 Optional Principal Payments. The Borrower may from time to
time pay, without penalty or premium, (i) all outstanding LIBOR Advances, or, in
a minimum aggregate amount of $500,000 or any integral multiple of $100,000 in
excess thereof, any portion of the outstanding LIBOR Advances or (ii) all or any
portion of the outstanding Swingline Advances on any Business Day.
2.8.2 Required Payments Related to Borrowing Base. On any date that
the aggregate unpaid principal amount outstanding under this Agreement is in
excess of the then-current Borrowing Base, the Borrower shall, prior to the
close of business on such date, either deliver sufficient Eligible Collateral to
eliminate such excess or make a mandatory payment to the Agent for the benefit
of the Lenders in the amount of such excess. Any such payment shall be allocated
in accordance with the Lenders' respective outstanding Loans with such payments
applied to principal.
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2.8.3 Settlement Account Payments. Prior to the occurrence of a
Default, to the extent the amounts in the Settlement Account are not needed to
keep the Borrowing Base equal to or greater than the aggregate unpaid principal
amount outstanding under this Agreement, the Borrower may withdraw or otherwise
direct the application of such amounts. Upon the occurrence of a Default (and
during the continuance thereof), the Agent may declare a portion of the
principal balance of the Loans, equal to any amounts then on deposit in the
Settlement Account and any deposits made in the Settlement Account during the
continuance of such Default, to be due and payable without demand (unless
previously declared due and payable). Such amount shall be withdrawn from the
Settlement Account by the Agent and shall be applied to the Obligations.
2.8.4 Final Payment on Termination Date. Any outstanding Advances
and all other unpaid Obligations, unless required to be paid earlier pursuant to
the terms hereof, shall be paid in full by the Borrower on the Termination Date.
2.8.5 Pulte Change in Control. If a Pulte Change in Control shall
occur, all Commitments shall be terminated and all amounts outstanding under
this Agreement shall become due and payable upon the election of the Required
Lenders.
2.9 Changes in Interest Rate, etc. Each LIBOR Advance shall bear interest
on the outstanding principal amount thereof, for each day from and including the
date such Advance is made but excluding the date it is paid at a rate per annum
equal to the LIBOR Rate for such day. Changes in the rate of interest on each
LIBOR Advance will take effect daily with each change in the LIBOR Rate and
Applicable Margin.
2.10 Rates Applicable After Default. During the continuance of a Default
the Required Lenders may, at their option, by notice to the Borrower (which
notice may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 9.1 requiring unanimous consent of the Lenders to
reductions in interest rates) declare that each LIBOR Advance shall bear
interest at the rate otherwise applicable to such LIBOR Advance (which rate
includes the Applicable Margin) plus 2% per annum provided that, during the
continuance of a Default under Section 7.6 or 7.7, such increased interest rate
shall be applicable to all LIBOR Advances without any election or action on the
part of the Agent or any Lender.
2.11 Method of Payment. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Agent at the Agent's address specified pursuant to Article XIII, or at
any other Lending Installation of the Agent specified in writing by the Agent to
the Borrower, on the date when due by (i) 12:30 p.m. (New York City time) with
respect to all LIBOR Advances and (ii) 5:00 p.m. (New York City time) with
respect to Swingline Advances and all such payments shall be applied in
accordance with Section 2.8. Each payment delivered to the Agent for the account
of any Lender shall be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at its address specified pursuant to
Article XIII or at any Lending Installation specified in a notice received by
the Agent from such Lender. The Agent is hereby authorized to charge the account
of the Borrower maintained with JPMC for each payment of principal, interest and
fees as it becomes due hereunder.
2.12 Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan
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made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(ii) Subject to Section 2.3, the Agent shall also maintain accounts
in which it will record (a) the amount of each Loan made hereunder, (b)
the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (c) the amount
of any sum received by the Agent hereunder from the Borrower and each
Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the
existence and amounts of the Obligations therein recorded; provided,
however, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Obligations in accordance with
their terms.
(iv) Any Lender may request that its Loans be evidenced by a Note.
In such event, the Borrower shall prepare, execute and deliver to such
Lender a Note payable to the order of such Lender. Thereafter, the Loans
evidenced by such Note and interest thereon shall at all times (including
after any assignment pursuant to Section 12.3) be represented by one or
more Notes payable to the order of the payee named therein or any assignee
pursuant to Section 12.3, except to the extent that any such Lender or
assignee subsequently returns any such Note for cancellation and requests
that such Loans once again be evidenced as described in paragraphs (i) and
(ii) above.
2.13 Telephonic Notices. The Borrower hereby authorizes the Lenders and
the Agent to extend Advances and to transfer funds based on telephonic notices
made by any person or persons the Agent or any Lender in good faith believes to
be acting on behalf of the Borrower, it being understood that the foregoing
authorization is specifically intended to allow Borrowing Notices to be given
telephonically. The Borrower agrees to deliver promptly to the Agent a written
confirmation, if such confirmation is requested by the Agent or any Lender, of
each telephonic notice signed by an Authorized Officer. If the written
confirmation differs in any material respect from the action taken by the Agent
and the Lenders, the records of the Agent and the Lenders shall govern absent
manifest error.
2.14 Interest Payment Dates; Interest and Fee Basis. Subject to Section
2.3, interest accrued on each Advance shall be payable on each Payment Date,
commencing with the first such date to occur after the date hereof and at
maturity. Interest and Fees shall be calculated for actual days elapsed on the
basis of a 360-day year. Interest shall be payable for the day an Advance is
made but not for the day of any payment on the amount paid if payment is
received at the place of payment prior to the time required for payment as set
forth in Section 2.11. If any payment of principal of or interest on an Advance
shall become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a principal
payment, such extension of time shall be included in computing interest in
connection with such payment.
2.15 Notification by the Agent. Promptly after receipt thereof, the Agent
will notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, and repayment notice received by it hereunder.
2.16 Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this
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Agreement shall apply to any such Lending Installation and the Loans and any
Notes issued hereunder shall be deemed held by each Lender for the benefit of
such Lending Installation. Each Lender may, by written notice to the Agent and
the Borrower in accordance with Article XIII, designate replacement or
additional Lending Installation through which Loans will be made by it and for
whose account Loan payments are to be made.
2.17 Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender,
as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or an Advance or (ii) in the case of the Borrower, a payment
of principal (including but not limited to situations in which the Borrower
informs the Agent that the Agent will be receiving proceeds of Collateral on a
specific date and that the Borrower intends to use such proceeds to make a
payment of principal), interest or Fees to the Agent for the account of the
Lenders, that it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be obligated to, make
the amount of such payment available to the intended recipient in reliance upon
such assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Agent, the recipient of such payment shall, on
demand by the Agent, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on the
date such amount was so made available by the Agent until the date the Agent
recovers such amount at a rate per annum equal to (x) in the case of payment due
from a Lender, the Federal Funds Effective Rate for such day for the first three
days and, thereafter, either the interest rate provided for in Section 2.3 if
the payment relates to a Swingline Advance or, in all other cases, the interest
rate applicable to the relevant Loan or (y) in the case of payment due from the
Borrower, the interest rate applicable to the relevant Loan.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation to
any Taxes or changes the basis of taxation of payments (other than with
respect to Excluded Taxes) to any Lender in respect of its LIBOR Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by, any Lender or any applicable Lending Installation, or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its LIBOR Loans or reduces any amount receivable by
any Lender or any applicable Lending Installation in connection with its
LIBOR Loans, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of its LIBOR
Loans held or interest received by it, by an amount deemed material by
such Lender,
39
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its LIBOR Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such LIBOR Loans or Commitment, then, within 15
days of demand by such Lender, the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in an amount received.
3.2 Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change, then, within 15 days of demand by such
Lender, the Borrower shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender determines is attributable to this Agreement, its Loans or its
Commitment to make Loans hereunder (after taking into account such Lender's
policies as to capital adequacy). "Change" means (i) any change after the date
of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "Risk-Based Capital Guidelines" means
(i) the risk-based capital guidelines in effect in the United States on the date
of this Agreement, including transition rules, and (ii) the corresponding
capital regulations promulgated by regulatory authorities outside the United
States implementing the July 1988 report of the Basle Committee on Banking
Regulation and Supervisory Practices Entitled "International Convergence of
Capital Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender determines that
maintenance of its LIBOR Loans at a suitable Lending Installation would violate
any applicable law, rule, regulation, or directive, whether or not having the
force of law, or if the Required Lenders determine that (i) deposits of a type
and maturity appropriate to match fund LIBOR Advances are not available or (ii)
the interest rate applicable to a Type of Advance does not accurately reflect
the cost of making or maintaining such Advance, then the Agent shall suspend the
availability of the affected Type of Advance and require any Advances of the
affected Type to be repaid.
3.4 Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Agent or Lender (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Agent and each Lender, within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation
40
of the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate prepared in good faith and setting forth in reasonable detail the
basis and amount of such payment or liability delivered to the Borrower by a
Lender, or by the Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the
Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.
(f) If the Agent or a Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 3.4, it shall pay over such refund
to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 3.4 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided, that the Borrower, upon the request of the Agent or such
Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Agent or such Lender in the event the Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall
not be construed to require the Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
3.5 Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 3.1 or Section 3.2, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.4,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to such Sections in the future and (ii) would
not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) If any Lender requests compensation under Section 3.1 or Section 3.2,
or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.4, or
if any Lender defaults in its obligation to fund Loans hereunder,
41
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 12.3), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Agent, which consent shall
not unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in
Swingline Advances, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, 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) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 3.1 or Section 3.2 or payments required to
be made pursuant to Section 3.4, such assignment will result in a reduction in
such compensation or payments. A Lender shall not be required to make any such
assignment and 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.
ARTICLE IV
CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION
4.1 Effectiveness. This Agreement shall not be effective and no Lender
shall be required to make the initial Advance hereunder until a date (the
"Effective Date") upon which the Borrower has furnished or caused to be
furnished to the Agent:
(i) Copies of the articles or certificate of organization of the
Borrower, together with all amendments, certified by the appropriate
governmental officer in its jurisdiction of organization.
(ii) Copies, certified by the Secretary or Assistant Secretary of
the Borrower, of its operating or other management agreement and of
resolutions of its members and of any other body authorizing the execution
of the Loan Documents to which the Borrower is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of the Borrower, which shall identify by name and
title and bear the signatures of the Authorized Officers and any other
officers of the Borrower authorized to sign the Loan Documents to which
the Borrower is a party, upon which certificate the Agent and the Lenders
shall be entitled to rely until informed of any change in writing by the
Borrower.
(iv) A good standing certificate for the Borrower from the Secretary
of State of its state of organization.
(v) A certificate, signed by the chief financial officer of the
Borrower, stating that on the initial Borrowing Date no Default or
Unmatured Default has occurred and is continuing.
(vi) A written opinion of the Borrower's counsel, addressed to the
Lenders in a form acceptable to Agent.
(vii) Any Notes requested by a Lender pursuant to Section 2.12
payable to the order of each such requesting Lender.
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(viii) A fully executed Security Agreement, together with such
executed UCC-1 financing statements as the Agent may reasonably request.
(ix) Copies of the existing Acknowledgment Agreements with respect
to the Pledged Servicing, to be updated to reflect the current amendment
and restatement of the Facility in form and substance satisfactory to the
Agent within sixty (60) days after the Effective Date.
(x) Payment of all Fees due and payable on or before the Effective
Date.
(xi) A copy of the Positions Report for the calendar month
immediately preceding the Effective Date, together with such detail
regarding the Borrower's ▇▇▇▇▇▇ as the Agent may have reasonably
requested.
(xii) Such other documents as any Lender or its counsel may have
reasonably requested.
4.2 Each Advance. The Lenders shall not be required to make any Advance
(other than an Advance that, after giving effect thereto and to the application
of the proceeds thereof, does not increase the aggregate amount of outstanding
Advances), unless on the applicable Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct in all material respects as of such Borrowing Date except
to the extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or warranty
shall have been true and correct in all material respects on and as of
such earlier date.
(iii) All legal matters incident to the making of such Advance shall
be reasonably satisfactory to the Lenders and their counsel.
Each Borrowing Notice with respect to each such Advance shall constitute a
representation and warranty by the Borrower that each Pledged Item included in
the Borrowing Base constitutes Eligible Collateral, and that after giving effect
to the amount of the Advance being requested, (a) the conditions contained in
Sections 4.2(i) and (ii) have been satisfied, (b) the Borrower has provided the
Collateral Agent with the true and correct information including the GAAP
Carrying Values (correctly calculated in accordance with the provisions of this
Agreement) necessary to calculate the Collateral Value for all Eligible
Collateral, (c) the then current Borrowing Base is equal to or greater than the
aggregate unpaid principal amount outstanding under this Agreement and (d) no
Lending Sublimit or Borrowing Base Sublimit has been exceeded.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Existence and Standing. Each of the Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability
company duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization
and,
43
except for the State of Rhode Island, has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted. The failure of
Borrower and its Subsidiaries to be authorized to conduct business in Rhode
Island could not reasonably be expected to have a Material Adverse Effect.
