Exhibit 10.5
AMENDED AND RESTATED LOAN AGREEMENT
By and Among:
PULTE FUNDING, INC.
As Borrower,
ATLANTIC ASSET SECURITIZATION CORP.
As an Issuer,
JUPITER SECURITIZATION CORPORATION
As an Issuer,
CREDIT LYONNAIS NEW YORK BRANCH
As the Administrative Agent,
as a Bank and as a Managing Agent,
BANK ONE, NA (MAIN OFFICE CHICAGO)
As a Bank and as a Managing Agent,
LLOYDS TSB BANK PLC
As a Bank,
and
PULTE MORTGAGE CORPORATION
As the Servicer
Dated as of August 23, 2002
TABLE OF CONTENTS
PAGE
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ARTICLE I GENERAL TERMS..................................................... 2
1.1. Certain Definitions................................................... 2
1.2. Other Definitional Provisions......................................... 31
ARTICLE II AMOUNT AND TERMS OF COMMITMENT.................................... 32
2.1. Maximum Facility Amount............................................... 32
2.2. Promissory Notes...................................................... 33
2.3. Notice and Manner of Obtaining Borrowings............................. 33
2.4. Fees.................................................................. 36
2.5. Prepayments........................................................... 36
2.6. Business Days......................................................... 37
2.7. Payment Procedures.................................................... 37
2.8. The Reserve Account................................................... 40
2.9. Interest Allocations.................................................. 42
2.10. Interest Rates........................................................ 42
2.11. Quotation of Rates.................................................... 42
2.12. Default Rate.......................................................... 43
2.13. Interest Recapture.................................................... 43
2.14. Interest Calculations................................................. 43
2.15. Interest Period....................................................... 43
2.16. Additional Costs...................................................... 44
2.17. Additional Interest on Advances Bearing a Eurodollar Rate............. 46
2.18. Consequential Loss.................................................... 46
2.19. Replacement Banks..................................................... 46
2.20. Seasonal Facility Amount.............................................. 47
ARTICLE III COLLATERAL........................................................ 48
3.1. Collateral............................................................ 48
3.2. Delivery of Collateral to Collateral Agent............................ 48
3.3. Redemption of Mortgage Collateral..................................... 50
3.4. Correction of Mortgage Notes.......................................... 53
3.5. Collateral Reporting.................................................. 53
3.6. Hedge Reports......................................................... 53
3.7. [RESERVED]............................................................ 54
3.8. Servicer Monthly Reporting............................................ 54
3.9. Servicer Annual Pipeline Reporting.................................... 54
3.10. Servicer Periodic Reporting........................................... 54
ARTICLE IV CONDITIONS PRECEDENT.............................................. 54
4.1. Initial Borrowing..................................................... 54
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4.2. All Borrowings........................................................ 56
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................... 57
5.1. Representations of the Borrower and the Servicer...................... 57
5.2. Additional Representations of the Borrower............................ 60
5.3. Additional Representations and Warranties of the Servicer............. 61
5.4. Survival of Representations........................................... 62
ARTICLE VI AFFIRMATIVE COVENANTS............................................. 63
6.1. Financial Statements and Reports...................................... 63
6.2. Taxes and Other Liens................................................. 65
6.3. Maintenance........................................................... 65
6.4. Further Assurances.................................................... 65
6.5. Compliance with Laws.................................................. 66
6.6. Insurance............................................................. 66
6.7. Accounts and Records.................................................. 66
6.8. Right of Inspection................................................... 67
6.9. Notice of Certain Events.............................................. 67
6.10. Performance of Certain Obligations.................................... 67
6.11. Use of Proceeds; Margin Stock......................................... 68
6.12. Notice of Default..................................................... 68
6.13. Compliance with Transaction Documents................................. 68
6.14. Compliance with Material Agreements................................... 68
6.15. Operations and Properties............................................. 68
6.16. Performance Guarantor Credit Rating................................... 69
6.17. Take-Out Commitments.................................................. 69
6.18. Collateral Proceeds................................................... 69
6.19. Environmental Compliance.............................................. 69
6.20. Closing Instructions.................................................. 69
6.21. Special Affirmative Covenants Concerning Collateral................... 70
6.22. Corporate Separateness................................................ 70
ARTICLE VII NEGATIVE COVENANTS................................................ 71
7.1. Limitations on Mergers and Acquisitions............................... 71
7.2. Fiscal Year........................................................... 72
7.3. Business.............................................................. 72
7.4. Use of Proceeds....................................................... 72
7.5. Actions with Respect to Collateral.................................... 72
7.6. Liens................................................................. 73
7.7. Employee Benefit Plans................................................ 73
7.8. Change of Principal Office or Jurisdiction............................ 73
7.9. No Commercial, A&D, Etc. Loans........................................ 73
7.10. Maximum Leverage...................................................... 73
7.11. Indebtedness.......................................................... 73
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7.12. Deposits to Collection Account........................................ 74
7.13. Transaction Documents................................................. 74
7.14. Distributions, Etc.................................................... 74
7.15. Charter............................................................... 74
ARTICLE VIII EVENTS OF DEFAULT................................................. 74
8.1. Nature of Event....................................................... 74
8.2. Default Remedies...................................................... 79
8.3. Paydowns.............................................................. 80
8.4. Waivers of Notice, Etc................................................ 80
ARTICLE IX THE ADMINISTRATIVE AGENT.......................................... 81
9.1. Authorization......................................................... 81
9.2. Reliance by Administrative Agent...................................... 81
9.3. Administrative Agent and Affiliates................................... 82
9.4. Lender Decision....................................................... 82
9.5. Rights of the Administrative Agent.................................... 82
9.6. Indemnification of Administrative Agent............................... 82
9.7. UCC Filings........................................................... 83
ARTICLE X INDEMNIFICATION................................................... 83
10.1. Indemnities by the Borrower........................................... 83
10.2. Contribution.......................................................... 83
ARTICLE XI ADMINISTRATION AND COLLECTION OF MORTGAGE LOANS................... 83
11.1. Designation of Servicer............................................... 83
11.2. Duties of Servicer.................................................... 84
11.3. Certain Rights of the Administrative Agent............................ 84
11.4. Rights and Remedies................................................... 85
11.5. Indemnities by the Servicer........................................... 85
ARTICLE XII THE MANAGING AGENTS............................................... 86
12.1. Authorization......................................................... 86
12.2. Reliance by Agent..................................................... 87
12.3. Agent and Affiliates.................................................. 87
12.4. Notices............................................................... 88
12.5. Lender Decision....................................................... 88
ARTICLE XIII MISCELLANEOUS..................................................... 88
13.1. Notices............................................................... 88
13.2. Amendments, Etc....................................................... 91
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13.3. Invalidity............................................................ 92
13.4. Restrictions on Informal Amendments................................... 92
13.5. Cumulative Rights..................................................... 92
13.6. Construction; Governing Law........................................... 93
13.7. Interest.............................................................. 93
13.8. Right of Offset....................................................... 93
13.9. Successors and Assigns................................................ 94
13.10. Survival of Termination............................................... 96
13.11. Exhibits.............................................................. 96
13.12. Titles of Articles, Sections and Subsections.......................... 96
13.13. Counterparts.......................................................... 96
13.14. No Proceedings........................................................ 96
13.15. Confidentiality....................................................... 96
13.16. Recourse Against Directors, Officers, Etc............................. 97
13.17. Waiver of Jury Trial.................................................. 97
13.18. Consent to Jurisdiction; Waiver of Immunities......................... 97
13.19. Costs, Expenses and Taxes............................................. 98
13.20. Entire Restated Loan Agreement........................................ 99
13.21. Excess Funds.......................................................... 99
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SCHEDULES AND EXHIBITS
Schedule I Bank Commitments Percentages, Seasonal Bank Commitment and
Seasonal Percentage
Schedule II Approved Investors
Schedule III UCC Search
Schedule IV Litigation
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Amended and Restated Subordination Agreement
Exhibit C Form of Borrowing Request
Exhibit D Form of Amended and Restated Collateral Agency Agreement
Exhibit D-1 Definitions - Section 1
Exhibit D-2 Form of Amended and Restated Security Agreement -
Section 3.1(a)
Exhibit D-3 Form of Amended and Restated Assignment of Account -
Section 3.1(b)
Exhibit D-4 Form of Assignment - Section 3.1(c) and Section 3.2(a)
Exhibit D-5 Form of Transfer Request
Exhibit D-5A(a) Form of Shipping Request (Conforming Loans)
Exhibit D-5A(b) Form of Shipping Request (Non-Conforming Loans)
Exhibit D-6(a) Form of Bailee and Security Agreement Letter -
Section 3.4(b)(i)
Exhibit D-6(b) Form of Bailee and Security Agreement Letter for Pool
Custodian Section 3.4(b)(i)
Exhibit D-7 Form of Trust Receipt and Security Agreement for Approved
Investors - Section 3.5
Exhibit D-8 Form of Collateral Agent Daily Report - Section 3.8(a)
Exhibit D-9 [Reserved]
Exhibit D-10 UCC Financing Statements - Section 3.1(d)
Exhibit D-11 [Reserved]
Exhibit D-12 Form of Assignment of Trade
Exhibit D-13 Form of Substitution Assignment
Exhibit E Form of Promissory Note
Exhibit F Form of Servicer Monthly Report
Exhibit G-1 Form of Amended and Restated Servicer Performance Guaranty
Exhibit G-2 Form of Amended and Restated Originator Performance Guaranty
Exhibit H-1 Form of PMC Quarterly Officer's Certificate
Exhibit H-2 Form of Borrower's Quarterly Officer's Certificate
Exhibit I-1 Form of Opinion of Counsel to Borrower on Corporate Matters
Exhibit I-2 Form of Opinion of Counsel to Borrower and Originator on
Security Interest Matters
Exhibit J Form of Opinion of Counsel to Originator on Bankruptcy Matters
Exhibit K Form of Hedge Report
Exhibit L [Reserved]
Exhibit M Form of Servicer Periodic Report
Exhibit N Form of Reserve Account Control Agreement
Exhibit O Form of Collection and Paying Agreement
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AMENDED AND RESTATED LOAN AGREEMENT
Dated as of August 23, 2002
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "Restated Loan
Agreement"), among PULTE FUNDING, INC., a Michigan corporation (hereinafter,
together with its successors and assigns, the "Borrower"), as the Borrower,
ATLANTIC ASSET SECURITIZATION CORP., a Delaware corporation (hereinafter,
together with its successors and assigns, "Atlantic"), as an Issuer, JUPITER
SECURITIZATION CORPORATION, a Delaware corporation (hereinafter, together with
its successors and assigns, "Jupiter"), as an Issuer and a Seasonal Issuer,
CREDIT LYONNAIS NEW YORK BRANCH ("CL New York"), as a Bank, as the
Administrative Agent and as a Managing Agent, BANK ONE, NA (MAIN OFFICE
CHICAGO), a national bank (hereinafter, together with its successors and
assigns, "Bank One"), as a Bank, a Seasonal Bank and as a Managing Agent, LLOYDS
TSB BANK PLC, a banking corporation organized under the laws of England
(hereinafter, together with its successors and assigns, "Lloyds"), as a Bank,
and PULTE MORTGAGE CORPORATION, a Delaware corporation (hereinafter, together
with its successors and assigns, "PMC"), as Servicer.
RECITALS
1. Capitalized terms used in these Recitals and not
defined in the preamble above have the meanings set forth in Article I.
2. The Borrower, Atlantic as an Issuer, Credit Lyonnais
as a Bank and as the Administrative Agent, and the Servicer have entered into
that certain Loan Agreement dated as of December 22, 2000 (the "Original Loan
Agreement").
3. Pursuant to an Assignment and Assumption Agreement
dated November 9 , 2001, Lloyds became a party to the Original Loan Agreement.
4. The Borrower, Atlantic as an Issuer, Credit Lyonnais
as a Bank and as the Administrative Agent, Lloyds, as a Bank, and the Servicer
now wish to amend and restate the Original Loan Agreement in order to add Bank
One and Jupiter as parties thereto, to add a Seasonal Facility thereto and to
amend certain other provisions thereof.
5. The Originator is engaged in the business of
originating, acquiring, investing in, marketing and selling, for its own
account, mortgage loans that are made either to finance the purchase of one- to
four-family owner-occupied homes or to refinance loans secured by such
properties.
6. The Borrower has purchased, and may continue to
purchase, Eligible Mortgage Loans from the Originator, as determined from time
to time by the Borrower and the Originator.
7. In order to finance such purchases, the Borrower has
requested that the Lenders provide the Borrower with credit in the form of
revolving loans on the terms and conditions set forth herein.
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8. The Issuers may, in their sole discretion, and the
Banks shall, in each case subject to the terms and conditions contained in this
Restated Loan Agreement, make Advances to the Borrower secured by a lien on, and
security interest in, the Mortgage Loans and certain other Collateral.
9. The Lenders have appointed the Administrative Agent
as their agent to perform certain administrative duties for the Lenders
including, among other things, the administration of the funding of the
transactions hereunder and the making of certain determinations hereunder and in
connection herewith.
AGREEMENTS
In consideration of the recitals and the representations,
warranties, conditions, covenants and agreements made in this Restated Loan
Agreement, the sufficiency of which are acknowledged by all parties hereto, the
Borrower, the Lenders, the Servicer, the Managing Agents and the Administrative
Agent, intending to be legally bound, have established and hereby amend and
restate the provisions of the Original Loan Agreement. Accordingly, the
Borrower, the Lenders, the Administrative Agent, the Managing Agents and the
Servicer covenant and agree as follows:
ARTICLE I
GENERAL TERMS
1.1. Certain Definitions.
As used in this Restated Loan Agreement, the following terms
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"ABR Allocation" is defined in Section 2.9.
"Adjusted Liabilities" means, with respect to the Originator,
without duplication, and at any time, the sum of (a) all amounts that
should be reflected as liabilities on its balance sheet, plus (b) its
total direct and indirect guaranty and other obligations in respect of
borrowed money Indebtedness of others (calculated at the maximum amount
of those obligations that is stated in the relevant documents or, if
not so stated, that may reasonably be anticipated in good faith) plus
(c) to the extent not already included in clause (a) above, its total
funding obligations to originate or acquire Mortgage Loans that, in
either case, are closed but not funded, minus (d) its total trade
payables and accrued expenses incurred in the ordinary course of its
business but unrelated to originating or acquiring any specific
Mortgage Loan (including, without limitation, trade payables and
accrued expenses owed to its Affiliates but excluding advances by its
Affiliates and interest on those advances), minus (e) the Originator's
total deferred-federal-income tax liabilities.
"Adjusted Net Worth" means, for the Originator, without
duplication, and at any time, the sum of (a) its stockholders' equity
reflected on its balance sheet, plus (b) the
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remainder of (A) the income that Originator has deferred, for
accounting purposes, pending the sale of Mortgage Loans in accordance
with Statement of Financial Accounting Standards Number 91 and Number
122, as each is published by the Financial Accounting Standards Board
as of the date of this Restated Loan Agreement, minus (B) reasonable
reserves for the federal income tax liabilities related to that
deferred income.
"Administrative Agent" means CL New York, in its capacity as
administrative agent for the Lenders, or any successor administrative
agent.
"Administrative Agent's Account" means, the special account
(account number 01-88485-3701-00-001, ABA No. ▇▇▇▇▇▇▇▇▇) of CL New York
maintained at the office of Credit Lyonnais New York Branch at 1301
Avenue of the Americas, New York, New York.
"Advance" means with respect to any Lender any amount
disbursed by such Lender to the Borrower pursuant to Section 2.1 or
Section 2.20 (or any conversion or continuation thereof).
"Advance Rate" means (i) with respect to a Conforming Loan or
a Jumbo Loan (other than a Super Jumbo Loan), ninety-eight percent
(98%), (ii) with respect to an Alt-A Loan, ninety-seven percent (97%)
and (iii) with respect to a Second Lien Loan or a Super Jumbo Loan,
ninety-five percent (95%).
"Affected Party" means each Lender, the Administrative Agent,
each Managing Agent, any bank party to a Liquidity Agreement and any
permitted assignee or participant of any such bank, and any holding
company of an Affected Party.
"Affiliate" of any Person means (a) any other Person that,
directly or indirectly, controls, is controlled by, or is under common
control with, such Person, or (b) any other Person who is a director,
officer or employee (i) of such Person, or (ii) of any Person described
in the preceding clause (a). For purposes of this definition, the term
"control" (and the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession
or ownership, directly or indirectly, of the power either (x) to direct
or cause the direction of the management and policies of such Person,
whether by contract or otherwise, or (y) vote 10% or more of the
securities having ordinary power in the election of directors of such
Person.
"Agent" means each of the Administrative Agent and the
Managing Agents.
"Alt-A Loan" means a Mortgage Loan (other than a Conforming
Loan or a Jumbo Loan) that (1) does not conform to the conventional
underwriting standards of ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae but
that is underwritten by an Approved Investor (other than ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇), within guidelines generally acceptable to
industry norms for "Alt-A" loans, (2) has a demonstrated secondary
market and are readily securitizable, (3) matches all applicable
requirements for purchase under the requirements of a Take-Out
Commitment specifically issued for the purchase of such Mortgage Loan,
and (4) is a First Lien Mortgage Loan. Certain Alt-A Loans are No Asset
No Income Loans.
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"Alternate Base Rate" means:
(i) for the CL New York Group, on any date, a fluctuating rate
of interest per annum equal to the higher of:
(a) the rate of interest most recently announced
by CL New York as its base rate; and
(b) the Federal Funds Rate (as defined below)
most recently determined by the Administrative Agent plus 1.0%
per annum; and
(ii) for the Bank One Group, on any date, a fluctuating rate
of interest per annum equal to the higher of:
(a) a rate per annum equal to the prime rate of
interest announced from time to time by Bank One or its parent
(which is not necessarily the lowest rate charged to any
customer), changing when and as said prime rate changes; and
(b) the Federal Funds Rate (as defined below)
most recently determined by Bank One plus 1.0% per annum.
For purposes of this definition, "Federal Funds Rate" means, for any
period, a fluctuating interest rate per annum equal (for each day
during such period) to (i) the weighted average of the rates on
overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the immediately
preceding Business Day) by the Federal Reserve Bank of New York; or
(ii) if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions
received by the Administrative Agent from three federal funds brokers
of recognized standing selected by it. The Alternate Base Rate is not
necessarily intended to be the lowest rate of interest determined by CL
New York in connection with extensions of credit.
"Annual Extension Date" shall mean (i) August 23, 2003 and
(ii) thereafter, if consented to by the Lenders, the Managing Agent and
the Administrative Agent pursuant to Section 2.1(b), the date that is
specified by the Lenders, the Managing Agents and the Administrative
Agent in the applicable consent, which date shall not be more than 364
days following the then effective Annual Extension Date.
"Annual Seasonal Extension Date" shall mean (i) August 23,
2003 and (ii) thereafter, if consented to by the Seasonal Lenders and
the Managing Agent for the Seasonal Lenders pursuant to Section 2.20,
the date that is specified by the Seasonal Lenders and the Managing
Agent for the Seasonal Lenders in the applicable consent, which date
shall not be more than 364 days following the then effective Annual
Seasonal Extension Date.
"Approved Investor" means:
(a) ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae, or
4
(b) any Person with short-term ratings of at least A-1,
P-1 and F1 from S&P, ▇▇▇▇▇'▇ and Fitch, respectively, or long-term
unsecured debt ratings (or in the case of a bank without such ratings
that is the principal subsidiary of a bank holding company, the rating
of the bank holding company) of at least AA, Aa2 and AA from S&P,
▇▇▇▇▇'▇, and Fitch, respectively, or
(c) all other Persons as may be approved by the Managing
Agents, which approvals may be subject to certain concentration limits
but may not be unreasonably withheld or delayed;
provided that (i) if an Approved Investor has a short-term rating or a
long-term unsecured debt rating at the time such Person first becomes
an "Approved Investor" and such Person's short-term ratings or
long-term unsecured debt ratings are subsequently downgraded or
withdrawn, such Person shall cease to be an "Approved Investor";
provided, further, that with respect to any Take-Out Commitments issued
by such Person prior to the date of such downgrade or withdrawal, such
Person shall cease to be an "Approved Investor" 60 days following such
downgrade or withdrawal; and (ii) if an Approved Investor does not have
a short-term rating or a long-term unsecured debt rating, such Person
shall cease to be an "Approved Investor" upon prior written notice from
either Managing Agent if such Managing Agent has good faith concerns
about the future performance of such Person; provided, further, that
with respect to any Take-Out Commitments issued by such Person prior to
such notice, such Person shall cease to be an "Approved Investor" 60
days following such notice.
As of the date of this Restated Loan Agreement, Schedule II
hereto sets forth the Approved Investors pursuant to the preceding
clauses (b) and (c) (and any applicable concentration limits). Schedule
II shall be updated from time to time as Approved Investors are added
or deleted or concentration limits are changed pursuant to the
preceding clauses (b) and (c).
"Assignment" is defined in the Restated Collateral Agency
Agreement.
"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Bank, an Eligible Assignee and the
Administrative Agent, pursuant to which such Eligible Assignee may
become a party to this Restated Loan Agreement, in substantially the
form of Exhibit A hereto.
"Atlantic" has the meaning set forth in the preamble to this
Restated Loan Agreement.
"Atlantic Program Agent" means CL New York, in its capacity as
the collateral agent pursuant to a security agreement made by Atlantic
for the benefit of certain creditors of Atlantic, and any successor to
CL New York in such capacity.
"Availability" means, at the time determined, the Maximum
Facility Amount minus the Principal Debt owed to the Lenders (other
than the Seasonal Lenders).
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"Available Collateral Value" means, at the time determined,
the excess of the Collateral Value of all Eligible Mortgage Collateral
over the Principal Debt.
"Bailee and Security Agreement Letter" is defined in Section
3.4(b)(i) of the Restated Collateral Agency Agreement.
"Bank" means each of CL New York, Bank One and Lloyds and each
respective Eligible Assignee that shall become a party to this Restated
Loan Agreement pursuant to an Assignment and Acceptance. Unless
otherwise noted, references to "Banks" shall include the Seasonal
Banks.
"Bank Commitment" means (a) with respect to CL New York,
Lloyds and Bank One, in its capacity as a Bank but not as a Seasonal
Bank, the amount set forth on Schedule I hereto, and (b) with respect
to a Bank that has entered into an Assignment and Acceptance, the
amount set forth therein as such Bank's Bank Commitment, in each case
as such amount may be reduced by each Assignment and Acceptance entered
into between such Bank and an Eligible Assignee, and as may be further
reduced (or terminated) pursuant to the next sentence. Any reduction
(or termination) of the Maximum Facility Amount pursuant to the terms
of this Restated Loan Agreement shall (unless otherwise agreed by all
the Banks) reduce ratably (or terminate) each Bank's Bank Commitment.
At no time shall the aggregate Bank Commitments of all Banks exceed the
Maximum Facility Amount.
"Bank Commitment Percentage" means, for any Bank, as of any
date, the amount obtained by dividing such Bank's Bank Commitment on
such date by the aggregate Bank Commitments of all Banks on such date.
As of the date of this Restated Loan Agreement, the Bank Commitment
Percentage for each Bank is as set forth on Schedule I hereto.
"Bank One" has the meaning as set forth in the preamble to
this Restated Loan Agreement.
"Bank One Group" means Jupiter, Bank One and each other Group
Bank of Jupiter.
"Bank Spread" means 1.00%.
"Base Rate Advance" means an Advance that bears interest at a
rate per annum determined on the basis of the Alternate Base Rate.
"Borrower" has the meaning specified in the preamble of this
Restated Loan Agreement.
"Borrowing" means a borrowing of Advances consisting of
Advances having the same Interest Period made hereunder by each of the
Lenders on the same Business Day.
"Borrowing Date" means the date, identified by the Borrower in
the relevant Borrowing Request, as the date on which a Borrowing is to
be made.
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"Borrowing Request" means a request, in the form of Exhibit C
to this Restated Loan Agreement, for a Borrowing pursuant to Article
II.
"Business Day" means (a) a day on which (i) commercial banks
in ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and Denver, Colorado, are
not authorized or required to be closed and (ii) commercial banks in
the State in which the Collateral Agent has its principal office are
not authorized or required to be closed, and (b) if this definition of
"Business Day" is utilized in connection with a Eurodollar Advance, a
day on which dealings in United States dollars are carried out in the
London interbank market.
"Cash and Collateral Account" is account number ▇▇▇▇▇▇▇, held
at the Cash and Collateral Account Bank pursuant to the Collection and
Paying Agreement.
"Cash and Collateral Account Bank" means, initially, Bank One,
NA, and, at any time, the institution then holding the Cash and
Collateral Account in accordance with the terms of the Collection and
Paying Agreement.
"Collection and Paying Agreement" means the Collection and
Paying Agreement, dated as of even date herewith, between the Borrower,
the Servicer, the Administrative Agent, the Cash and Collateral Account
Bank and the Collateral Agent.
"Charter" means the Borrower's articles of incorporation or
charter, as amended through the date of this Restated Loan Agreement.
"CL New York" has the meaning set forth in the preamble of
this Restated Loan Agreement and its successors and assigns.
"CL New York Group" means Atlantic, CL New York, and each
other Group Bank of Atlantic.
"Closing Protection Rights" means any rights of the Originator
or the Borrower to or under (i) a letter issued by a title insurance
company to the Originator assuming liability for certain acts or
failure to act on behalf of a named closing escrow agent, approved
attorney or similar Person in connection with the closing of a Mortgage
Loan transaction, (ii) a bond, insurance or trust fund established to
protect a mortgage lender against a loss or damage resulting from
certain acts or failure to act of a closing escrow agent, approved
attorney, title insurance company or similar Person, or (iii) any other
right or claim that the Originator or the Borrower may have against any
Person for any loss or damage resulting from such Person's acts or
failure to act in connection with the closing of a Mortgage Loan and
the delivery of the related Mortgage Loan Collateral to the Collateral
Agent, the Originator or to the Borrower.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means Property that is subject to a Lien for the
benefit of the holders of the Obligations.
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"Collateral Agent" means LaSalle Bank National Association,
and its successors and assigns.
"Collateral Agent Daily Report" is defined in Section 3.8(a)
of the Collateral Agency Agreement.
"Collateral Deficiency" means, at any time, the amount by
which the Principal Debt exceeds the lesser of (a) the Collateral Value
of all Eligible Mortgage Collateral and (b) if the Collateral Agent
holds no Eligible Mortgage Collateral, zero.
"Collateral Proceeds" means all amounts received by the
Borrower, the Servicer, the Administrative Agent, the Lenders, the
Collateral Agent or any other Person, in respect of the Collateral,
whether in respect of principal, interest, fees or other amounts,
including, without limitation, (i) all amounts received pursuant to
Take-Out Commitments, and (ii) with respect to any Mortgage Loan, all
funds that are received from or on behalf of the related Obligors in
payment of any amounts owed (including, without limitation, purchase
prices, finance charges, escrow payments, interest and all other
charges) in respect of such Mortgage Loan, or applied to such amounts
owed by such Obligors (including, without limitation, insurance
payments that Borrower or Servicer applies in the ordinary course of
its business to amounts owed in respect of such Mortgage Loan and net
proceeds of sale or other disposition of Property of the Obligor or any
other party directly or indirectly liable for payment of such Mortgage
Loan and available to be applied thereon).
"Collateral Report" is defined in Section 6.1(f).