5.2 Authorization and Validity. The Borrower has the power and authority
to execute and deliver the Loan Documents and to perform its obligations
thereunder. The execution and delivery by the Borrower of the Loan Documents and
the performance of its obligations thereunder have been duly authorized by
proper limited liability company proceedings, and the Loan Documents to which
the Borrower is a party constitute legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their terms, except
as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
5.3 No Conflict; Government Consent. Neither the execution and delivery by
the Borrower of the Loan Documents nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries if any such violation
could reasonably be expected to have a material adverse effect on the business
or financial condition of the Borrower and its Subsidiaries taken as a whole or
(ii) the Borrower's or any Subsidiary's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict with
or constitute a default thereunder if any such violation, conflict or default
could reasonably be expected to have a material adverse effect on the business
or financial condition of the Borrower and its Subsidiaries taken as a whole, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or any of its Subsidiaries, is required to be obtained by the
Borrower or any of its Subsidiaries in connection with the execution and
delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the legality, validity,
binding effect or enforceability of any of the Loan Documents (other than
filings to perfect the Liens granted pursuant to the Security Agreement).
5.4 Financial Statements. The December 31, 2005 consolidated financial
statements of the Borrower and its Subsidiaries heretofore delivered to the
Lenders were prepared in accordance with GAAP in effect on the date such
statements were prepared and fairly present the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
5.5 Material Adverse Change. Since December 31, 2005, there has been no
change in the business, Property, financial condition or results of operations
of the Borrower and its Subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
5.6 Taxes. The Borrower and, to its knowledge, its Subsidiaries have filed
all United States federal tax returns and all other tax returns which are
required to be filed and have paid all taxes due
44
pursuant to said returns or pursuant to any assessment received by the Borrower
or any of its Subsidiaries, except such taxes, if any, as are being contested in
good faith by appropriate proceedings and as to which adequate reserves have
been provided in accordance with Agreement Accounting Principles and as to which
no Lien exists. No material tax liens have been filed and no material claims are
being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and the Subsidiaries in respect of any
taxes or other governmental charges are adequate. Each of the Borrower and each
of its Subsidiaries that is a limited liability company qualifies for
disregarded entity tax treatment under United States federal tax law.
5.7 Litigation and Contingent Obligations. Except as set forth on Schedule
"3" hereto and as otherwise disclosed in the Borrower's annual financial
statements referred to in Section 5.4, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the knowledge
of any of their executive officers, threatened against or affecting the Borrower
or any of its Subsidiaries which (i) in the Borrower's reasonable judgment have
a reasonable possibility of being determined adversely to the Borrower or any
Subsidiary, and (ii) if so determined adversely to the Borrower or any
Subsidiary, as the case may be, would be reasonably likely to, singly or in the
aggregate, have a material adverse effect on the financial condition, or on the
respective properties or operations, of the Borrower and its Subsidiaries taken
as a whole or the transactions contemplated by this Agreement, the Security
Agreement and the Notes. Other than any liability incident to any litigation,
arbitration or proceeding which could not reasonably be expected to have a
Material Adverse Effect, the Borrower has no material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
5.4.
5.8 Subsidiaries. Schedule "4" hereto contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
the aggregate exceed $500,000. Neither the Borrower nor any other member of the
Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multi-employer Plans in excess of $500,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other members of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan.
5.10 Accuracy of Information. No information, exhibit or report furnished
by the Borrower or any of its Subsidiaries to the Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not misleading.
5.11 Regulation U. Margin stock (as defined in Regulation U) constitutes
less than 25% of the value of those assets of the Borrower and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
5.12 Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably
45
be expected to have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in (i) any agreement to which
it is a party, which default could reasonably be expected to have a Material
Adverse Effect or (ii) any agreement or instrument evidencing or governing
Indebtedness or any Rate Management Transaction.
5.13 Compliance With Laws. The Borrower and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property except for any failure to comply with any of the
foregoing which could not reasonably be expected to have a Material Adverse
Effect.
5.14 Ownership of Properties. Except as set forth on Schedule "5" hereto,
on the date of this Agreement, the Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by Section 6.15, to all of
the Property and assets reflected in the financial statements provided to the
Agent as owned by the Borrower and its Subsidiaries.
5.15 Plan Assets; Prohibited Transactions. The Borrower is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R. Section 2510.3-101
of an employee benefit plan (as defined in Section 3(3) of ERISA) which is
subject to Title I of ERISA or any plan (within the meaning of Section 4975 of
the Code), and neither the execution of this Agreement nor the making of Loans
hereunder gives rise to a prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Code.
5.16 Investment Company Act. Neither the Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.17 Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.18 GNMA, FHA, VA, FNMA, and FHLMC Eligibility. The Borrower is: (i) an
FHA-Approved Mortgagee in good standing, a VA-Approved Lender, a FHLMC-Approved
Lender and a FNMA-Approved Lender and meets all eligible requirements of law and
governmental regulation so as to be eligible to originate, purchase, hold and
service Mortgage Loans insured by FHA or supporting any Security; (ii) an
approved seller and servicer in good standing of Mortgage Loans to each Federal
Agency; and (iii) an approved issuer and servicer in good standing of Securities
for FHLMC, FNMA and GNMA and meets all FHLMC, FNMA and GNMA requirements,
requirements of law and governmental regulations so as to be able to issue
Securities and to originate and service the Mortgage Loans that secure such
Securities.
5.19 Approved Investor Commitments. The forms of Approved Investor
Commitment with respect to Mortgage Loans, other than Conforming Mortgage Loans,
which were delivered to the Agent on the Effective Date are still valid and
currently in use and, except to the extent new forms or changes to the existing
forms of Approved Investor Commitment have been delivered to the Agent,
represent the only forms of Approved Investor Commitment used by the Borrower
for such purposes.
46
5.20 Accuracy of Representations and Warranties. The representations and
warranties of the Borrower contained in each other document delivered in
connection with this Agreement are, or when such document is delivered will be,
true and correct in all material respects when made.
5.21 No Defaults. No Default or Unmatured Default has occurred and is
continuing.
5.22 USA Patriot Act Notice. Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Borrower 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 Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the
Borrower in accordance with the Act.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with generally accepted accounting principles, and furnish to the Lenders:
(i) Within 120 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public
accountants, reasonably acceptable to the Lenders, prepared in accordance
with Agreement Accounting Principles on a consolidated basis for itself
and the Subsidiaries, including balance sheets as of the end of such
period, related profit and loss and changes in shareholders' equity
statements, and a statement of cash flows, accompanied by any management
letter prepared by said accountants.
(ii) Within 15 days after the close of each month of each of its
fiscal years, for itself and its Subsidiaries, consolidated unaudited
balance sheets as at the close of each such period and consolidated profit
and loss statements (showing a breakout of servicing sales gains
attributed to servicing originated in prior periods), a change in
shareholders equity statement for the period from the beginning of such
fiscal year to the end of such month, all certified (subject to normal
year-end adjustments) by an Authorized Officer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the form of
Exhibit "F" hereto signed by an Authorized Officer showing the
calculations necessary to determine compliance with this Agreement as
currently in effect (regardless of whether this Agreement was in effect at
the date for which such financial statements were prepared) and that no
Default or Unmatured Defaults exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(iv) As soon as available but in any event within fifteen (15) days
after the end of each calendar month, a servicing report and analysis
which shall show the status of all mortgages serviced by the Borrower
including those which are delinquent, all in such form and detail and
including such additional information as the Agent may reasonably request.
Such
47
servicing report shall show separately information concerning any
mortgages or securities with respect to which there is recourse to the
Borrower.
(v) As soon as available but in any event within fifteen (15) days
after the end of each month, a secondary marketing report for such month
reasonably satisfactory to the Agent (each such report, a "Positions
Report"), which shall include a schedule setting forth (A) the components
of the Borrower's Hedging Program as of the end of such month, (B) the
Approved Investor Commitments as of the end of such month, (C) the amount
of Non-Agency Mortgage Loans in each group having a similar rate type and
duration as of the end of such month and (D) the Qualifying Rate ▇▇▇▇▇▇
applicable to the various groups of Non-Agency Mortgage Loans as of the
end of such month. The Positions Report shall be presented on a consistent
basis and shall be included with the monthly statements delivered pursuant
to Subsection 6.1(ii) above. If the Borrower at any time determines that
the Qualifying Rate ▇▇▇▇▇▇ with respect to any group of Non-Agency
Mortgage Loans, taken together with the Approved Investor Commitments
applicable to such group of Non-Agency Mortgage Loans, does not fully
cover such group of Non-Agency Mortgage Loans, then the Borrower shall
immediately notify the Agent of such fact.
(vi) Within five (5) Business Days after request of Agent, copies of
all documents submitted in connection with any audits by any of FNMA,
FHLMC or GNMA; within ten (10) Business Days after request of Agent,
copies of all compliance and audit reports received from any of FNMA,
FHLMC or GNMA; and promptly upon receipt, a copy of any notice from (i)
any Federal Agency to the effect that it is or is contemplating
withdrawing its approval of the Borrower as a FHA-Approved Mortgagee,
FHLMC-Approved Lender, FNMA-Approved Lender or VA-Approved Lender or as an
approved seller and servicer for FNMA, FHLMC or GNMA or (ii) any private
mortgage insurer which insures any of the Collateral to the effect that it
is contemplating withdrawing its approval of the Borrower as an approved
originator of insured Mortgage Loans.
(vii) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA.
(viii) As soon as possible and in any event within 10 days after the
Borrower knows that any Reportable Event has occurred with respect to any
Plan, a statement, signed by an Authorized Officer, describing said
Reportable Event and the action which the Borrower proposes to take with
respect thereto.
(ix) As soon as possible and in any event within 10 days after
receipt by the Borrower, a copy of (a) any notice or claim to the effect
that the Borrower or any of its Subsidiaries is or may be liable to any
Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any violation
of any federal, state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries, which, in either
case, could reasonably be expected to have a Material Adverse Effect.
(x) Promptly upon the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements
so furnished.
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(xi) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports which
the Borrower or any of its Subsidiaries files with the Securities and
Exchange Commission.
(xii) Such other information (including non-financial information)
as the Agent or any Lender may from time to time reasonably request.
(xiii) Within fifteen (15) days after the end of each month, the
Borrower shall deliver to the Agent and the Collateral Agent a report
(each such report, a "Servicing Rights Certificate") setting forth (A) the
Servicing Take-Out Value of the Eligible Mortgage Servicing Rights as of
the end of such month, which amount shall be computed in accordance with
the values contemplated for such servicing under the terms of a valid
Approved Servicing Sale Agreement and in accordance with FAS 140 with
appropriate deductions, if any, necessary to account for any capitalized
servicing rights which may be shown on the Borrower's balance sheet but
which do not constitute Eligible Mortgage Servicing Rights (whether due to
failure to satisfy all of the eligibility requirements of the effect of
borrowing base sublimits, or otherwise), and (B) the amount of the
Eligible Servicing Sale Receivables as of the end of such month; which
report shall be presented on a consistent basis and in accordance with
GAAP. If title to any servicing rights constituting Eligible Mortgage
Servicing Rights is to be transferred by the Borrower and the sum of the
resulting initial purchase price payment to be made directly to the Cash
and Collateral Account (if any) and Eligible Servicing Sale Receivable (if
any) will be less than the Servicing Take-Out Value of the Eligible
Mortgage Servicing Rights so sold, the Borrower shall deliver a report (a
"Servicing Transfer Report") to the Agent and the Collateral Agent on or
prior to the date of transfer of title to the Eligible Mortgage Servicing
Rights indicating (i) the amount of the resulting reduction in the
Servicing Take-Out Value, (ii) the amount of the initial purchase price
payment to be made if such payment is to be made to the Cash and
Collateral Account, and (iii) the amount of the resulting Eligible
Servicing Sale Receivable, if any (which report shall be certified as to
fairness of presentation, Agreement Accounting Principles and consistency
by an Authorized Officer). If the Borrower at any time determines that the
amount of the Take-Out Value of Eligible Mortgage Servicing Rights or the
amount of Eligible Servicing Sale Receivables is less than the amounts of
such Collateral that are then included in the calculation of Aggregate
Servicing Value (e.g. because the Borrower has determined that certain
Pledged Servicing or Servicing Sale Receivables no longer meet the
applicable eligibility criteria), then the Borrower shall immediately
notify the Agent and the Collateral Agent of the applicable change (a
"Reduced Servicing Notice").
(xiv) Upon request from time to time from the Agent, copies of the
forms of Approved Investor Commitments that the Borrower is then utilizing
for its Approved Investors.
6.2 Use of Proceeds. The Borrower will, and will cause each Subsidiary to,
only use the proceeds of the Advances for the purposes described in the recitals
hereto, to pay interest, Fees, expenses and other Obligations, to pay
Indebtedness of the Borrower existing on the date hereof and to repay
outstanding Advances. The Borrower will not, nor will it permit any Subsidiary
to, use any of the proceeds of the Advances to purchase or carry any "margin
stock" (as defined in Regulation U) or to make any Acquisition (other than those
permitted by Section 6.14) or to make any Acquisition for which the board of
directors of the Person being acquired has not consented to such Acquisition.
6.3 Notice of Default. The Borrower will, and will cause each Subsidiary
to, give prompt notice in writing to the Lenders of the occurrence of any
Default or Unmatured Default and of any other
49
development, financial or otherwise, which could reasonably be expected to have
a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause each Subsidiary
to, carry on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted. The
Borrower will, and will cause each Subsidiary which is a material part of the
Borrower's overall business operations to, do all things necessary to remain
duly incorporated or organized, validly existing and (to the extent such concept
applies to such entity) in good standing as a domestic corporation, partnership
or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
The Borrower will use best efforts to adhere in all material respects to
customary practices and standards in the industry insofar as adherence to such
practices and standards would require the Borrower to cause obligors whose
indebtedness is secured by Pledged Mortgages to comply with their obligations
under such Pledged Mortgages with respect to the real estate securing such
indebtedness, including without limitation, the payment of all taxes and
insurance premiums related thereto and maintenance of such real estate in
compliance with all laws.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable foreign, state
and local tax returns required by law and pay when due all taxes, assessments
and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been set aside in accordance
with Agreement Accounting Principles. At any time that the Borrower or any of
its Subsidiaries is organized as a limited liability company, each such limited
liability company will qualify for disregarded entity tax treatment under United
States federal tax law.
6.6 Insurance. The Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried. The Borrower will at all
times, upon request of the Agent, furnish to the Agent copies of its, and each
of its Subsidiaries', current Mortgage Bankers Blanket Bond and of its, and each
of its Subsidiaries', insurance policy containing errors and omissions coverage
or mortgage impairment coverage, and such Bonds and policies, to the extent
possible, shall each provide that it is not cancelable without thirty (30) days
prior written notice to the Agent.
6.7 Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, including,
without limitation, all Environmental Laws, non-compliance with which could,
singly or in the aggregate, reasonably be expected to have a material adverse
effect on the business or financial condition of the Borrower and its
Subsidiaries taken as a whole, unless the same shall be contested by the
Borrower or such Subsidiary, as the case may be, in good faith and by
appropriate proceedings and such contest shall operate to stay the material
adverse effect of any such non-compliance.
6.8 Maintenance of Properties. The Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and
50
condition, and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly
conducted at all times.
6.9 Inspection. Upon reasonable prior notice, the Borrower will, and will
cause each Subsidiary to, permit the Agent, the Collateral Agent and the
Lenders, by their respective representatives and agents, to inspect any of the
Property, books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial records of
the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised as to the
same by, their respective officers at such reasonable times and intervals as the
Agent, the Collateral Agent or any Lender may designate; provided that the
Secured Parties shall exercise the foregoing rights in a manner which is not
unreasonably disruptive to the business or operations of the Borrower.
6.10 Dividends. The Borrower will not, nor will it permit any Subsidiary
to, declare or pay any dividends or make any distributions on its capital stock
(other than dividends payable in its own capital stock or cash distributions
from any Subsidiary to the Borrower) or redeem, repurchase or otherwise acquire
or retire any of its capital stock at any time outstanding, (collectively,
"Restricted Payments") if any Default continues or if after giving effect to the
making of any such Restricted Payment a Default or an Unmatured Default would
exist.
6.11 Intentionally Omitted.
6.12 Merge. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that a Subsidiary may
merge into the Borrower or a Wholly-Owned Subsidiary. The Borrower may, after
prior written notice to the Agent and Lenders, take such action with respect to
any Subsidiary which is not a material part of the Borrower's overall business
operations.
6.13 Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property, to any other
Person, except:
(i) Sales of Mortgage Loans, Securities and Servicing Rights in the
ordinary course of business.
(ii) Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its Subsidiaries
previously leased, sold or disposed of (other than Mortgage Loans and
Securities in the ordinary course of business) as permitted by this
Section during the twelve-month period ending with the month in which any
such lease, sale or other disposition occurs, do not constitute a
Substantial Portion of the Property of the Borrower and its Subsidiaries.
(iii) Transfers of a Subsidiary's assets to another Subsidiary or to
the Borrower.
6.14 Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
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(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule "4" hereto.
(iii) Investments in the ordinary course of the Borrower's mortgage
banking business to purchase: (a) Mortgage Loans, collateralized mortgage
obligations and Securities (and in connection with commitments to purchase
the same); (b) servicing rights and mortgage servicing contracts of
another Person engaged in mortgage-related businesses; and (c) real estate
acquired by foreclosure.
(iv) Investments in the ordinary course of the Borrower's mortgage
banking business in the form of Rate Management Transactions to the extent
permitted pursuant to the provisions of this Agreement.
(v) Investments in Affiliated Special Ventures.
(vi) Investments in Joliet Mortgage Reinsurance Company.
(vii) Investments in the aggregate in Pulte Funding, Inc., a
wholly-owned subsidiary of the Borrower.
(viii) Investments other than those described in the preceding
clauses (i)-(vii), so long as the aggregate amount of all such other
Investments does not exceed $1,000,000.
6.15 Liens. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the Property of the
Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good
faith and by appropriate proceedings and for which adequate reserves in
accordance with Agreement Accounting Principles shall have been set aside
on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past
due or which are being contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other
social security or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do
not in any material way affect the marketability of the same or interfere
with the use thereof in the business of the Borrower or the Subsidiaries.
(v) Liens existing on the date hereof and described in Schedule "5"
hereto.
52
(vi) Liens in favor of the Agent and the Collateral Agent, for the
benefit of the Lenders, granted pursuant to the Security Agreement.
(vii) Liens incidental to the conduct of the Borrower's mortgage
related businesses or the ownership of its property or arising out of
transactions entered in the ordinary course of the Borrower's mortgage
related businesses which do not secure Indebtedness and do not, in the
aggregate, materially detract from the value of its properties in the
aggregate or materially impair the use thereof in the ordinary course of
the Borrower" business. (viii) Liens (not otherwise permitted hereunder)
which secure obligations (as to the Borrower and all Subsidiaries)
incidental to forward delivery contracts or repurchase agreements in the
ordinary course of the Borrower's mortgage related businesses.
(ix) Deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business.
(x) Liens of Liens of landlords, arising solely by operation of law
and which are not avoidable as a matter of law, on fixtures and moveable
property located on premises leased in the ordinary course of business,
provided, that the rental payments secured thereby are not yet due.
(xi) Liens arising out of judgments or awards against the Borrower
or any Subsidiary with respect to which the Borrower or such Subsidiary is
prosecuting an appeal or proceeding for review and the Borrower or such
Subsidiary is maintaining adequate reserves in accordance with Agreement
Accounts' Principles.
(xii) Liens upon real and/or tangible personal property, which
property was acquired after December 31, 2005 (by purchase, construction
or otherwise) by the Borrower or its Subsidiaries, each of which Liens
either (A) existed on such property before the time of its acquisition and
was not created in anticipation thereof at the request or direction of the
Borrower, or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance, refinance or refund,
the cost (including the cost of construction) of the respective property;
provided, that no such Lien shall extend to or cover any property of the
Borrower or such Subsidiary other than the respective property so acquired
and improvements thereon.
(xiii) Liens on assets of corporations which become Subsidiaries
after the date of this Agreement; provided, that (i) such Liens existed at
the time such corporation became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such corporation after the time such corporation
becomes a Subsidiary (other than any such spreading resulting from
"after-acquired property" clauses in existence on the date such
corporation became a Subsidiary) and (iii) the amount of Indebtedness
secured thereby is not increased;
(xiv) Subject to the requirements of Section 6.18, Liens on Mortgage
Loans and Securities owned by the Borrower or its Subsidiaries (other than
Mortgage Loans or Securities constituting Collateral) to secure
Indebtedness incurred from sources other than the Lenders for the purpose
of originating or acquiring Mortgage Loans or Securities.
53
6.16 Affiliates. The Borrower will not, and will not permit any Subsidiary
to, (i) enter into any transaction (including, without limitation, the purchase
or sale of any Property or service) with any Affiliate except in the ordinary
course of business and pursuant to the reasonable requirements of the Borrower's
or such Subsidiary's business and upon fair and reasonable terms no less
favorable in any material respect to the Borrower or such Subsidiary than the
Borrower or such Subsidiary would obtain in a comparable arms-length
transaction, (ii) make any loans or advances to any Affiliates with financial
terms more advantageous to such Affiliate than the terms of loans and advances
made to the Borrower (or the applicable Subsidiary) from such Affiliate, or
(iii) make any net loans or advances to any Affiliate which would cause any
violation of Section 6.17.1 or 6.17.2; or, while any Default or Unmatured
Default is continuing, make any payments, loans or advances of any type to any
Affiliate.
6.17 Financial Covenants.
6.17.1 Leverage Ratio. The Borrower will not permit the Leverage
Ratio, at any time, to exceed 15.0 to 1.0.
6.17.2 Net Worth. The Borrower will at all times maintain a
Consolidated Tangible Net Worth of at least Fifty Million Dollars ($50,000,000),
provided that such minimum amount shall be reset on January 31, 2007 and each
January 31 thereafter to be the greater of (i) $50,000,000 and (ii) eighty-five
percent (85%) of the numerical average of the month-end Consolidated Tangible
Net Worth as reported in the monthly statements provided by the Borrower under
Section 6.1 as of the last day of each of the twelve (12) calendar months in the
preceding calendar year.
6.17.3 Indebtedness. The Borrower will not permit the aggregate
Indebtedness of the Borrower and its Subsidiaries to exceed at any time the sum
of the following:
(i) one hundred percent (100%) of the value of the Borrower's
unrestricted cash and Cash Equivalent Investments and other "short term
investments";
(ii) ninety-five percent (95%) of the value of the Borrower's
"mortgage loans held for sale"; and
(iii) eighty percent (80%) of the Aggregate Servicing Value.
Terms set forth in quotes in this Section shall have the meanings given
such terms in the Borrower's consolidated financial statements.
6.17.4 Maintenance of Net Income. Allow the Borrower and its
consolidated Subsidiaries to suffer, as of the end of any calendar quarter, an
aggregate net loss (as determined under Agreement Accounting Principles) over
the course of the immediately preceding four calendar quarters; provided that
any equity contribution made to the Borrower by the Parent within 30 days after
generation of the financial statements for a given quarter shall (for purposes
of this Section 6.17.4 be considered net income earned by the Borrower during
the quarter immediately preceding the date of such contribution (i.e., equity
contributions in the amount of net losses can "cure" such losses for purpose of
this Section ).
6.18 Compliance with Security Agreement. The Borrower will not fail to
perform in any material respect any of its obligations under the Security
Agreement or enter into similar security agreements for Mortgage Loans not
included in Collateral with any Person other than the Collateral
54
Agent; provided, however, that this Section shall not (i) prohibit the Borrower
from entering into other custodial agreements relating to the possession of
Mortgage Loans not included in Collateral so long as such agreements are not
made for the purpose of or in connection with the granting of a security
interest in such Mortgage Loans, or (ii) prohibit the Affiliate of the
Collateral Agent which acts in a custodial capacity in connection with the
certification of Mortgage Loans for exchange by a Federal Agency from acting in
such custodial capacity in conformance with the terms of the Security Agreement.
Security interests in Mortgage Loans given for confirmatory purposes in
connection with the sale of such Mortgage Loans by the Borrower to investors
shall not be considered agreements "made for the purpose of or in connection
with the granting of a security interest in such Mortgage Loans" within the
meaning of the preceding sentence. The Borrower will direct the Collateral Agent
to ship Collateral only to Approved Investors or otherwise consistent with the
provisions of the Loan Documents; provided, however, the Borrower may direct the
Collateral Agent to ship Collateral to Pulte Funding, Inc. if the release of
such Collateral is in accordance with the provisions of Section 8.3 of this
Agreement and such release does not result in a breach of Section 8.3 of this
Agreement.
6.19 Recourse Servicing. The Borrower will not at any time be a party to
any Servicing Agreements constituting Recourse Servicing other than Approved
Recourse Servicing.
6.20 Federal Agency Approvals. The Borrower (i) will maintain its status
as a FHA Approved Mortgagee, remain eligible to obtain VA guaranties of Mortgage
Loans and remain approved by each Federal Agency as a seller/servicer and (ii)
will not permit any Federal Agency which insures any material portion of the
Mortgage Loans owned or serviced by the Borrower to withdraw its approval of the
Borrower.
6.21 Approved Investor Commitments. The Borrower shall maintain (A)
Approved Investor Commitments which cover all Pledged Mortgages (other than
Pledged Mortgages which are then included in a group of Pledged Mortgages
covered by a Qualifying Rate Hedge or which are Eligible Investment Loans) and
(B) Approved Servicing Sale Agreements which cover all Eligible Mortgage
Servicing Rights.
6.22 Negative Pledges. The Borrower shall not enter into any agreement
pursuant to which it agrees (i) not to ▇▇▇▇▇ ▇ ▇▇▇▇ to third parties unless such
provision allows for the lien of the Agent, the Collateral Agent and the Lenders
contemplated under the Loan Documents or (ii) to grant another creditor a pari
passu security interest in and to the Collateral when a security interest is
granted to the Agent, the Collateral Agent and the Lenders pursuant to the Loan
Documents.
6.23 Keeping of Records and Books of Account. The Borrower shall keep or
cause to be kept adequate records and books of account in which complete entries
will be made in accordance with Agreement Accounting Principles, consistently
applied (except for changes concurred in by the Borrower's independent auditors)
reflecting all financial transactions of the Borrower and its Subsidiaries.