"Collateral Value" means
(A) with respect to each Eligible Mortgage Loan and at
all times, an amount equal to the Advance Rate for such Eligible
Mortgage Loan times the least of:
(1) the lesser of the original principal amount
of such Eligible Mortgage Loan or the acquisition price paid by PMC on
the closing and funding of such Eligible Mortgage Loan;
(2) for each Eligible Mortgage Loan, a ratable
amount determined by multiplying (a) the weighted average purchase
price (expressed as a percentage of par) that Approved Investors are
obligated to pay, pursuant to Take-Out Commitments, for all Eligible
Mortgage Loans, as shown on the most recent Hedge Report, times (b) the
outstanding principal amount of such Eligible Mortgage Loan; and
(3) while a Default or Event of Default is
continuing, the Market Value of such Eligible Mortgage Loan; and
(B) with respect to the Collection Account, the balance
of collected funds therein which is not subject to any Lien in favor of
any Person other than the Lien in favor of the Administrative Agent for
the benefit of the holders of the Obligations;
8
provided, however, that
(a) at any time, the portion of total Collateral Value
that may be attributable to Jumbo Loans shall not exceed thirty-five
percent (35%) of the Maximum Facility Amount or, during the Seasonal
Period, thirty-five percent (35%) of the Combined Facility;
(b) at any time, the portion of total Collateral Value
that may be attributable to Super Jumbo Loans shall not exceed ten
percent (10%) of the Maximum Facility Amount or, during the Seasonal
Period, ten percent (10%) of the Combined Facility Amount;
(c) at any time, the portion of total Collateral Value
that may be attributable to Alt-A Loans shall not exceed fifteen
percent (15%) of the Maximum Facility Amount or, during the Seasonal
Period, fifteen percent (15%) of the Combined Facility Amount;
(d) at any time, the portion of total Collateral Value
that may be attributable to No Asset No Income Loans shall not exceed
five percent (5%) of the Maximum Facility Amount or, during the
Seasonal Period, five percent (5%) of the Combined Facility Amount;
(e) at any time, the portion of total Collateral Value
that may be attributable to Mortgage Loans for which the Mortgage Notes
have been withdrawn for correction pursuant to Section 3.4 shall not
exceed $5,000,000 as determined in accordance with said Section 3.4;
(f) at any time, the portion of the total Collateral
Value that may be attributable to any single Approved Investor listed
on Schedule II pursuant to one or more Take-Out Commitments shall not
exceed the concentration limit for such Approved Investor as set forth
on Schedule II (as the same may be updated from time to time);
(g) at any time, the portion of total Collateral Value
that may be attributable to Mortgage Loans that have been Eligible
Mortgage Loans (A) for more than 120 days shall not exceed ten percent
(10%) of the Maximum Facility Amount or, during the Seasonal Period,
ten percent (10%) of the Combined Facility Amount or (B) for more than
180 days shall be zero;
(h) a Mortgage Loan that ceases to be an Eligible
Mortgage Loan shall have a Collateral Value of zero;
(i) at any time, (A) except the first five and last five
Business Days of any month, the portion of total Collateral Value that
may be attributable to Special Mortgage Loans with respect to which the
related Principal Mortgage Documents have not been delivered to the
Collateral Agent within nine (9) Business Days after the date the
Assignment was delivered to the Collateral Agent shall not exceed
thirty percent (30%) of the Maximum Facility Amount or, during the
Seasonal Period, thirty percent (30%) of the Combined Facility Amount,
and (B) during the first five and last five Business Days of any month,
the portion of total Collateral Value that may be attributable to
Special Mortgage Loans with respect to which the related Principal
Mortgage Documents have
9
not been delivered to the Collateral Agent within nine (9) Business
Days after the date the Assignment was delivered to the Collateral
Agent shall not exceed fifty percent (50%) of the Maximum Facility
Amount or, during the Seasonal Period, fifty percent (50%) of the
Combined Facility Amount; and
(j) at any time, the portion of total Collateral Value
that may be attributable to Second Lien Loans shall not exceed five
percent (5%) of the Maximum Facility Amount or, during the Seasonal
Period, five percent (5%) of the Combined Facility Amount.
"Collection Account" means the account established by the
Borrower pursuant to Section 2.7(b) to be used for (i) the deposit of
proceeds from the sale of Mortgage Loans; and (ii) the payment of the
Obligations, it being understood that such account is assigned to the
Administrative Agent pursuant to the Restated Assignment of Account and
the Administrative Agent has the authority to direct the transfer of
all funds in the Collection Account.
"Collection Account Bank" means, initially, Bank One, NA and,
at any time, the institution then holding the Collection Account in
accordance with the terms of the Restated Assignment of Account.
"Collection Period" means each calendar month, beginning on
the first day of each month and including the last day of the month.
"Collections" means, with respect to any Mortgage Asset, all
cash collections (other than in respect of escrows payable under the
related Mortgage Loan) and other cash proceeds of such Mortgage Asset.
"Combined Facility Amount" means the Maximum Facility Amount
plus the Seasonal Facility Amount.
"Combined Loan-to-Value Ratio" means, with respect to any
Second Lien Loan, the fraction, expressed as a percentage, the
numerator of which is equal to the sum of (x) outstanding principal
debt of such Mortgage Loan as of the Mortgage Origination Date, and (y)
the outstanding principal amount of the mortgage loan secured by the
same mortgaged property, and the denominator of which is equal to the
value of the related Mortgage Loan Collateral on the basis of the
lesser of the appraised value at origination or the sales price of such
Mortgage Loan.
"Commercial Paper Notes" means short-term promissory notes
issued or to be issued by the Issuers to fund or maintain their
Advances or investments in other financial assets.
"Commercial Paper Rate" for any Interest Period for the
related Advance means:
(a) with respect to the portion of such Advance funded by
Atlantic, a rate per annum equal to the sum of:
10
(i) the rate or, if more than one rate, the
weighted average of the rates, determined by converting to an
interest-bearing equivalent rate per annum the discount rate
(or rates) at which Commercial Paper Notes having a term equal
to such Interest Period and to be issued to fund or to
maintain such Advance by Atlantic (including, without
limitation, Principal Debt and accrued and unpaid interest),
may be sold by any placement agent or commercial paper dealer
selected by the Managing Agent for Atlantic, as agreed between
each such agent or dealer and the Managing Agent for Atlantic,
plus
(ii) the commissions and charges charged by such
placement agent or commercial paper dealer with respect to
such Commercial Paper Notes expressed as a percentage of such
face amount and converted to an interest-bearing equivalent
rate per annum, plus
(iii) the Conduit Spread,
(b) with respect to the portion of any Advance funded by
Jupiter for any Interest Period, the per annum rate that reflects:
(i) the rate (or, if more than one rate, the
weighted average of the rates) at which Commercial Paper Notes
having a term equal to such Interest Period (or portion
thereof) may be sold by any placement agent or commercial
paper dealer selected by Jupiter, as agreed between each such
agent or dealer and Jupiter, provided, however, that if the
rate (or rates) as agreed between any such agent or dealer and
Jupiter is a discount rate (or rates), the "Commercial Paper
Rate" for such Interest Period (or portion thereof) shall be
the rate (or if more than one rate, the weighted average of
the rates) resulting from Jupiter's converting such discount
rate (or rates) to an interest-bearing equivalent rate per
annum, plus
(ii) accrued commissions in respect of placement
agents and commercial paper dealers and issuing and paying
agent fees incurred, in respect of such Commercial Paper
Notes, minus
(iii) any payment received on such date net of
expenses in respect of Consequential Losses related to the
prepayment of any purchased interest of Jupiter pursuant to
the terms of any receivable purchase facilities funded
substantially with such Commercial Paper Notes plus
(iv) the Conduit Spread; or
(c) such other rate as Atlantic or Jupiter and the
Borrower shall agree to in writing.
"Conduit Spread" means the margin set forth in the Restated
Agent Fee Letter or the Managing Agent Fee Letter, as applicable.
"Conforming Loan" means (i) a Mortgage Loan that complies with
all applicable requirements for purchase under a ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Mac or similar Governmental
11
Authority standard form of conventional mortgage loan purchase
contract, then in effect, or (ii) an FHA Loan or a VA Loan, that, in
either case, is a First Lien Mortgage Loan.
"Consequential Loss" means any loss or expense that any
Affected Party may reasonably incur in respect of a Borrowing as a
consequence of (a) any failure or refusal of Borrower (for any reasons
whatsoever other than a default by the Administrative Agent, any Lender
or any Affected Party) to take such Borrowing after Borrower shall have
requested it under this Restated Loan Agreement, (b) any prepayment or
payment of such Borrowing that is a Eurodollar Advance or CP Advance on
a day other than the last day of the Interest Period applicable to such
Borrowing, (c) any prepayment of any Borrowing that is not made in
compliance with the provisions of Section 2.5(a); provided, that so
long as an Event of Default shall not have occurred, the Borrower shall
not be responsible for any Consequential Loss resulting from changes in
the Settlement Date made by the Administrative Agent, as described in
the proviso contained in the definition of "Settlement Date," or (d)
Borrower's failure to make a prepayment after giving notice under
Section 2.5(a) that a prepayment will be made.
"CP Allocation" is defined in Section 2.9.
"Debtor Laws" means all applicable liquidation,
conservatorship, bankruptcy, fraudulent transfer or conveyance,
moratorium, arrangement, receivership, insolvency, reorganization or
similar laws from time to time in effect affecting the rights of
creditors generally.
"Default" means any condition or event that, with the giving
of notice or lapse of time or both and unless cured or waived, would
constitute an Event of Default.
"Default Rate" means a per annum rate of interest equal from
day to day to the lesser of (a) the sum of the Alternate Base Rate plus
two percent and (b) the Maximum Rate.
"Default Ratio" means as of the end of any Collection Period,
the ratio of (i) the principal amount of all Mortgage Loans that were
Defaulted Mortgage Loans at such time, to (ii) the aggregate principal
amount of all Mortgage Loans at such time.
"Defaulted Mortgage Loan" means a Mortgage Asset under which
the Obligor is 30 or more days in payment default or has taken any
action, or suffered any event of the type described in Section 8.1(f),
8.1(g) or 8.1(h) or is in foreclosure.
"Deferred Income" means the amount of income that the
Originator or Borrower has deferred, for accounting purposes, pending
the sale of Mortgage Loans, in accordance with Statement of Financial
Accounting Standards Number 91 ("SFAS 91") and Statement of Financial
Accounting Standards Number 122 ("SFAS 122"), each as currently
published by the Financial Accounting Standards Board.
"Drawdown Termination Date" means the earliest to occur of:
12
(a) August 23, 2005, or such earlier date determined in
accordance with Section 2.1(b), or
(b) the date on which the Maximum Facility Amount is
terminated by the Borrower pursuant to Section 2.1(d), and
(c) the date, on or after the occurrence of an Event of
Default, determined pursuant to Section 8.1.
"Effective Date" means August 23, 2002.
"Eligible Assignee" means (i) CL New York or any of its
Affiliates, Bank One or any of its Affiliates, or Lloyds or any of its
Affiliates, (ii) any Person managed by CL New York or any of its
Affiliates, Bank One or any of its Affiliates or Lloyds or any of its
Affiliates, respectively, or (iii) any financial or other institution
that is approved by the Administrative Agent (such approval not to be
unreasonably withheld or delayed) and is approved by the Borrower (such
approval not to be unreasonably withheld or delayed), provided that no
such approval by the Borrower shall be required at any time when a
Default or an Event of Default shall have occurred and be continuing.
"Eligible Institution" means any depository institution,
organized under the laws of the United States or any state, having
capital and surplus in excess of $200,000,000, the deposits of which
are insured to the full extent permitted by law by the Federal Deposit
Insurance Corporation and that is subject to supervision and
examination by federal or state banking authorities; provided that such
institution also must have a rating of A or higher with respect to
long-term deposit obligations from ▇▇▇▇▇'▇, A2 or higher with respect
to long-term deposit obligations from S&P and A or higher with respect
to long-term deposit obligations from Fitch. If such depository
institution publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.
"Eligible Mortgage Collateral" means Eligible Mortgage Loans
and the Collection Account.
"Eligible Mortgage Loan" means a Mortgage Loan:
(a) that (i) is a closed and funded Mortgage Loan, (ii)
has a maximum term to maturity of 30 years and the proceeds of which
were used either to finance a portion of the purchase price of a
Property encumbered by the related Mortgage or to refinance a loan
secured by such Property, and (iii) is secured by a perfected
first-priority Lien (except Second-Lien Loans) on residential real
Property consisting of land and a one-to-four family dwelling thereon
which is completed and ready for owner occupancy, including townhouses
and condominiums;
(b) that is a Conforming Loan, a Jumbo Loan, an Alt-A
Loan or a Second Lien Loan;
13
(c) in which the Administrative Agent has been granted
and continues to hold a perfected (other than actual delivery of the
Mortgage Note to the Collateral Agent for Special Borrowings),
first-priority (except Second-Lien Loans), security interest for the
benefit of the holders of the Obligations;
(d) for which the Mortgage Note is endorsed (without
recourse) in blank and each of such Mortgage Loan and the related
Mortgage Note is a legal, valid and binding obligation of the Obligor
thereof;
(e) for which, other than in respect of Special Mortgage
Loans, the Principal Mortgage Documents have been received by the
Collateral Agent and are in form and substance reasonably acceptable to
the Collateral Agent;
(f) that is either eligible for delivery or designated
for delivery under a Take-Out Commitment from an Approved Investor;
provided that no more than 45 days have lapsed since the date on which
any documentation relating to such Mortgage Loan was shipped to the
related Approved Investor;
(g) that, immediately prior to the pledge thereof under
the Collateral Agency Agreement, together with the related Mortgage
Loan Collateral, is owned beneficially by Borrower free and clear of
any Lien of any other Person other than the Administrative Agent for
the benefit of the holders of the Obligations (except Second-Lien
Loans);
(h) that, together with the related Mortgage Loan
Collateral, does not contravene any Governmental Requirements
applicable thereto (including, without limitation, the Real Estate
Settlement Procedures Act of 1974, as amended, and all laws, rules and
regulations relating to usury, truth-in-lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt collection
practices, privacy and other applicable federal and state consumer
protection laws) and with respect to which no party to the related
Mortgage Loan Collateral is in violation of any Governmental
Requirements (or procedure prescribed thereby) if such violation would
impair the collectability of such Mortgage Loan or the saleability of
such Mortgage Loan under the applicable Take-Out Commitment;
(i) that, (i) is not a Seasoned Mortgage Loan or an
Uncovered Mortgage Loan; (ii) is not a Defaulted Mortgage Loan at the
time it is transferred to the Borrower pursuant to the Repurchase
Agreement; (iii) has not previously been sold to an Approved Investor
and repurchased by Borrower; (iv) is a Mortgage Loan with respect to
which the Principal Mortgage Documents relating to such Mortgage Loan
were delivered to the Collateral Agent within the time frame set forth
in Section 2.3(c); provided that, upon delivery of such Principal
Mortgage Documents to the Collateral Agent, such Mortgage Loans may
subsequently qualify as Eligible Mortgage Loans to support Borrowings
subsequent to such delivery; or (v) has an original principal balance
not in excess of $1,000,000.00;
14
(j) that if the Mortgage Loan Collateral has been
withdrawn for correction pursuant to Section 3.4 such Mortgage Loan
Collateral has been returned to the Collateral Agent within 14 calendar
days after withdrawal as required by Section 3.4;
(k) that is denominated and payable in U.S. dollars in
the United States and the Obligor of which is a natural person who is a
U.S. citizen or resident alien or a corporation or other legal entity
organized under the laws of the United States or any State thereof or
the District of Columbia;
(l) that is not subject to any right of rescission,
setoff, counterclaim or other dispute whatsoever;
(m) that was acquired by the Borrower from the Originator
within 60 days after its Mortgage Origination Date;
(n) that is covered by the types and amounts of insurance
required by Section 6.6(b);
(o) with respect to which all representations and
warranties made by the Originator in the Repurchase Agreement are true
and correct in all material respects and with respect to which all loan
level covenants made in the Repurchase Agreement have been complied
with;
(p) that is subjected to the following "Quality Control"
measures by personnel of the Originator before the Mortgage Note is
funded by the Originator:
(i) for those Mortgage Loans not originated by
the Originator, is underwritten by the Originator prior to funding
thereof and after performance of all underwriting procedures, is
submitted to the Originator for closing where it is reviewed for
thoroughness and compliance (including truth-in-lending, good faith
estimates and other disclosures) and a verbal verification of
employment and in-file credit report are obtained;
(ii) with respect to which, all Mortgage Loan
Collateral is prepared by the Originator and submitted to the closing
agent at the time of funding the related Mortgage Loan; and
(q) that, if it is a Second Lien Loan, has a Combined
Loan-to-Value Ratio of 100% or less and with respect to which the
related first lien loan is owned by Pulte Mortgage Corporation.
For the purpose of this definition:
(x) A Mortgage Loan is "eligible for delivery" under a
Take-Out Commitment if (i) it is designated to be transferred to a
Governmental Authority, (ii) the underwriting criteria utilized and the
Mortgage Loan Collateral either match, or are in respect of interest
rates (which rates must bear a relationship to prevailing current
market rates of interest for loans with similar maturities), term,
product type and delivery period
15
representative of the terms for purchase that are specified in a
Take-Out Commitment, and (iii) the aggregate outstanding principal of
all such Mortgage Loans is not more than the aggregate Take-Out
Commitments' unutilized amount (i.e. taking in account all such
Mortgage Loans already allocated to the aggregate Take-Out Commitments
for purposes of determining Eligible Mortgage Loans whether or not
already delivered by the Borrower to the Collateral Agent).
(y) A Mortgage Loan is "designated for delivery" under a
Take-Out Commitment if (i) it is designated to be transferred to any
entity other than a Governmental Authority and (ii) the underwriting
criteria utilized in approving such Mortgage Loan conform to the
underwriting criteria, and the terms of repayment (including interest
rate and "term to maturity") and other terms and conditions of the
Mortgage Loan Collateral match the specifications of that specific
Take-Out Commitment that designates that particular Mortgage Loan for
purchase.
"Employee Plan" means an employee pension benefit plan covered
by Title IV of ERISA and established or maintained by the Originator.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any corporation, trade or business
that is, along with the Performance Guarantor, a member of a controlled
group of corporations or a controlled group of trades or businesses, as
described in Sections 414(b), (c), (m) and (o) of the Code, or Section
4001 of ERISA.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Federal Reserve Board, as in effect from
time to time.
"Eurodollar Advance" means an Advance that bears interest at a
rate per annum determined on the basis of the Eurodollar Rate.
"Eurodollar Rate" means, for any Interest Period for any
Eurodollar Advance, for each Lender, an interest rate per annum
(expressed as a decimal and rounded upwards, if necessary, to the
nearest one hundredth of a percentage point) equal to the offered rate
per annum for deposits in U.S. Dollars in a principal amount of not
less than $10,000,000 for such Interest Period as of 11:00 A.M., London
time, two Business Days before (and for value on) the first day of such
Interest Period, that appears on the display designated as "Page 3750"
on the Telerate Service (or such other page as may replace "Page 3750"
on that service for the purpose of displaying London interbank offered
rates of major banks); provided, that if such rate is not available on
any date when the Eurodollar Rate is to be determined, then an interest
rate per annum determined by the Administrative Agent equal to the rate
at which it would offer deposits in United States dollars to prime
banks in the London interbank market for a period equal to such
Interest Period and in a principal amount of not less than $10,000,000
at or about 11:00 A.M. (London time) on the second Business Day before
(and for value on) the first day of such Interest Period.
16
"Eurodollar Reserve Percentage" means, with respect to any
Bank and for any Interest Period for such Bank's Eurodollar Advance,
the reserve percentage applicable during such Interest Period (or, if
more than one such percentage shall be so applicable, the daily average
of such percentages for those days in such Interest Period during which
any such percentage shall be so applicable) under regulations issued
from time to time by the Federal Reserve Board (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for such Bank with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"Event of Default" is defined in Section 8.1.
"Excess Spread" means, as of the last day of each Collection
Period, an amount equal to the Portfolio Yield for such Collection
Period minus the weighted average applicable interest rate on the
Advances at such time minus the weighted average Conduit Spread and/or
Bank Spread, as applicable during such Collection Period minus the
Servicing Fee for such Collection Period determined in accordance with
clause (a) of the definition of Portfolio Yield.
"Facility" means the borrowing facility provided by the
Lenders as described in Section 2.1 of this Restated Loan Agreement.
"▇▇▇▇▇▇ ▇▇▇" means the government sponsored enterprise
formerly known as the Federal National Mortgage Association, or any
successor thereto.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System, or any successor thereto.
"Fee Letter" means the Restated Agent Fee Letter or the
Managing Agent Fee Letter.
"FHA" means the Federal Housing Administration, or any
successor thereto.
"FHA Loan" means a Mortgage Loan, the ultimate payment of
which is partially or completely insured by the FHA or with respect to
which there is a current, binding and enforceable commitment for such
insurance issued by the FHA.
"Financial Officer" means (i) with respect to the Servicer or
the Originator, the chief financial officer, treasurer or a vice
president having the knowledge and authority necessary to prepare and
deliver the financial statements and reports required pursuant to
Sections 6.1(b) and Section 3.8 and (ii) with respect to the
Performance Guarantor, the chief financial officer, the vice president
-treasurer or the senior vice president-finance.
"First Lien Mortgage Loan" means a loan secured by a perfected
first lien mortgage on real property.
"Fitch" means Fitch, Inc., and any successor thereto.
17
"▇▇▇▇▇▇▇ Mac" means the Federal Home Loan Mortgage
Corporation, or any successor thereto.
"GAAP" means generally accepted accounting principles as in
effect in the United States from time to time.
"▇▇▇▇▇▇ Mae" means the Government National Mortgage
Association, or any successor thereto.
"Governmental Authority" means any nation or government, any
agency, department, state or other political subdivision thereof, or
any instrumentality thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government. Governmental Authority shall include, without
limitation, each of ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇, FHA, HUD, VA and ▇▇▇▇▇▇
Mae.
"Governmental Requirement" means any law, statute, code,
ordinance, order, rule, regulation, judgment, decree, injunction,
franchise, permit, certificate, license, authorization or other
requirement (including, without limitation, any of the foregoing that
relate to energy regulations and occupational, safety and health
standards or controls and any hazardous materials laws) of any
Governmental Authority that has jurisdiction over either Originator,
the Servicer, the Collateral Agent or the Borrower or any of their
respective Properties.
"Group" means the CL New York Group and the Bank One Group.
"Group Bank" means (1) with respect to Atlantic, CL New York,
each Bank that has entered into an Assignment and Acceptance with CL
New York, including Lloyds, and each assignee (directly or indirectly)
of any such Bank, which assignee has entered into an Assignment and
Acceptance and (2) with respect to Jupiter, Bank One, each Bank that
has entered into an Assignment and Acceptance with Bank One and each
assignee (directly or indirectly) of any such Bank, which assignee has
entered into an Assignment and Acceptance.
"Group Bank Commitment Percentage" means, the sum of all of
the Bank Commitment Percentages of all of the Banks in a Group.
"Hedge Report" means, with respect to any Conforming Loans
included in the Eligible Mortgage Collateral that is to be sold to a
Governmental Authority, a report prepared by the Servicer and pursuant
to Section 3.6 hereof, showing, as of the close of business on the
previous Business Day, all trades that have been assigned to the
Administrative Agent, for the benefit of holders of the Obligations,
and the following information with respect to such trades: (i) trade
counterparty, (ii) trade amount, (iii) coupon, (iv) price, (v) type of
security, (vi) date of trade, and (vii) such other information as the
Administrative Agent may reasonably request in the form of Exhibit K
hereto.
"HUD" means the Department of Housing and Urban Development,
or any successor thereto.
18
"Indebtedness" means, for any Person, without duplication, and
at any time, (a) all obligations required by GAAP to be classified on
such Person's balance sheet as liabilities, (b) obligations secured (or
for which the holder of the obligations has an existing contingent or
other right to be so secured) by any Lien existing on property owned or
acquired by such Person, (c) obligations that have been (or under GAAP
should be) capitalized for financial reporting purposes, and (d) all
guaranties, endorsements, and other contingent obligations with respect
to obligations of others.
"Indemnified Amounts" is defined in Section 10.1.
"Indemnified Party" is defined in Section 10.1.
"Interest Period" is defined in Section 2.15.
"Issuer Facility Amount" means (a) with respect to Atlantic on
an aggregate basis, $200,000,000 and (b) with respect to Jupiter on an
aggregate basis, $125,000,000. Any reduction (or termination) of the
Maximum Facility Amount pursuant to the terms of this Restated Loan
Agreement shall reduce ratably (or terminate) the Issuer Facility
Amount of each Issuer.
"Issuer" means any of Atlantic, Jupiter and the Seasonal
Issuer.
"Jumbo Loan" means a Mortgage Loan (other than a Conforming
Loan) that (1) is underwritten by an Approved Investor (other than
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae), (2) matches all applicable
requirements for purchase under the requirements of a Take-Out
Commitment issued for the purchase of such Mortgage Loan, (3) differs
from a Conforming Loan solely because the principal amount of such
Mortgage Loan exceeds the limit set for Conforming Loans by ▇▇▇▇▇▇ ▇▇▇
or ▇▇▇▇▇▇▇ Mac from time to time, and (4) is a First Lien Mortgage
Loan.
"Jupiter" has the meaning as set forth in the preamble of this
Restated Loan Agreement.
"Lenders" means, collectively, the Issuers and the Banks,
including the Seasonal Issuer and the Seasonal Bank.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (whether statutory, consensual
or otherwise), or other security arrangement of any kind (including,
without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing
statement under the uniform commercial code or comparable law of any
jurisdiction in respect of any of the foregoing).
"Liquidity Agreement" means, with respect to an Issuer, a
liquidity loan agreement, liquidity asset purchase agreement or similar
agreement entered into by the related Group Banks and providing for the
making of loans to such Issuer, or the
19
purchase of Advances (or interests therein) from such Issuer, to
support the Issuer's payment obligations under its Commercial Paper
Notes.
"Lloyds" has the meaning specified in the preamble of this
Restated Loan Agreement.
"Majority Banks" means, at any time, Banks, including Banks
that have become party to this Restated Loan Agreement pursuant to an
Assignment and Acceptance, having outstanding Advances equal to more
than 67% of the aggregate outstanding Advances held by Banks or, if no
Advance is then outstanding from any Bank, Banks having more than 67%
of the Bank Commitments.
"Majority Group Banks" means, as to any Group Banks included
in the related Group having outstanding Bank Commitments equal to more
than 50% of the aggregate outstanding Bank Commitments of the Banks in
such Group.
"Managing Agent" means, with respect to Atlantic, CL New York
or any successor managing agent designated by such party; and, with
respect to Jupiter, Bank One or any successor managing agent designated
by such party.
"Managing Agent Fee Letter" means the letter agreement
pertaining to fees among the Borrower and Bank One, as a Managing
Agent, as the same may be amended, restated, supplemented or otherwise
modified from time to time.
"Managing Agent's Account" means, (a) with respect to CL New
York, the special account (account number 01-25680-001-00-001, ABA No.
▇▇▇▇▇▇▇▇▇ of CL New York maintained at Credit Lyonnais New York Branch,
1301 Avenue of the Americas, New York, New York, and (b) with respect
to Bank One, the special account (account number ▇▇▇▇▇▇▇, ABA No.
▇▇▇▇▇▇▇▇▇) of Jupiter maintained at Bank One, NA (Main Office Chicago),
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Market Value" means at the time determined, for any (a)
Mortgage Loan (other than a Non-Conforming Loan), the market value of
such Mortgage Loan based upon the then most recent posted net yield for
30-day mandatory future delivery furnished by ▇▇▇▇▇▇ ▇▇▇ and published
and distributed by Telerate Mortgage Services, or, if such posted net
yield is not available from Telerate Mortgage Services, such posted net
yield obtained by the Administrative Agent from ▇▇▇▇▇▇ Mae, or (b)
Non-Conforming Loan, or any other Mortgage Loan while the posted rate
is not available from ▇▇▇▇▇▇ ▇▇▇, the value determined by the
Administrative Agent in good faith.
"Material Adverse Effect" means, with respect to any Person,
any material adverse effect on (i) the validity or enforceability of
this Restated Loan Agreement, the Notes or any other Transaction
Document, (ii) the business, operations, total Property or financial
condition of such Person, (iii) the Collateral taken as a whole, (iv)
the enforceability or priority of the Lien in favor of the
Administrative Agent on any significant portion of the Collateral, or
(v) the ability of such Person to fulfill its obligations under this
Restated Loan Agreement, the Notes or any other Transaction Document.
20
"Maximum Facility Amount" means $325,000,000, as such amount
may be reduced pursuant to Section 2.1(c) of this Restated Loan
Agreement.
"Maximum Rate" means the maximum non-usurious rate of interest
that, under applicable law, each of the Lenders is permitted to
contract for, charge, take, reserve, or receive on the Obligations.
"MERS" means Mortgage Electronic Registration Systems, Inc., a
Delaware corporation.
"MERS Designated Mortgage Loan" means a Mortgage Loan
registered to or by the Originator on the MERS electronic mortgage
registration system.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ Investors Service, Inc., and any
successor thereto.
"Mortgage" means a mortgage or deed of trust or other security
instrument creating a Lien on real property, on a standard form as
approved by ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or such other form as
the Originator determines is satisfactory for any Approved Investor
unless otherwise directed by the Administrative Agent and communicated
to the Collateral Agent.
"Mortgage Assets" means, collectively, all of the Mortgage
Loans and all Take-Out Commitments.
"Mortgage Loan" means a loan evidenced by a Mortgage Note and
secured by a Mortgage, the beneficial interest of which has been
acquired by the Borrower from the Originator by purchase pursuant to
the Repurchase Agreement (with the record owner thereof being the
Originator or, in the case of a MERS Designated Mortgage Loan, MERS as
nominee for the Originator, and its successors and assigns).
"Mortgage Loan Collateral" means all Mortgage Notes and
related Principal Mortgage Documents, Other Mortgage Documents, and
other Collateral.
"Mortgage Note" means a promissory note, on a standard form
approved by ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae or such other form as
the Originator determines is satisfactory for any Approved Investor
unless otherwise directed by the Administrative Agent and communicated
to the Collateral Agent.
"Mortgage Origination Date" means, with respect to each
Mortgage Loan, the date that is the later of (1) the date of the
Mortgage Note or (2) the date such Mortgage Loan was funded and
disbursed to or at the direction of the Obligor.
"Multiemployer Plan" means a multiemployer plan defined in
Sections 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to
which Borrower or any ERISA Affiliate is making or has made (or is
accruing or has accrued an obligation to make) contributions.