6.24 Hedging Program. The Borrower shall at all times maintain a Hedging
Program which represents a reasonable means for the Borrower to hedge certain
interest rate risks associated with the mortgage banking business, and is a
customary and standard Hedging Program comparable to that of other similarly
situated mortgage banking companies.
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6.25 Agreements to Pledge Mortgage Loans. Borrower shall not pledge to any
Person, or grant a security interest in favor of any Person in, any Mortgage
other than the security interest granted to the Collateral Agent for the benefit
of the Lenders pursuant to the Security Agreement.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders or the Agent under or in
connection with this Agreement, any Loan, or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall be
materially false on the date as of which made (it being understood that if any
of the representations and warranties made pursuant to the definition of
"Borrowing Base" are not true and correct as of any date with respect to any
Pledged Item, such Pledged Item shall be removed from Eligible Collateral as the
sole remedy for such failure).
7.2 Nonpayment of principal of any Loan when due (including but not
limited to payments required pursuant to Section 2.8.2, Section 2.8.4 and
Section 2.8.5), or nonpayment of interest upon any Loan or of any Fee under any
of the Loan Documents within five Business Days after the same becomes due or
nonpayment of any amount, other than principal or interest or Fees, payable
under this Agreement shall not be paid when due and payable and shall remain
unpaid for five (5) Business Days after written notice to the Borrower of such
nonpayment.
7.3 The breach by the Borrower of any of the terms or provisions of
Sections 6.2, 6.4, 6.10, 6.11, 6.12, 6.13, 6.15, 6.17, or 6.20 and 6.25.
7.4 The breach by the Borrower (other than a breach which constitutes a
Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after the
earlier to occur of (i) receipt of written notice from the Agent or any Lender
of such breach or (ii) the date that the Borrower obtains knowledge of such
breach.
7.5 Failure of the Borrower or any of its Subsidiaries, Pulte Homes, or
the Parent to pay when due any Indebtedness (provided that for purposes of this
Section 7.5, the definition of "Indebtedness" shall include, in addition to all
amounts and items described in the definition of "Indebtedness" set forth in
Article I of this Agreement, exposure under Rate Management Transactions)
aggregating in excess of $10,000,000 ("Material Indebtedness"); or the default
by the Borrower or any of its Subsidiaries in the performance beyond the
applicable grace period with respect thereto, if any of any term, provision or
condition contained in any agreement under which any such Material Indebtedness
was created or is governed, or any other event shall occur or condition exist,
the effect of which default or event is to cause, or to permit the holder or
holders of such Material Indebtedness to cause, such Material Indebtedness to
become due prior to its stated maturity, and in either case any applicable
notice or cure period has expired and such default has not been waived in
writing by the holder of such Material Indebtedness; or any Material
Indebtedness of the Borrower, any of its Subsidiaries, Pulte Homes, or the
Parent shall be declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof, and any applicable notice or cure period has expired and such
default has not been waived in writing by the holder of such Material
Indebtedness, or the Borrower or any of its Subsidiaries shall not pay, or admit
in writing its inability to pay, its debts generally as they become due.
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7.6 The Borrower or any of its Subsidiaries shall (i) have an order for
relief entered with respect to it under the Federal bankruptcy laws as now or
hereafter in effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
Substantial Portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate, partnership or other action to authorize or effect any of
the foregoing actions set forth in this Section 7.6 or (vi) fail to contest in
good faith any appointment or proceeding described in Section 7.7.
7.7 Without the application, approval or consent of the Borrower or any of
its Subsidiaries, a receiver, trustee, examiner, liquidator or similar official
shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 45 consecutive days.
7.8 Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of all or any portion of the
Property of the Borrower and its Subsidiaries which, when taken together with
all other Property of the Borrower and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month period
ending with the month in which any such action occurs, constitutes a Substantial
Portion.
7.9 The Borrower or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money in excess of the aggregate $10,000,000, or (ii) non-monetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgments, in any case, is/are
not stayed on appeal or otherwise being appropriately contested in good faith.
7.10 Any Change in Control shall occur.
7.11 The occurrence of any "default", as defined in any Loan Document
(other than this Agreement) or the breach of any of the terms or provisions of
any Loan Document (other than this Agreement), which default or breach continues
beyond any period of grace therein provided.
7.12 The Security Agreement shall for any reason fail to create a valid
and perfected first priority security interest in any collateral purported to be
covered thereby, except as permitted by the terms of the Security Agreement, or
the Security Agreement shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Security Agreement, or the Borrower shall fail to comply
with any of the terms or provisions of the Security Agreement and such failure
to comply is not cured within thirty days after written notice to the Borrower
of such failure to comply.
7.13 The Unfunded Liabilities of all Single Employer Plans shall exceed in
the aggregate $10,000,000 or any Reportable Event shall occur in connection with
any Plan and as a result of such event or condition, together with all other
such events or conditions, the Borrower or any Affiliate could reasonably incur
a liability in excess of $10,000,000 to a Plan or the PBGC (or any combination
of the foregoing).
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7.14 The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multi-employer Plan that it has incurred
withdrawal liability to such Multi-employer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multi-employer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $10,000,000 or
requires payments exceeding $500,000 per annum.
7.15 The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and the other members of the Controlled
Group (taken as a whole) to all Multiemployer Plans which are then in
reorganization or being terminated have been or will be increased over the
amounts contributed to such Multiemployer Plans for the respective plan years of
each such Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $10,000,000.
7.16 The Borrower or any of its Subsidiaries shall (i) be the subject of
any proceeding or investigation pertaining to the release by the Borrower or any
of its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) and (ii), could reasonably be
expected to have a Material Adverse Effect.
7.17 The representations and warranties set forth in "Section 5.15 Plan
Assets; Prohibited Transactions" shall at any time not be true and correct.
7.18 Any of this Agreement, the Notes or the Security Agreement shall, at
any time after its execution and delivery, for any reason cease to be in full
force and effect (unless such occurrence is in accordance with its terms or
after payment thereof) or shall be declared to be null and void, or the validity
or enforceability thereof shall be contested by the Borrower, or the Borrower
shall deny that it has any further liability or obligation thereunder.
ARTICLE VIII
COLLATERAL, ACCELERATION AND OTHER REMEDIES
8.1 Security and Collateral Agency Agreement. Pursuant to the Security
Agreement, a security interest in and a continuing lien upon the Collateral has
been created in favor of the Collateral Agent for the benefit of the Lenders.
8.2 AP Mortgages. The Borrower agrees that while it is in possession of
any Required Mortgage Documents for an AP Mortgage, it will hold same in trust
and as agent and bailee for the Collateral Agent, without authority to make any
other disposition thereof, or of the proceeds thereof, except as may be
otherwise permitted in writing by the Collateral Agent. The Borrower assumes the
responsibility for loss or destruction of any such Required Mortgage Documents
until the same are delivered to the Collateral Agent.
8.3 Release of Collateral. Upon the request of the Borrower delivered from
time to time to the Agent and the Collateral Agent in connection with the
proposed sale of any Collateral, the Agent shall authorize the Collateral Agent
to release Collateral specified in such notice from the lien of this Agreement,
if, but only if, (i) at the time of such release no Default shall have occurred
and then be
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continuing, (ii) the Borrowing Base, after giving effect to such release, is at
least equal to the aggregate principal amount of loans outstanding under this
Agreement or any payment under Section 2.8 which may be required as a result of
such release has been made and (iii) the release of such Collateral will not
create a violation of any Lending Sublimit or Borrowing Base Sublimit.
8.4 Cash and Collateral Account; Settlement Account; Reconciliation
Process.
(i) The Borrower has established in its name a "cash and collateral"
account with JPMorgan Chase Bank, N.A. as Account #▇▇▇▇▇▇▇ (the "Cash and
Collateral Account") into which shall be deposited all cash proceeds from
the sale of any Pledged Item and of certain collateral under the "CP
Facility", all as described in the Collection and Paying Agreement. Only
JPMorgan Chase Bank, N.A. shall have access to the Cash and Collateral
Account.
(ii) There may hereafter be established with the Agent, for the
benefit of the Secured Parties, a separate "cash collateral" account of
the Borrower ("Settlement Account") into which shall, in certain
circumstances, be deposited certain cash proceeds from the Cash and
Collateral Account as described herein and in the Collection and Paying
Agreement. The Settlement Account shall be included in the Collateral and
the Borrower hereby pledges and assigns to the Agent for the benefit of
the Secured Parties and grants to the Agent for the benefit of the Secured
Parties, a first priority security interest in the Settlement Account to
secure payment of the Secured Obligations. Only the Agent shall have
access to the Settlement Account.
(iii) No later than 4:30 p.m. (New York City time) each Business Day
the Borrower shall notify the Agent and the Collateral Agent of the amount
of Reconciled Non-Security Proceeds deposited into the Cash and Collateral
Account since the report of Reconciled Non-Security Proceeds on the prior
Business Day, and (so long as no Default is continuing and the Borrowing
Base is equal to or greater than the total outstanding Loans) the Agent
shall transfer such newly deposited Reconciled Non-Security Proceeds into
the Borrower's operating account or apply them as otherwise directed by
the Borrower. Any Excess Pool Proceeds shall (so long as no Default is
continuing and the Borrowing Base is equal to or greater than the total
outstanding Loans) also be transferred into the Borrower's operating
account or applied as otherwise directed by the Borrower. If the Borrowing
Base is not equal to or greater than the total outstanding Loans, then the
Agent shall apply the necessary amount of the Reconciled Non-Security
Proceeds and/or Excess Pool Proceeds against the outstanding Loans so that
the Borrowing Base equals the total outstanding Loans. Such application
shall be made first to repay any outstanding Overadvances (as defined in
Paragraph 6(d) of the Security Agreement) and then to repay then
outstanding Loans in the order and in the amounts directed by the Borrower
or, in the absence of such direction, in the following order: (i) first,
to Swingline Loans until paid in full, (ii) second, to LIBOR Loans
(including interest thereon) until paid in full. With respect to LIBOR
Loans, such amounts shall be applied to interest on LIBOR Loans which have
been repaid before being applied to principal of other LIBOR Loans .
(iv) Upon the occurrence of a Default (and during the continuance
thereof) all amounts then on deposit in the Cash and Collateral Account or
the Settlement Account which constitute Collateral or the proceeds
thereof, and any deposits made in the Cash and Collateral Account or the
Settlement Account which constitute Collateral or the proceeds thereof
during the continuance of such Default, shall be immediately withdrawn by
the Agent from the Cash and Collateral Account and the Settlement Account
and applied to outstanding Loans in proportion to the Lenders' respective
outstanding Loans and (with respect to the Lenders) in
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conjunction with the procedures described in Section 2.6, with such
payments applied first to accrued interest and fees and thereafter to
principal.
8.5 Termination. If all Commitments under this Agreement shall have
expired or been terminated pursuant to the express terms hereof and no
Obligations shall be outstanding, the Agent shall promptly deliver or cause to
be delivered all cash standing to the credit of the Cash and Collateral Account
and the Settlement Account and all Pledged Items to the Borrower. The receipt by
the Borrower of any cash in the Cash and Collateral Account and the Settlement
Account and of all Pledged Items returned or delivered to the Borrower pursuant
to any provision of this Agreement, together with UCC-3 termination statements
executed by the Agent, shall be a complete and full acquittance for the Pledged
Items so delivered.
8.6 Acceleration. If any Default described in Section 7.6 or 7.7 occurs
with respect to the Borrower, the obligations of the Lenders to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the Agent
or any Lender. If any other Default occurs, the Required Lenders (or the Agent
with the consent of the Required Lenders) may (i) terminate or suspend the
obligations of the Lenders to make Loans hereunder and they shall, upon notice
to the Borrower, terminate or be suspended, and/or (ii) declare the Obligations
to be due and payable, whereupon the Obligations shall become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
which the Borrower hereby expressly waives.
8.7 Other Remedies.
(i) Unless a Default shall have occurred and then be continuing, the
Borrower shall be entitled to receive and collect directly all sums
payable to the Borrower in respect of the Collateral except proceeds from
the sale thereof.
(ii) Upon the occurrence of a Default, the Agent and the Collateral
Agent, on behalf of the Lenders, shall be entitled to all the rights and
remedies hereunder and in the Security Agreement, subject to the
limitations and requirements of Paragraph 16 thereof, and all other rights
or remedies at law or in equity existing or conferred upon the Lenders by
other jurisdictions or other applicable law.
(iii) Following the occurrence and during the continuance of a
Default, no Lender shall be obligated to fund any Loan hereunder.
(iv) Following the occurrence a Default, the Borrower agrees that
the Borrower and the Agent shall, if the Agent shall request implement
certain procedures with respect to the Borrower's funding of AP Mortgages,
all at the Borrower's sole expense. Such procedures may include, but are
not limited to: (i) reducing the advance rate against any Eligible
Collateral for purposes of determining the Collateral Value component of
the Borrowing Base, (ii) requiring that if AP Mortgages are funded with
wire transfers, such wire transfers originate from a controlled account
maintained by the Agent and may only be released upon the secondary
authorization of the Agent, (iii) requiring the closing agents for such AP
Mortgages to enter into escrow or other agreements regarding the monies
used to fund such AP Mortgages, and (iv) requiring the Borrower to provide
the Agent and the Lenders with such information regarding the funding of
such AP Mortgages as the Agent may reasonably request. The Borrower, at
its expense, shall from time to time execute and deliver to the Agent or
the Collateral Agent all
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such assignments, certificates, supplemental documents, and financing
statements, and shall do all other acts or things, as the Agent may
reasonably request in order to more fully implement such procedures.
(v) The Borrower waives, to the extent permitted by law, any right
to require the Agent or any Lender to (i) proceed against any Person, (ii)
proceed against or exhaust any of the Collateral or pursue its rights and
remedies as against the Collateral in any particular order or (iii) pursue
any other remedy in its power.
(vi) The Agent on behalf of the Lenders may, but shall not be
obligated to, advance any sums or do any act or thing necessary to uphold
and enforce the lien and priority of, or the security intended to be
afforded by, any Pledged Item, including, without limitation, payment of
delinquent taxes or assessments and insurance premiums. The Borrower shall
provide any and all information required by the Agent to administer this
Agreement or collect on the Collateral. All advances, charges, costs and
expenses, including reasonable attorneys fees, incurred or paid by the
Agent in exercising any right, power or remedy conferred by this
Agreement, or in the enforcement hereof (or by any Lender acting on
instruction of the Required Lenders in the enforcement hereof), together
with interest thereon at the rate per annum of 2% plus the LIBOR Rate from
the time of payment until repaid, shall become a part of the Obligations.
(vii) Following the occurrence of a Default and the acceleration of
the Obligations the Agent shall be entitled to receive and collect all
sums payable to the Borrower in respect of the Collateral and (a) the
Agent, at the request of the Required Lenders, may in its own name or in
the name of the Borrower or otherwise, demand, ▇▇▇ for, collect or receive
any money or property at any time payable or receivable on account of or
in exchange for any of the Collateral, (b) the Borrower shall receive and
hold in trust for the Lenders any amounts thereafter received by the
Borrower upon or in respect of any of the Collateral, advising the Agent
as to the source of such funds and, if the Agent so requests at the
direction of the Required Lenders, forthwith paying such amounts to the
Agent, and (c) any and all amounts so received and collected by the Agent
either directly or from the Borrower shall be deposited in the Cash and
Collateral Account or the Settlement Account.
8.8 Application of Proceeds. After a Default and acceleration of the
Obligations, the proceeds of any sale or enforcement of all or any part of the
Collateral pursuant to the Security Agreement and the balance of any moneys in
the Cash and Collateral Account or the Settlement Account shall be applied by
the Agent:
FIRST, to the extent that any such proceeds arise from a sale of any
Pledged Servicing, to the payment of any amounts due by the Borrower to
the other party to the Servicing Agreements governing such Pledged
Servicing, as a condition to the transfer of the Borrower's interest in
any such Pledged Servicing, pursuant to the terms of such Servicing
Agreements, including without limitation all amounts described in the
Acknowledgement Agreements;
SECOND, to the extent not already repaid from the proceeds of the
Collateral by the Collateral Agent, to the payment of all costs and
expenses of such sale or enforcement, including reasonable compensation to
the Agent's agents and counsel, and all expenses, liabilities and advances
made or incurred by the Agent or any Lender acting on instructions of the
Required Lenders in connection therewith;
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THIRD, to the extent not already repaid from the proceeds of the
Collateral by the Collateral Agent, to the payment of all costs and
expenses incurred by the Collateral Agent under the Security Agreement;
FOURTH, to the payment of the outstanding principal balance of, and
all accrued and unpaid interest on and Fees attributable to, all Loans
under this Agreement, ratably according to the amount so due to each
Lender until such amounts are paid in full;
FIFTH, to the extent proceeds remain after application under the
preceding subparagraphs, to the payment of all remaining Obligations,
until such amounts are paid in full;
SIXTH, to the extent that any such proceeds arise from a sale of any
Pledged Servicing and remain after satisfying the prior amounts in full,
to the payment of all sums due to any party to the Servicing Agreement
governing such Pledged Servicing which, by the terms of the applicable
Acknowledgment Agreement, are subordinated in priority of payment to the
amounts payable to the Agent and the Lenders, as described above; and
SEVENTH, to the payment to the Borrower, or to its successors or
assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
The Agent shall have absolute discretion as to the time of application of
any such proceeds, moneys or balances in accordance with this Agreement. If the
proceeds of any such sale are insufficient to cover the costs and expenses of
such sale, as aforesaid, and the payment in full of the Obligations, the
Borrower shall remain liable for any deficiency.
8.9 Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 9.1, and then only
to the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Obligations have been paid in
full.
8.10 Actions Under Acknowledgement Agreements. If the Borrower elects to
include Pledged Servicing in Collateral, the Borrower shall be deemed to have
appointed the Agent as the Borrower's attorney-in-fact, effective as of the date
of any Default (and during the continuance thereof) for the purpose of taking
all actions on behalf of the Borrower contemplated or required under the terms
of the Acknowledgement Agreements with respect to such Pledged Servicing and
executing any instruments which the Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, the Agent shall have the right and power to receive, endorse and
collect all checks made payable to the order of the Borrower representing any
payment on account of the principal of or interest on any of the Mortgage Loans
covered by such Pledged Servicing or on account of the terms of the Servicing
Agreements governing such Pledged Servicing and to give full discharge for the
same.
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8.11 Transition from Prior Facility. The Pledge Date and all other
relevant delivery dates and time periods with respect to the determination of
Eligible Collateral shall be calculated to include any delivery dates or holding
periods prior to the Effective Date during which Collateral was being held by
the Collateral Agent (or was the subject of an Agreement to Pledge), had been
delivered to an Approved Investor or had been redelivered to the Borrower under
the Prior Facility.
ARTICLE IX
AMENDMENTS; WAIVERS; GENERAL PROVISIONS
9.1 Amendments and Waivers. Other than (a) Commitment increases pursuant
to Section 2.10 (which may be accomplished solely by the Borrower, the Agent and
the subject Lender) and (b) temporary waivers of Collateral eligibility
permitted pursuant to the definition of "Borrowing Base" (which may be
accomplished solely by the Agent), the Required Lenders (or the Agent with the
consent in writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder or waiving any Default hereunder; provided,
however, that no such supplemental agreement shall, without the consent of each
Lender directly or indirectly affected thereby:
(i) Extend the final maturity of any Loan or postpone any
regularly scheduled payment of principal of any Loan or
forgive all or any portion of the principal amount thereof, or
reduce the rate or extend the time of payment of, or forgive,
interest or fees thereon.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Termination Date, or reduce the amount of or extend
the payment date for the mandatory payments required under
Section 2.11, or increase the amount of the Aggregate
Commitment or of the Commitment of any Lender hereunder (other
than in accordance with Section 2.10).
(iv) Amend this Section 9.1.
(v) Release any guarantor of any Advance or, except as provided
herein or in the Security Agreement, release any Collateral.
(vi) Amend the definition of "Borrowing Base," "Gestation Borrowing
Base," "Warehouse Borrowing Base," or "Collateral Value".
(vii) Permit the Borrower to assign its rights under this Agreement
or amend or waive any restriction on the Borrower's ability to
assign its rights or obligations under any of the Loan
Documents.
(viii) Amend or waive any Lending Sublimits or Borrowing Base
Sublimits.
(ix) Amend or waive any provision herein regarding the
indemnification of the Agent, the Collateral Agent or any
Lender.
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(x) Amend or waive any provision herein regarding the allocation
among the Lenders of any payments or proceeds received by the
Agent hereunder.
No amendment of any provision of this Agreement relating to the Agent or the
Collateral Agent shall be effective without the written consent of the Agent or
the Collateral Agent, as the case may be. In addition, the consent of the
Collateral Agent shall be required for the effectiveness of any amendment
referred to in Section 9.1 (iv), (v), (vi), (viii) and/or (ix) above. The Agent
may waive payment of the fee required under Section 12.3.2 without obtaining the
consent of any other party to this Agreement.
9.2 Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the Loans
herein contemplated.
9.3 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.4 Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent, the Collateral Agent and the
Lenders and supersede all prior agreements and understandings among the
Borrower, the Agent and the Lenders relating to the subject matter thereof,
other than the fee letter described in Section 2.5.3 and any other agreement
entered into in connection with the fees described in Section 2.5.
9.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns, provided, however, that the parties
hereto expressly, agree that (i) the Arranger shall enjoy the benefits of the
provisions of Sections 9.7, 9.8 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement
and (ii) the Collateral Agent shall enjoy the benefits of the provisions of
Sections 9.1, 9.7 and 9.8 to the extent specifically set forth therein and shall
have the right to enforce such provisions on its own behalf and in its own name
to the same extent as if it were a party to this Agreement.
9.7 Expenses; Indemnification. (i) The Borrower shall reimburse the Agent,
the Arranger and the Collateral Agent for any reasonable out-of-pocket expenses
(including reasonable attorneys' fees and time charges of attorneys for the
Agent, the Arranger and the Collateral Agent) paid or incurred by the Agent, the
Arranger or the Collateral Agent in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment, modification,
and administration of the Loan Documents. The Borrower also agrees to reimburse
the Agent, the Arranger, the Collateral Agent and the Lenders for any
out-of-pocket expenses (including attorneys' fees and time charges of attorneys
for the Agent, the Arranger, the Collateral Agent and the Lenders) paid or
incurred by the Agent, the Arranger, the Collateral Agent or any Lender in
connection with the collection and enforcement of the Loan Documents. Expenses
being reimbursed by the Borrower under this Section include, without limitation,
reasonable costs and expenses incurred in connection with the reports described
in the
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following two sentences. The Borrower acknowledges that the Agent may prepare
and distribute to the Lenders annual audit reports (and shall distribute copies
to each Lender that requests a copy in writing of any such report actually
prepared by the Agent) pertaining to the Borrower's assets for internal use by
the Agent from information furnished to it by or on behalf of the Borrower,
after the Agent has exercised its rights of inspection pursuant to this
Agreement. The Borrower acknowledges that the Agent may, in certain
extraordinary circumstances, prepare and distribute other audit reports to the
Lenders (and shall distribute copies to each Lender that requests a copy in
writing of any report actually prepared by the Agent) pertaining to the
Borrower's assets for internal use by the Agent from information furnished to it
by or on behalf of the Borrower, after the Agent has exercised its rights of
inspection pursuant to this Agreement. The Borrower acknowledges that the
foregoing two sentences shall not limit the Agent's right to prepare additional
audit reports at its own expense from time to time.
(ii) The Borrower hereby further agrees to indemnify the Agent, the
Arranger, the Collateral Agent and each Lender, their respective affiliates, and
each of their directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Agent, the Arranger, the Collateral Agent, any Lender or any affiliate is a
party thereto) which any of them may pay or incur arising out of or relating to
this Agreement, the other Loan Documents, the transactions contemplated hereby
or the direct or indirect application or proposed application of the proceeds of
any Loan hereunder except to the extent that they have resulted from the gross
negligence or willful misconduct of the party seeking indemnification. The
obligations of the Borrower under this Section 9.7 shall survive the termination
of this Agreement.
9.8 Nonliability of Lenders. The relationship between the Borrower on the
one hand and the Lenders, the Agent and the Collateral Agent on the other hand
shall be solely that of borrower and lender. Neither the Agent, the Arranger,
the Collateral Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower. Neither the Agent, the Arranger, the Collateral Agent nor any
Lender undertakes any responsibility to the Borrower to review or inform the
Borrower of any matter in connection with any phase of the Borrower's business
or operations. The Borrower agrees that neither the Agent, the Arranger, the
Collateral Agent nor any Lender shall have liability to the Borrower (whether
sounding in tort, contract or otherwise) for losses suffered by the Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless such losses resulted
from the gross negligence or willful misconduct of the party from which recovery
is sought. Neither the Agent, the Arranger, the Collateral Agent nor any Lender
shall have any liability with respect to, and the Borrower hereby waives,
releases and agrees not to ▇▇▇ for, any special, indirect or consequential
damages suffered by the Borrower in connection with, arising out of, or in any
way related to the Loan Documents or the transactions contemplated thereby.
9.9 Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10 Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders.
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9.11 Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles,
except that any calculation or determination which is to be made on a
consolidated basis shall be made for the Borrower and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Borrower's
audited financial statements.
9.12 Confidentiality. The Agent and each of the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(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, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, 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 to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Agent or any Lender on a
non-confidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Agent or any Lender on a non-confidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section 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.
EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12
FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC
INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR THEIR RESPECTIVE
SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING
THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW,
INCLUDING FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED
BY THE BORROWER OR THE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING,
THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS AFFILIATES AND THEIR
RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND
THE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT
CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC
INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
9.13 Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans provided
for herein.
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9.14 Disclosure. The Borrower and each Lender hereby (i) acknowledge and
agree that Bank One and/or its Affiliates from time to time may hold investments
in, make other loans to or have other relationships with the Borrower and its
Affiliates, and (ii) waive any liability of Bank One or such Affiliate to the
Borrower or any Lender, respectively, arising out of or resulting from such
investments, loans or relationships other than liabilities arising out of the
gross negligence or willful misconduct of Bank One or its Affiliates.