21
"Net Worth" of a Person means, as of any date of
determination, the total stockholder's equity (including capital stock,
additional paid-in capital and retained earnings after deducting
treasury stock) that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP but excluding the
value of any investment made by such Person in an unconsolidated
Subsidiary.
"No Asset No Income Loan" means an Alt-A Loan that is
underwritten on a "no asset no income" basis, meaning that the
Originator does not verify the Obligor's assets or income.
"Non-Conforming Loan" means a Jumbo Loan, an Alt-A Loan or a
Second-Lien Loan.
"Note" means each or any of the promissory notes executed by
the Borrower, substantially in the form of Exhibit E hereto, together
with all renewals, extensions, and replacements for any such note.
"Obligations" means any and all present and future
indebtedness, obligations, and liabilities of the Borrower to any of
the Lenders, the Collateral Agent, the Managing Agents, each Affected
Party, each Indemnified Party and the Administrative Agent, and all
renewals, rearrangements and extensions thereof, or any part thereof,
arising pursuant to this Restated Loan Agreement or any other
Transaction Document, and all interest accrued thereon, and attorneys'
fees and other costs incurred in the drafting, negotiation, enforcement
or collection thereof, regardless of whether such indebtedness,
obligations, and liabilities are direct, indirect, fixed, contingent,
joint, several or joint and several.
"Obligor" means (i) with respect to each Mortgage Note
included in the Collateral, the obligor on such Mortgage Note and (ii)
with respect to any other agreement included in the Collateral, any
person from whom the Originator or the Borrower is entitled to
performance.
"Original Loan Agreement" means the Loan Agreement, dated as
of December 22, 2000, by and among the Borrower, Atlantic, as an
Issuer, CL New York, as a Bank, the Administrative Agent and the
Servicer, as amended by that certain Amendment to Loan Agreement, dated
as of February 27, 2001, by and among such parties, as further amended
by that certain Second Amendment to Loan Agreement, dated as of
September 28, 2001, by and among such parties, as further amended by
that certain Omnibus Agreement, dated as of November 16, 2001, by and
among the Borrower, the Administrative Agent, the Servicer and the
Collateral Agent, and as further amended by that certain Assignment and
Acceptance, dated November 9, 2001, between CL New York, as the
assignor, and Lloyds, as the assignee,
"Originator" means Pulte Mortgage Corporation, a Delaware
corporation, and its successors and assigns.
"Other Company" means the Performance Guarantor and all of its
Subsidiaries except the Borrower.
22
"Other Mortgage Documents" is defined in Section 3.2(c).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PMC" has the meaning specified in the preamble of this
Restated Loan Agreement.
"Performance Guarantor" means Pulte.
"Permitted Investments" means book-entry securities,
negotiable instruments or securities represented by instruments in
bearer or registered form that evidence any of the following:
(a) direct obligations of, and obligations fully
guaranteed by, the United States of America or any agency or
instrumentality of the United States of America, the obligations of
which are backed by the full faith and credit of the United States of
America;
(b) (i) demand and time deposits in, certificates of
deposits of, bankers' acceptances issued by, or federal funds sold by,
any depository institution or trust company incorporated under the laws
of the United States of America, any State thereof or the District of
Columbia or any foreign depository institution with a branch or agency
licensed under the laws of the United States of America or any State,
subject to supervision and examination by Federal and/or State banking
authorities and having a rating of P-1 by Moody's, a rating of at least
A-1 by S&P and a rating of at least F1 by Fitch at the time of such
investment or contractual commitment providing for such investment or
otherwise approved in writing by each Rating Agency or (ii) any other
demand or time deposit or certificate of deposit that is fully insured
by the Federal Deposit Insurance Corporation;
(c) repurchase obligations with respect to (i) any
security described in clause (a) above or (ii) any other security
issued or guaranteed by an agency or instrumentality of the United
States of America, in either case entered into with a depository
institution or trust company (acting as principal) described in clause
(b)(i) above;
(d) short-term securities bearing interest or sold at a
discount issued by any corporation incorporated under the laws of the
United States of America or any State, the short-term unsecured
obligations of which have a rating of at least P-1 by Moody's, a rating
of at least A-1 by S&P and a rating of at least F1 by Fitch at the time
of such investment; provided, however, that securities issued by any
particular corporation will not be Permitted Investments to the extent
that investment therein will cause the then outstanding principal
amount of securities issued by such corporation and held in the Reserve
Account to exceed 10% of amounts held in the Reserve Account;
(e) commercial paper having a rating of at least P-1 by
Moody's, a rating of at least A-1 by S&P and a rating of least F1 by
Fitch at the time of such investment or pledge as security;
23
(f) money market funds whose investments consist solely
of one of the foregoing; or
(g) any other investments approved in writing by each
Rating Agency.
"Permitted Transferee" is defined in Section 3.3(c).
"Person" means any individual, corporation (including a
business trust), limited liability company, partnership, joint venture,
association, joint stock company, trust, unincorporated organization,
Governmental Authority, or any other form of entity.
"Portfolio Yield" means, with respect to any Collection
Period, the percentage equivalent to the amount computed as of the last
day of such Collection Period by multiplying (i) 12 by (ii) (a) the
aggregate amount of interest accrued (whether or not paid) with respect
to all Eligible Mortgage Loans included in the Collateral during such
Collection Period divided by (b) the daily average outstanding
principal amount of all Eligible Mortgage Loans included in the
Collateral during such Collection Period.
"Primary Obligations" means, at the time determined, the sum
of Principal Debt plus accrued and unpaid interest thereon through the
end of the then current Interest Period, plus accrued and unpaid fees
under Section 2.4(b).
"Principal Debt" means, at the time determined, the unpaid
principal balance of all Advances under this Restated Loan Agreement.
"Principal Mortgage Documents" is defined in Section 3.2(b).
"Program Documents" means, in the case of the Issuers, each
Liquidity Agreement relating to this Restated Loan Agreement and the
other documents executed and delivered in connection therewith, as each
may be amended, supplemented or otherwise modified from time to time.
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Pulte" means Pulte Homes, Inc., a Michigan corporation, and
its successors and assigns (formerly known as Pulte Corporation).
"Pulte Funding, Inc." has the meaning set forth in the
preamble to this Restated Loan Agreement.
"Pulte Mortgage Corporation" has the meaning set forth in the
preamble to this Restated Loan Agreement.
"Rating Agency" means S&P, ▇▇▇▇▇'▇ and Fitch.
24
"Regulation T, U, X and Z," respectively, mean Regulation T,
U, X and Z promulgated by the Federal Reserve Board as in effect from
time to time, or any successor regulations thereto.
"Regulatory Change" means, relative to any Affected Party:
(a) any change in (or the adoption, implementation,
change in the phase-in or commencement of effectiveness of) any:
(i) United States federal or state law or
foreign law applicable to such Affected Party;
(ii) regulation, interpretation, directive,
requirement or request (whether or not having the force of law)
applicable to such Affected Party of (A) any court, government
authority charged with the interpretation or administration of any law
referred to in clause (a)(i) or (B) any fiscal, monetary or other
authority having jurisdiction over such Affected Party; or
(iii) GAAP or regulatory accounting principles
applicable to such Affected Party and affecting the application to such
Affected Party of any law, regulation, interpretation, directive,
requirement or request referred to in clause (a)(i) or (a)(ii) above;
(b) any change in the application to such Affected Party
of any existing law, regulation, interpretation, directive,
requirement, request or accounting principles referred to in clause
(a)(i), (a)(ii) or (a)(iii) above; or
(c) the issuance, publication or release of any
regulation, interpretation, directive, requirement or request of a type
described in clause (a)(ii) above to the effect that the obligations of
any Bank under the applicable Liquidity Agreement are not entitled to
be included in the zero percent category of off-balance sheet assets
for purposes of any risk-weighted capital guidelines applicable to such
Bank or any related Affected Party.
"Required Reserve Account Amount" means (i) on any date that
is not part of the Seasonal Period, 0.50% of the Maximum Facility
Amount on such date, or (ii) on any date during the Seasonal Period,
0.50% of the Combined Facility Amount.
"Requirement of Law" as to any Person means the articles of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, statute, code, ordinance, order,
rule, regulation, judgment, decree, injunction, franchise, permit,
certificate, license, authorization or other determination, direction
or requirement (including, without limitation, any of the foregoing
that relate to energy regulations and occupational, safety and health
standards or controls and any hazardous materials laws) of any
Governmental Authority, in each case applicable to or binding upon such
Person or any of its Property or to which such Person or any of its
Property is subject.
25
"Reserve Account" is defined in Section 2.8, it being
understood that such account is assigned to the Administrative Agent
pursuant to the Reserve Account Control Agreement and the
Administrative Agent has the authority to direct the transfer of all
funds in the Reserve Account.
"Reserve Account Bank" means the institution then holding the
Reserve Account pursuant to Section 2.8.
"Reserve Account Control Agreement" means the Reserve Account
Control Agreement, dated as of even date herewith, between the
Borrower, the Servicer, the Administrative Agent and the Reserve
Account Bank, substantially in the form attached hereto as Exhibit N,
as amended, modified or supplemented.
"Restated Agent Fee Letter" means the amended and restated
letter agreement pertaining to fees of the Administrative Agent and CL
New York, as Managing Agent, among the Borrower, the Administrative
Agent and CL New York, as Managing Agent, as the same maybe amended,
restated, supplemented or otherwise modified from time to time.
"Restated Assignment of Account" is defined in the Collateral
Agency Agreement.
"Restated Collateral Agency Agreement" means the Amended and
Restated Collateral Agency Agreement, dated as of the date hereof,
among the Borrower, the Collateral Agent and the Administrative Agent,
substantially in the form of Exhibit D hereto, as amended,
supplemented, restated or otherwise modified from time to time.
"Restated Loan Agreement" means this Amended and Restated Loan
Agreement, as amended, modified or supplemented from time to time.
"Restated Originator Performance Guaranty" means the Amended
and Restated Originator Performance Guaranty, in the form attached
hereto as Exhibit G-2, made by the Performance Guarantor in favor of
the Borrower, and assigned to the Administrative Agent for the benefit
of the Lenders.
"Restated Performance Guaranties" means, collectively, the
Restated Servicer Performance Guaranty, in the form attached hereto as
Exhibit G-1, made by the Performance Guarantor in favor of the
Administrative Agent for the benefit of the Lenders, and the Restated
Originator Performance Guaranty, in the form attached hereto as Exhibit
G-2, made by the Performance Guarantor in favor of the Borrower and
assigned to the Administrative Agent for the benefit of the Lenders.
"Restated Repurchase Agreement" means the Master Repurchase
Agreement, dated as of December 22, 2000, and the Amended and Restated
Addendum to the Master Repurchase Agreement, dated as of the date of
this Restated Loan Agreement between the Originator, as Seller, and the
Borrower, as purchaser, as the same may be amended, modified or
restated from time to time.
26
"Restated Security Agreement" is defined in the Collateral
Agency Agreement.
"Restated Servicer Performance Guaranty" means the Amended and
Restated Servicer Performance Guaranty, in the form attached hereto as
Exhibit G-1, made by the Performance Guarantor in favor of the
Administrative Agent for the benefit of the Lenders.
"Restated Subordination Agreement" means the Amended and
Restated Subordination Agreement, substantially in the form attached as
Exhibit B hereto, executed by the Performance Guarantor and certain of
its Affiliates in favor of the Borrower and the Administrative Agent
for the benefit of the holders of the Obligations.
"S&P" means Standard & Poor's Rating Services, a Division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"Seasonal Advance" as defined in Section 2.20 of this Restated
Loan Agreement.
"Seasonal Availability" means at the time determined, the
Seasonal Facility Amount minus the Principal Debt owed to the Seasonal
Lenders.
"Seasonal Bank" means initially Bank One, in its capacity as a
bank under the Seasonal Facility, and its successors or assigns.
"Seasonal Bank Commitment" means (a) with respect to Bank One,
the amount set forth on Schedule I hereto, and (b) with respect to a
Seasonal Bank that has entered into an Assignment and Acceptance, or
otherwise becomes a party hereto, the amount set forth therein as such
Seasonal Bank's Seasonal Bank Commitment, in each case as such amount
may be reduced by each Assignment and Acceptance entered into between
such Seasonal Bank and an Eligible Assignee, and as may be further
reduced (or terminated) pursuant to the next sentence. Any reduction
(or termination) of the Seasonal Facility Amount pursuant to the terms
of this Restated Loan Agreement shall (unless otherwise agreed by all
of the Seasonal Banks) reduce ratably (or terminate) each Seasonal
Bank's Seasonal Bank Commitment. At no time shall the aggregate
Seasonal Bank Commitments of all Seasonal Banks exceed the Seasonal
Facility Amount.
"Seasonal Bank Commitment Percentage" means, for any Seasonal
Bank, as of any date, the amount obtained by dividing such Seasonal
Bank's Seasonal Bank Commitment on such date by the aggregate Seasonal
Bank Commitments of all Seasonal Banks on such date. As of the date of
this Restated Loan Agreement, the Seasonal Bank Commitment Percentage
for each Seasonal Bank is as set forth on Schedule II hereto.
"Seasonal Borrowing" as defined in Section 2.20 of this
Restated Loan Agreement.
"Seasonal Drawdown Termination Date" means the earliest to
occur of (a) the Seasonal Facility Termination Date and (b) for each
Seasonal Period, the last day of such Seasonal Period.
27
"Seasonal Facility" means the borrowing facility provided by
the Seasonal Lenders as described in Section 2.20 of this Restated Loan
Agreement.
"Seasonal Facility Amount" means, $50,000,000, as such amount
may be reduced pursuant to Section 2.20(c).
"Seasonal Facility Termination Date" means the earliest to
occur of (a) August 23, 2005, or such earlier date determined in
accordance with Section 2.20(b), (b) the date on which the Seasonal
Facility Amount is terminated by the Borrower pursuant to Section
2.20(c), (c) the date, on or after the occurrence of an Event of
Default, determined pursuant to Section 8.1 and (d) the Drawdown
Termination Date.
"Seasonal Issuer" means Jupiter, in its capacity as an issuer
under the Seasonal Facility, and its successors or assigns.
"Seasonal Period" means a period including (a) the last five
(5) days of March through the first twenty-five (25) days of April, (b)
the last five (5) days of June through the first twenty-five (25) days
of July, (c) the last five (5) days of September through the first
twenty-five (25) days of October, or (d) the last five (5) days of
December through the first twenty-five (25) days of January; provided
that a Seasonal Period will not occur unless the Borrower notifies the
Administrative Agent, the Collateral Agent and the Seasonal Lenders
five days in advance of such Seasonal Period that the Borrower will use
the Seasonal Facility during such Seasonal Period.
"Seasonal Lenders" means the Seasonal Issuer and the Seasonal
Bank.
"Seasoned Mortgage Loan" means, as of any date, a Mortgage
Loan with a Mortgage Origination Date that is more than 180 days prior
to such date.
"Second Lien Loan" means a loan secured by a perfected
Mortgage that is subordinate only to one other mortgage lien, which
prior mortgage lien is held by Pulte Mortgage Corporation on the
related mortgaged property.
"Security Instruments" means (a) the Restated Collateral
Agency Agreement, (b) the Restated Security Agreement, (c) the Restated
Assignment of Account,(d) the Reserve Account Control Agreement, (e)
the Collection and Paying Agreement, and (f) such other executed
documents as are or may be necessary to grant to the Administrative
Agent a perfected first, prior and continuing security interest in and
to the Collateral and any and all other agreements or instruments now
or hereafter executed and delivered by or on behalf of the Borrower in
connection with, or as security for the payment or performance of, all
or any of the Obligations, as amended, modified or supplemented.
"Servicer" means at any time the Person then authorized
pursuant to Section 11.1 to administer and collect Mortgage Loans on
behalf of the Lenders. The initial Servicer shall be Pulte Mortgage
Corporation
28
"Servicer Default" means (a) any Event of Default, to the
extent relating to the Servicer, arising under Sections 8.1(a), (b),
(c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (n), (o), (u),
(v) or (w) in each case, without giving effect to any provisions in
such sections that make such sections applicable only so long as the
Servicer and the Originator are the same entities, (b) if the Servicer
is the Originator, the Performance Guarantor shall cease to own,
directly or indirectly, at least 75% of each class of the outstanding
capital stock of the Servicer, or (c) if the Servicer is the
Originator, the Servicer's Net Worth shall be less than $10,000,000.
"Servicer Fee" is defined in Section 2.4(b).
"Servicer Monthly Report" is defined in Section 3.8.
"Servicer Periodic Report" is defined in Section 3.10.
"Settlement Date" means (a) for purposes of determining fees
set forth in the Fee Letters, (i) the 10th day of each of October,
January, April and July, commencing October 10, 2002 or, if such day is
not a Business Day, the next succeeding Business Day, or (ii) on and
after the Drawdown Termination Date, the 10th day of each calendar
month or, if such day is not a Business Day, the next succeeding
Business Day, provided, however, that the Administrative Agent may,
with the consent of the Managing Agents, by notice to the Borrower and
the Servicer, select other days to be Settlement Dates (including days
occurring more frequently than once per month) and (b) for all other
purposes, the 10th day of each calendar month or, if such day is not a
Business Day, the next succeeding Business Day, commencing September
10, 2002, provided, however, on and after the Drawdown Termination
Date, the Administrative Agent may, with the consent of the Managing
Agents, by notice to the Borrower and the Servicer, select other days
to be Settlement Dates (including days occurring more frequently than
once per month)
"Shipping Request" means the shipping request presented by the
Borrower to the Collateral Agent substantially on one of the forms
attached as Exhibits D-5A(a) and D-5A(b) (as amended, modified or
supplemented from time to time as agreed to by the Administrative
Agent, the Borrower and the Collateral Agent).
"Shortfall Amount" means, with respect to the last day of any
Interest Period or any Settlement Date, the excess, if any, of (a) all
amounts due pursuant to (i) Section 2.7(c)(iii)(B) or Section
2.7(c)(iv)(C) on the last day of such Interest Period occurring prior
to, on or after the Drawdown Termination Date, as applicable, (ii)
2.7(c)(iii)(A), (C), (D), or (H) on any such Settlement Date occurring
prior to the Drawdown Termination Date or (iii) Section 2.7(c)(iv)(A),
(B), (D), (E), or (G) on any such Settlement Date occurring on or after
the Drawdown Termination Date, over (b) the sum of the collections then
held by the Servicer for the Lenders and the Administrative Agent
pursuant to Section 2.7(c)(ii) plus collected funds then on deposit in
the Collection Account.
29
"Sixty-Day Default Ratio" means as of the end of any
Collection Period, the ratio of (i) the principal amount of all
Mortgage Loans with respect to which the Obligor is 60 or more days in
payment default or has taken any action, or suffered any event of the
type described in Section 8.1(f), (g) or (h) or is in foreclosure at
such time, to (ii) the aggregate principal amount of all Mortgage Loans
at such time.
"Special Borrowing" is defined in Section 2.3(c).
"Special Indemnified Amounts" is defined in Section 11.5.
"Special Indemnified Party" is defined in Section 11.5
"Special Mortgage Loans" is defined in Section 2.3(c).
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which securities having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly
owned by such Person, or one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries.
"Super Jumbo Loan" means a Jumbo Loan having an original
principal balance equal to or in excess of $650,000 but less than
$1,000,000.
"Take-Out Commitment" means a current, valid, binding,
enforceable, written commitment, issued by an Approved Investor, to
purchase one or more Mortgage Loans from the Originator prior to the
date that is 120 days (or 180 days to the extent Collateral Value may
include Mortgage Loans that have been Eligible Mortgage Loans for more
than 120 days pursuant to paragraph (f) of the definition of Collateral
Value) from the date that such Mortgage Loan first becomes Eligible
Mortgage Collateral and at a specified price and in amounts, form and
substance reasonably satisfactory to the Managing Agents, which
commitment is not subject to any term or condition (i) that is not
customary in commitments of like nature or (ii) that, in the reasonably
anticipated course of events, cannot be fully complied with prior to
the expiration thereof, which commitment has been assigned to the
Borrower (partial assignments being permitted so long as the amount
assigned (together with all other Take-Out Commitments) fully covers
the amount of the Eligible Mortgage Collateral) and in which a
perfected and first-priority security interest has been granted by the
Borrower to the Administrative Agent; provided, that upon receipt of
the actual written confirmation (each, a "Trade Confirmation") of such
trade duly executed by the Originator and the trade counterparty, and
promptly upon request of the Administrative Agent, the Originator must
provide such trade confirmation to the Administrative Agent. The
Administrative Agent, on behalf of the Lenders shall have the right,
without notice, to review such Trade Confirmation at the office of, and
with the officers of, the Originator during normal business hours.
"Transaction Documents" means any of this Restated Loan
Agreement, the Notes, the Restated Collateral Agency Agreement, the
Restated Repurchase Agreement, the Restated Subordination Agreement,
the Restated Originator Performance Guaranty, the Restated Servicer
Performance Guaranty, the Fee Letters, the Original Loan Agreement,
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the Original Notes, the Security Instruments, the Original Collateral
Agency Agreement, the Original Repurchase Agreement, the Original
Administrative Agent Fee Letter, the Original Subordination Agreement,
the Original Servicer Performance Guaranty, the Original Originator
Performance Guaranty and any and all other agreements or instruments
now or hereafter executed and delivered by or on behalf of the Borrower
in connection with, or as security for the payment or performance of
any or all of the Obligations, as any of such documents may be renewed,
amended, restated or supplemented from time to time.
"Transfer Request" is defined in Section 3.3(a).
"UCC" means the Uniform Commercial Code as adopted in the
applicable state, as the same may hereafter be amended.
"Uncovered Mortgage Loan" means a Mortgage Loan that would be
an Eligible Mortgage Loan but for the expiration, forfeiture,
termination, or cancellation of, or default under, the relevant
Take-Out Commitment.
"VA" means the Department of Veterans Affairs, or any
successor thereto.
"VA Loan" means a Mortgage Loan, the payment of which is
partially or completely guaranteed by the VA under the Servicemen's
Readjustment Act of 1944, as amended, or Chapter 37 of Title 38 of the
United States Code or with respect to which there is a current binding
and enforceable commitment for such a guaranty issued by the VA.
"Warehouse Credit Agreement" means the Third Amended and
Restated Revolving Credit Agreement dated as of March 31, 2000, as
amended from time to time, with Bank One as administrative agent, PMC
and certain lenders named therein.
1.2. Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined
in this Restated Loan Agreement have the above-defined meanings when used in the
Notes or any other Transaction Document, certificate, report or other document
made or delivered pursuant hereto.
(b) The words "hereof," "herein," "hereunder" and similar
terms when used in this Restated Loan Agreement shall refer to this Restated
Loan Agreement as a whole and not to any particular provision of this Restated
Loan Agreement, and article, section, subsection, schedule and exhibit
references herein are references to articles, sections, subsections, schedules
and exhibits to this Restated Loan Agreement unless otherwise specified.
(c) As used herein, in the Notes or in any other
Transaction Document, certificate, report or other document made or delivered
pursuant hereto, accounting terms relating to any Person and not specifically
defined in this Restated Loan Agreement or therein shall have the respective
meanings given to them under GAAP.
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(d) All accounting and financial terms used -- and
compliance with each financial covenant -- in the Transaction Documents shall be
determined under GAAP; however, unless the Administrative Agent has agreed (in
writing) to the contrary, the determinations concerning the financial covenants
found in Sections 7.1 and 7.10 and the Net Worth of the Servicer (so long as the
Originator is the Servicer), including determinations of Deferred Income under
SFAS 91 and SFAS 122, shall be made under GAAP, and SFAS 91 and SFAS 122, as in
effect on the date of this Restated Loan Agreement. All accounting principles
shall be applied on a consistent basis so that the accounting principles in a
current period are comparable in all material respects to those applied during
the preceding comparable period.
ARTICLE II
AMOUNT AND TERMS OF COMMITMENT
2.1. Maximum Facility Amount.
(a) Subject to the terms of this Restated Loan Agreement
and so long as (i) the total Principal Debt related to the Facility (other than
the Seasonal Facility) does not exceed the Maximum Facility Amount, (ii) the
Principal Debt owed to the Lenders other than the Seasonal Lenders never exceed
the total Collateral Value of all Eligible Mortgage Collateral, (iii) no
Borrowing ever exceeds the Availability, and (iv) Borrowings are only made on
Business Days before the Drawdown Termination Date, each Issuer may, each in its
sole discretion, make an Advance ratably in accordance with the Bank Commitment
of its Group Bank, and if an Issuer does not make such Advance, its Group Banks
shall, ratably in accordance with their Bank Commitments, make such Advance, to
the Borrower from time to time in such amounts as may be requested by the
Borrower pursuant to Section 2.3, so long as each Borrowing is the least of (x)
the Availability, (y) the Available Collateral Value as of such date, and (z)
$15,000,000 or an integral multiple of $10,000 in excess thereof. Within the
limits of the Maximum Facility Amount, the Borrower may borrow, prepay (whether
pursuant to Section 2.5 or Section 3.3(a) of this Restated Loan Agreement or
otherwise), and reborrow under this Section 2.1.
(b) The Borrower may, from time to time by written
request to the Lenders, the Managing Agents, and the Administrative Agent (each
such notice being an "Extension Request") given not later than 90 days and not
sooner than 120 days prior to each Annual Extension Date, request an extension
of the then applicable Annual Extension Date. If the Lenders, the Managing
Agents, and the Administrative Agent consent, in their sole discretion, to such
Extension Request, then (x) the Drawdown Termination Date shall not occur as of
the then applicable Annual Extension Date and (y) the Annual Extension Date
shall be extended as described in the definition of "Annual Extension Date." Any
such extension may be accompanied by such additional fees as the parties shall
mutually agree. Notwithstanding anything else to the contrary, the Drawdown
Termination Date shall occur automatically, without further action on the part
of the Lenders, the Managing Agents or the Administrative Agent, on the then
current Annual Extension Date unless an Extension Request has been granted
pursuant to this paragraph. If the Lenders in the Bank One Group decline to
consent to an extension requested pursuant to this Section 2.1, but the Lenders
in the CL New York Group nevertheless desire to consent to the extension or
confirmation, then the extension shall be granted, and at the option of the
Managing Agent of the CL New York Group, either (a) the Maximum Facility
32
Amount shall be reduced by the Bank Commitments of the Banks in the Bank One
Group on the anniversary date immediately following the Extension Request or (b)
the Managing Agent of the CL New York Group shall find a replacement for the
Bank One Group. If the Lenders in the CL New York Group decline to consent to
the extension, but the Lenders in the Bank One Group nevertheless desire to
consent to the extension, then the extension shall be granted, and CL New York
shall cease to be the Administrative Agent and Bank One shall become the
Administrative Agent hereunder, and, at the option of the Managing Agent of the
Bank One Group, either (a) the Maximum Facility Amount shall be reduced by the
Bank Commitments of the Banks in the CL New York Group on the anniversary date
immediately following the Extension Request or (b) the Managing Agent of the
Bank One Group shall find a replacement for the CL New York Group. To the extent
that a Group Bank declines to extend the Drawdown Termination Date, the
Obligations of such Group Bank will be repaid pursuant to Section 2.7(c)(iii)
hereof.
(c) The Borrower may, upon at least thirty (30) days
prior irrevocable notice to the Managing Agents and the Administrative Agent,
but no more than once every three months, reduce the Maximum Facility Amount;
provided, however, that each partial reduction shall be in the aggregate amount
of $10,000,000 or integral multiples of $1,000,000 in excess thereof; provided
further, however that no such reduction shall reduce the Maximum Facility Amount
below the greater of (i) the total Principal Debt owed to the Lenders (other
than the Seasonal Lenders) and (ii) $75,000,000. Any partial reduction in the
Maximum Facility Amount will reduce the Bank Commitment of each Bank Group
ratably.
(d) The Borrower may, upon at least thirty (30) days'
prior irrevocable notice to the Administrative Agent and the Managing Agents,
terminate the Maximum Facility Amount in its entirety upon payment in full of
all Obligations.
2.2. Promissory Notes.
The Advances made by each of the Lenders related to each Group
pursuant to this Article II shall be evidenced by separate Notes each
substantially in the form set forth in Exhibit E-1 (in the case of Lenders in
the CL New York Group) or Exhibit E-2 (in the case of Lenders in the Bank One
Group) hereto, each in the maximum principal amount of such Group's related
Issuer Facility Amount or substantially in the form set forth in Exhibit E-3 (in
the case of the Seasonal Lenders) hereto, in the Seasonal Facility Amount. Each
Managing Agent on behalf of the Lenders in its Group shall record in its records
the date and amount of each Advance to the Borrower and each repayment thereof.
The information so recorded shall be rebuttable presumptive evidence of the
accuracy thereof. The failure to so record, in the absence of manifest error,
any such information or any error in so recording any such information shall
not, however, limit or otherwise affect the obligations of the Borrower
hereunder or under the Notes to pay the principal of all Advances, together with
interest accruing thereon.
2.3. Notice and Manner of Obtaining Borrowings.
(a) Borrowings.
(i) The Borrower shall give the Administrative
Agent and each Managing Agent notice of each request for a Borrowing
(including a Seasonal
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Borrowing), pursuant to a Borrowing Request, and in accordance with the
provisions of Section 4.2 hereof. On the Borrowing Date specified in
the Borrowing Request and subject to all other terms and conditions of
this Restated Loan Agreement, each Issuer may, in its sole discretion,
make available to its Managing Agent at the office of its Managing
Agent set forth in Section 13.1, in immediately available funds, its
pro rata share of the Borrowing. On the Borrowing Date specified in the
Borrowing Request and subject to all other terms and conditions of this
Restated Loan Agreement, with respect to each requested Seasonal
Borrowing, the Seasonal Issuer may, in its sole discretion, make
available to its Managing Agent at the office of its Managing Agent set
forth in Section 13.1, in immediately available funds, its pro rata
share of the Borrowing.
(ii) In the event that an Issuer shall elect not
to fund an Advance (including a Seasonal Borrowing) requested by the
Borrower, each Group Bank of such Issuer agrees that it shall, on the
Borrowing Date specified in the Borrowing Request and subject to all
other terms and conditions of this Restated Loan Agreement, make
available to its Managing Agent at the office of its Managing Agent set
forth in Section 13.1, in immediately available funds, an amount equal
to the product of (x) such Bank's Bank Commitment Percentage or
Seasonal Bank's Bank Commitment Percentage of the Group Bank Commitment
Percentage, multiplied by (y) the portion of such Borrowing that such
Issuer or Seasonal Issuer has elected not to fund.
(iii) After each Managing Agent's receipt of funds
pursuant to the preceding paragraph (i) or (ii) and upon fulfillment of
the applicable conditions set forth in Article IV, each Managing Agent
will make such funds available to the Borrower a like amount of
immediately available funds. So long as the Borrower is otherwise
entitled to make a specific Borrowing, Borrowing Requests that are
received by each Managing Agent by 4:00 p.m. (eastern time) on a
Business Day will be funded on the next Business Day following receipt
of the Borrowing Request.
(iv) Notwithstanding the foregoing, a Bank or
Seasonal Bank shall not be obligated to make Advances under this
Section 2.3 at any time to the extent that the principal amount of all
Advances made by such Bank or Seasonal Bank would exceed such Bank's
Bank Commitment or Seasonal Bank's Seasonal Bank Commitment less the
outstanding and unpaid principal amount of any loans or purchases made
by such Bank or Seasonal Bank under a Liquidity Agreement. Each Bank's
or Seasonal Bank's obligation shall be several, such that the failure
of any Bank or Seasonal Bank to make available to the Borrower any
funds in connection with any Borrowing shall not relieve any other
Group Bank of its obligation, if any, hereunder to make funds available
on the date of such Borrowing, but no Group Bank shall be responsible
for the failure of any other Group Bank to make funds available in
connection with any Borrowing.
(b) Type of Loan.
(i) Each Advance by an Issuer shall initially be
funded by the issuance of Commercial Paper Notes by such Issuer.
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(ii) Each Advance by a Bank shall be either a
Base Rate Advance or a Eurodollar Advance, as determined pursuant to
Section 2.15(b).
(c) Special Borrowings. The Borrower may from time to
time request that certain Borrowings be funded prior to the delivery to the
Collateral Agent of the corresponding Principal Mortgage Documents
(individually, a "Special Borrowing"; collectively, "Special Borrowings").
Advances in respect of Special Borrowings shall be made in accordance with
Section 2.3(a), subject to the terms and conditions of this Restated Loan
Agreement, including, without limitation, the following additional terms and
conditions:
(i) Pursuant to an Assignment, the Borrower
shall grant to the Administrative Agent for the benefit of the holders
of the Obligations, from the Borrowing Date of each Special Borrowing,
a perfected, first-priority security interest in the Mortgage Loans
identified in Schedule II to said Assignment (such Mortgage Loans being
sometimes called "Special Mortgage Loans";
(ii) The Assignment in connection with the
Borrowing Request delivered by the Borrower to the Administrative Agent
and the Collateral Agent, pursuant to which the Borrower requests a
Special Borrowing, shall describe the Mortgage Note or Mortgage Notes
to be delivered to the Collateral Agent in connection therewith by the
loan number assigned by the Originator, original principal amount, the
amount funded (minus discount points paid to the Originator) by the
Originator, Obligor's name and interest rate;
(iii) Within nine (9) Business Days after the date
that each Assignment is delivered (and inclusion of the related Special
Mortgage Loan within the computation of Collateral Value as reported on
the Collateral Agent Daily Report), to Collateral Agent, the Borrower
shall deliver to the Collateral Agent the Principal Mortgage Documents
pertaining to any Special Mortgage Loan identified on Schedule II of
such Assignment; and
(iv) The Borrower shall not request any Special
Borrowing, and no Special Borrowing shall be made, in respect of any
Mortgage Loan that is closed with an escrow agent other than the
relevant title insurance company, unless at the time of such request,
the Borrower is entitled to the benefit of Closing Protection Rights
with provisions substantially similar to one of the prescribed sets of
rights set forth in Exhibit N to this Restated Loan Agreement or as
otherwise reasonably required by the Administrative Agent (it being
understood that pursuant to the Restated Security Agreement, the
Administrative Agent has a security interest in all Closing Protection
Rights).
Each request by the Borrower for a Special Borrowing shall be automatically
deemed to constitute a representation and warranty by the Borrower to the effect
that immediately before and after giving effect to such Borrowing, the terms and
conditions specified in the foregoing clauses (i) through (iv) and specified in
Section 4.2 are and shall be satisfied in full as of the related Borrowing Date.
35
(d) Failure to Deliver Principal Mortgage Documents. The
failure to deliver Principal Mortgage Documents by the ninth Business Day, as
required by subparagraph ((iii)) of Section 2.3(c) and elsewhere in this
Restated Loan Agreement, shall not be treated as a Default or an Event of
Default so long as each Managing Agent is satisfied that each such failure, when
considered in the light of past and other contemporaneous failures, does not
have a Material Adverse Effect; however, (i) if any such Principal Mortgage
Documents related to such Special Mortgage Loans are not so delivered on a
timely basis, the Borrower shall make a mandatory prepayment or deliver
additional Mortgage Assets so that after giving effect thereto, the Collateral
Value of Eligible Mortgage Collateral (excluding such Special Mortgage Loans)
shall equal or exceed the Principal Debt, and (ii) the Special Mortgage Loan
shall not be an Eligible Mortgage Loan and shall have a Collateral Value of zero
until such Principal Mortgage Documents shall have been delivered to the
Collateral Agent in connection with a subsequent Borrowing.
The Borrower diligently shall pursue delivery to the
Collateral Agent of all Principal Mortgage Documents pertaining to any Special
Borrowings.
2.4. Fees.
(a) The Borrower shall pay to the Administrative Agent
and each Managing Agent (for itself and the Lenders for which it acts) the fees
set forth in the related Fee Letters, such fees to be payable pursuant to
Section 2.7(c).
(b) The Borrower shall pay to the Servicer a fee (the
"Servicer Fee") of 0.25% per annum on the aggregate outstanding principal
balance of the Eligible Mortgage Loans from the date hereof until the Principal
Debt is paid in full, payable monthly in arrears on each Settlement Date. The
Servicer Fee shall be payable only from Collections pursuant to, and subject to
the priority of payments set forth in, Section 2.7(c).
2.5. Prepayments.
(a) Optional Prepayments. The Borrower may, at any time
and from time to time with five (5) Business Days' notice to the Administrative
Agent and the Managing Agent, prepay the Advances in whole or in part, in the
aggregate amount of $1,000,000 or integral multiples of $100,000 in excess
thereof, without premium or penalty; provided, that the Borrower may not prepay
any Advance bearing interest at the Commercial Paper Rate on any day other than
the last day of the Interest Period with respect thereto. Notwithstanding the
foregoing, any prepayment made hereunder shall be accompanied by accrued
interest on the principal amount being prepaid. After giving notice that a
prepayment will be made, the Borrower shall be liable to each Affected Party for
any Consequential Loss resulting from such prepayment or the failure to make a
prepayment designated in any such notice.
(b) Mandatory Prepayments. The Borrower shall immediately
make a mandatory prepayment on the Principal Debt owed to the Lenders if at any
time, and to the extent that, (i) the Principal Debt owed to the Lenders other
than the Seasonal Lenders exceeds the Maximum Facility Amount, (ii) the
Principal Debt owed to the Seasonal Lenders exceeds the Seasonal Facility Amount
or (iii) the Principal Debt exceeds the total Collateral Value of all
36
Eligible Mortgage Collateral. The Borrower shall be liable for any Consequential
Loss resulting from any such prepayment.
2.6. Business Days.
If the date for any payment under this Restated Loan Agreement
falls on a day that is not a Business Day, then for all purposes of the Notes
and this Restated Loan Agreement the same shall be deemed to have fallen on
either (a) the next following Business Day, and such extension of time shall in
such case be included in the computation of payments of interest and fees or (b)
if the next following Business Day is in another calendar month and payment is
being made with respect to a Eurodollar Advance, then on the immediately
previous Business Day.
2.7. Payment Procedures.
(a) In General. Subject to the provisions of this Section
2.7, all payments on the Principal Debt and interest and fees under the Notes
and this Restated Loan Agreement shall be made by the Borrower (or the
Collateral Agent or the Servicer on behalf of the Borrower) to the related
Managing Agent for the account of the Lenders represented by such Managing
Agent. All such payments shall be made before 4:00 p.m. (eastern time) on the
respective due dates in federal or other funds immediately available by that
time of day and at each Managing Agent's Account. Funds received after 4:00 p.m.
(eastern time) shall be treated for all purposes as having been received by a
Managing Agent on the Business Day next following the date of receipt of such
funds from the Borrower. All payments made by the Borrower under this Restated
Loan Agreement and the Notes shall be without setoff, deduction or counterclaim
and the Borrower agrees to pay on demand any present or future stamp or
documentary taxes or any other taxes, levies, imposts, duties, charges or fees
which arise from payment made hereunder or under the Notes or from the execution
or delivery or otherwise with respect to this Restated Loan Agreement or the
Notes.
(b) The Borrower shall establish and maintain an account
(the "Collection Account") with the Collection Account Bank, which account shall
be titled "Pulte Funding, Inc." The Collection Account shall be a fully
segregated trust account, unless the Collection Account Bank shall be an
Eligible Institution having short-term debt ratings from S&P, ▇▇▇▇▇'▇ and Fitch
no lower than A-1/P-1/F1, in which case the account need not be a trust account.
The Collection Account shall be under the control of the Administrative Agent
pursuant to the Restated Assignment of Account, and the Borrower shall have no
right, title or interest in, or any right to withdraw any amount from, the
Collection Account. The Servicer shall have no right to access the Collection
Account except as otherwise contemplated in Section 2.7(c).
(c) Collections.
(i) The Servicer shall administer Collections in
accordance with the provisions of this Section 2.7.
(ii) The Servicer shall hold, on behalf of the
Lenders and the Administrative Agent, from Collections received by it
with respect to any Mortgage Asset, amounts necessary to make payments
on the following Settlement Date (or end of the related Interest
Period) pursuant to Section 2.7(c)(iii) or (iv). Such amounts shall be
37
deposited into the Collection Account no later than such Settlement
Date or at the end of such Interest Period, or, on or after the
Drawdown Termination Date or upon the occurrence and during the
continuation of an Event of Default, within one Business Day after
receipt by the Servicer.
(iii) Prior to the Drawdown Termination Date, the
Servicer shall withdraw funds from the Collection Account (to the
extent of collected funds therein) and shall make payments from the
Collection Account at the following times and in the following order of
priority:
(A) To the extent not previously paid,
on each Settlement Date, the Servicer shall deposit
an amount equal to the costs, fees and expenses then
due and payable to the Collateral Agent to an account
designated by the Collateral Agent.
(B) On the last day of each Interest
Period for any Advance that bears interest at the
Commercial Paper Rate or any Eurodollar Advance, the
Servicer shall deposit an amount equal to accrued
interest on such Advance, which amount shall be paid
to the applicable Managing Agent's Account for the
related Lenders. On each Settlement Date, the
Servicer shall deposit an amount equal to accrued
interest on each Advance that bears interest at the
Alternate Base Rate to the applicable Managing
Agent's Account.
(C) To the extent not previously paid,
on each Settlement Date, an amount equal to the fees,
costs and expenses then due and payable, on a pro
rata basis, to (i) Bank One, as a Managing Agent
under the Managing Agent Fee Letter shall be paid to
Bank One's Managing Agent's Account and (ii) to the
Administrative Agent and CL New York, as a Managing
Agent, under the Restated Agent Fee Letter to the CL
New York's Managing Agent's Account.
(D) On each Settlement Date on which
the Required Reserve Account Amount exceeds the
amount then on deposit in the Reserve Account, the
Servicer shall deposit an amount equal to such excess
to the Reserve Account.
(E) On each Settlement Date, if the
Seasonal Drawdown Termination Date shall have
occurred and be continuing, an amount equal to the
unpaid Principal Debt payable to the Seasonal Lenders
shall be paid to the Managing Agent's Account related
to the Seasonal Lenders until the Principal Debt
owing to the Seasonal Lenders is reduced to zero;
provided that, if the application of such amounts to
the reduction of the Principal Debt owed to the
Seasonal Lenders would cause a Default or an Event of
Default to occur or there would otherwise be a
Default or Event of Default in existence, then,
instead of such application, Collections shall be
paid to each Managing Agent's Account pro rata in
proportion to the outstanding
38
Principal Debt (including Seasonal Advances) owing to
the Lenders in each Group.
(F) On each Settlement Date, if the
Group Banks in any Group have not consented to an
extension of the Drawdown Termination Date, but the
Group Banks in the other Group have so consented and
such non-extending Lenders have not assigned their
respective Advances and Bank Commitments to one or
more other Lenders in accordance with Section 2.1(b)
and Section 13.9, the Servicer shall deposit an
amount equal to the unpaid balance of all Primary
Obligations owing to the non-extending Lenders to the
related Managing Agent's Account.
(G) To the extent not previously paid,
on each Settlement Date, the Servicer shall deposit
any amounts, other than those listed in clauses (A),
(B) and (C) above and other than principal on the
Advances, that are then due and payable and of which
the Servicer has received prior written notice,
including without limitation additional costs under
Section 2.16, any additional interest under Section
2.17, Consequential Losses under Section 2.18,
indemnities under Section 10.1 and costs, expenses
and taxes under Section 13.19, to the applicable
Managing Agent's Account.
(H) On each Settlement Date, the
Servicer shall withdraw from the Collection Account
for its own account an amount equal to accrued
Servicing Fee then due and payable.
(iv) On the Drawdown Termination Date and
thereafter, the Administrative Agent shall make payments from the
Collection Account (to the extent of collected funds therein) at the
following times and in the following order of priority:
(A) On each Settlement Date, if the
Servicer is not the Originator or an Affiliate of the
Originator, an amount equal to accrued Servicing Fee
then due and payable shall be paid to the Servicer.
(B) To the extent not previously paid,
on each Settlement Date, an amount equal to the
costs, fees and expenses then due and payable to the
Collateral Agent shall be paid to an account
designated by the Collateral Agent.
(C) On the last day of each Interest
Period for any Advance that bears interest at the
Commercial Paper Rate or for any Eurodollar Advance,
an amount equal to accrued interest on each such
Advance shall be paid to the applicable Managing
Agent's Account. On each Settlement Date, an amount
equal to accrued interest on Advances that bear
interest at the Alternate Base Rate shall be paid to
the applicable Managing Agent's Account.
39
(D) On each Settlement Date, an amount
equal to the unpaid principal balance of all Advances
made by Lenders shall be paid to the applicable
Managing Agent's Account.
(E) To the extent not previously paid,
on each Settlement Date, an amount equal to the fees,
costs and expenses then due and payable, on a pro
rata basis, (i) to Bank One as a Managing Agent,
under the Managing Agent Fee Letter shall be paid to
Bank One's Managing Agent's Account and (ii) to the
Administrative Agent and CL New York, as a Managing
Agent, under the Agent Fee Letter shall be paid to
the CL New York's Managing Agent's Account.
(F) To the extent not previously paid,
on each Settlement Date, any amounts of the type
described in Section 2.7(c)(iii)(iii)(G) are then due
and payable and any other unpaid Obligations shall be
paid to the applicable Managing Agent's Account.
(G) On the Settlement Date on which all
Obligations are paid in full, if the Servicer is the
Originator or an Affiliate of the Originator, an
amount equal to accrued Servicing Fee then due and
payable shall be paid to the Servicer.
(v) Upon receipt of funds deposited into its
Managing Agent's Account, each Managing Agent shall distribute such
funds to the Lenders in its Group or to itself for application to the
Obligations in accordance with the order of priority set forth in
Section 2.7(c)(iii) or (iv), as applicable.
(d) Interest Payments. Interest on each Advance that
bears interest at the Commercial Paper Rate and interest on each Eurodollar
Advance shall be due and payable on the last day of the Interest Period
applicable to such Advance. Interest on each Advance that bears interest at a
rate based on the Alternate Base Rate shall be due and payable in arrears on
each Settlement Date, on the Drawdown Termination Date and, thereafter, on
demand.
(e) Payments from Collection Account. To effect payments
(including prepayments) hereunder, the Borrower or the Servicer may request the
Administrative Agent to remit the collected funds (if any) then held on deposit
in the Collection Account.
2.8. The Reserve Account.
(a) Establishment. An account (the "Reserve Account")
shall be established with Bank One, NA. The Borrower, the Servicer,
Administrative Agent and the Reserve Account Bank have entered into the Reserve
Account Control Agreement. The Reserve Account is and shall be under the control
of the Administrative Agent, and the Borrower has and shall have no right, title
or interest in, or any right to withdraw any amount from, the Reserve Account.
40
(b) Taxation. The taxpayer identification number
associated with the Reserve Account shall be that of the Borrower, and the
Borrower will report for federal, state and local income tax purposes the
income, if any, earned on funds in the Reserve Account.
(c) New Reserve Account. In the event the Reserve Account
Bank ceases to be an Eligible Institution, the Borrower shall, within ten days
after learning thereof, establish a new Reserve Account (and transfer any
balance and investments then in the Reserve Account to such new Reserve Account)
at another Eligible Institution.
(d) Statements for Reserve Account. On a monthly basis,
the Servicer shall cause the Reserve Account Bank to provide the Borrower, the
Servicer and the Managing Agents with a written statement with respect to the
preceding calendar month regarding the Reserve Account in a form customary for
statements provided by the Reserve Account Bank for other accounts held by it,
which statement shall include, at a minimum, the amount on deposit in the
Reserve Account, and the dates and amounts of all deposits, withdrawals and
investment earnings with respect to the Reserve Account.
(e) Payments from Reserve Account.
(i) On the Business Day preceding the last day
of each Interest Period and each Settlement Date, the Servicer will
determine whether any Shortfall Amount will arise with respect to such
Interest Period or Settlement Date and will give the Administrative
Agent notice of the amount thereof by noon New York City time. By 2:00
p.m. New York City time on the Business Day prior to the last day of
each Interest Period and each Settlement Date on which the amount of
the Shortfall Amount is greater than zero, the Servicer shall notify
the Reserve Account Bank requesting payment thereof. To the extent
funds are available in the Reserve Account, the Servicer shall cause
the Reserve Account Bank to pay the amount requested to the applicable
Managing Agent's Account, as specified by the Administrative Agent, by
2:00 p.m. New York City time on the last day of such Interest Period or
on such Settlement Date.
(ii) On each Settlement Date prior to the
Drawdown Termination Date on which the funds on deposit in the Reserve
Account exceed the Required Reserve Account Amount (after giving effect
to any payments pursuant to Section 2.8(e)(i)), the Servicer may
withdraw and pay to the Borrower any such excess from the Reserve
Account.
(f) Payments to Reserve Account. On the date hereof, the
Borrower shall remit to the Reserve Account immediately available funds so that
the amount on deposit in the Reserve Account equals the Required Reserve Account
Amount. Additional payments shall be deposited to the Reserve Account from time
to time pursuant to Section 2.7(c)(iii)(D).
(g) Pledge. The Borrower hereby pledges and assigns to
the Administrative Agent for the benefit of the Lenders, and hereby grants to
the Administrative Agent for the benefit of the Lenders, a security interest in,
all of the Borrower's right, title and interest in and to the Reserve Account,
including, without limitation, all funds on deposit therein, all investments
arising out of such funds, all interest and any other income arising therefrom,
all
41
claims thereunder or in connection therewith, and all cash, instruments,
securities, rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of such account, such
funds or such investments, and all money at any time in the possession or under
the control of, or in transit to such account, or any bailee, nominee, agent or
custodian of the Reserve Account Bank, and all proceeds and products of any of
the foregoing. Except as provided in the preceding sentence, the Borrower may
not assign, transfer or otherwise convey its rights under this Restated Loan
Agreement to receive any amounts from the Reserve Account.
(h) Termination of Reserve Account. On the date following
the Drawdown Termination Date on which all Obligations have been paid in full,
all funds then on deposit in the Reserve Account shall be paid to the Borrower,
and the Reserve Account shall be closed.
2.9. Interest Allocations.
Each Managing Agent shall, from time to time and in its sole
discretion, determine whether interest in respect of the Advances then
outstanding and owing to the Lenders in the related Group, or any portion
thereof, shall be calculated by reference to the Commercial Paper Rate (such
portion of the Principal Debt being herein called a "CP Allocation"), the
Eurodollar Rate or the Alternate Base Rate (such portion of the Principal Debt
as shall be calculated based on the Alternate Base Rate or the Eurodollar Rate
collectively, being herein called an "ABR Allocation"; provided, however, that
each Advance made by a Bank hereunder shall be allocated to the ABR Allocation.
Each Managing Agent shall provide the Borrower with reasonably prompt notice of
the allocations made by it pursuant to this Section 2.9. Following designation
by each Managing Agent of any Advance, or any portion thereof, as being a CP
Allocation, the Borrower may, at all times that such designation remains in
effect, consult with such Managing Agent as to the number and length of Interest
Periods relating to such CP Allocation. In selecting such Interest Periods, each
Managing Agent shall use reasonable efforts, taking into account market
conditions, to accommodate the Borrower's preferences; provided, however, that
each Managing Agent shall have the ultimate authority to make all such
selections.
2.10. Interest Rates.
Except where specifically otherwise provided, each CP
Allocation shall bear interest for the related Interest Period at a rate per
annum equal to the Commercial Paper Rate applicable to such Interest Period, and
each ABR Allocation shall bear interest at either the Eurodollar Rate plus the
Bank Spread, or the Alternate Base Rate; provided, however, that in no event
shall the rate of interest with respect to any Advance or portion thereof exceed
the Maximum Rate. Each change in the Alternate Base Rate and Maximum Rate,
subject to the terms of this Restated Loan Agreement, will become effective,
without notice to the Borrower or any other Person, upon the effective date of
such change.
2.11. Quotation of Rates.
It is hereby acknowledged that an officer or other individual
appropriately designated by an officer previously identified to a Managing Agent
in a certificate of incumbency or other appropriately designated officer of the
Borrower may call such Managing
42
Agent from time to time in order to receive an indication of the rates then in
effect, but such indicated rates shall neither be binding upon such Managing
Agent nor the Lenders nor affect the rate of interest which thereafter is
actually in effect.
2.12. Default Rate.
So long as any Event of Default exists, all Obligations shall
bear interest at the Default Rate until paid, regardless of whether such payment
is made before or after entry of a judgment.
2.13. Interest Recapture.
If the designated rate applicable to any Borrowing exceeds the
Maximum Rate, the rate of interest on such Borrowing shall be limited to the
Maximum Rate, but any subsequent reductions in such designated rate shall not
reduce the rate of interest thereon below the Maximum Rate until the total
amount of interest accrued thereon equals the amount of interest that would have
accrued thereon if such designated rate had at all times been in effect. If at
maturity (stated or by acceleration), or at final payment of the Notes, the
total amount of interest paid or accrued is less than the amount of interest
that would have accrued if such designated rates had at all times been in
effect, then, at such time and to the extent permitted by applicable
Governmental Requirements, the Borrower shall pay an amount equal to the
difference between (a) the lesser of the amount of interest that would have
accrued if such designated rates had at all times been in effect and the amount
of interest that would have accrued if the Maximum Rate had at all times been in
effect, and (b) the amount of interest actually paid or accrued on the Notes.
2.14. Interest Calculations.
All computations of interest and any other fees hereunder
shall be made on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) elapsed; provided, however,
that any calculations of interest based on the rate set forth in clause (a) of
the definition of Alternate Base Rate shall be made on the basis of a year of
365/366 days for the actual number of days (including the first day but
excluding the last day) elapsed. All such determinations and calculations by the
Administrative Agent and the Managing Agents shall be conclusive and binding
absent manifest error.
2.15. Interest Period.
(a) "Interest Period" means with respect to any Advance
included in the CP Allocation, each period (i) commencing on, and including, the
date that such Advance was initially designated by the related Managing Agent as
comprising a part of the CP Allocation hereunder, or the last day of the
immediately preceding Interest Period for such Advance (whichever is latest);
and (ii) ending on, but excluding, the date that falls such number of days (not
to exceed 30 days) thereafter as such Managing Agent shall select; provided,
however, that no more than ten Interest Periods (five per Issuer) shall be in
effect at any one time with respect to Advances included in the CP Allocation
provided, however, that no Interest Period with respect to the Seasonal Facility
shall extend beyond the end of each Seasonal Period.
43
(b) "Interest Period" means with respect to any Advance
included in the ABR Allocation, a period of one month, which Advance shall be a
Eurodollar Advance, unless:
(i) on or prior to the first day of such
Interest Period the Lender with respect to such Advance shall have
notified the Administrative Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for such Lender to fund such Advance at the
Eurodollar Rate (and such Lender shall not have subsequently notified
the Administrative Agent and Managing Agents that such circumstances no
longer exist), or
(ii) the Borrower shall have requested a Base
Rate Advance or an Interest Period shorter than one month, or
(iii) the Administrative Agent and Managing Agents
do not receive notice, by no later than 12:00 noon (New York City time)
on the third Business Day preceding the first day of such Interest
Period, that the related Advance will not be funded by issuance of
Commercial Paper Notes, or
(iv) the principal amount of such Advance is less
than $500,000, or
(v) an Event of Default shall have occurred and
be continuing,
in which case (if any of the foregoing events occurs) such Advance shall be a
Base Rate Advance having a duration not in excess of 31 days as selected by the
Borrower (unless an Event of Default shall exist, in which case such duration
shall be selected by the applicable Managing Agent).
(c) Notwithstanding any provision in this Restated Loan
Agreement to the contrary, (x) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next succeeding Business
Day (provided, however, if interest in respect of such Interest Period is
computed by reference to the Eurodollar Rate, and such Interest Period would
otherwise end on a day that is not a Business Day, and there is no subsequent
Business Day in the same calendar month as such day, such Interest Period shall
end on the immediately preceding Business Day); (y) any Interest Period that
commences before the Drawdown Termination Date and would otherwise end after the
Drawdown Termination Date shall end on the Drawdown Termination Date; and (z)
the duration of each Interest Period that commences on or after the Drawdown
Termination Date shall be of such duration as shall be selected by the
applicable Managing Agents and communicated by notice to the Borrower.
2.16. Additional Costs.
(a) If any Regulatory Change occurring after the date
hereof:
(i) shall subject an Affected Party to any tax,
duty or other charge with respect to any Advance to or funded by it, or
any obligations or right to make Advances hereunder or to provide
funding therefor, or shall change the basis of taxation of payments to
the Affected Party of any amounts in respect of a Lender's principal or
44
interest owed to or funded by it or any other amounts due under this
Restated Loan Agreement in respect of any Advance funded by it or its
obligations or rights, if any, to make Advances or to provide funding
therefor (except for changes in the rate of tax on the overall net
income of such Affected Party imposed by the United States of America,
by the jurisdiction in which such Affected Party's principal executive
office is located and, if such Affected Party's principal executive
office is not in the United States of America, by the jurisdiction
where such Affected Party's principal office in the United States is
located); or
(ii) shall impose, modify or deem applicable any
reserve (other than reserve requirements referred to in Section 2.17),
special deposit or similar requirement against assets of any Affected
Party, deposits or obligations with or for the account of any Affected
Party or with or for the account of any affiliate (or entity deemed by
the Federal Reserve Board to be an affiliate) of any Affected Party, or
credit extended by any Affected Party; or
(iii) shall change the amount of capital
maintained or required or requested or directed to be maintained by any
Affected Party; or
(iv) shall change the rates for, or the manner in
which the Federal Deposit Insurance Corporation (or any successor
thereto) assesses deposit insurance premiums or similar charges; or
(v) shall impose any other condition affecting
any Advance funded by any Affected Party, or its obligations or rights,
if any, to make Advances or to provide funding therefor;
and the result of any of the foregoing is or would be:
(x) to increase the cost to or impose a cost on
(I) an Affected Party funding or making or maintaining any Advances or
any liquidity loan to an Issuer or any commitment of such Affected
Party with respect to any of the foregoing, or (II) the Administrative
Agent for continuing its, or the Borrower's, relationship with the
Lenders,
(y) to reduce the amount of any sum received or
receivable by an Affected Party under this Restated Loan Agreement or
any Note, or under the Liquidity Agreement with respect thereto, or
(z) in the sole determination of such Affected
Party, to reduce materially the rate of return on the capital of an
Affected Party as a consequence of its obligations hereunder or arising
in connection herewith to a level below that which such Affected Party
could otherwise have achieved,
then within thirty days after demand by such Affected Party (which demand shall
be accompanied by a statement setting forth the basis of such demand), the
Borrower shall pay directly to such Affected Party such additional amount or
amounts as will compensate such Affected Party for such additional or increased
cost or such reduction.