ARTICLE X
THE AGENT AND THE COLLATERAL AGENT
10.1 Appointment; Nature of Relationship. JPMorgan Chase Bank, N.A. is
hereby appointed by each of the Lenders as its contractual representative
(herein referred to as the "Agent") hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Agent to act as the
contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Agent is hereby authorized
to enter into the Security Agreement thereby appointing the Collateral Agent to
act on behalf of the Lenders and all obligations of the Lenders under the
Security Agreement shall be binding upon each Lender as if such Lender had
executed the Security Agreement. The Agent agrees to act as such contractual
representative upon the express conditions contained in this Article X.
Notwithstanding the use of the defined term "Agent" throughout the Agreement, it
is expressly understood and agreed that the Agent shall have not have any
fiduciary responsibilities to any Lender by reason of this Agreement or any
other Loan Document and that the Agent is merely acting as the representative of
the Lenders with only those duties as are expressly set forth in this Agreement
and the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Agent (i) does not hereby assume any fiduciary duties to any
of the Lenders, (ii) is a "representative" of the Lenders within the meaning of
the term "secured party" as defined in the Illinois Uniform Commercial Code as
in effect from time to time and (iii) is acting as an independent contractor,
the rights and duties of which are limited to those expressly set forth in this
Agreement and the other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each Lender hereby
waives.
10.2 Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith, whether
sounding in tort, contract or otherwise except to the extent such action or
inaction arises from the gross negligence or willful misconduct of such Person.
10.4 No Responsibility for Loans, Recitals, etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV, except
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receipt of items required to be delivered solely to the Agent; (iv) the
existence or possible existence of any Default or Unmatured Default; (v) the
validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(vi) the value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (vii) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7 Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is entitled to reimbursement by
the Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement
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of any of the terms of the Loan Documents or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
any of the foregoing is found in, a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the Agent. The obligations of the Lenders under this Section 10.8
shall survive payment of the Obligations and termination of this Agreement.
10.9 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10 Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to be or remain a Lender.
10.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12 Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, ninety days after the retiring Agent gives notice of its intention to
resign. Upon any such resignation, the Required Lenders shall have the right to
appoint, on behalf of the Borrower and the Lenders, a successor Agent; provided,
however, that such appointment, unless made during the continuance of a Default
or an Unmatured Default, shall be subject to the consent of the Borrower, which
consent shall not be unreasonably withheld. If no successor Agent shall have
been so appointed by the Required Lenders within thirty days after the resigning
Agent's giving notice of its intention to resign, then the resigning Agent may
appoint, on behalf of the Borrower and the Lenders, a successor Agent; provided,
however, that such appointment, unless made during the continuance of a Default
or an Unmatured Default, shall be subject to the consent of the Borrower, which
consent shall not be unreasonably withheld. Notwithstanding the previous
sentence, the Agent may at any time without the consent of the Borrower or any
Lender, appoint any of its Affiliates which is a commercial bank as a successor
Agent hereunder. If the Agent has resigned and no successor Agent has been
appointed, the Lenders may perform all the duties of the Agent hereunder and the
Borrower shall make all payments in respect of the Obligations to the applicable
Lender and for all other purposes shall deal directly with the Lenders. No
successor Agent shall be deemed to be appointed hereunder until such successor
Agent has accepted the appointment. Any such successor
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Agent shall be a commercial bank having capital and retained earnings of at
least $500,000,000. Upon the acceptance of any appointment as Agent hereunder by
a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning
Agent. Upon the effectiveness of the resignation of the Agent, the resigning
Agent shall be discharged from its duties and obligations hereunder and under
the Loan Documents. After the effectiveness of the resignation of an Agent, the
provisions of this Article X shall continue in effect for the benefit of such
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan Documents.
10.13 Delegation to Affiliates. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.14 Collateral Releases. The Lenders hereby empower and authorize the
Agent to execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of Collateral which shall be permitted by the terms hereof or of any
other Loan Document or which shall otherwise have been approved by the Required
Lenders (or, if required by the terms of Section 9.1, all of the Lenders) in
writing.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available), any amounts owed under Rate Management Transactions, and any other
Indebtedness at any time held or owing by any Lender or any Affiliate of any
Lender to or for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their Loans. In case any such payment is disturbed by legal
process, or otherwise, appropriate further adjustments shall be made.
11.3 Custodial Accounts. The Borrower agrees that funds received and held
by the Borrower as custodian for FNMA, GNMA or other mortgage pools which are
deposited into accounts with any Lender shall be clearly identified as custodial
accounts, and each Lender agrees that each provision of the foregoing
subsections of this Article XI shall not apply to such custodial accounts. The
Borrower shall not deposit any of its general funds in any custodial accounts or
otherwise commingle funds in any custodial accounts.
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ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS; COMMITMENT INCREASES
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) and assignment by any Lender must be made in compliance
with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank; provided, however, that
no such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
hereto have complied with the provisions of Section 12.3. The Agent may treat
the Person which made any Loan or which holds any Note as the owner thereof for
all purposes hereof unless and until such Person complies with Section 12.3,
provided, however, that the Agent may in its discretion (but shall not be
required to) follow instructions from the Person which made any Loan or which
holds any Note to direct payments relating to such Loan or Note to another
Person. Any assignee of the rights to any Loans or any Note agrees by acceptance
of such transfer or assignment to be bound by all the terms and provisions of
the Loan Documents. Any request, authority or consent of any Person, who at the
time of making such request or giving such authority or consent is the owner of
the Rights to any Loan (whether or not a Note has been issued in evidence
thereof), shall be conclusive and binding on any subsequent holder, or assignee
of the rights to such Loan.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender's obligations under the Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Loans and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Loan or Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to any such Loan or
Commitment, extends the Termination Date, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on, any such
Loan or Commitment, releases any guarantor of any such Loan or releases all or
substantially all of the Collateral (other than as expressly permitted pursuant
to the Loan Documents).
12.2.3 Benefit of Setoff. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section 11.1 in respect
of its participating interest in amounts owing
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under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that each Lender shall retain the right of setoff provided
in Section 11.1 with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 11.1, agrees
to share with each Lender, any amount received pursuant to the exercise of its
right of setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall be substantially in
the form of Exhibit J hereto or in such other form as may be agreed to by the
parties thereto. The consent of the Borrower and the Agent shall be required
prior to an assignment becoming effective with respect to a Purchaser which is
not a Lender or an Affiliate thereof, provided, however, that if a Default has
occurred and is continuing, the consent of the Borrower shall not be required.
Such consents of the Agent and the Borrower shall not be unreasonably withheld
or delayed. Each such assignment shall (unless it is to a Lender or an Affiliate
thereof or each of the Borrower and the Agent otherwise consents) be in an
amount not less than the lesser of (i) $10,000,000 or (ii) the remaining amount
of the assigning Lender's Commitment (calculated as at the date of such
assignment).
12.3.2 Effect; Effective Date. Upon (i) delivery to the Agent of a
notice of assignment, substantially in the form attached as Annex "I" to Exhibit
J hereto (a "Notice of Assignment"), together with any consents required by
Section 12.3.1, and (ii) payment of a $3,500 fee to the Agent for processing
such assignment, such assignment shall become effective on the effective date
specified in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment and Loans under the applicable
assignment agreement are "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Loan Documents will not
be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3.2, the transferor
Lender, the Agent and the Borrower shall, if the transferor Lender or the
Purchaser desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate replacement Notes are issued
to such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment. In addition,
within a reasonable time after the effective date of any assignment, the Agent
shall, and is hereby authorized and directed to, revise Schedule "1' reflecting
the revised commitments and percentages of each of the Lenders and shall
distribute such revised Schedule "1' to each of the Lenders and the Borrower,
whereupon such revised Schedule shall replace the old Schedule and become part
of this Agreement.
12.4 Intentionally Omitted.
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12.5 Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any reports regarding the
Borrower; provided that each Transferee and prospective Transferee agrees to be
bound by Section 9.12 of this Agreement.
12.6 Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.4(e).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.13 with respect
to borrowing notices, all notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, facsimile transmission
or similar writing) and shall be given to such party: (x) in the case of the
Borrower, the Agent or any Lender, at its address or facsimile number set forth
on the signature pages hereof, (y) in the case of the Collateral Agent, at its
address or facsimile number set forth on the signature pages of the Security
Agreement or (z) in the case of any party, at such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the
Agent and the Borrower in accordance with the provisions of this Section 13.1.
Each such notice, request or other communication shall be effective (i) if given
by facsimile transmission., when transmitted to the facsimile number specified
in this Section and confirmation of receipt is received, (ii) if given by mail,
72 hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Agent under Article 11 shall not be effective until received.
13.2 Change of Address. The Borrower, the Agent, the Collateral Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by facsimile transmission or telephone,
that it has taken such action.
ARTICLE XV
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
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15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK CITY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW
YORK, NEW YORK.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
74
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
PULTE MORTGAGE LLC
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
75
JPMORGAN CHASE BANK, N.A.,
individually and as Agent
By: ________________________________________________
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address for Notices Regarding Fundings:
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Address for Other Notices:
▇▇ ▇▇▇▇▇▇ Chase Bank, N.A.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice President
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
76
BOA LENDING L.L.P.
By: Bank of America, N.A., its agent
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
77
CALYON NEW YORK BRANCH
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
78
WASHINGTON MUTUAL BANK, FA
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
_______________________________
_______________________________
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (312) ___-____
79
LASALLE BANK NATIONAL ASSOCIATION
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
80
COMERICA BANK
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
One Detroit Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
82
BNP PARIBAS
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
______________________________
______________________________
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (212) ___-____
83
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
CHICAGO BRANCH
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
84
SUN TRUST BANK
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
________________________________________
________________________________________
________________________________________
Attn: ___________________________________
Telephone No: (___) ___-____
Facsimile No.: (___) ___-____
85
▇▇▇▇▇ FARGO BANK, N.A.
By: ________________________________________________
Name: ________________________________________________
Title: ________________________________________________
Address for Notices:
▇▇▇▇ ▇▇▇▇▇▇▇▇
#C7301-031
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
86
SCHEDULE 1
COMMITMENTS AND COMMITMENT PERCENTAGES
(A) (B) (C)
COMMITMENT
PERCENTAGE
(A/Aggregate SWINGLINE
LENDER COMMITMENT Commitment) COMMITMENT
------------ ------------- -----------
JPMorgan Chase Bank, N.A. $ 65,000,000 16.049383 $65,000,000
BOA Lending L.L.P. $ 60,000,000 14.814815
Calyon New York Branch $ 50,000,000 12.345679
Washington Mutual Bank, FA $ 50,000,000 12.345679
LaSalle Bank National Association $ 35,000,000 8.641975
Comerica Bank $ 30,000,000 7.407407
National City Bank of Kentucky $ 30,000,000 7.407407
BNP Paribas $ 25,000,000 6.172840
The Bank of Tokyo-Mitsubishi UFJ, Ltd., Chicago Branch $ 25,000,000 6.172840
Sun Trust Bank $ 20,000,000 4.938272
▇▇▇▇▇ Fargo, N.A. $ 15,000,000 3.703703
------------ --------
$405,000,000 100
============ ========
SCHEDULE 2
LIST OF APPROVED INVESTORS
FHLMC - Federal Home Loan Mortgage Corporation (▇▇▇▇▇▇▇ Mac)
FNMA - Federal National Mortgage Association (▇▇▇▇▇▇ ▇▇▇)
GNMA - Government National Mortgage Association (▇▇▇▇▇▇ Mae) - Current Investor
GNMA- Government National Mortgage Association (▇▇▇▇▇▇ ▇▇▇) - Old Citicorp Pools
American Home Mortgage
Astoria Federal Mortgage Corporation
Aurora Loan Services, Inc.
Bank of America Mortgage
Bank One Home Loan Services
Charter One Financial
Chase Financial Corporation
Chase Manhattan Mortgage Corporation
Citicorp Mortgage, Inc.
Commercial Federal Mortgage Corporation
Countrywide Home Loans, Inc.
Countrywide Home Loans, Inc. - Texas Veterans Land Board Loans
Credit Suisse First Boston - CSFB
EMC Mortgage Corporation - Bear ▇▇▇▇▇▇▇
E-Trade Financial Corporation
Fidelity Bankshares, Inc.
First Franklin Financial
First Horizon Mortgage
First Nationwide Mortgage Corporation
First Union Mortgage Corporation
Fleet Mortgage Corporation
GMAC Mortgage Corporation
GreenPoint
HomeSide Lending, Inc.
HSBC Mortgage Corporation (USA)
Independent National Mortgage Corporation (Indy Mac)
InterFirst Mortgage
JPMorgan Mortgage Acquisition Corp.
National City Mortgage Corporation
Opteum Financial Services
Principal Financial Group
Pulte Corporation
Regions Mortgage, Inc.
Resource Bankshares Mortgage Group
Washington Mutual/ALTA Residential Mortgage Trust
1
▇▇▇▇▇ Fargo Home Mortgage, Inc.
Zions Bancorporation
HOUSING BOND PROGRAMS
Colorado Housing Finance Authority
Sold servicing released to Inter Mountain Mortgage
Dakota County Bond (Minnesota)
Sold servicing released to ▇▇▇▇▇▇▇ Mortgage Corporation
Florida Housing Finance Agency
Sold servicing released to Leader Mortgage Company
Housing Financing Authority of Broward County (Florida)
Sold servicing released to Leader Mortgage Company
Illinois Housing Development Authority
Sold servicing released to Dovenmuehle Mortgage, Inc.