45
(b) Each Affected Party will promptly notify the
Borrower, the applicable Managing Agent and the Administrative Agent of any
event of which it has knowledge that will entitle such Affected Party to
compensation pursuant to this Section 2.16; provided, however, no failure to
give or delay in giving such notification shall adversely affect the rights of
any Affected Party to such compensation.
(c) In determining any amount provided for or referred to
in this Section 2.16, an Affected Party may use any averaging and attribution
methods that it (in its sole discretion) shall deem applicable. Any Affected
Party when making a claim under this Section 2.16 shall submit to the Borrower a
statement as to such increased cost or reduced return (including calculation
thereof), which Statement shall, in the absence of manifest error, be conclusive
and binding upon the Borrower.
2.17. Additional Interest on Advances Bearing a Eurodollar Rate.
The Borrower shall pay to any Affected Party, so long as such
Affected Party shall be required under regulations of the Federal Reserve Board
to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
of each Advance or portion thereof made or funded (including fundings to an
Issuer for the purpose of maintaining an Advance) by such Affected Party during
each Interest Period in respect of which interest is computed by reference to
the Eurodollar Rate, for such Interest Period, at a rate per annum equal at all
times during such Interest Period to the remainder obtained by subtracting (i)
the Eurodollar Rate for such Interest Period from (ii) the rate obtained by
dividing such Eurodollar Rate referred to in clause (i) above by that percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Affected
Party for such Interest Period, payable on each date on which interest is
payable on such Advance. Such additional interest shall be determined by such
Affected Party and notice thereof given to the Borrower (with a copy to the
Administrative Agent and the applicable Managing Agent) within 30 days after any
interest payment is made with respect to which such additional interest is
requested. A certificate as to such additional interest submitted to the
Borrower, the Administrative Agent and the applicable Managing Agent by such
Affected Party shall be conclusive and binding for all purposes, absent manifest
error.
2.18. Consequential Loss.
The Borrower shall indemnify each Affected Party against, and
shall pay to the Administrative Agent for such Affected Party within ten days
after request therefor, any Consequential Loss of any Affected Party. When any
Affected Party requests that the Borrower pay any Consequential Loss, it shall
deliver to the Borrower, the Administrative Agent and the applicable Managing
Agent a certificate setting forth the basis for imposing such Consequential Loss
and the calculation of such amount thereof, which calculation shall be
conclusive and binding absent manifest error.
2.19. Replacement Banks.
Upon the election of any Affected Party to request
reimbursement by the Borrower for increased costs under Sections 2.16 or 2.17,
the Borrower may, upon prior written
46
notice to the Administrative Agent, the applicable Managing Agent and such
Affected Party, seek a replacement Bank to whom such additional costs shall not
apply (a "Replacement Bank") and, upon a Bank's breach of its obligation
hereunder to make an Advance, the Borrower may seek a Replacement Bank for such
Bank. Any Replacement Bank shall be satisfactory to the applicable Managing
Agent. Notwithstanding the foregoing, the Borrower may not seek a replacement
for a Bank that is also a Managing Agent unless the related Issuer is also
terminated as a party to this Restated Loan Agreement and all of its outstanding
Advances are repaid in full. Each Affected Party agrees that, should it be
identified for replacement pursuant to this Section 2.19, upon payment in full
of all amounts due and owing to such Affected Party hereunder and under the
other Transaction Documents, it will promptly execute and deliver all documents
and instruments reasonably required by the Borrower to assign such Affected
Party's portion of the Advances to the applicable Replacement Bank. Any such
replacement shall not relieve the Borrower of its obligation to reimburse the
Affected Party for any such increased costs incurred through the date of such
replacement.
2.20. Seasonal Facility Amount.
(a) On the terms and conditions set forth herein, the
Seasonal Issuer may, in its sole discretion, make an Advance (a "Seasonal
Advance" or "Seasonal Borrowing"), and if the Seasonal Issuer does not make such
Advance, the Seasonal Bank shall make such Advance, to the Borrower from time to
time in such amounts as may be requested by the Borrower pursuant to Section
2.3, so long as
(i) the Seasonal Facility Amount is greater than
the Principal Debt owed to the Seasonal Lenders;
(ii) each Borrowing is in an amount of at least
$5,000,000 or an integral multiple of $10,000 in excess thereof;
(iii) each such Advance is made during a Seasonal
Period and prior to the Seasonal Facility Termination Date; and
(iv) the Availability under the Facility at the
time of such Seasonal Advance is equal to zero.
(b) The Borrower may, from time to time by written
request to the Seasonal Lenders and the Managing Agent for the Seasonal Lenders
(each such notice being a "Seasonal Extension Request") given not later than 90
days and not sooner than 120 days prior to each Annual Extension Date, request
an extension of the then applicable Annual Seasonal Extension Date. If the
Lenders, the Managing Agents, and the Administrative Agent consent, in their
sole discretion, to such Seasonal Extension Request, then (x) the Seasonal
Facility Termination Date shall not occur as of the then applicable Annual
Seasonal Extension Date and (y) the Annual Seasonal Extension Date shall be
extended as described in the definition of "Annual Seasonal Extension Date." Any
such extension may be accompanied by such additional fees as the parties shall
mutually agree. Notwithstanding anything else to the contrary, the Seasonal
Facility Termination Date shall occur automatically, without further action on
the part of the Lenders, the
47
Managing Agents or the Administrative Agent, on the then current Annual Seasonal
Extension Date unless an Extension Request has been granted pursuant to this
paragraph.
(c) The Borrower may, upon at least thirty (30) days'
written notice to the Administrative Agent, the Collateral Agent and the
Seasonal Lenders, terminate the Seasonal Facility in whole or reduce in part the
Seasonal Facility Amount; provided, that each reduction of the Seasonal Facility
Amount shall (i) be effective on the next occurring Settlement Date, (ii) be in
the amount of at least $5,000,000 or an integral multiples of $1,000,000 in
excess thereof and (iii) not reduce the Seasonal Facility Amount below the
Principal Debt owed to the Seasonal Lenders.
ARTICLE III
COLLATERAL
3.1. Collateral.
To secure the payment of the Obligations, the Borrower has
executed and delivered to the Administrative Agent and the Collateral Agent, as
applicable:
(a) the Restated Security Agreement,
(b) the Restated Assignment of Account,
(c) Collection and Paying Agreement,
(d) Reserve Account Control Agreement,
(e) the Assignments, and
(f) the UCC Financing Statements;
all as more fully provided for in the Collateral Agency Agreement. The Borrower
further agrees to execute all documents and instruments, and perform all other
acts reasonably deemed necessary by the Administrative Agent or any Managing
Agent to create and perfect, and maintain the security interests and collateral
assignments in favor of the Administrative Agent or the Collateral Agent for the
benefit of the holders of the Obligations, as perfected first priority security
interests. Any security interest or collateral assignments granted to the
Administrative Agent or the Collateral Agent under any Transaction Document is
for the benefit of the holders of the Obligations, whether or not reference is
made to such holders.
3.2. Delivery of Collateral to Collateral Agent.
(a) Periodically, the Borrower may deliver Mortgage Loan
Collateral to the Collateral Agent to hold as bailee for the Administrative
Agent. Each delivery shall be made in association with an Assignment to the
Administrative Agent, for the benefit of the holders of the Obligations, in all
Mortgage Loans, Take-Out Commitments and related Collateral delivered
48
with or described in such Assignment or any schedules thereto. The Borrower
shall use the form of Assignment provided for in the Collateral Agency
Agreement.
(b) Each Assignment delivered to the Collateral Agent
shall be accompanied by a completed Schedule I, Schedule II and Schedule III
using the forms of such schedules as prescribed in the Collateral Agency
Agreement and, with respect to each Mortgage Loan described in Schedule I to
each Assignment, shall deliver or cause to be delivered the following items
(collectively, the "Principal Mortgage Documents"):
(i) the original of each Mortgage Note, endorsed
in blank (without recourse) and all intervening endorsements thereto;
(ii) in the case of each Mortgage Loan that is
not a MERS Designated Mortgage Loan, an original executed assignment in
blank for each Mortgage Note and the Mortgage securing such Mortgage
Note, in recordable form executed by the Originator (and if the related
Mortgage Loan is a MERS Designated Mortgage Loan, this document shall
not be required to be delivered to the Collateral Agent); and
(iii) a certified copy of the executed Mortgage
related to such Mortgage Note;
(c) The Servicer shall hold in trust for the
Administrative Agent for the benefit of the holders of the Obligations, with
respect to each Mortgage Loan included in the Collateral,
(i) the original filed Mortgage relating to such
Mortgage Loan, provided, however, that, until an original Mortgage is
received from the public official charged with its filing and
recordation, a copy, certified by the closing agent to be a true and
correct copy of the filed and recorded original, may be used by the
Borrower to satisfy this requirement; however, the Borrower shall
thereafter pursue, with reasonable diligence, receipt of the filed and
recorded original Mortgage;
(ii) other than with respect to a HUD repossessed
Property that is sold to a consumer, a mortgagee's policy of title
insurance (or binding unexpired commitment to issue such insurance if
the policy has not yet been delivered to the Servicer) insuring the
Borrower's perfected, first-priority Lien except Second-Lien Loans
created by the Mortgage securing such Mortgage Loan (subject to such
title exceptions that conform to the related Take-Out Commitments) in a
policy amount not less than the principal amount of such Mortgage Loan;
(iii) the original hazard insurance policy,
appropriately endorsed to provide that all insurance proceeds will be
paid to the Originator or its assigns, referred to in Section 6.6(b)
hereof which relate to such Mortgage Loan, or other evidence of
insurance reasonably acceptable to the Administrative Agent;
(iv) the form of current appraisal of the
Property described in the Mortgage, prepared by a state licensed
appraiser, that complies with all applicable Governmental Requirements,
including all Governmental Requirements that are
49
applicable to the Lenders or any other Affected Party; provided,
however, that no appraisal shall be required for Mortgage Loans (x)
financing HUD repossessed Property that is sold to a consumer, financed
with an FHA loan, fully insurable and in accordance with FHA
guidelines, but for which an appraisal is not required, and (y)
representing so called VA Rate Reduction or FHA Streamline refinances,
insurable in accordance with VA and FHA guidelines, but for which an
appraisal is not required; and
(v) all other original documents (collectively,
the "Other Mortgage Documents").
Upon request of the Administrative Agent or any Managing Agent, the Borrower
shall immediately deliver, or shall cause to be delivered, all such items, held
in trust, to the Collateral Agent as bailee for the Administrative Agent or such
other party as may be designated in such notice. Upon instructions from the
Administrative Agent, the Collateral Agent shall reject as unsatisfactory any
items so delivered, whereupon the Mortgage Loan shall not be an Eligible
Mortgage Loan.
(d) In connection with each Assignment delivered to the
Collateral Agent, the Borrower shall deliver to the Administrative Agent with
respect to any Non-Conforming Loans or Alt-A Loans, copies of the related master
agreement or commitment with the related Approved Investor, with any
confidential economic terms redacted (unless a copy of such agreement or
commitment has been delivered previously), together with a current Hedge Report
with respect to such Mortgage Loans.
(e) The Servicer shall provide the Collateral Agent and
the Administrative Agent with full access to all Other Mortgage Documents held
in trust for the Administrative Agent at all times.
(f) With respect to each Assignment that is received by
the Collateral Agent, the Collateral Agent shall review such Assignment and make
a written report to the Borrower and the Administrative Agent, all as more fully
provided in the Collateral Agency Agreement.
3.3. Redemption of Mortgage Collateral.
(a) Generally. Subject to the limitations contained in
this Section 3.3, in connection with a sale or other transfer contemplated by
clause (a) or (b), and so long as no Default or Event of Default is continuing,
the Borrower or the Servicer (on behalf of the Borrower) may request releases of
the Administrative Agent's security interest in all or any part of the
Collateral (including releases from the Collection Account and release of funds
owned by the Borrower and held in the Cash and Collateral Account) at any time,
and from time to time; provided that no such request shall be granted unless, in
addition to the satisfaction of the other conditions contained in this Section
3.3,
(i) (immediately after giving effect to any
requested release) the total Collateral Value of all Eligible Mortgage
Collateral shall equal or exceed the Principal Debt, or
50
(ii) (A) the Borrower makes a principal payment
on account of the Principal Debt in an amount, or (B) the Borrower
delivers to the Collateral Agent as bailee for the Administrative Agent
substitute Eligible Mortgage Collateral with a Collateral Value, such
that after giving effect to such payment or delivery, the total
Collateral Value of all Eligible Mortgage Collateral will equal or
exceed the Principal Debt.
Each request for a partial release of Collateral (a "Transfer Request") shall be
addressed to the Collateral Agent and (i) shall be substantially in the form
illustrated in Exhibit D-5 to the Collateral Agency Agreement (or such other
form as may be reasonably acceptable to or required by the Administrative Agent,
from time to time) or (ii) shall be in the form of an electronic transmission
which shall include a schedule substantially in the form illustrated on Schedule
I to Exhibit D-5 to the Collateral Agency Agreement (or such other form as may
be reasonably acceptable to or required by the Administrative Agent, from time
to time).
(b) Redemption Pursuant to Sale. So long as no Default or
Event of Default is continuing, the Borrower or the Servicer (on behalf of the
Borrower) may from time to time submit a Shipping Request that would permit a
sale of Mortgage Loan Collateral to, or the pooling of Mortgage Loan Collateral
for, an Approved Investor, pursuant to a Take-Out Commitment. Upon the receipt
by the Collateral Agent of a Shipping Request from the Borrower identifying
Collateral to be delivered to an Approved Investor, and so long as no Default or
Event of Default shall be in existence or would be caused thereby:
(i) The Collateral Agent shall deliver to the
Approved Investor, or its loan servicing provider or custodian, under
the Collateral Agent's "Bailee and Security Agreement Letter"
substantially in the form provided for in the Collateral Agency
Agreement, as appropriate, the items of Mortgage Loan Collateral being
sold that are held by the Collateral Agent as bailee for the
Administrative Agent pursuant to Section 3.2 hereof, with the release
of the security interest in favor of the Administrative Agent for the
benefit of the holders of the Obligations in such items being
conditioned upon timely payment to the Cash and Collateral Account of
the amount described in Section 3.3(b)(iii) or delivery of additional
Eligible Mortgage Collateral;
(ii) The Servicer shall, as agent for the
Administrative Agent, deliver to such Approved Investor, or such
Approved Investor's loan servicing provider or custodian, pursuant to
procedures provided for in the Collateral Agency Agreement, the items
held by the Servicer pursuant to Section 3.2(c) that are related to the
Mortgage Loan Collateral to be transferred on the condition that such
Approved Investor or its loan servicing provider or custodian shall
hold or control such Other Mortgage Documents as bailee for the
Administrative Agent (for the benefit of the holders of the
Obligations) until the Approved Investor has either paid the full
purchase price for such Mortgage Loan Collateral to the Collateral
Agent, as required by the relevant Take-Out Commitment;
(iii) Within forty-five (45) days after the
delivery by the Collateral Agent to such Approved Investor or its loan
servicing provider or custodian of the items of Mortgage Loan
Collateral described in Section 3.3(b)(i), the Borrower shall make a
51
payment, or shall cause a payment to be made, to the Cash and
Collateral Account, for distribution to the Administrative Agent for
the account of the Lenders in an amount equal to at least the full
purchase price for such Mortgage Loan Collateral; and
(iv) With respect to each Shipping Request that
is received by the Collateral Agent by 8:00 a.m. (eastern time) on a
Business Day, the Collateral Agent shall use due diligence and efforts
to review such Shipping Request and prepare the Mortgage Loan files
identified in each Shipping Request, for shipment prior to the close of
business on such day.
(c) Transfers. So long as no Default or Event of Default
is continuing, the Borrower shall, at any time, be permitted to transfer
Mortgage Loans to any Permitted Transferees (as defined below) by means of its
daily electronic transmissions to the Collateral Agent, together with delivery
of a Transfer Request delivered to the Collateral Agent identifying each
Mortgage Loan being transferred. The Collateral Agent's sole responsibility with
respect to any such transfers shall be to correctly reflect such transfers on
its computer system and books and records and to indicate, on its Collateral
Agent's Daily Report on the next Business Day, that such transfers have been
effected. "Permitted Transferees" means (i) the Originator, in connection with
any sale and transfer thereto effected pursuant to the terms of the Repurchase
Agreement and (ii) any Approved Investor approved by the Administrative Agent as
a Permitted Transferee. However, requested transfers will not be made if (A)
total Principal Debt, as shown on the most recently received Servicer Periodic
Report in the form of Exhibit M, will exceed the total Collateral Value of
Eligible Mortgage Collateral immediately after giving effect to a requested
transfer, (B) the Collateral Agent has not received the prior day's Servicer
Periodic Report in the form of Exhibit M by 11:00 a.m. (eastern time) on the
date on which the transfer is to be made, or (C) the Collateral Agent shall have
received written notice from the Administrative Agent that a Default or Event of
Default has occurred.
(d) Continuation of Lien. Unless released in writing by
the Administrative Agent as herein provided, the security interest in favor of
the Administrative Agent for the benefit of the holders of the Obligations, in
all Mortgage Loan Collateral transmitted pursuant to Section 3.3(b) shall
continue in effect until such time as payment in full of the amount described in
Section 3.3(b)(iii) shall have been received.
(e) Application of Proceeds; No Duty. Neither the
Administrative Agent nor the Lenders shall be under any duty at any time to
credit Borrower for any amount due from any Approved Investor in respect of any
purchase of any Mortgage Collateral contemplated under Section 3.3(b) above,
until such amount has actually been received in immediately available funds and
deposited to the Collection Account. Neither the Collateral Agent, nor the
Lenders, nor the Administrative Agent shall be under any duty at any time to
collect any amounts or otherwise enforce any obligations due from any Approved
Investor in respect of any such purchase.
(f) Mandatory Redemption of Mortgage Collateral.
Notwithstanding any provision herein to the contrary, if at any time a
Collateral Deficiency exists, the Borrower shall, immediately make a payment to
the Collection Account (or make payment directly to the Administrative Agent) or
pledge, assign and deliver additional or substitute Eligible Mortgage
52
Collateral to the Administrative Agent for the benefit of the holders of the
Obligations, so that, immediately after giving effect to such payment or pledge
and assignment, total Collateral Value of Eligible Mortgage Collateral shall be
equal or greater than the Principal Debt.
(g) Representation in Connection with Releases, Sales and
Transfers. The Borrower represents and warrants that each request for any
release or transfer pursuant to Section 3.3(a) or Section 3.3(b) shall
automatically constitute a representation and warranty to the effect that
immediately before and after giving effect to such release or Transfer Request,
the Collateral Value of Eligible Mortgage Collateral shall equal or exceed the
Principal Debt.
(h) Limitation on Releases. Notwithstanding any provision
to the contrary, the Collateral Agent shall not release any Collateral unless
payment of the purchase price by the Approved Investor or the Originator shall
have been made in immediately available funds to the Cash and Collateral
Account; provided, however, that the foregoing shall not apply if there is no
Default or Event of Default and immediately before and after giving effect to
such release, the total Collateral Value of Eligible Mortgage Collateral shall
equal or exceed the Principal Debt.
3.4. Correction of Mortgage Notes.
The Servicer may from time to time request, in writing, that
the Collateral Agent deliver a Mortgage Note that constitutes Mortgage Loan
Collateral so that such Mortgage Note may be replaced by a corrected Mortgage
Note. Upon receipt by the Collateral Agent of such a request from the Servicer,
and so long as no Default or Event of Default shall be in existence, the
Collateral Agent shall deliver to the Servicer, under the Collateral Agent's
"Trust Receipt and Security Agreement Letter", in the form provided for in the
Collateral Agency Agreement, the Mortgage Note to be corrected, such delivery to
be conditioned upon the receipt within fourteen (14) calendar days by the
Collateral Agent of a corrected Mortgage Note acceptable to it. If the corrected
Mortgage Note is not received with such time, then, beginning on the first
Business Day following such fourteenth calendar day, the Collateral Agent shall
assign such Mortgage Loan a Collateral Value of zero.
3.5. Collateral Reporting.
Pursuant to the Collateral Agency Agreement, at the
commencement of each Business Day, and in no event later than 11:00 a.m.
(eastern time), the Collateral Agent shall furnish to the Borrower, the Servicer
and each Managing Agent (by facsimile (a hard copy of which shall not
subsequently be mailed, sent or delivered to either Managing Agent, unless so
requested by such Managing Agent)) a duly completed Collateral Agent Daily
Report in the form of Exhibit D-8 to the Collateral Agency Agreement.
3.6. Hedge Reports.
No later than 11:00 a.m. (eastern time), on the first Business
Day of each week, and, if any changes would be reflected since the last Hedge
Report, on each other Business Day, the Servicer shall furnish the Borrower and
the Administrative Agent a Hedge Report, in the form of Exhibit K.
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3.7. [RESERVED]
3.8. Servicer Monthly Reporting.
No later than 11:00 a.m. (eastern time) on the 15th day of
each month (or, if such day is not a Business Day, the next Business Day) and
within twenty (20) days after request by the Managing Agent, the Servicer shall
furnish the Borrower and the Managing Agents (by facsimile or electronic
transmission (a hard copy of which shall not subsequently be mailed, sent or
delivered to the Managing Agent, unless so requested by a Managing Agent) a
report executed by a Financial Officer of the Servicer or the Originator, in the
form of Exhibit F hereto ("Servicer Monthly Report") which shall provide as of
the last day of the previous month (or of the date of such request) (i) a
computation of the Default Ratio and Sixty-Day Default Ratio, (ii) an aging of
Mortgage Loans owned by the Borrower that are financed by the Lenders and
constitute Collateral hereunder, and (iii) the other information provided for
therein;
3.9. Servicer Annual Pipeline Reporting.
No later than 11:00 a.m. (eastern time) promptly after
becoming available, and in any event within 90 days after the close of each
fiscal year of the Originator, a report, in form and content reasonably
acceptable to the Administrative Agent, on the Originator's "open and pipeline
positions" for Conforming Loans as of the last day of such fiscal year, and the
Originator's Mortgage Loan production for such fiscal year for all Mortgage
Loans; and
3.10. Servicer Periodic Reporting.
The Servicer shall furnish the Administrative Agent, the
Managing Agents and the Collateral Agent (by facsimile (a hard copy of which
shall subsequently be mailed, sent or delivered to the Collateral Agent only if
so requested by such Person)) a duly completed Servicer Periodic Report, in the
form of Exhibit M (the "Servicer Periodic Report") (i) as Schedule II attached
to each Borrowing Request, on or prior to 4:00 p.m. eastern time on the date
prior to the date on which the Borrowing is to be made, and (ii) upon any
mandatory or voluntary prepayment in accordance with Section 2.5(a) or (b), on
or prior to 4:00 p.m. eastern time on the date prior to the date on which the
prepayment is to be made.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Borrowing.
The effectiveness of this Restated Loan Agreement and the
making of the any Advances hereunder shall not occur until the later of August
23, 2002, or satisfaction of the conditions precedent specified in Section 4.2
hereof and delivery to the Administrative Agent of the following (each of the
following documents being duly executed and delivered and in form and substance
satisfactory to the Managing Agents and the Administrative Agent, and, with the
exception of the Notes and the UCC statement(s), each in a sufficient number of
originals that the Administrative Agent may have an executed original of each
document):
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(a) an executed counterpart of this Restated Loan
Agreement;
(b) the Notes;
(c) the Restated Collateral Agency Agreement, the
Restated Assignment of Account, the Reserve Account Control Agreement,
Collection and Paying Agreement, and such other Security Instruments as may be
requested by the Administrative Agent;
(d) the Restated Repurchase Agreement;
(e) a certificate of the Secretary or Assistant Secretary
of each of the Borrower and the Originator certifying as to (i) certificate of
incorporation or organization, (ii) bylaws (iii) resolutions of the Borrower's
and the Originator's board of directors authorizing the execution, delivery, and
performance by each of them of the Transaction Amendment Documents to which they
are a party and identifying the officers of the Borrower and the Originator who
are authorized to sign such Transaction Amendment Documents, and (iv) specimen
signatures of the officers so authorized;
(f) a favorable written opinion, relating to security
interest matters, substantially in the form of Exhibit I-2 hereto;
(g) a favorable written opinion from counsel to the
Borrower and the Originator, regarding corporate matters, substantially in the
form of Exhibit I-1 hereto;
(h) a favorable written opinion from counsel to the
Borrower and Originator, regarding true sale matters, substantially in the
form of Exhibit J;
(i) a certificate from each of (i) the Michigan
Department of Consumer and Industry Services, (ii) the Secretary of State of
Colorado, (iii) the Secretary of State of the State of Delaware and (iv) an
officer of the Borrower, the Performance Guarantor and the Originator with
respect to every other state in which the Borrower, the Performance Guarantor or
the Originator conducts business, as to the good standing of the Borrower, the
Performance Guarantor and/or the Originator, as applicable, in each state or
states for which each certificate is made;
(j) the Managing Agent Fee Letter and the Restated Agent
Fee Letter;
(k) evidence of the payment of fees due at closing, as
provided in the Fee Letters;
(l) evidence that the balance in the Reserve Account, as
of the date hereof, is the amount of the Required Reserve Account Amount;
(m) such other documents as the Managing Agents may
reasonably request at any time at or prior to the Borrowing Date of the initial
Borrowing hereunder; and
(n) a search report provided in writing to the
Administrative Agent by the United States Corporation Company Document Services,
listing all effective financing
55
statements that name the Borrower or the Originator as debtor and that are filed
in the jurisdictions in which UCC-1 filings were made in connection with the
Original Loan Agreement and in such other jurisdictions as the Administrative
Agent shall reasonably request, together with copies of such financing
statements (none of which, except as listed on Schedule V, shall cover any
Mortgage Loans or interests therein or proceeds thereof).
4.2. All Borrowings.
Each Advance (including, without limitation, the initial
Advance) pursuant to this Restated Loan Agreement is subject to the following
further conditions precedent:
(a) (i) prior to 4:00 p.m. (eastern time) on the Business
Day before the designated Borrowing Date, the Administrative Agent, each
Managing Agent and the Collateral Agent shall have received a Borrowing Request
(together with any related Assignment) duly executed and delivered by the
Borrower; and (ii) the Administrative Agent and each Managing Agent shall have
received on the proposed date of funding, a Collateral Agent Daily Report,
pursuant to Section 3.8 of the Collateral Agency Agreement, verifying that after
giving effect to the requested Advance, the Collateral Value of all Eligible
Mortgage Collateral shall exceed the Principal Debt;
(b) all Collateral in which the Borrower has granted a
security interest to the Administrative Agent for the benefit of the holders of
the Obligations, with the exception of Special Mortgage Loans pursuant to
Section 2.3(c), shall have been physically delivered to the possession of the
Collateral Agent, to the extent that such possession is necessary or appropriate
for the purpose of creating a first priority perfected Lien of the
Administrative Agent for the benefit of the holders of the Obligations in such
Collateral;
(c) the representations and warranties of the Borrower,
the Originator and (so long as the Servicer and the Originator are the same
entity) the Servicer contained in this Restated Loan Agreement, any Assignment
or Borrowing Request, or any Security Instrument or other Transaction Document
(other than those representations and warranties that, by their express terms,
are limited to the effective date of the document or agreement in which they are
initially made) shall be true and correct on and as of the date of such Advance;
(d) no Default or Event of Default or Servicer Default
shall have occurred and be continuing, or would result from such Advance, and no
change or event that constitutes a Material Adverse Effect shall have occurred
and be continuing as of the date of such Advance;
(e) the Collection Account shall be established and in
existence and free from any Lien other than pursuant to the Restated Assignment
of Account;
(f) delivery of a sufficient number of originals such
that the Administrative Agent may have an executed original thereof, of such
other documents, including such other documents as may be necessary or desirable
to perfect or maintain the priority of any Lien granted or intended to be
granted hereunder, as any Managing Agent may reasonably request; and
(g) the Drawdown Termination Date shall not have
occurred.
56
Each Borrowing Request shall be automatically deemed to constitute a
representation and warranty by the Borrower on the Borrowing Date set forth
therein to the effect that all of the conditions of this Section 4.2 are
satisfied as of such Borrowing Date; provided that it is understood and agreed
that only the Managing Agents can determine whether conditions are
"satisfactory" to the Managing Agents.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Representations of the Borrower and the Servicer.
The Borrower and the Servicer each represents and warrants, as
to itself, as follows:
(a) Organization and Good Standing. It (i) is a
corporation duly organized and existing in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified to do business and in
good standing in all jurisdictions in which its failure to be so qualified could
have a Material Adverse Effect, (iii) has the requisite corporate power and
authority to own its properties and assets and to transact the business in which
it is engaged and is or will be qualified in those states wherein it proposes to
transact business in the future and (iv) is in compliance with all Requirements
of Law, except where the failure to be in compliance would not reasonably be
expected to have a Material Adverse Effect. The Servicer is incorporated in
Delaware and in no other jurisdiction. The Borrower is incorporated in Michigan
and in no other jurisdiction.
(b) Authorization and Power. It has the requisite
corporate power and authority to execute, deliver and perform this Restated Loan
Agreement and the other Transaction Documents to which it is a party; it is duly
authorized to and has taken all requisite corporate action necessary to
authorize it to, execute, deliver and perform this Restated Loan Agreement and
the other Transaction Documents to which it is a party and is and will continue
to be duly authorized to perform this Restated Loan Agreement and such other
Transaction Documents.
(c) No Conflicts or Consents. Neither the execution and
delivery by it of this Restated Loan Agreement or the other Transaction
Documents to which it is a party, nor the consummation of any of the
transactions herein or therein contemplated, nor compliance with the terms and
provisions hereof or with the terms and provisions thereof, will (i) contravene
or conflict with any Requirement of Law to which it is subject, except where
such contravention or conflict would not reasonably be expected to have a
Material Adverse Effect, or any indenture, mortgage, deed of trust, or other
agreement or instrument to which it is a party or by which it may be bound, or
to which its Property may be subject, except where such contravention or
conflict would not reasonably be expected to have a Material Adverse Effect, or
(ii) result in the creation or imposition of any Lien, other than the Liens of
the Security Instruments, on the Property of the Borrower.
57
(d) Enforceable Obligations. This Restated Loan Agreement
and the other Transaction Documents to which it is a party have been duly and
validly executed by it and are its legal, valid and binding obligations,
enforceable in accordance with their respective terms, except as limited by
Debtor Laws and by general principles of equity.
(e) Full Disclosure. There is no fact known to it that it
has not disclosed to the Managing Agents that could have a Material Adverse
Effect. Neither its financial statements nor any Borrowing Request, officer's
certificate or statement delivered by it to the Managing Agents in connection
with this Restated Loan Agreement, contains or will contain any untrue or
inaccurate statement of material fact or omits or will omit to state a material
fact necessary to make such information not misleading.
(f) No Default. It is not in default under any loan
agreement, mortgage, security agreement or other agreement or obligation to
which it is a party or by which any of its Property is bound, if such default
would also be a Default or an Event of Default (or, with notice or passage of
time would become a Default or Event of Default) under either of subparagraphs
(e) or (i) of Section 8.1 of this Restated Loan Agreement.
(g) Litigation.
(i) Except as set forth on Schedule IV, there
are no actions, suits or proceedings, including arbitrations and
administrative actions, at law or in equity, either by or before any
Governmental Authority, now pending or, to its knowledge, threatened by
or against it or any of its Subsidiaries, and pertaining to any
Governmental Requirement affecting its Property or rights or any of its
Subsidiaries.
(ii) Neither it nor any of its Subsidiaries is in
default with respect to any Governmental Requirements.
(iii) The Borrower is not liable on any judgment,
order or decree (or any series of judgments, orders, or decrees) having
an aggregate liability of $100,000 or more and that has not been paid,
stayed or dismissed within 30 days.
(h) Taxes. All tax returns required to be filed by it in
any jurisdiction have been filed and all taxes, assessments, fees and other
governmental charges upon it or upon any of its properties, income or franchises
have been paid prior to the time that such taxes could give rise to a Lien
thereon, unless protested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been established on its
books, and except where such failure to file or pay would not reasonably be
expected to have a Material Adverse Effect. There is no proposed tax assessment
against it that would have a Material Adverse Effect.
(i) Indebtedness. If the Servicer is the Originator, the
Servicer is in compliance with the maximum leverage test set forth in Section
7.10.
(j) Permits, Patents, Trademarks, Etc.
58
(i) It has all permits and licenses necessary
for the operation of its business, the absence of which would
reasonably be expected to have a Material Adverse Effect.
(ii) It owns or possesses (or is licensed or
otherwise has the necessary right to use) all patents, trademarks,
service marks, trade names and copyrights, technology, know-how and
processes, and all rights with respect to the foregoing, which are
necessary for the operation of its business, without any conflict with
the rights of others. The consummation of the transactions contemplated
hereby will not alter or impair any of such rights of it.
(k) Status Under Certain Federal Statutes. It is not (i)
a "holding company", or a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company," or of a "subsidiary company" of a "holding
company," as such terms are defined in the Public Utility Holding Company Act of
1935, as amended, (ii) a "public utility," as such term is defined in the
Federal Power Act, as amended, (iii) an "investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended, or (iv) a "rail carrier," or a "person
controlled by or affiliated with a rail carrier," within the meaning of Title
49, U.S.C., and it is not a "carrier" to which 49 U.S.C. ss. 11301(b)(1) is
applicable.
(l) Securities Acts. It has not issued any unregistered
securities in violation of the registration requirements of the Securities Act
of 1933, as amended, or of any other Requirement of Law, and is not violating
any rule, regulation, or requirement under the Securities Act of 1933, as
amended, or the Securities and Exchange Act of 1934, as amended. The Borrower is
not required to qualify an indenture under the Trust Indenture Act of 1939, as
amended, in connection with its execution and delivery of the Notes.
(m) No Approvals Required. Other than consents and
approvals previously obtained and actions previously taken, neither the
execution and delivery of this Restated Loan Agreement and the other Transaction
Documents to which it is a party, nor the consummation of any of the
transactions contemplated hereby or thereby requires the consent or approval of,
the giving of notice to, or the registration, recording or filing by it of any
document with, or the taking of any other action in respect of, any Governmental
Authority that has jurisdiction over it or any of its Property.
(n) Environmental Matters. There have been no past, and
there are no pending or threatened, claims, complaints, notices, or governmental
inquiries against it regarding any alleged violation of, or potential liability
under, any environmental laws that could reasonably be expected to have a
Material Adverse Effect. It and its properties are in compliance in all respects
with all environmental laws and related licenses and permits, except where such
non-compliance would reasonably be expected to have a Material Adverse Effect.
No conditions exist at, on or under any Property now or previously owned or
leased by it that could give rise to liability under any environmental law that
could reasonably be expected to have a Material Adverse Effect.
59
(o) Eligibility. The Servicer and the Originator are
approved and qualified and in good standing as a lender or seller/servicer, as
follows:
(i) Each of the Servicer and the Originator is a
▇▇▇▇▇▇ ▇▇▇ approved seller/servicer and the Borrower is a ▇▇▇▇▇▇ Mae
approved seller (in good standing) of Mortgage Loans, eligible to
originate, purchase, hold, sell and, with respect to the Originator and
the Servicer, service Mortgage Loans to be sold to ▇▇▇▇▇▇ ▇▇▇.
(ii) Each of the Servicer and the Originator is a
▇▇▇▇▇▇▇ Mac approved seller/servicer (in good standing) of Mortgage
Loans, eligible to originate, purchase, hold, sell and service Mortgage
Loans to be sold to ▇▇▇▇▇▇▇ Mac.
The Servicer and Originator is an approved FHA servicer, VA servicer
and ▇▇▇▇▇▇ Mae issuer (in good standing) of mortgage loans, eligible to
originate, purchase, hold, sell and service mortgage loans to be pooled
into ▇▇▇▇▇▇ ▇▇▇ MBS Pools and to issue ▇▇▇▇▇▇ Mae MBS.
(p) Second Lien Loans. At least 95% of the Second Lien
Loans were originated by the Originator at the same time that the Originator
originated the related first lien mortgage loan secured by the same mortgaged
property.
5.2. Additional Representations of the Borrower.
The Borrower further represents and warrants as follows:
(a) Activities. The Borrower was formed on December 22,
2000, and the Borrower did not engage in any business activities prior to the
date of the Original Loan Agreement.
(b) Solvency. Both prior to and after giving effect to
each Borrowing, (i) the fair value of the property of the Borrower is greater
than the total amount of liabilities, including contingent liabilities, of the
Borrower, (ii) the present fair salable value of the assets of the Borrower is
not less than the amount that will be required to pay all probable liabilities
of the Borrower on its debts as they become absolute and matured, (iii) the
Borrower does not intend to, and does not believe that it will, incur debts or
liabilities beyond the Borrower's abilities to pay such debts and liabilities as
they mature and (iv) the Borrower is not engaged in a business or a transaction,
and is not about to engage in a business or a transaction, for which the
Borrower's property would constitute unreasonably small capital.
(c) Purchase of Mortgage Loans. With respect to each
Mortgage Loan, the Borrower purchased such Mortgage Loan from the Originator for
cash (in accordance with the provisions of the Repurchase Agreement),
substitution of other Mortgage Loans, the Deferred Purchase Price (as such term
is defined in the Repurchase Agreement), or a combination thereof in an amount
that constitutes fair consideration and reasonably equivalent value. Each such
sale referred to in the preceding sentence shall not have been made for or on
account of an antecedent debt owed by the Originator to the Borrower and no such
sale is or may be voidable or subject to avoidance under any section of the
Federal Bankruptcy Code.
60
(d) Priority of Debts and Liens. The Borrower has
incurred no Indebtedness except as expressly incurred hereunder and under the
other Transaction Documents. Upon delivery of an Assignment to the Collateral
Agent, the Administrative Agent will have a valid, enforceable, perfected and
first-priority Lien, for the benefit of the holders of the Obligations, in all
Mortgage Loan Collateral described in or delivered with such Assignment. Upon
delivery of funds for deposit in the Collection Account to the Collateral Agent,
the Administrative Agent will have a valid, enforceable, perfected and
first-priority Lien for the benefit of the holders of the Obligations, on the
Collection Account and related Collateral.
(e) No Liens. The Borrower has (or, as to all Mortgage
Loan Collateral delivered to the Collateral Agent after the date of this
Restated Loan Agreement, will have) good and indefeasible title to all
Collateral, and the Mortgage Loan Collateral and all proceeds thereof are (or,
as to all Mortgage Loan Collateral delivered to the Collateral Agent after the
date of this Restated Loan Agreement, will be) free and clear of all Liens and
other adverse claims of any nature, other than (i) the right of the Originator
to repurchase such Mortgage Loan Collateral pursuant to the terms of the
Repurchase Agreement and/or (ii) Liens in the Mortgage Loan Collateral or
proceeds in favor of the Administrative Agent for the benefit of the holders of
the Obligations.
(f) Financial Condition. The opening pro forma balance
sheet of the Borrower as at December 22, 2000, giving effect to the initial
capitalization of the Borrower and the initial Borrowing to be made under this
Restated Loan Agreement, a copy of which has been furnished to the Managing
Agents, fairly presents the financial condition of the Borrower as at such date,
in accordance with GAAP, and since December 22, 2000, there has been no material
adverse change in the business, operations, property or financial or other
condition of the Borrower.
(g) Principal Office, Etc. The principal office, chief
executive office and principal place of business of the Borrower is at
Englewood, Colorado.
(h) Ownership. PMC is the owner of all of the issued and
outstanding shares of each class of stock of the Borrower.
(i) UCC Financing Statements. Except as set forth on
Schedule III, no effective financing statement or other instrument similar in
effect covering any Mortgage Loan, any interest therein, or the related
Collateral with respect thereto is on file in any recording office except such
as may be filed (x) in favor of the Originator or the Borrower in accordance
with the Mortgage Loans, (y) in favor of the Borrower in connection with the
Repurchase Agreement, or (z) in favor of the Administrative Agent or the holders
of the Obligations in accordance with this Restated Loan Agreement or in
connection with a Lien arising solely as the result of any action taken by the
Lenders (or any assignee thereof) or by the Administrative Agent.
(j) Trade Names. The Borrower is not known by and does
not use any trade name or doing-business-as name.
5.3. Additional Representations and Warranties of the Servicer.
The Servicer represents and warrants as follows:
61
(a) Financial Condition.
(i) The Servicer has delivered to the
Administrative Agent (x) copies of the Servicer's balance sheet, as of
December 31, 2001, and the related statements of income, stockholder's
equity and cash flows for the year ended on such date, audited by
independent certified accountants of recognized national standing and
(y) copies of the Servicer's unaudited balance sheet, as of June 30,
2002, and the related statements of income, stockholder's equity and
cash flows for the nine months ended on such date ("Interim
Statements"); and all such financial statements fairly present the
financial condition of the Servicer as of their respective dates,
subject, in the case of the Interim Statements, to normal year end
adjustments and the results of operations of the Servicer for the
periods ended on such dates and have been prepared in accordance with
GAAP.
(ii) As of the date thereof, there are no
material obligations, liabilities or Indebtedness (including contingent
and indirect liabilities and obligations or unusual forward or
long-term commitments) of the Servicer that are required to be
reflected in the foregoing financial statements in accordance with GAAP
and that are not reflected therein.
(iii) No change that constitutes a Material
Adverse Effect has occurred in the financial condition or business of
the Servicer since June 30, 2002.
(b) Employee Benefit Plans. (i) No Employee Plan of the
Servicer or any ERISA Affiliate has incurred an "accumulated funding deficiency"
(as defined in Section 302 of ERISA or Section 412 of the Code), (ii) neither
the Servicer nor any ERISA Affiliate has incurred liability under ERISA to the
PBGC, (iii) neither the Servicer nor any ERISA Affiliate has partially or fully
withdrawn from participation in a Multiemployer Plan, (iv) no Employee Plan of
the Servicer or any ERISA Affiliate has been the subject of involuntary
termination proceedings, (v) neither the Servicer nor any ERISA Affiliate has
engaged in any "prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code), and (vi) no "reportable event" (as defined in Section
4043 of ERISA) has occurred in connection with any Employee Plan of the Servicer
or any ERISA Affiliate other than events for which the notice requirement is
waived under applicable PBGC regulations.
(c) Ownership. On the date of this Restated Loan
Agreement, the Performance Guarantor has beneficial ownership of 100% of the
issued and outstanding shares of each class of the stock of the Servicer.
5.4. Survival of Representations.
All representations and warranties by the Borrower and the
Servicer herein shall survive delivery of the Notes and the making of the
Advances, and any investigation at any time made by or on behalf of the
Administrative Agent or the Lenders shall not diminish the right of the
Administrative Agent, the Managing Agents or the Lenders to rely thereon.
62
ARTICLE VI
AFFIRMATIVE COVENANTS
The Borrower and the Servicer shall each at all times comply
with the covenants applicable to it contained in this Article VI, from the date
hereof until the later of the Drawdown Termination Date and the date all of the
Obligations are paid in full.
6.1. Financial Statements and Reports.
The Servicer, for so long as the Servicer is the Originator,
and thereafter the Borrower, shall furnish to the Managing Agents the following,
all in form and detail reasonably satisfactory to the Managing Agents:
(a) promptly after becoming available, and in any event
within 120 days after the close of each fiscal year of each of the Servicer, the
Originator and the Performance Guarantor, such Person's audited consolidated
balance sheet as of the end of such fiscal year, and the related statements of
income, stockholder's equity and cash flows of such Person for such year
accompanied by (i) the related report of independent certified public
accountants reasonably acceptable to the Managing Agents, which report shall be
to the effect that such statements have been prepared in accordance with GAAP
applied on a basis consistent with prior periods except for such changes in such
principles with which the independent public accountants shall have concurred
and (ii) if issued, the auditor's letter or report to management customarily
given in connection with such audit;
(b) promptly after becoming available, and in any event
within 60 days after the end of each fiscal quarter, excluding the fourth fiscal
quarter, of each fiscal year of each of the Servicer, the Originator and the
Performance Guarantor, the unaudited consolidated balance sheet of each of the
Servicer, the Originator and the Performance Guarantor as of the end of such
fiscal quarter and the related statements of income, stockholders' equity and
cash flows of each of the Servicer, the Originator and the Performance Guarantor
for such fiscal quarter and the period from the first day of the then current
fiscal year of the Servicer, the Originator and the Performance Guarantor
through the end of such fiscal quarter, certified by a Financial Officer of the
Servicer and the Originator, respectively, to have been prepared in accordance
with GAAP applied on a basis consistent with prior periods, subject to normal
year-end adjustments;
(c) promptly upon receipt thereof, a copy of each other
report submitted to each of the Servicer, the Originator and the Performance
Guarantor by independent accountants in connection with any annual, interim or
special audit of the books of such Person;
(d) promptly and in any event within twenty (20) days
after the request of the Administrative Agent at any time and from time to time,
a certificate, executed by the president or chief financial officer of the
Servicer or the Originator, setting forth all of such Person's warehouse
borrowings and a description of the collateral related thereto; provided that,
as long as no Event of Default has occurred and is continuing, such requests may
be made no more frequently than annually;
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(e) promptly and in any event within 60 days after the
end of each of the first three (3) quarters in each fiscal year of the Borrower,
and within 120 days after the close of the Borrower's fiscal year, completed
officer's certificates in the form of Exhibit H-1 and H-2 hereto, executed by
the president or chief financial officer of each of the Servicer and the
Borrower, respectively;
(f) promptly and in any event within 60 days after the
end of each quarter (120 days in the case of the fourth quarter), a management
report regarding the Originator's Mortgage Loan production for the prior quarter
and year-to-date, in form and detail as reasonably required by the
Administrative Agent;
(g) promptly after the filing or receiving thereof,
copies of all reports and notices with respect to any "reportable event" defined
in Article IV of ERISA that the Borrower, the Originator or the Servicer files
under ERISA with the Internal Revenue Service, the PBGC or the U.S. Department
of Labor receives from the PBGC;
(h) immediately after becoming aware of the expiration,
forfeiture, termination, or cancellation of, or default under, any Take-Out
Commitment relating to any Collateral, telephone notice thereof confirmed in
writing within one Business Day, together with a statement as to what action the
Borrower proposes to take with respect thereto;
(i) promptly after becoming available, and in any event
within 120 days after the close of each fiscal year of the Borrower, the
Borrower's balance sheet as of the end of such fiscal year, and the related
statements of income, stockholder's equity and cash flows of the Borrower for
such year;
(j) promptly after becoming available, and in any event
within 60 days after the end of each fiscal quarter, excluding the fourth fiscal
quarter, of each fiscal year of the Borrower, the balance sheet of the Borrower
as of the end of such fiscal quarter and the related statements of income,
stockholders' equity and cash flows of the Borrower for such fiscal quarter and
the period from the first day of such fiscal year through the end of such fiscal
quarter, certified by the chief financial officer of the Borrower, to have been
prepared in accordance with GAAP applied on a basis consistent with prior
periods, subject to normal year-end adjustments;
(k) promptly after the Borrower obtains knowledge
thereof, notice of any "Event of Default" or "Facility Termination Date" under
the Repurchase Agreement;
(l) promptly after receipt thereof, copies of all notices
received by the Borrower from the Originator under the Repurchase Agreement;
(m) promptly after the Servicer obtains knowledge
thereof, notice of any Servicer Default or of any condition or event that, with
the giving of notice or lapse of time or both and unless cured or waived, would
constitute a Servicer Default;
(n) such other information concerning the business,
properties or financial condition of the Borrower or the Originator as the
Administrative Agent or either Managing Agent may reasonably request; and
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(o) upon request by the Administrative Agent, or if there is
an Event of Default, copies of all Take-Out Commitments (if the Take-Out
Commitment is made on a confirmation or supplement to a master agreement and the
master agreement has been previously delivered to the Administrative Agent, only
the confirmation or supplement is required to be delivered pursuant to this
clause).
6.2. Taxes and Other Liens.
The Borrower shall pay and discharge promptly all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or upon any of its Property as well as all claims of any kind (including
claims for labor, materials, supplies and rent) that, if unpaid, might become a
Lien upon any or all of its Property; provided, however, the Borrower shall not
be required to pay any such tax, assessment, charge, levy or claim if the
amount, applicability or validity thereof shall currently be contested in good
faith by appropriate proceedings diligently conducted by it or on its behalf and
if it shall have set up reserves therefor adequate under GAAP.
6.3. Maintenance.
The Borrower shall (i) maintain its corporate existence,
rights and franchises and (ii) observe and comply with all Governmental
Requirements. The Servicer shall maintain its corporate existence. The Borrower
shall maintain its Properties (and any Properties leased by or consigned to it
or held under title retention or conditional sales contracts) in good and
workable condition at all times and make all repairs, replacements, additions,
betterments and improvements to its Properties as are needful and proper so that
the business carried on in connection therewith may be conducted properly and
efficiently at all times.
6.4. Further Assurances.
The Borrower and the Servicer shall, each within three (3)
Business Days (or, in the case of Mortgage Notes, such longer period as provided
under Section 3.5 of this Restated Loan Agreement) after the request of the
Administrative Agent, cure any defects in the execution and delivery of the
Notes, this Restated Loan Agreement or any other Original Transaction Documents
or Transaction Amendment Documents. The Borrower and the Servicer shall, each at
its expense, promptly execute and deliver to the Administrative Agent, upon the
Administrative Agent's reasonable request, all such other and further documents,
agreements and instruments in compliance with or accomplishment of the covenants
and agreements of the Borrower and the Servicer, respectively, in this Restated
Loan Agreement and in the other Original Transaction Documents or Transaction
Amendment Documents or to further evidence and more fully describe the
collateral intended as security for the Notes, or to correct any omissions in
this Restated Loan Agreement or the other Original Transaction Documents or
Transaction Amendment Documents, or more fully to state the security for the
obligations set out herein or in any of the other Original Transaction Documents
or Transaction Amendment Documents, or to perfect, protect or preserve any Liens
created (or intended to be created) pursuant to any of the other Original
Transaction Documents or Transaction Amendment Documents, or to make any
recordings, to file any notices, or obtain any consents.
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6.5. Compliance with Laws.
The Servicer shall comply, in all material respects, with all
applicable laws, rules, regulations and orders in connection with servicing the
Mortgage Assets.
6.6. Insurance.
(a) The Borrower and the Servicer shall each maintain
with financially sound and reputable insurers, insurance with respect to its
Properties and business against such liabilities, casualties, risks and
contingencies and in such types and amounts as is customary in the case of
Persons engaged in the same or similar businesses and similarly situated,
including, without limitation, a fidelity bond or bonds in form and with
coverage and with a company reasonably satisfactory to the Administrative Agent
and with respect to such individuals or groups of individuals as the
Administrative Agent may reasonably designate. Upon request of the
Administrative Agent or a Managing Agent, the Borrower and the Servicer shall
each furnish or cause to be furnished to the Administrative Agent and any
requesting Managing Agent from time to time a summary of the insurance coverage
of the Borrower and the Servicer, respectively, in form and substance reasonably
satisfactory to the Administrative Agent or requesting Managing Agent and if
requested shall furnish the Administrative Agent or requesting Managing Agent
with copies of the applicable policies.
(b) With respect to Mortgages comprising the Collateral
(i) the Servicer, for as long as the Servicer is the Originator, and thereafter
the Borrower, shall use its best efforts to cause the improvements on the land
covered by each Mortgage to be kept continuously insured at all times by
responsible insurance companies against fire and extended coverage hazards under
policies, binders, letters, or certificates of insurance, with a standard
mortgagee clause in favor of the original mortgagee and its successors and
assigns or, in the case of a MERS Designated Mortgage Loan, the beneficial owner
of such mortgage loan, and (ii) the Servicer, for so long as the Servicer is the
Originator, and thereafter the Borrower, shall use its best efforts to cause
each such policy to be in an amount equal to the lesser of the maximum insurable
value of the improvements or the original principal amount of the Mortgage,
without reduction by reason of any co-insurance, reduced rate contribution, or
similar clause of the policies or binders.
6.7. Accounts and Records.
The Borrower and, so long as the Servicer and the Originator
are the same entity, the Servicer shall each keep books of record and account in
which full, true and correct entries will be made of all dealings or
transactions in relation to its business and activities, in accordance with
GAAP. The Borrower and the Servicer shall each maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate all records pertaining to the performance of the Borrower's
obligations under the Take-Out Commitments and other agreements made with
reference to any Mortgage Loans in the event of the destruction of the originals
of such records) and keep and maintain all documents, books, records, computer
tapes and other information reasonably necessary or advisable for the
performance by the Borrower of its Obligations. The Borrower shall not enter the
"loan servicing" business.
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6.8. Right of Inspection.
The Borrower and, so long as the Servicer and the Originator
are the same entity, the Servicer shall each permit any officer, employee or
agent of the Administrative Agent or either Managing Agent to visit and inspect
any of its Properties, examine its books of record and accounts and discuss its
affairs, finances and accounts with its officers, accountants and auditors, all
at such times during reasonable business hours and as often as the
Administrative Agent or either Managing Agent may desire upon prior notice,
provided that (i) except during the continuation of an Event of Default, such
inspections and examinations may be performed once annually and (ii) such
inspections and examinations shall be conducted in a manner which does not
interfere with the normal operations of the Borrower or the Servicer. The
Borrower agrees to pay the reasonable costs of reviews and inspections performed
pursuant to this Section 6.8.
6.9. Notice of Certain Events.
The Borrower and, so long as the Servicer and the Originator
are the same entity (other than with respect to clause (g) hereof), the Servicer
shall each promptly notify the Managing Agents upon (a) the receipt of any
notice from, or the taking of any other action by, the holder of any of its
promissory notes, debentures or other evidences of Indebtedness with respect to
a claimed default, together with a detailed statement by a responsible officer
of the Borrower or the Servicer, as the case may be, specifying the notice given
or other action taken by such holder and the nature of the claimed default and
what action the Borrower or the Servicer is taking or proposes to take with
respect thereto, but only if such alleged default or event of default (if it
were true) would also be a Default or Event of Default under this Restated Loan
Agreement; (b) the commencement of, or any determination in, any legal, judicial
or regulatory proceedings that, if adversely determined, could also be a Default
or Event of Default under this Restated Loan Agreement; (c) any dispute between
the Borrower or the Servicer, as the case may be, and any Governmental Authority
or any other Person that, if adversely determined, could have a Material Adverse
Effect; (d) any material adverse change in the business, operations or financial
condition of the Borrower or the Servicer, as the case may be, including,
without limitation, the Borrower's or the Servicer's insolvency; (e) any event
or condition known to it that, if adversely determined, would have a Material
Adverse Effect; (f) the receipt of any notice from, or the taking of any other
action by any Approved Investor indicating an intent not to honor, or claiming a
default under a Take-Out Commitment, together with a detailed statement by a
responsible officer of the Borrower specifying the notice given or other action
taken by such Approved Investor and the nature of the claimed default and what
action the Borrower is taking or proposes to take with respect thereto; (g) the
receipt of any notice from, and or the taking of any action by any Governmental
Authority indicating an intent to cancel the Borrower's or the Servicer's right
to be either a seller or servicer of such Governmental Authority's insured or
guaranteed Mortgage Loans; and (h) the receipt of any notice of any final
judgment or order for payment of money applicable to the Borrower or the
Servicer in excess of $1,000,000.
6.10. Performance of Certain Obligations.
The Borrower and, so long as the Servicer and the Originator
are the same entity, the Servicer shall each perform and observe each of the
provisions of each Mortgage Loan and Take-Out Commitment on its part to be
performed or observed and will cause all things to be
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done that are necessary to have each Mortgage Loan covered by a Take-Out
Commitment comply with the requirements of such Take-Out Commitment.
6.11. Use of Proceeds; Margin Stock.
The proceeds of the Advances shall be used by the Borrower
solely for the acquisition of Mortgage Loans under the Repurchase Agreement.
None of such proceeds shall be used for the purpose of purchasing or carrying
any "margin stock" as defined in Regulation U, or for the purpose of reducing or
retiring any Indebtedness that was originally incurred to purchase or carry
margin stock or for any other purpose that might constitute this transaction a
"purpose credit" within the meaning of such Regulation U. Neither the Borrower
nor any Person acting on behalf of the Borrower shall take any action in
violation of Regulations U or X or shall violate Section 7 of the Securities
Exchange Act of 1934, as amended, or any rule or regulation thereunder, in each
case as now in effect or as the same may hereafter be in effect.
6.12. Notice of Default.
The Borrower shall furnish to the Managing Agents immediately
upon becoming aware of the existence of any Default or Event of Default, a
written notice specifying the nature and period of existence thereof and the
action that the Borrower is taking or proposes to take with respect thereto.
6.13. Compliance with Transaction Documents.
The Borrower and, so long as the Servicer and the Originator
are the same entity, the Servicer shall each promptly comply with any and all
covenants and provisions of this Restated Loan Agreement applicable to it, the
Notes, in the case of the Borrower, and the other Transaction Documents.