Maryland Housing Opportunities Commission (HOC)
Sold servicing released to Citizens Bank
Minnesota Housing Financing Agency
Sold servicing released to FBS Mortgage Corporation
Nevada State Housing Bond Authority
Servicing released to Leader Mortgage Company
New Jersey Housing Finance Agency
Servicing retained then transferred to Aurora Financial Group
North Carolina Housing Finance Agency
Sold servicing released to United Federal Bank
The Industrial Development Authority of the County of Pima, Arizona
Servicing retained then transferred to Mortgage Clearing Corporation
The Industrial Development Authority of the County of Maricopa, Arizona
Sold servicing released to Leader Mortgage Corporation
Pinellas County Finance Authority
Sold servicing released to Leader Mortgage Company
Texas Department of Housing and Community Affairs (TDHCA)
Sold servicing released to First Nationwide Mortgage Corporation
2
Texas Veterans Land Board and Non-VLB loans
Sold servicing released to First Nationwide Mortgage Corporation
New Mexico Housing Authority
Sold servicing released to Charter Bank
3
SCHEDULE 3
LITIGATION AND CONTINGENT LIABILITIES
NONE
SCHEDULE 4
SUBSIDIARIES AND OTHER INVESTMENTS
(SEE SECTIONS 5.8 AND 6.14)
INVESTMENT OWNED AMOUNT OF PERCENT JURISDICTION OF
IN BY INVESTMENT OWNERSHIP ORGANIZATION
------------------------------ ------------------ ------------- --------- ---------------
PCIC Corporation Pulte Mortgage LLC $ 105,261.09 100% Michigan
Joliet MTG Reinsurance Company Pulte Mortgage LLC $6,851,737.98 100% Vermont
Pulte Funding Inc. Pulte Mortgage LLC $2,782,616.77 100% Michigan
▇▇▇ ▇▇▇▇ Mortgage LLC Pulte Mortgage LLC $1,121,722.20 100% Delaware
SCHEDULE 5
INDEBTEDNESS AND LIENS
(SEE SECTIONS 5.14 AND 6.15)
MATURITY AND
INDEBTEDNESS INDEBTEDNESS PROPERTY AMOUNT OF
INCURRED BY OWED TO ENCUMBERED (IF ANY) INDEBTEDNESS
------------------ ------------ ------------------- ------------
Pulte Mortgage LLC Steelcase Cubicle partitions $30,287 10/06
EXHIBIT A
NOTE
May __, 2006
Pulte Mortgage LLC, a Delaware limited liability company (the "Borrower"),
promises to pay to the order of ______ (the "Lender") the lesser of the Lender's
Commitment under the Agreement (as hereinafter defined) or the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower pursuant to
Article II of the Agreement in immediately available funds at the main office of
JPMorgan Chase Bank, N.A., as Agent, together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Loans in full on the Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to the
benefits of, the Sixth Amended and Restated Revolving Credit Agreement dated as
of May __, 2006 (which, as it may be amended or modified and in effect from time
to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and JPMorgan Chase Bank, N.A., as Agent, to
which Agreement reference is hereby made for a statement of the terms and
conditions governing this Note, including the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is secured
pursuant to the Security Agreement, all as more specifically described in the
Agreement, and reference is made thereto for a statement of the terms and
provisions thereof Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.
This Note is to be governed by and construed and enforced in accordance
with the laws of the State of New York.
PULTE MORTGAGE LLC
By: ____________________________________
Name: ___________________________________
Title: __________________________________
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO NOTE OF PULTE MORTGAGE LLC
DATED MAY __, 2006
PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT UNPAID
DATE LOAN PAID BALANCE
---- --------- ---------- -------
EXHIBIT B
FORM OF BORROWING NOTICE
Date:
JPMorgan Chase Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇
Ph: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Reference is made to that certain Sixth Amended and Restated Revolving
Credit Agreement dated as of May ____, 2006 (as amended, extended and replaced
from time to time, the "Credit Agreement") among the Borrower, JPMorgan Chase
Bank, N.A., as agent and certain other Lenders. Any term defined in the Credit
Agreement and used in this Borrowing Notice shall have the meaning given to it
in the Credit Agreement.
The Borrower hereby requests Loans in the amount set forth below to be
made on ____, 20___ (or, if such day is not a Business Day, on the next Business
Day).
LIBOR Advance
(REQUEST TO BE RECEIVED BY 12 P.M. (NEW YORK TIME): $___________
Swingline Advance
(REQUEST TO BE RECEIVED BY 5:00 P.M. (NEW YORK TIME): $__________
Total Advance $__________
Concurrently herewith, the Borrower is delivering to the Agent, its
designated custodian or the Lenders the Required Mortgage Documents, the
Additional Required Mortgage Documents (if any), and/or a Agreement to Pledge
for the Mortgage Loans.
The Borrower represents and warrants that after giving effect to the
requested Loans, the Collateral Value of the Borrowing Base will equal or exceed
the aggregate principal balance of the Loans outstanding under the Credit
Agreement and such balance will not exceed the Aggregate Commitment.
The Borrower hereby grants to the Agent and Lenders a security interest in
all such new Collateral they are hereby made subject to the security interest to
the Lender created by the Agreement, effective immediately.
The proceeds of the Loans should be deposited in the Borrower's operating
account number _____________ with JPMorgan Chase Bank, N.A..
The Borrower acknowledges that the Agent and Lenders will rely on the
truth of each statement in this request and its attachments in funding the
requested Loans.
The Borrower confirms that the representations and warranties of the
Borrower contained in the Loan Documents are accurate and complete in all
material respects as if made on and as of the date of the funding of the
requested Loans and that no Default has occurred.
All items that the Borrower is required to furnish to the Agent, its
designated custodian or the Lenders for the requested Loans and otherwise have
been delivered, or will be delivered before the requested Loans are funded, in
all respects as required by the Agreement and the other Loan Documents. All
Required Mortgage Documents and Additional Required Mortgage Documents (if any)
submitted to the Lender with this Borrowing Notice conform in all material
respects with all applicable requirements of the Credit Agreement and the other
Loan Documents.
PULTE MORTGAGE LLC
By: ______________________________________
Name: ___________________________________
Title: __________________________________
EXHIBIT C
[INTENTIONALLY OMITTED]
EXHIBIT D
COLLATERAL TRANSMITTAL*
1. CUSTOMER NAME _____________________________________
2. LOAN NUMBER _______________________________________
AND "MIN" (IF APPLICABLE) _________________________
3. MORTGAGOR _________________________________________
SURNAME ONLY
4. AP STATUS CODE ____________________________________
5. PLEDGE DATE _______________________________________
6. ORIGINAL NOTE AMOUNT $_____________________________
7. OUTSTANDING PRINCIPAL BALANCE (Investment Loans only) $_________________
8. ACQUISITION COST $_________________________________
9. TAKE-OUT VALUE $___________________________________
10. NOTE DATE _________________________________________
11. NOTE RATE _________________________________________
12. LOAN TYPE _________________________________________
13. FICO SCORE ________________________________________
14. LIEN POSITION _____________________________________
15. OCCUPIED STATUS ___________________________________
* Information may be reformatted for transmittal electronically. For Mortgage
Loans pledged under the Prior Facility, Items 12 through 15 to be provided
within 45 days after the Effective Date.
EXHIBIT E
AGREEMENT TO PLEDGE
SECURITY AGREEMENT AS PROVIDED FOR BY
THE UNIFORM COMMERCIAL CODE OF ILLINOIS
Pulte Mortgage LLC (the "Borrower") pursuant to that certain Sixth Amended
and Restated Revolving Credit Agreement dated as of May __, 2006 (as amended,
extended and replaced from time to time, the "Credit Agreement") among the
Borrower, JPMorgan Chase Bank, N.A., as agent, and certain other Lenders, and
pursuant to that certain Fifth Amended and Restated Security and Collateral
Agency Agreement among the Borrower, the Agent, the Lenders and LaSalle Bank
National Association (the "Collateral Agent") for new value this day received,
and as security for the payment of any and all indebtedness and obligations of
the Borrower under the Credit Agreement, hereby creates and grants to the
Collateral Agent for the benefit of the Lenders under the Credit Agreement a
security interest in and to the mortgage loans identified as AP Mortgages by the
inclusion of an "AP Status Code" on the Borrower's Collateral Transmittals on
the date indicated below which provide the information concerning the AP
Mortgages required by the Credit Agreement. All capitalized terms used herein
shall have the meanings given to them in the Credit Agreement.
PULTE MORTGAGE LLC
By: ______________________________________
Name: ___________________________________
Title: __________________________________
Dated: _________ , 200___.
EXHIBIT F
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain Sixth
Amended and Restated Revolving Credit Agreement dated as of May __, 2006 (as
amended, modified, renewed or extended from time to time, the "Agreement") among
the Pulte Mortgage LLC (the "Borrower"), the lenders party thereto and JPMorgan
Chase Bank, N.A., as Agent for the Lenders. Unless otherwise defined herein,
capitalized terms used in this Compliance Certificate have the meanings ascribed
thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ____ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have
no knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Agreement,
all of which data and computations are true, complete and correct to the best of
the knowledge and belief (after reasonable investigation) of the officer of the
Borrower executing this certificate.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ____ day of__________, 20__.
___________________
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _____ , 200__ with
Provisions of ___ and ______ of
the Agreement
EXHIBIT G
BORROWING BASE CERTIFICATE
EXHIBIT H
[INTENTIONALLY OMITTED]
EXHIBIT I
SECURITY AGREEMENT
EXHIBIT J
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations in its capacity as a Lender under the Credit Agreement and any
other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below (including any letters of credit, guarantees, and
swingline loans included in such facilities) and (ii) to the extent permitted to
be assigned under applicable law, all claims, suits, causes of action and any
other right of the Assignor (in its capacity as a Lender) against any Person,
whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the
loan transactions governed thereby or in any way based on or related to any of
the foregoing, including contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as the "Assigned Interest"). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided
in this Assignment and Assumption, without representation or warranty by the
Assignor.
1. Assignor: __________________
2. Assignee: _________________________________________________________
[and is an Affiliate/Approved Fund of [identify Lender] ]
3. Borrower: Pulte Mortgage LLC
4. Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: The Sixth Amended and Restated Revolving Credit
Agreement dated as of May __, 2006 among Pulte Mortgage LLC, the Lenders parties
thereto, JPMorgan Chase Bank, N.A., as Administrative Agent.
6. Assigned Interest:
Aggregate Amount of Amount of
Commitment/Loans for all Commitment/Loans Percentage Assigned of
Facility Assigned Lenders Assigned Commitment/Loans
----------------- ------------------------ ---------------- -----------------------
$ $ %
----------------- ------------------------ ---------------- -----------------------
$ $ %
----------------- ------------------------ ---------------- -----------------------
$ $ %
Effective Date: _______ __, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The Assignee agrees to deliver to the Administrative Agent a completed
Administrative Questionnaire in which the Assignee designates one or more Credit
Contacts to whom all syndicate-level information (which may contain material
non-public information about the Borrower and its related parties or their
respective securities) will be made available and who may receive such
information in accordance with the Assignee's compliance procedures and
applicable laws, including Federal and state securities laws.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: ______________________________
Title:
ASSIGNOR
[NAME OF ASSIGNOR]
By: ______________________________
Title:
Consented to and accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By ____________________________
Title:
Consented to:
PULTE MORTGAGE LLC
By ____________________________
Title:
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the
Borrower, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 6.1 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly
completed and executed by the Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Loan Documents, and (ii) it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee for
amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: __________ , 200_
3. Amounts (As of Date of Item 2 above):
Primary Swingline
Commitment Commitment
---------- ----------
a. Total of Commitments
(Loans)* under
Credit Agreement $_____ $_____
b. Assignee's Percentage of each
Facility purchased under the
Assignment Agreement** _____% _____%
c. Amount of Assigned Share in each
Facility purchased under
the Assignment Agreement $_____ $_____
4. Assignee's Aggregate (Loan Amount)*
Commitment Amount Purchased Hereunder: $_____ $_____
5. Proposed Effective Date: ______
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: _____________________________ By: _______________________________
Title: __________________________ Title: ____________________________
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
ATTACHMENT TO SCHEDULE 1 TO ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name: ___________________________ Telephone No.: ___________________________
Fax No.: ________________________ Telex No.: _______________________________
Answerback: ______________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: ___________________________________________
___________________________________________
Account Name & Number for Wire Transfer: ____________________________________
___________________________________________
Other Instructions: ________________________________________________________
_______________________________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNOR: ____________________________________________
__________________________________________
__________________________________________
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name: ___________________________ Telephone No.: ___________________________
Fax No.: ________________________ Telex No.: _______________________________
Answerback: ______________________________
KEY OPERATIONS CONTACTS:
Booking Installation: _____________ Booking Installation: ____________________
Name: _____________________________ Name: ____________________________________
Telephone No.: ____________________ Telephone No.: ___________________________
Fax No.: __________________________ Fax No.: _________________________________
Telex No.: ________________________ Telex No.: _______________________________
Answerback: _______________________ Answerback: ______________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: ___________________________________________
___________________________________________
Account Name & Number for Wire Transfer: ____________________________________
___________________________________________
Other Instructions: ________________________________________________________
_______________________________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNOR: ____________________________________________
__________________________________________
__________________________________________
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ BANK, N.A. INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name: ▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇ Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
INITIAL FUNDING STANDARDS:
Libor - floating daily
JPMORGAN CHASE BANK, N.A. JPMorgan Chase Bank, N.A., ABA # ▇▇▇-▇▇▇-▇▇▇
WIRE INSTRUCTIONS: Account No. 00100381681
Re: Pulte
ADDRESS FOR NOTICES FOR ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ CHASE BANK, N.A.: ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ANNEX I
TO ASSIGNMENT AGREEMENT
NOTICE
OF ASSIGNMENT
_______ , 200_
To: PULTE MORTGAGE LLC
______________________________
______________________________
[NAME OF AGENT]
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered
to *[the Borrower and]* the Agent pursuant to Section 12.3.2 of the Credit
Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of ___, 200_ (the "Assignment"), pursuant to which, among
other things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstandings,
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1. The Effective Date of the Assignment shall be
the later of the date specified in Item 5 of Schedule 1 or two Business Days (or
such shorter period as agreed to by the Agent) after this Notice of Assignment
and any consents and fees required by Sections [12.3.1 and 12.3.2] of the Credit
Agreement have been delivered to the Agent, provided that the Effective Date
shall not occur if any condition precedent agreed to by the Assignor and the
Assignee has not been satisfied.