6.14. Compliance with Material Agreements.
The Borrower and, so long as the Servicer and the Originator
are the same entity, the Servicer shall each comply in all respects with all
agreements, indentures, Mortgages or documents (including, with respect to the
Borrower, the Charter) binding on it or affecting its Property or business,
except where such non-compliance would not reasonably be expected to have a
Material Adverse Effect.
6.15. Operations and Properties.
The Borrower and, so long as the Servicer and the Originator
are the same entity, the Servicer shall each act prudently and in accordance
with customary industry standards in managing and operating its Property and
shall continue to underwrite, hedge and sell Mortgage Loans in the same diligent
manner it has applied in the past and take no greater credit or market risks
than are currently being borne by it.
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6.16. Performance Guarantor Credit Rating.
If at any time any of the senior debt of the Performance
Guarantor, which is publicly held, shall fail to bear a rating of at least BBB-
by S&P, Ba1 by ▇▇▇▇▇'▇ or BBB- by Fitch, the Borrower shall give the
Administrative Agent and the Managing Agents written notice of such change in
rating, within two Business Days of the date on which such change is announced
by any of these rating agencies.
6.17. Take-Out Commitments.
The Borrower shall use its best efforts to cause the
Originator to obtain, and maintain in full force and effect, Take-Out
Commitments reflecting total Approved Investor obligations, as of each date of
determination, with an aggregate purchase price equal to the total of the
original principal balances of the Borrower's entire portfolio of Mortgage Loans
issued as proceeds thereof. Each of such Take-Out Commitments shall reflect only
those terms and conditions as are permitted hereunder or are acceptable to the
Administrative Agent and the Managing Agents. The Borrower shall use its best
efforts to cause the Originator to obtain, and maintain in full force and
effect, forward purchase commitments (which may include options to sell Mortgage
Loans to Approved Investors, so long as the Approved Investor is bound thereby)
issued by Approved Investors and obligating such Approved Investors to purchase
a portion of the Borrower's subsequently acquired Mortgage Loans.
6.18. Collateral Proceeds.
The Borrower and the Servicer shall instruct all Approved
Investors to cause all payments in respect of Take-Out Commitments on Mortgage
Loans to be deposited directly in the Cash and Collateral Account.
6.19. Environmental Compliance.
The Borrower and, so long as the Servicer and the Originator
are the same entity, the Servicer shall each use and operate all of its
facilities and properties in compliance with all environmental laws, keep all
necessary permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in compliance therewith,
and handle all hazardous materials in compliance with all applicable
environmental laws, except where failure to so act would not reasonably be
expected to have a Material Adverse Effect.
6.20. Closing Instructions.
The Borrower agrees to indemnify and hold the Lenders, the
Administrative Agent and the Managing Agents harmless from and against any loss,
including attorneys' fees and costs, attributable to the failure of a title
insurance company, agent, Managing Agent or approved attorney to comply with the
disbursement or instruction letter or letters of the Borrower, the Managing
Agents or of the Administrative Agent relating to any Mortgage Loan. The
Administrative Agent shall have the right to pre-approve the closing
instructions of the Originator to the title insurance company, agent or attorney
in any case where the Mortgage Loan to be created at settlement is intended to
be warehoused by the Lenders pursuant hereto.
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6.21. Special Affirmative Covenants Concerning Collateral.
(a) The Borrower shall at all times warrant and defend
the right, title and interest of the Lenders, the Collateral Agent and the
Administrative Agent in and to the Collateral against the claims and demands of
all Persons whomsoever.
(b) The Borrower and the Servicer shall each service or
cause to be serviced all Eligible Mortgage Loans in accordance with the standard
requirements of the issuers of Take-Out Commitments covering the same and all
applicable ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae requirements, including without
limitation taking all actions necessary to enforce the obligations of the
Obligors under such Eligible Mortgage Loans. The Borrower and the Servicer shall
each hold all escrow funds collected in respect of Eligible Mortgage Loans in
trust, without commingling the same with any other funds, and apply the same for
the purposes for which such funds were collected.
(c) The Borrower shall, no less than on an annual basis,
review financial statements, compliance with financial parameters, ▇▇▇▇▇▇
▇▇▇/▇▇▇▇▇▇▇ Mac approvals (if applicable), and state licenses of all Persons
from whom the Originator acquires Mortgage Loans.
6.22. Corporate Separateness.
(a) The Borrower covenants to take the following actions,
and the Servicer covenants to use its best efforts to cause the Borrower to take
the following actions: The Borrower shall at all times maintain at least one
Independent Director (as such term is defined in the Charter).
(b) The Borrower shall not direct or participate in the
management of any of the operations of the Other Companies.
(c) The Borrower shall allocate fairly and reasonably any
overhead for shared office space. The Borrower shall have stationery and other
business forms separate from that of the Other Companies.
(d) The Borrower shall at all times be adequately
capitalized in light of its contemplated business.
(e) The Borrower shall at all times provide for its own
operating expenses and liabilities from its own funds.
(f) The Borrower shall maintain its assets and
transactions separately from those of the Other Companies and reflect such
assets and transactions in financial statements separate and distinct from those
of the Other Companies and evidence such assets and transactions by appropriate
entries in books and records separate and distinct from those of the Other
Companies. The Borrower shall hold itself out to the public under the Borrower's
own name as a legal entity separate and distinct from the Other Companies. The
Borrower shall not hold itself out as having agreed to pay, or as being liable,
primarily or secondarily, for, any obligations of the Other Companies.
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(g) The Borrower shall not maintain any joint account
with any Other Company or become liable as a guarantor or otherwise with respect
to any Indebtedness or contractual obligation of any Other Company.
(h) The Borrower shall not ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its
assets to secure any obligation of any Other Company.
(i) The Borrower shall not make loans, advances or
otherwise extend credit to any of the Other Companies.
(j) The Borrower shall conduct its business in its own
name and strictly comply with all organizational formalities to maintain its
separate existence.
(k) The Borrower shall have bills of sale (or similar
instruments of assignment) and, if appropriate, UCC-1 financing statements, with
respect to all assets purchased from any of the Other Companies.
(l) The Borrower shall not engage in any transaction with
any of the Other Companies, except as permitted by this Restated Loan Agreement
or the Charter and as contemplated by the Repurchase Agreement.
(m) The Borrower will limit its activities to those
specified in the Charter and has no Subsidiaries.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower and the Servicer shall each at all times comply
with the covenants applicable to it contained in this Article VII, from the date
hereof until the later of the Drawdown Termination Date and the date all of the
Obligations are paid in full:
7.1. Limitations on Mergers and Acquisitions.
(a) The Servicer (so long as the Servicer and the
Originator are the same entity) shall not (i) merge or consolidate with or into
any corporation unless the Servicer is the surviving entity of any such merger
or consolidation or (ii) liquidate or dissolve.
(b) The Borrower will not merge with or into or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions), all or
substantially all of its assets (whether now owned or hereafter acquired) to, or
acquire all or substantially all of the assets or capital stock or other
ownership interest of, or enter into any joint venture or partnership agreement
with, any Person, other than as contemplated by this Restated Loan Agreement and
the Repurchase Agreement.
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7.2. Fiscal Year.
Neither the Borrower nor, so long as the Servicer and the
Originator are the same entity, the Servicer shall change its fiscal year other
than to conform with changes that may be made to the Performance Guarantor's
fiscal year and then only after notice to the Managing Agents and after whatever
amendments are made to this Restated Loan Agreement as may be required by the
Managing Agents, in order that the reporting criteria for the financial
covenants contained in Articles VI and VII remain substantially unchanged.
7.3. Business.
The Borrower will not engage in any business other than as set
forth in Article V of the Charter.
7.4. Use of Proceeds.
The Borrower shall not permit the proceeds of the Advances to
be used for any purpose other than those permitted by Section 6.11 hereof. The
Borrower shall not, directly or indirectly, use any of the proceeds of the
Advances for the purpose, whether immediate, incidental or ultimate, of buying
any "margin stock" or of maintaining, reducing or retiring any Indebtedness
originally incurred to purchase a stock that is currently any "margin stock," or
for any other purpose that might constitute this transaction a "purpose credit,"
in each case within the meaning of Regulation U, or otherwise take or permit to
be taken any action that would involve a violation of such Regulation U or of
Regulation T or Regulation Z (12 C.F.R. 224, as amended) or any other regulation
promulgated by the Federal Reserve Board.
7.5. Actions with Respect to Collateral.
Neither the Borrower nor the Servicer shall:
(a) Compromise, extend, release, or adjust payments on
any Mortgage Collateral, accept a conveyance of mortgaged Property in full or
partial satisfaction of any Mortgage debt or release any Mortgage securing or
underlying any Mortgage Collateral, except as permitted by the related Approved
Investor or as contemplated in the servicing guidelines distributed thereby;
(b) Agree to the amendment or termination of any Take-Out
Commitment in which the Administrative Agent has a security interest or to
substitution of a Take-Out Commitment for a Take-Out Commitment in which the
Administrative Agent has a security interest hereunder, if such amendment,
termination or substitution may reasonably be expected (as determined by the
Collateral Agent or the Administrative Agent in either of their sole discretion)
to have a Material Adverse Effect or to result in a Default or Event of Default;
(c) Transfer, sell, assign or deliver any Mortgage Loan
Collateral pledged to the Administrative Agent to any Person other than the
Administrative Agent, except pursuant to a Take-Out Commitment or pursuant to
either Section 3.3 or Section 3.4;
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(d) Grant, create, incur, permit or suffer to exist any
Lien upon any Mortgage Loan Collateral except for (i) Liens granted to the
Administrative Agent to secure the Notes and Obligations and (ii) any rights
created by the Repurchase Agreement; or
(e) With respect to any Mortgage Loans constituting
Collateral, permit the payment instructions relating to a Take-Out Commitment to
provide for payment to any Person except directly to the Cash and Collateral
Account.
7.6. Liens.
The Borrower will not sell, assign (by operation of law or
otherwise) or otherwise dispose of, or create or suffer to exist any Lien upon
or with respect to, any Mortgage Asset, or upon or with respect to any account
to which any Collections of any Mortgage Asset are sent, or assign any right to
receive income in respect thereof except as contemplated hereby.
7.7. Employee Benefit Plans.
Neither the Borrower nor, so long as the Servicer and the
Originator are the same entity, the Servicer may permit any of the events or
circumstances described in Section 5.3(b) to exist or occur.
7.8. Change of Principal Office or Jurisdiction.
The Borrower shall not move its principal office, executive
office or principal place of business from the address set forth in Section
5.2(g) without 30-days' prior written notice to the Administrative Agent and the
Managing Agents. The Borrower shall not change its place of organization or add
a new jurisdiction of organization without 30 days' prior written notice to the
Administrative Agent.
7.9. No Commercial, A&D, Etc. Loans.
The Borrower shall not make or acquire any direct outright
ownership interest, participation interest or other creditor's interest in any
commercial real estate loan, acquisition and/or development loan, unimproved
real estate loan, personal property loan, oil and gas loan, commercial loan,
wrap-around real estate loan, unsecured loan, acquisition, development or
construction loan.
7.10. Maximum Leverage.
If the Servicer is the Originator, the Servicer shall never
permit its Adjusted Liabilities to exceed 15 times its Adjusted Net Worth.
7.11. Indebtedness.
The Borrower will not incur any Indebtedness, other than any
Indebtedness incurred pursuant to this Restated Loan Agreement or the Repurchase
Agreement or permitted to be incurred pursuant to the Charter.
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7.12. Deposits to Collection Account.
Neither the Borrower nor the Servicer shall deposit or
otherwise credit, or cause or permit to be so deposited or credited, to the
Collection Account, cash or cash proceeds other than Collateral Proceeds.
7.13. Transaction Documents.
The Borrower will not amend, waive, terminate or modify any
provision of any Transaction Document to which it is a party (provided that the
Borrower may extend the "Facility Termination Date" or waive the occurrence of
any "Event of Default" under the Repurchase Agreement) without, in each case,
the prior written consent of the Managing Agents. The Borrower will perform all
of its obligations under each Transaction Document to which it is a party and
will enforce each Transaction Document to which it is a party in accordance with
its terms in all respects.
7.14. Distributions, Etc.
The Borrower will not declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any equity ownership interests of the Borrower, or
return any capital to its members as such, or purchase, retire, defease, redeem
or otherwise acquire for value or make any payment in respect of any equity
ownership interests of the Borrower or any warrants, rights or options to
acquire any such interests, now or hereafter outstanding; provided, however,
that the Borrower may declare and pay cash distributions on its equity ownership
interests to its members so long as (a) no Event of Default shall then exist or
would occur as a result thereof, (b) such distributions are in compliance with
all applicable law including the corporate law of the state of Borrower's
organization, and (c) such distributions have been approved by all necessary and
appropriate action of the Borrower.
7.15. Charter.
The Borrower will not amend or delete (a) Articles V through
XX or (b) the definition of "Independent Director" set forth in the Charter. The
Borrower will perform all of its obligations under the Charter.
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Nature of Event.
An "Event of Default" shall exist if any one or more of the
following occurs:
(a) the Borrower fails (i) to make any payment of
principal of or interest on any of the Notes when due, or (ii) to make any
payment, five (5) Business Days after written notice thereof, of any fee,
expense or other amount due hereunder, under the Notes or under any other
Transaction Document or, so long as the Servicer and the Originator are the same
entity,
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the Servicer fails to make any payment or deposit to be made by it under
this Restated Loan Agreement by the third Business Day after the date such
payment is due; or
(b) the Borrower, the Originator or, so long as the
Servicer and the Originator are the same entity, the Servicer fails to keep or
perform any covenant or agreement contained in this Restated Loan Agreement
(other than as referred to in Section 8.1(a) and such failure continues
unremedied beyond the expiration of any applicable grace or notice period that
may be expressly provided for in such covenant or agreement (or, if no grace or
notice period is provided for thirty days after written notice thereof); or
(c) the Borrower, the Originator, the Servicer (so long
as the Servicer and the Originator are the same entity) or the Performance
Guarantor defaults in the due observance or performance of any of the covenants
or agreements contained in any Transaction Document other than this Restated
Loan Agreement, and (unless such default otherwise constitutes a Default or an
Event of Default pursuant to other provisions of this Section 8.1) such default
continues unremedied for five (5) calendar days after notice thereof beyond the
expiration of any applicable grace or notice period that may be expressly
provided for in such Transaction Document (or, if no grace or notice is
provided, for thirty days after written notice thereof); or
(d) any statement, warranty or representation by or on
behalf of the Borrower, the Originator, the Servicer (so long as the Servicer
and the Originator are the same entity) or the Performance Guarantor contained
in this Restated Loan Agreement, the Notes or any other Transaction Document or
any Borrowing Request, officer's certificate or other writing furnished in
connection with this Restated Loan Agreement, proves to have been incorrect or
misleading in any material respect as of the date made or deemed made; or
(e) (i) the Borrower, the Originator, the Servicer (so
long as the Servicer and the Originator are the same entity) or the Performance
Guarantor fails to make when due or within any applicable grace period any
payment on any other Indebtedness with an unpaid principal balance of over
$1,000,000.00 ($10,000,000.00 in the case of the Performance Guarantor); or (ii)
any event or condition occurs under any provision contained in any such
obligation or any agreement securing or relating to such obligation (or any
other breach or default under such obligation or agreement occurs) if the effect
thereof is to cause or permit with the giving of notice or lapse of time or both
the holder or trustee of such obligation to cause such obligation to become due
prior to its stated maturity; or (iii) any such obligation becomes due (other
than by regularly scheduled payments) prior to its stated maturity; or (iv) any
of the foregoing occurs with respect to any one or more items of Indebtedness of
the Borrower, the Originator, the Servicer (so long as the Servicer and the
Originator are the same entity) or the Performance Guarantor with unpaid
principal balances exceeding, in the aggregate, $1,000,000.00 ($10,000,000.00 in
the case of the Performance Guarantor); or
(f) the Borrower, the Originator, the Servicer (so long
as the Servicer and the Originator are the same entity) or the Performance
Guarantor generally shall not pay its debts as they become due or shall admit in
writing its inability to pay its debts, or shall make a general assignment for
the benefit of creditors; or
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(g) the Borrower, the Originator, the Servicer (so long
as the Servicer and the Originator are the same entity) or the Performance
Guarantor shall (i) apply for or consent to the appointment of a receiver,
trustee, custodian, intervenor or liquidator of it or of all or a substantial
part of its assets, (ii) file a voluntary petition in bankruptcy, (iii) file a
petition or answer seeking reorganization or an arrangement with creditors or to
take advantage of any Debtor Laws, (iv) file an answer admitting the allegations
of, or consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding, or (v) take action for the
purpose of effecting any of the foregoing; or
(h) an involuntary petition or complaint shall be filed
against the Borrower, the Originator, the Servicer (so long as the Servicer and
the Originator are the same entity) or the Performance Guarantor seeking
bankruptcy or reorganization of the Borrower, the Originator, the Servicer or
the Performance Guarantor or the appointment of a receiver, custodian, trustee,
intervenor or liquidator of the Borrower, the Originator, the Servicer or the
Performance Guarantor, or all or substantially all of the assets of either the
Borrower, the Originator, the Servicer or the Performance Guarantor, and such
petition or complaint shall not have been dismissed within 60 days of the filing
thereof; or an order, order for relief, judgment or, decree shall be entered by
any court of competent jurisdiction or other competent authority approving a
petition or complaint seeking reorganization of the Borrower, the Originator,
the Servicer (so long as the Servicer and the Originator are the same entity) or
the Performance Guarantor or appointing a receiver, custodian, trustee,
intervenor or liquidator of the Borrower, the Originator, the Servicer or the
Performance Guarantor, or of all or substantially all of assets of the Borrower,
the Originator, the Servicer or the Performance Guarantor; or
(i) the Borrower, the Originator, the Servicer (so long
as the Servicer and the Originator are the same entity) or the Performance
Guarantor shall fail within 30 days to pay, bond or otherwise discharge any
final judgment or order for payment of money in excess of $1,000,000.00; or the
Borrower, the Originator or, so long as the Servicer and the Originator are the
same entity, the Servicer shall fail within 30 days to pay, bond or otherwise
discharge final judgments or orders for payment of money which exceed in the
aggregate $1,000,000.00 ($10,000,000.00 with respect to the Performance
Guarantor); or the Borrower, the Originator, the Servicer (so long as the
Servicer and the Originator are the same entity) or the Performance Guarantor
shall fail within 30 days to timely appeal or pay, bond or otherwise discharge
any judgments or orders for payment of money which exceed, in the aggregate,
$1,000,000.00 ($10,000,000.00 with respect to the Performance Guarantor) and
which the Borrower, the Originator, the Servicer or the Performance Guarantor
may appeal; or
(j) any Person shall levy on, seize or attach all or any
material portion of the assets of the Borrower, the Originator, the Servicer (so
long as the Servicer and the Originator are the same entity) or the Performance
Guarantor and within thirty (30) days thereafter the Borrower, the Originator,
the Servicer or the Performance Guarantor shall not have dissolved such levy or
attachment, as the case may be, and, if applicable, regained possession of such
seized assets; or
(k) if an event or condition specified in Section 5.3(b)
shall occur or exist; or
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(l) the Borrower, the Originator or the Servicer (so long
as the Servicer and the Originator are the same entity) becomes ineligible to
originate, sell or service Mortgage Loans to ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇
Mae, or ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae shall impose any sanctions upon or
terminate or revoke any rights of the Borrower, the Servicer (so long as the
Servicer and the Originator are the same entity) or the Originator; or
(m) if (x) any Governmental Authority cancels the
Originator's right to be either a seller or servicer of such Governmental
Authority's insured or guaranteed Mortgage Loans or mortgage-backed securities,
(y) any Approved Investor cancels for cause any servicing or underwriting
agreement between the Borrower or the Originator and such Approved Investor or
(z) the Originator receives notice from a Governmental Authority that such
Governmental Authority intends to revoke the Originator's right to be a seller
or servicer of such Governmental Authority's insured or guaranteed Mortgage
Loans or mortgaged-backed securities and such notice is not withdrawn within 30
days of the receipt thereof; or
(n) failure of the Borrower or the Originator to correct
an imbalance in any escrow account established with Borrower or the Originator
as either an originator, purchaser or servicer of Mortgage Loans, which
imbalance may have a Material Adverse Effect, within two (2) Business Days after
demand by any beneficiary of such account or by the Administrative Agent; or
(o) failure of the Originator to meet, at all times, the
minimum net worth requirements of ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae as an
originator, seller or servicer; or
(p) any provision of this Restated Loan Agreement, the
Notes or any other Transaction Document shall for any reason cease to be in full
force and effect, or be declared null and void or unenforceable in whole or in
part; or the validity or enforceability of any such document shall be challenged
or denied; or
(q) a "change in control," with respect to the ownership
of the Performance Guarantor shall have occurred (and as used in this
subparagraph, the term "change in control" shall mean an acquisition by any
Person, partnership or group, as defined under the Securities Exchange Act of
1934, as amended, of a direct or indirect beneficial ownership of 30% or more of
the then-outstanding voting stock of the Performance Guarantor); or the
Performance Guarantor shall cease at any time to own, directly or indirectly, at
least 75% of each class of the outstanding capital stock of the Originator; or
(r) the total Collateral Value of all Eligible Mortgage
Collateral shall be less than the Principal Debt at any time, and the Borrower
shall fail either to provide additional Eligible Mortgage Collateral with a
sufficient Collateral Value, or to pay Principal Debt, in an amount sufficient
to correct the deficiency within one Business Day after such failure; or
(s) if, as a result of the Borrower's failure to obtain
and deliver to the Collateral Agent, Principal Mortgage Documents as required by
Section 2.3(c), the Administrative Agent shall determine that the continuation
of such condition may have a Material Adverse Effect on the Borrower or the
Lenders; or
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(t) there shall have occurred any event that adversely
affects the enforceability or collectability of any significant portion of the
Mortgage Loans or the Take-Out Commitments (provided that to the extent such
event gives rise to an obligation by the Originator to repurchase such Mortgage
Loans pursuant to the Repurchase Agreement and the Originator does so repurchase
in accordance with the provisions of the Repurchase Agreement, no Event of
Default shall occur under this Section 8.1(t) or there shall have occurred any
other event that adversely affects the ability of the Borrower, the Servicer or
the Collateral Agent to collect a significant portion of Mortgage Loans or
Take-Out Commitments or the ability of the Borrower or, so long as the Servicer
and the Originator are the same entity, the Servicer to perform hereunder or a
Material Adverse Effect has occurred in the financial condition or business of
the Borrower since inception or, so long as the Servicer and the Originator are
the same entity, the Servicer since December 31, 2001; or
(u) (i) any litigation (including, without limitation,
derivative actions), arbitration proceedings or governmental proceedings not
disclosed in writing by the Borrower to the Lenders, the Administrative Agent
and the Managing Agents prior to the date of execution and delivery of this
Restated Loan Agreement is pending against the Borrower or any Affiliate
thereof, or (ii) any development not so disclosed has occurred in any litigation
(including, without limitation, derivative actions), arbitration proceedings or
governmental proceedings so disclosed, which, in the case of either clause (i)
and/or (ii), in the good faith opinion of the Administrative Agent, is likely to
materially adversely affect the financial position or business of the Borrower,
the Originator, the Servicer or the Performance Guarantor or materially impair
the ability of the Borrower, the Originator, the Servicer or the Performance
Guarantor to perform its obligations under this Restated Loan Agreement or any
other Transaction Document; or
(v) the Internal Revenue Service shall file notice of a
lien pursuant to Section 6323 of the Code with regard to any of the assets of
the Borrower or the Originator and such lien shall not have been released within
30 days and, with respect to the Originator only, such lien is in an amount
exceeding $500,000, or the PBGC shall, or shall indicate its intention to, file
notice of a lien pursuant to Section 4068 of ERISA with regard to any of the
assets of the Borrower, the Originator or the Performance Guarantor and as to
the Originator or the Performance Guarantor only, such lien is or will be in an
amount exceeding $500,000; or
(w) as at the end of any Collection Period, the Default
Ratio shall exceed 1%; or
(x) a successor Collateral Agent shall not have been
appointed and accepted such appointment within 180 days after the retiring
Collateral Agent shall have given notice of resignation pursuant to Section 4.4
of the Collateral Agreement; or
(y) a "Default" or an "Event of Default" shall occur
under the Repurchase Agreement, or the Repurchase Agreement shall cease to be in
full force and effect; or
(z) all of the outstanding equity ownership interests of
the Borrower shall cease to be owned, directly or indirectly, by Pulte; or
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(aa) the Borrower shall cease or otherwise fail to have a
good and valid title to (or, to the extent that Article 9 of the UCC is
applicable to the Borrower's acquisition thereof, a valid perfected security
interest in) a significant portion of the Collateral (other than Collateral
released in accordance with Section 3.3 or the Security Instruments shall for
any reason (other than pursuant to the terms hereof) fail or cease to create a
valid and perfected first priority security interest in the Mortgage Loans and
the other Collateral for the benefit of the holders of the Obligations; or
(bb) the Originator's Net Worth shall be less than
$10,000,000; or
(cc) as at the end of any Collection Period the amount of
the Excess Spread is not positive; or
(dd) as of the Settlement Date following any withdrawal
from the Reserve Account pursuant to Section 2.8(e)(i) (after giving effect to
any deposit to the Reserve Account pursuant to Section 2.7(c)(iii)(D) on such
Settlement Date) the amount on deposit in the Reserve Account shall be less than
the Required Reserve Account Amount and such deficiency is not funded within one
Business Day; or
(ee) any of ▇▇▇▇▇'▇, S&P or Fitch shall rate any publicly
traded investment securities evidencing senior unsecured debt of the Performance
Guarantor at less than Ba1, BBB-or BBB-, respectively.
8.2. Default Remedies.
(a) Upon the occurrence and continuation of an Event of
Default under Sections 8.1(f), (g) or (h) of this Restated Loan Agreement, the
entire unpaid balance of the Obligations shall automatically become due and
payable, the Drawdown Termination Date shall immediately occur and the Maximum
Facility Amount and Seasonal Facility Amount shall immediately terminate, all
without any notice or action of any kind whatsoever.
(b) Upon the occurrence and continuation of an Event of
Default under Sections 8.1(q), (u), (y), (cc) or (dd) of this Restated Loan
Agreement, the Administrative Agent may declare the Drawdown Termination Date to
have occurred and terminate the Maximum Facility Amount and the Seasonal
Facility Amount.
(c) Upon the occurrence and continuation of an Event of
Default under any provision of Section 8.1 other than those set forth in
Sections 8.2(a) and (b), or if any Event of Default set forth in Section 8.2(b)
shall have continued for 90 days or more, the Administrative Agent may do any
one or both of the following: (i) declare the entire unpaid balance of the
Obligations immediately due and payable, whereupon it shall be due and payable;
and (ii) declare the Drawdown Termination Date and the Seasonal Facility
Termination Date to have occurred and terminate the Maximum Facility Amount and
the Seasonal Facility Amount.
(d) Upon the occurrence of an Event of Default under any
provision of Section 8.1 and the acceleration of the unpaid balance of the
Obligations pursuant to Section 8.2(a) or (c), the Administrative Agent may (and
shall at the direction of the Majority Banks) do any one or more of the
following: (i) reduce any claim to judgment; (ii) exercise the
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rights of offset or banker's Lien against the interest of the Borrower in and to
every account and other Property of the Borrower that are in the possession of
the Lenders, the Managing Agents, the Collateral Agent or the Administrative
Agent to the extent of the full amount of the Obligations (the Borrower being
deemed directly obligated to the Lenders and the Administrative Agent in the
full amount of the Obligations for such purposes); (iii) foreclose or direct the
Collateral Agent to foreclose any or all Liens or otherwise realize upon any and
all of the rights the Administrative Agent may have in and to the Collateral, or
any part thereof; and (iv) exercise any and all other legal or equitable rights
afforded by the Transaction Documents, applicable Governmental Requirements, or
otherwise, including, but not limited to, the right to bring suit or other
proceedings before any Governmental Authority either for specific performance of
any covenant or condition contained in any of the Transaction Documents or in
aid of the exercise of any right granted to the Lenders, the Managing Agents or
the Administrative Agent in any of the Transaction Documents.
(e) Notwithstanding anything to the contrary herein, the
Obligations of the Borrower under this Restated Loan Agreement shall be recourse
solely to the Mortgage Assets, and the Borrower shall have no obligation in
respect of any deficiencies.
8.3. Paydowns.
Immediately upon the occurrence of an Event of Default, and
without any requirement for notice or demand (including, without limitation, any
notice or demand otherwise required under Section 8.1), the Borrower shall (a)
make a payment to the Administrative Agent equal to the Collateral Deficiency
and (b) deliver to the Collateral Agent additional Take-Out Commitments in an
amount equal to unrepaid Advances that have been made against any Uncovered
Mortgage Loans. Take-Out Commitments for Conforming Loans that are delivered
pursuant to clause (b), above, in addition to conforming with all other criteria
of this Restated Loan Agreement, shall also substantially conform to the
interest rates and "terms to maturity" for all Uncovered Mortgage Loans. This is
a special, and not an exclusive, right or remedy, and any demand for performance
under this Section 8.3 shall not waive or affect the Lenders' or the
Administrative Agent's rights to enforce any security interest in the
Collateral, collect a deficiency or to pursue damages or any other remedy, as
herein provided or as permitted at law or in equity, until all Obligations have
been fully paid and performed.