*To be included only if consent must be obtained from the Borrower pursuant to
Section 12.3.1 of the Credit Agreement.
4. The Assignor and the Assignee hereby give to the Borrower and the
Agent notice of the assignment and delegation referred to herein. The Assignor
will confer with the Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Agent to determine the
Effective Date pursuant to Section 3 hereof if it occurs thereafter. The
Assignor shall notify the Agent if the Assignment Agreement does not become
effective on any proposed Effective Date as a result of the failure to satisfy
the conditions precedent agreed to by the Assignor and the Assignee. At the
request
of the Agent, the Assignor will give the Agent written confirmation of the
satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent on or before
the Effective Date the processing fee of $3,500 required by Section 12.3.2 of
the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the Assignor and
the Assignee request and direct that the Agent prepare and cause the Borrower to
execute and deliver new Notes or, as appropriate, replacement notes, to the
Assignor and the Assignee. The Assignor and, if applicable, the Assignee each
agree to deliver to the Agent the original Note received by it from the Borrower
upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the
funds, monies, assets or other consideration being used to make the purchase
pursuant to the Assignment are "plan assets" as defined under ERISA and that its
rights, benefits, and interests in and under the Loan Documents will not be
"plan assets" under ERISA.
9. The Assignee authorizes the Agent to act as its agent under the
Loan Documents in accordance with the terms thereof. The Assignee acknowledges
that the Agent has no duty to supply information with respect to the Borrower or
the Loan Documents to the Assignee until the Assignee becomes a party to the
Credit Agreement.*
* May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By: ___________________________ By: ____________________________
Title: ________________________ Title: _________________________
ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED [AND CONSENTED TO]
BY [NAME OF AGENT] BY: PULTE MORTGAGE LLC
By: ___________________________ By: ____________________________
Title: ________________________ Name: __________________________
Title: _________________________
[Attach photocopy of Schedule 1 to Assignment]
EXHIBIT K
FORM OF
AMENDMENT TO CREDIT AGREEMENT
This _____ Amendment to Credit Agreement ("Amendment") is made as of
____,______ by and among PULTE MORTGAGE LLC, a Delaware limited liability
company (the "Borrower"), ______ (the "Increasing Lender"), and JPMORGAN CHASE
BANK, N.A. ("Agent") as administrative agent.
RECITALS
A. The Borrower, the Agent and certain other lenders are parties to that
certain Sixth Amended and Restated Revolving Credit Agreement dated as of May
__, 2006 (as amended from time to time, the "Credit Agreement"). All capitalized
terms used in this Amendment and not otherwise defined shall have the meanings
ascribed to such terms in the Credit Agreement.
B. The Borrower desires to amend the Credit Agreement to temporarily
increase the Aggregate Commitment and the Increasing Lender is willing to
provide the full amount of such temporary increase on the terms stated herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. Temporary Increase. As of the "Effective Date" (as defined below), the
Aggregate Commitment shall be increased from $_____ to $____ by an increase in
the Increasing Lender's Commitment from $____ to $____. Upon the Effective Date,
after giving effect to such increase, the Lenders' respective Commitment
Percentages shall be shown on revised Schedule "1" attached to this Amendment.
Such increase shall end on ____ (the "Reduction Date"). Upon the Reduction Date,
the Increasing Lender's Commitment shall be reduced by $____ to the amount in
effect immediately prior to the Effective Date. After giving effect to such
reduction and subject to any intervening changes in the Aggregate Commitment and
the Lenders' respective Commitment Percentages shall be returned to the
percentages in effect immediately prior to the Effective Date.
2. Reduction Date Adjustment. On the Reduction Date the Borrower shall
repay the amount, if any, by which the aggregate principal amount of the then
outstanding Loans exceeds the reduced Aggregate Commitment. The Agent shall
allocate such principal repayment among the Lenders so that each Lender's share
of all Loans as of the end of the business on the Reduction Date is equal to
such Lender's new Commitment Percentage after giving effect to such reduction in
the Aggregate Commitment.
3. Effective Date. The "Effective Date" shall be deemed to have occurred
on the date that all of the following conditions have been fulfilled:
(i) this Amendment has been fully executed and delivered;
(ii) if requested by the Increasing Lender, the Borrower has executed and
delivered to the Increasing Lender an amended and restated Note in the amount of
its increased Commitment; and
(iii) the Borrower has paid any upfront fee due to the Increasing Lender
with respect to such increase in its Commitment.
4. Miscellaneous.
(i) The Borrower represents and warrants to the Lenders that (i) after
giving effect to this Amendment, no Default or Unmatured Default exists, (ii)
the Credit Agreement is in full force and effect, and (iii) the Borrower has no
defenses or offsets to, or claims or counterclaims, relating to, its obligations
under the Credit Agreement.
(ii) All of the obligations of the parties to the Credit Agreement, as
amended hereby, are hereby ratified and confirmed. All references in the Loan
Documents to the "Credit Agreement" henceforth shall be deemed to refer to the
Credit Agreement as amended by this Amendment.
(iii) Nothing contained in this Amendment shall be construed to disturb,
discharge, cancel, impair or extinguish the indebtedness evidenced by the
existing Notes and secured by the Loan Documents or waive, release, impair, or
affect the liens arising under the Loan Documents or the validity or priority
thereof.
(iv) In the event of a conflict or inconsistency between the provisions of
the Loan Documents and the provisions of this Amendment, the provisions of this
Amendment shall govern. The provisions of this Amendment, the Credit Agreement,
the Security Agreement and the other Loan Documents are in full force and effect
except as amended herein and the Loan Documents as so amended are ratified and
confirmed hereby by the Borrower.
(v) The Borrower agrees to reimburse the Agent and the Increasing Lender
for all reasonable out-of-pocket expenses (including legal fees and expenses)
incurred in connection with the preparation, negotiation and consummation of
this Amendment.
(vi) This Amendment shall be effective as of the date that the Agent has
received executed counterparts of this Amendment from the Borrower and the
Increasing Lender.
(vii) This Amendment may be executed in counterparts which, taken
together, shall constitute a single document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the day and year
written below:
PULTE MORTGAGE LLC, a Delaware limited
liability company
By: _________________________________________
Name: ________________________________________
Title: _______________________________________
Date: ________________________________________
JPMORGAN CHASE BANK, N.A., as Agent
By: _________________________________________
Name: ________________________________________
Title: _______________________________________
Date: ________________________________________
INCREASING LENDER
By: _________________________________________
Name: ________________________________________
Title: _______________________________________
Date: ________________________________________
SCHEDULE 1
LENDERS' COMMITMENT PERCENTAGES
COMMITMENT
PERCENTAGE
COMMITMENT (INCLUDES
BANK NAME AMOUNT SWINGLINE)
--------- ---------- ----------
--------- ---------- ----------
--------- ---------- ----------
Total
EXHIBIT L
APPROVED SERVICING PURCHASERS.
1. JPMorgan Chase Bank. N.A., as successor to/assignee of Chase Manhattan
Mortgage Corporation
APPROVED SERVICING SALE AGREEMENTS.
1. Mortgage Loan Servicing Purchase and Sale Agreement dated July 25, 2003
between JPMorgan Chase Bank. N.A., as successor/assignee to Chase
Manhattan Mortgage Corporation and Pulte Mortgage LLC, as amended through
and including an Eighth Amendment thereto dated November 22, 2005 and as
it may hereafter be amended from time to time.
EXHIBIT M
APPROVED RECOURSE SERVICING
FNMA Bridge Loan Program
FNMA Condominium Program
EXHIBIT N
FORM OF AMENDMENT FOR A PERMANENT INCREASE
TO THE AGGREGATE COMMITMENT
This AMENDMENT (this "Amendment") is made as of the _______ day of _______
, 200__ by and among PULTE MORTGAGE LLC, a Delaware limited liability company
(the "Borrower"), JPMORGAN CHASE BANK, N.A., as agent under the "Credit
Agreement" (as defined below) (the "Agent") and ______________ (the
"Supplemental Lender").
RECITALS
A. The Borrower, the Agent and certain other Lenders, as described
therein, are parties to a Sixth Amended and Restated Revolving Credit Agreement
dated as of May __, 2006 (as amended from time to time, the "Credit Agreement").
All terms used herein and not otherwise defined shall have the same meaning
given to them in the Credit Agreement.
B. Pursuant to Section 2.10(c) of the Credit Agreement, the Borrower has
the right to increase the Aggregate Commitment on a permanent basis by obtaining
increased Commitments upon satisfaction of certain conditions. This Amendment
requires only the signature of the Borrower, the Agent and the Supplemental
Lender so long as the Aggregate Commitment is not increased above $600,000,000.
C. The Supplemental Lender is either (a) an existing Lender which is
increasing its Commitment or (b) a new Lender which is a lending institution
whose identity the Agent will approve by its signature below.
AGREEMENTS
1. Permanent Increase. In consideration of the foregoing, such
Supplemental Lender, from and after the date hereof shall have a Commitment of
$__ resulting in a new Aggregate Commitment of $__ as of the date hereof, and if
it is a new Lender, the Supplemental Lender hereby assumes all of the rights and
obligations of a Lender under the Credit Agreement.
2. Effective Date. The effective date of this Amendment shall be deemed to
have occurred on the date that all of the following conditions have been
fulfilled:
(i) this Amendment has been fully executed and delivered;
(ii) if requested by the Supplemental Lender, the Borrower has
executed and delivered to the Supplemental Lender a new or an amended and
restated Note in the form attached to the Credit Agreement as Exhibit A to
evidence the increased Commitment of the Supplemental Lender; and
(iii) the Borrower has paid any upfront fee due to the Supplemental
Lender with respect to such new or increased Commitment.
3. Miscellaneous.
(i) The Borrower represents and warrants to the Lenders
that (i) after giving effect to this Amendment, no Default or
Unmatured Default exists, (ii) the Credit Agreement is in full force
and effect, and (iii) the Borrower has no defenses or offsets to, or
claims or counterclaims, relating to, its obligations under the
Credit Agreement.
(ii) All of the obligations of the parties to the Credit
Agreement, as amended hereby, are hereby ratified and confirmed. All
references in the Loan Documents to the "Credit Agreement"
henceforth shall be deemed to refer to the Credit Agreement as
amended by this Amendment.
(iii) Nothing contained in this Amendment shall be
construed to disturb, discharge, cancel, impair or extinguish the
indebtedness evidenced by the existing Notes and secured by the Loan
Documents or waive, release, impair, or affect the liens arising
under the Loan Documents or the validity or priority thereof.
(iv) In the event of a conflict or inconsistency between
the provisions of the Loan Documents and the provisions of this
Amendment, the provisions of this Amendment shall govern. The
provisions of this Amendment, the Credit Agreement, the Security
Agreement and the other Loan Documents are in full force and effect
except as amended herein and the Loan Documents as so amended are
ratified and confirmed hereby by the Borrower.
(v) The Borrower agrees to reimburse the Agent and the
Supplemental Lender for all reasonable out-of-pocket expenses
(including legal fees and expenses) incurred in connection with the
preparation, negotiation and consummation of this Amendment.
(vi) This Amendment shall be effective as of the date
that the Agent has received executed counterparts of this Amendment
from the Borrower and the Supplemental Lender.
(vii) This Amendment may be executed in counterparts
which, taken together, shall constitute a single document.
IN WITNESS WHEREOF, the Agent, the Borrower and the Supplemental Lender
have executed this Amendment as of the date shown above.
PULTE MORTGAGE LLC
By: ________________________________
Its: ________________________________
JPMORGAN CHASE BANK, N.A., as Agent
By: ________________________________
Its: ________________________________
[SUPPLEMENTAL LENDER]
By: ________________________________
Its: ________________________________