8.4. Waivers of Notice, Etc.
Except as otherwise provided in this Restated Loan Agreement,
the Borrower and each surety, endorser, guarantor and other party ever liable
for payment of any sum or sums of money that may become due and payable, or the
performance or any undertaking that may be owed, to the Lenders, the Managing
Agents or the Administrative Agent pursuant to this Restated Loan Agreement, the
Notes, or the other Transaction Documents, including the Obligations, jointly
and severally waive demand for payment, presentment, protest, notice of protest
and nonpayment or other notice of default, notice of acceleration and notice of
intention to accelerate, and agree that its or their liability under this
Restated Loan Agreement, the Notes or other Transaction Documents shall not be
affected by any renewal or extension of the time or place of payment or
performance hereof, or any indulgences by the Lenders, the Managing Agents or
the Administrative Agent, or by any release or change in any security for the
payment
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of the Obligations, and hereby consent to any and all renewals, extensions,
indulgences, releases or changes, regardless of the number of such renewals,
extensions, indulgences, releases or changes.
ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1. Authorization.
Each Lender has appointed the Administrative Agent as its
agent to take such action as agent on its behalf and to exercise such powers
under this Restated Loan Agreement as are delegated to the Administrative Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Restated Loan
Agreement (including, without limitation, enforcement of this Restated Loan
Agreement), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks, and such instructions shall be
binding upon all Lenders; provided, however, that the Administrative Agent shall
not be required to take any action that exposes the Administrative Agent to
personal liability or that is contrary to this Restated Loan Agreement or
applicable law.
9.2. Reliance by Administrative Agent.
Notwithstanding anything to the contrary in this Restated Loan
Agreement or any other Transaction Document, neither the Administrative Agent
nor any of its directors, officers, agents, representatives, employees,
attorneys-in-fact or Affiliates shall be liable for any action taken or omitted
to be taken by it or them (in their capacity as or on behalf of the
Administrative Agent) under or in connection with this Restated Loan Agreement
or the other Transaction Documents, except for its or their own gross negligence
or willful misconduct. Without limitation of the generality of the foregoing,
the Administrative Agent: (a) may treat the payee of the Notes as the holder
thereof; (b) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it or
the Borrower and shall not be liable for any action taken or omitted to be taken
in good faith by it in accordance with the advice of such counsel, accountants
or experts; (c) makes no warranty or representation to any Lender or Managing
Agent and shall not be responsible to any Lender or Managing Agent for any
statements, warranties or representations made in or in connection with this
Restated Loan Agreement or the other Transaction Documents; (d) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Restated Loan Agreement on the
part of the Borrower or to inspect the Property (including the books and
records) of the Borrower; (e) shall not be responsible to any Lender or Managing
Agent for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Restated Loan Agreement or any other instrument or
document furnished pursuant hereto or the enforceability or perfection or
priority of any Collateral; and (f) shall incur no liability under or in respect
of this Restated Loan Agreement or any other Transaction Document by acting upon
any notice, consent, certificate or other instrument or writing (which may be by
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telegram, cable or telex) believed by the Administrative Agent to be genuine and
signed or sent by the proper Person or party.
9.3. Administrative Agent and Affiliates.
With respect to any Advance made by CL New York, CL New York
shall have the same rights and powers under this Restated Loan Agreement as
would any Lender and may exercise the same as though it were not the
Administrative Agent. CL New York and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with, the Borrower, the Managing Agents, any of the Borrower's
Affiliates and any Person who may do business with or own securities of the
Borrower, the Managing Agents or any such Affiliate, all as if CL New York were
not the Administrative Agent and without any duty to account therefor to the
Lenders. If CL New York is removed as Administrative Agent, such removal will
not affect CL New York's rights and interests as a Lender.
9.4. Lender Decision.
Each Lender (including each Lender that becomes a party hereto
by assignment) acknowledges that it has, independently and without reliance on
the Administrative Agent, any of its Affiliates or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
evaluation and decision to enter into this Restated Loan Agreement. Each Lender
also acknowledges that it will, independently and without reliance on the
Administrative Agent, any of its Affiliates or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under this
Restated Loan Agreement.
9.5. Rights of the Administrative Agent.
Each right and remedy expressly provided by this Restated Loan
Agreement as being available to the Administrative Agent shall be exercised by
the Administrative Agent only at the direction of the Majority Banks.
9.6. Indemnification of Administrative Agent.
Each Bank agrees to indemnify the Administrative Agent (to the
extent not reimbursed by or on behalf of the Borrower), ratably according to the
respective principal amounts held by it (or if no Advances are then outstanding,
each Bank shall indemnify the Administrative Agent ratably according to the
amount of its Bank Commitment), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Restated Loan Agreement or the other
Transaction Documents or any action taken or omitted by the Administrative Agent
under this Restated Loan Agreement or the other Transaction Documents, provided
that no Bank shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct.
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9.7. UCC Filings.
The Lenders and the Borrower expressly recognize and agree
that the Administrative Agent may be listed as the assignee or secured party of
record on the various UCC filings made hereunder in order to perfect the
security interest in the Collateral granted by the Borrower for the benefit of
the holders of the Obligations and that such listing is for administrative
convenience only in creating a record-holder or nominee to take certain actions
hereunder on behalf of the holders of the Obligations.
ARTICLE X
INDEMNIFICATION
10.1. Indemnities by the Borrower.
(a) General Indemnity. Without limiting any other rights
that any such Person may have hereunder or under applicable law, the Borrower
hereby agrees to indemnify each of the Lenders, each Managing Agent, the agents,
any Affected Party, their respective successors, transferees, participants and
assigns and all affiliates, officers, directors, shareholders, controlling
persons, employees and agents of any of the foregoing (each an "Indemnified
Party"), forthwith on demand, from and against any and all damages, losses,
claims, liabilities and related costs and expenses, including attorneys' fees
and disbursements (all of the foregoing being collectively referred to as
"Indemnified Amounts") awarded against or incurred by any of them arising out of
or relating to this Restated Loan Agreement or the exercise or performance of
any of its or their powers or duties, in respect of any Mortgage Loan or
Take-Out Commitment, or related in any way to its or their possession of, or
dealings with, the Collateral, excluding, however, (i) Indemnified Amounts to
the extent resulting from gross negligence or willful misconduct on the part of
such Indemnified Party, (ii) internal costs and expenses incurred in the
ordinary course of business and (iii) income taxes.
10.2. Contribution.
If for any reason the indemnification provided above in this
Section 10.1 is unavailable to an Indemnified Party or is insufficient to hold
an Indemnified Party harmless, then the Borrower shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by such Indemnified Party on the one hand and
Borrower on the other hand but also the relative fault of such Indemnified Party
as well as any other relevant equitable considerations.
ARTICLE XI
ADMINISTRATION AND COLLECTION OF MORTGAGE LOANS
11.1. Designation of Servicer.
The servicing, administration and collection of the Mortgage
Assets shall be conducted by the Servicer so designated hereunder from time to
time. Until the Administrative
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Agent gives notice to the Borrower and the Originator of the designation of a
new Servicer, the Originator is hereby designated as, and hereby agrees to
perform the duties and obligations of, the Servicer pursuant to the terms
hereof. The Administrative Agent may at any time following the occurrence of a
Servicer Default designate as Servicer any Person (including itself) to succeed
the Originator or any successor Servicer, if such Person shall consent and agree
to the terms hereof. The Servicer may, with the prior consent of the
Administrative Agent, subcontract with any other Person for the servicing,
administration or collection of the Mortgage Assets. Any such subcontract shall
not affect the Servicer's liability for performance of its duties and
obligations pursuant to the terms hereof.
11.2. Duties of Servicer.
(a) The Servicer shall take or cause to be taken all such
actions as may be necessary or advisable to collect each Mortgage Asset from
time to time, all in accordance with applicable laws, rules and regulations,
with care and diligence, and in accordance with the servicing guide issued by
the Governmental Authority applicable to such Mortgage Asset or, in the case of
Non-Conforming Loans, the servicing criteria specified by the Approved Investor
that has issued a Take-Out Commitment with respect thereto. The Borrower and the
Administrative Agent hereby appoint the Servicer, from time to time designated
pursuant to Section 11.1, as agent for themselves and for the Lenders to enforce
their respective rights and interests in the Mortgage Assets and the Collections
thereof. In performing its duties as Servicer, the Servicer shall exercise the
same care and apply the same policies as it would exercise and apply if it owned
such Mortgage Loans and shall act in the best interests of the Borrower and the
Lenders.
(b) The Servicer shall administer the Collections in
accordance with the procedures described in Section 2.7 and shall service the
Collateral in accordance with Section 7.7.
(c) The Servicer shall hold in trust for the Borrower and
the Lenders, in accordance with their respective interests, all books and
records (including, without limitation, computer tapes or disks) that relate to
the Mortgage Assets.
(d) The Servicer shall, as soon as practicable following
receipt, turn over to the Borrower or the Originator, as appropriate, any cash
collections or other cash proceeds received with respect to Property not
constituting Mortgage Assets.
(e) The Servicer shall, from time to time at the request
of the Administrative Agent, furnish to the Administrative Agent (promptly after
any such request) a calculation of the amounts set aside for the Lenders
pursuant to Section 2.7(c).
(f) The Servicer shall perform the duties and obligations
of the Servicer set forth in the Collateral Agency Agreement and the other
Security Instruments.
11.3. Certain Rights of the Administrative Agent.
At any time following the designation of a Servicer other than
the Originator pursuant to Section 11.1 or following an Event of Default:
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(a) The Administrative Agent may direct the Obligors that
all payments thereunder be made directly to the Administrative Agent or its
designee.
(b) At the Administrative Agent's request and at the
Borrower's expense, the Borrower shall notify each Obligor of the Lien on the
Mortgage Assets and direct that payments be made directly to the Administrative
Agent or its designee.
(c) At the Administrative Agent's request and at the
Borrower's expense, the Borrower and the Servicer shall (i) assemble all of the
documents, instruments and other records (including, without limitation,
computer tapes and disks) that evidence or relate to the Mortgage Assets and
Collections and Collateral, or that are otherwise necessary or desirable to
collect the Mortgage Assets, and shall make the same available to the
Administrative Agent at a place selected by the Administrative Agent or its
designee, and (ii) segregate all cash, checks and other instruments received by
it from time to time constituting Collections in a manner reasonably acceptable
to the Administrative Agent and, promptly upon receipt, remit all such cash,
checks and instruments, duly endorsed or with duly executed instruments of
transfer, to the Administrative Agent or its designee.
(d) The Borrower authorizes the Administrative Agent to
take any and all steps in the Borrower's name and on behalf of the Borrower that
are necessary or desirable, in the determination of the Administrative Agent, to
collect amounts due under the Mortgage Assets, including, without limitation,
endorsing the Borrower's name on checks and other instruments representing
Collections and enforcing the Mortgage Assets and the other Collateral.
11.4. Rights and Remedies.
(a) If the Servicer fails to perform any of its
obligations under this Restated Loan Agreement, the Administrative Agent may
(but shall not be required to) itself perform, or cause performance of, such
obligation; and the Administrative Agent's costs and expenses incurred in
connection therewith shall be payable by the Servicer.
(b) The Borrower and the Originator shall perform their
respective obligations under the Mortgage Loans to the same extent as if such
Mortgage Loans had not been sold by the Originator and the exercise by the
Administrative Agent on behalf of the Lenders of their rights under this
Restated Loan Agreement shall not release the Servicer or the Borrower from any
of their duties or obligations with respect to any Mortgage Loans. Neither the
Administrative Agent, nor the Lenders shall have any obligation or liability
with respect to any Mortgage Loans, nor shall any of them be obligated to
perform the obligations of the Borrower thereunder.
(c) In the event of any conflict between the provisions
of this Article XI of this Restated Loan Agreement and Article VI of the
Repurchase Agreement, the provisions of this Restated Loan Agreement shall
control.
11.5. Indemnities by the Servicer.
Without limiting any other rights that the Administrative
Agent, any Lender or Managing Agent or any of their respective Affiliates (each,
a "Special Indemnified Party") may have hereunder or under applicable law, and
in consideration of its appointment as Servicer, the
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Servicer hereby agrees to indemnify each Special Indemnified Party from and
against any and all claims, losses and liabilities (including attorneys' fees)
(all of the foregoing being collectively referred to as "Special Indemnified
Amounts") arising out of or resulting from any of the following (excluding,
however, (x) Special Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of such Special Indemnified Party,
(y) recourse for Mortgage Assets that are not collected, not paid or
uncollectible on account of the insolvency, bankruptcy or financial inability to
pay of the applicable Obligor or (z) any income taxes or any other tax or fee
measured by income incurred by such Special Indemnified Party arising out of or
as a result of this Restated Loan Agreement or the Borrowings hereunder):
(a) any representation or warranty or statement made or
deemed made by the Servicer under or in connection with this Restated Loan
Agreement that shall have been incorrect in any respect when made;
(b) the failure by the Servicer to comply in any material
respect with any applicable law, rule or regulation with respect to any Mortgage
Asset or the failure of any Mortgage Loan to conform to any such applicable law,
rule or regulation;
(c) the failure to have filed, or any delay in filing,
financing statements, Mortgages or assignments of Mortgages under the applicable
laws of any applicable jurisdiction with respect to any Mortgage Assets and the
other Collateral and Collections in respect thereof, whether at the time of any
purchase under the Repurchase Agreement or at any subsequent time;
(d) any failure of the Servicer to perform its duties or
obligations in accordance with the provisions of this Restated Loan Agreement;
(e) the commingling of Collections at any time by the
Servicer with other funds;
(f) any action or omission by the Servicer reducing or
impairing the rights of the Administrative Agent or the Lenders with respect to
any Mortgage Asset or the value of any Mortgage Asset;
(g) any Servicer Fees or other costs and expenses payable
to any replacement Servicer, to the extent in excess of the Servicer Fees
payable to the Servicer hereunder; or
(h) any claim brought by any Person other than a Special
Indemnified Party arising from any activity by the Servicer or its Affiliates in
servicing, administering or collecting any Mortgage Asset.
ARTICLE XII
THE MANAGING AGENTS
12.1. Authorization.
The CL New York Group has appointed CL New York as its
Managing Agent to take such action as agent on its behalf and to exercise such
powers under this Restated Loan
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Agreement as are delegated to such Managing Agent by the terms hereof, together
with such powers as are reasonably incidental thereto. The Bank One Group has
appointed Bank One as its Managing Agent to take such action as agent on its
behalf and to exercise such powers under this Restated Loan Agreement as are
delegated to such Managing Agent by the terms hereof, together with such powers
as are reasonably incidental thereto. As to any matters not expressly provided
for by this Restated Loan Agreement (including, without limitation, enforcement
of this Restated Loan Agreement), each Managing Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of its Majority Group Banks, and such
instructions shall be binding upon all Lenders in its Group; provided, however,
that such Managing Agent shall not be required to take any action which exposes
such Managing Agent to personal liability or which is contrary to this Restated
Loan Agreement or applicable law.
12.2. Reliance by Agent.
Notwithstanding anything to the contrary in this Restated Loan
Agreement or any other Transaction Document, neither of the Managing Agents nor
any of their respective directors, officers, agents, representatives, employees,
attorneys-in-fact or Affiliates shall be liable for any action taken or omitted
to be taken by it or them (in their capacity as or on behalf of such Managing
Agent) under or in connection with this Restated Loan Agreement or the other
Transaction Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Managing
Agent: (a) may treat the payee of the Notes as the holder thereof; (b) may
consult with legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it or any such party and shall
not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender or to the other Managing Agents and
shall not be responsible to any Lender or to the other Managing Agents for any
statements, warranties or representations made in or in connection with this
Restated Loan Agreement or the other Transaction Documents; (d) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of this Restated Loan Agreement on the
part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (e) shall not be responsible to any Lender or to the
other Managing Agents for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Restated Loan Agreement or any other
instrument or document furnished pursuant hereto or the enforceability or
perfection or priority of any Collateral; and (f) shall incur no liability under
or in respect of this Restated Loan Agreement or any other Transaction Document
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, cable or telex) believed by such Managing Agent to be
genuine and signed or sent by the proper Person or party.
12.3. Agent and Affiliates.
With respect to any Advance made by a Managing Agent, such
Managing Agent shall have the same rights and powers under this Restated Loan
Agreement as would any Lender and may exercise the same as though it were not a
Managing Agent. The Managing Agents and their respective Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, the Borrower, any of the
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Borrower's respective Affiliates and any Person who may do business with the
Borrower or any such Affiliates or own the Borrower's securities or those of any
such Affiliate, all as if no such Managing Agent were a Managing Agent and
without any duty to account therefor to the Lenders. If any Managing Agent is
removed as a Managing Agent, such removal will not affect the rights and
interests of such Managing Agent as a Lender.
12.4. Notices.
Each Managing Agent shall give each Lender in its Group prompt
notice of each written notice received by it from the Borrower pursuant to the
terms of this Restated Loan Agreement.
12.5. Lender Decision.
Each Lender (including each Lender that becomes a party hereto
by assignment) acknowledges that it has, independently and without reliance on
any Managing Agent, any Managing Agent's Affiliates or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own evaluation and decision to enter into this Restated Loan Agreement. Each
Lender also acknowledges that it will, independently and without reliance on any
Managing Agent, any Managing Agent's Affiliates or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under this
Restated Loan Agreement.
ARTICLE XIII
MISCELLANEOUS
13.1. Notices.
Any notice or request required or permitted to be given under
or in connection with this Restated Loan Agreement, the Notes or the other
Transaction Documents (except as may otherwise be expressly required therein)
shall be in writing and shall be mailed by first class or express mail, postage
prepaid, or sent by telex, telegram, telecopy or other similar form of rapid
transmission, confirmed by mailing (by first class or express mail, postage
prepaid) written confirmation at substantially the same time as such rapid
transmission, or personally delivered to an officer of the receiving party. With
the exception of certain administrative and collateral reports that may be
directed to specific departments of the Administrative Agent, all such
communications shall be mailed, sent or delivered to the parties hereto at their
respective addresses as follows:
Borrower: PULTE FUNDING, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
with copies of any notices of Event of
Default to:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP
2290 First National Building
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Issuers: ATLANTIC ASSET SECURITIZATION CORP.
c/o Lord Securities Corporation
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
With a copy to the Administrative Agent
(except in the case of notice from the
Administrative Agent).
JUPITER SECURITIZATION CORPORATION
c/o Bank One, NA (Main Office Chicago)
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Banks: CREDIT LYONNAIS NEW YORK BRANCH
Credit Lyonnais Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Structured Finance
LLOYDS TSB BANK PLC
1251 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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BANK ONE, NA (MAIN OFFICE CHICAGO)
c/o Bank One, NA (Main Office Chicago)
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Seasonal Issuer: JUPITER SECURITIZATION CORPORATION
c/o Bank One, NA (Main Office Chicago)
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Seasonal Bank: BANK ONE, NA (MAIN OFFICE CHICAGO)
c/o Bank One, NA (Main Office Chicago)
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Administrative CREDIT LYONNAIS NEW YORK BRANCH,
Agent: Credit Lyonnais Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 62410
(Answerback: CRED A 62410 UW)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Structured Finance
Managing Agents: CREDIT LYONNAIS NEW YORK BRANCH,
Credit Lyonnais Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 62410
(Answerback: CRED A 62410 UW)
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Structured Finance
90
BANK ONE, NA (MAIN OFFICE CHICAGO)
c/o Bank One, NA (Main Office Chicago)
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Originator and PULTE MORTGAGE CORPORATION
Servicer: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
or at such other addresses or to such officer's, individual's or department's
attention as any party may have furnished the other parties in writing. Any
communication so addressed and mailed shall be deemed to be given when so
mailed, except that notices and requests given pursuant to Section 3.3(e).
Borrowing Requests and communications related thereto shall not be effective
until actually received by the Collateral Agent, the Administrative Agent, the
Issuers or the Borrower, as the case may be; and any notice so sent by rapid
transmission shall be deemed to be given when receipt of such transmission is
acknowledged, and any communication so delivered in person shall be deemed to be
given when receipted for by, or actually received by, an authorized officer of
the Borrower, the Collateral Agent, or the Administrative Agent.
13.2. Amendments, Etc.
No amendment or waiver of any provision of this Restated Loan
Agreement or consent to any departure by the Borrower therefrom shall be
effective unless in a writing signed by the Majority Banks, the Administrative
Agent (as agent for the Issuers) and the Administrative Agent (and, in the case
of any amendment, also signed by the Borrower), and then such amendment, waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. Notwithstanding the foregoing, unless an amendment,
waiver or consent shall be made in writing and signed by each of the Banks, the
Managing Agents, and the Administrative Agent, and each of the Rating Agencies
shall confirm that any amendment will not result in a downgrade or withdrawal of
the ratings assigned to any Commercial Paper Notes, no amendment, waiver or
consent shall do any of the following:
(a) amend the definitions of Eligible Mortgage Loan,
Collateral Value, Advance Rate or Majority Banks or
(b) amend, modify or waive any provision of this Restated
Loan Agreement in any way that would:
(i) reduce the amount of principal or interest
that is payable on account of any Advance or delay any scheduled date
for payment thereof or
91
(ii) impair any rights expressly granted to an
assignee or participant under this Restated Loan Agreement or
(c) reduce the fees payable by the Borrower, the Managing
Agents, to the Administrative Agent or the Lenders or delay the dates on which
such fees are payable or
(d) amend or waive the Event of Default set forth in
Sections 8.1(f), (g) or (h) relating to the bankruptcy of the Performance
Guarantor, the Originator or the Borrower or
(e) amend or waive the Event of Default set forth in
Section 8.1(w) relating to the maximum Default Ratio or
(f) amend clause (a) of the definition of Drawdown
Termination Date or
(g) amend this Section 13.2;
and provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Servicer in addition to the other parties required
above to take such action, affect the rights or duties of the Servicer under
this Restated Loan Agreement. No failure on the part of the Lenders, the
Managing Agents, or the Administrative Agent to exercise, and no delay in
exercising, any right thereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.
13.3. Invalidity.
In the event that any one or more of the provisions contained
in the Notes, this Restated Loan Agreement or any other Transaction Document
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of such document.
13.4. Restrictions on Informal Amendments.
No course of dealing or waiver on the part of the
Administrative Agent, the Managing Agents, the Collateral Agent, any Lender or
any Affected Party, or any of their officers, employees, consultants or agents,
or any failure or delay by any such Person with respect to exercising any right,
power or privilege under the Notes, this Restated Loan Agreement or any other
Transaction Document shall operate as an amendment to express written terms of
the Notes, this Restated Loan Agreement or any other Transaction Document or
shall act as a waiver of any right, power or privilege of any such Person.
13.5. Cumulative Rights.
The rights, powers, privileges and remedies of each of the
Lenders, the Collateral Agent, the Managing Agents, and the Administrative Agent
under the Notes, this Restated Loan Agreement, and any other Transaction
Document shall be cumulative, and the exercise or partial exercise of any such
right, power, privilege or remedy shall not preclude the exercise of any other
right or remedy.
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13.6. Construction; Governing Law.
THIS RESTATED LOAN AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN SECTIONS 5-1401
AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY HERETO).
13.7. Interest.
Any provisions herein, in the Notes, or in any other
Transaction Document, or any other document executed or delivered in connection
herewith, or in any other agreement or commitment, whether written or oral,
expressed or implied, to the contrary notwithstanding, the Lenders shall in no
event be entitled to receive or collect, nor shall or may amounts received
hereunder be credited, so that the Lenders shall be paid, as interest, a sum
greater than the maximum amount permitted by applicable law to be charged to the
Person primarily obligated to pay such Note at the time in question. If any
construction of this Restated Loan Agreement, any Note or any other Transaction
Document, or any and all other papers, agreements or commitments indicate a
different right given to a Lender to ask for, demand or receive any larger sum
as interest, such is a mistake in calculation or wording that this clause shall
override and control, it being the intention of the parties that this Restated
Loan Agreement, each Note, and all other Transaction Documents or other
documents executed or delivered in connection herewith shall in all things
comply with applicable law and proper adjustments shall automatically be made
accordingly. In the event that any of the Lenders shall ever receive, collect or
apply as interest, any sum in excess of the maximum nonusurious rate permitted
by applicable law (the "Maximum Rate"), if any, such excess amount shall be
applied to the reduction of the unpaid principal balance of the Note held by
such Lender, and if such Note is paid in full, any remaining excess shall be
paid to the Borrower. In determining whether or not the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, if any, the
Borrower and each of the Lenders shall, to the maximum extent permitted under
applicable law: (a) characterize any nonprincipal payment as an expense or fee
rather than as interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) "spread" the total amount of interest throughout the entire
term of the respective Note; provided that if any Note is paid and performed in
full prior to the end of the full contemplated term hereof, and if the interest
received for the actual period of existence thereof exceeds the Maximum Rate, if
any, the respective Lender shall refund to the Borrower the amount of such
excess, or credit the amount of such excess against the aggregate unpaid
principal balance of all Advances made by such Lender hereunder at the time in
question.
13.8. Right of Offset.
The Borrower hereby grants to each of the Lenders and the
Administrative Agent and to any assignee or participant a right of offset, to
secure the repayment of the Obligations, upon any and all monies, securities or
other Property of the Borrower, and the proceeds therefrom now or hereafter held
or received by or in transit to such Person, from or for the account of the
Borrower, whether for safekeeping, custody, pledge, transmission, collection or
otherwise, and also upon any and all deposits (general or special, time or
demand, provisional or final) and credits of the Borrower, and any and all
claims of the Borrower against such Person at
93
any time existing. Upon the occurrence of any Event of Default, such Person is
hereby authorized at any time and from time to time, without notice to the
Borrower, to offset, appropriate, and apply any and all items hereinabove
referred to against the Obligations. Notwithstanding anything in this Section
13.8 or elsewhere in this Restated Loan Agreement to the contrary, the
Administrative Agent and the Lenders and any assignee or participant shall not
have any right to offset, appropriate or apply any accounts of the Borrower that
consist of escrowed funds (except and to the extent of any beneficial interest
of the Borrower in such escrowed funds) that have been so identified by the
Borrower in writing at the time of deposit thereof.
13.9. Successors and Assigns.
(a) This Restated Loan Agreement and the Lenders' rights
and obligations herein (including ownership of each Advance) shall be assignable
by the Lenders and their successors and assigns to any Eligible Assignee. Each
assignor of an Advance or any interest therein shall notify the Administrative
Agent and the Borrower of any such assignment.
(b) Each Bank may assign to any Eligible Assignee or to
any other Bank all or a portion of its rights and obligations under this
Restated Loan Agreement (including, without limitation, all or a portion of its
Bank Commitment and any Advances or interests therein owned by it), provided
however, that:
(i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Restated Loan Agreement,
(ii) the amount being assigned pursuant to each
such assignment (determined as of the date of the Assignment and
Acceptance Agreement with respect to such assignment) shall in no event
be less than the lesser of (x) $20,000,000 and (y) all of the assigning
Bank's Bank Commitment,
(iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance Agreement,
together with a processing and recordation fee of $2,500, and
(iv) concurrently with such assignment, such
assignor Bank shall assign to such assignee Bank an equal percentage of
its rights and obligations under the related Liquidity Agreement.
Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance
Agreement, (x) the assignee thereunder shall be a party to this Restated Loan
Agreement and, to the extent that rights and obligations hereunder or under this
Restated Loan Agreement have been assigned to it pursuant to such Assignment and
Acceptance Agreement, have the rights and obligations of a Bank hereunder and
thereunder and (y) the assigning Bank shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance Agreement, relinquish such rights and be released from such
obligations under this Restated Loan Agreement (and, in the case of an
Assignment and Acceptance Agreement covering all or
94
the remaining portion of an assigning Bank's rights and obligations under this
Restated Loan Agreement, such Bank shall cease to be a party thereto).
(c) The Administrative Agent shall maintain at its
address referred to in Section 13.1 a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Banks and the Bank Commitment of, and aggregate
outstanding principal of Advances or interests therein owned by, each Bank from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the
Servicer, the Managing Agents, the Administrative Agent and the Banks may treat
each person whose name is recorded in the Register as a Bank under this Restated
Loan Agreement for all purposes of this Restated Loan Agreement. The Register
shall be available for inspection by the Borrower, the Servicer, the Managing
Agents, the Administrative Agent or any Bank at any time and from time to time
upon prior notice.
(d) Each Bank may sell participations, to one or more
banks or other entities that are Eligible Assignees, in or to all or a portion
of its rights and obligations under this Restated Loan Agreement (including,
without limitation, all or a portion of its Bank Commitment and the Advances or
interests therein owned by it); provided, however, that:
(i) such Bank's obligations under this Restated
Loan Agreement (including, without limitation, its Bank Commitment to
the Borrower thereunder) shall remain unchanged,
(ii) such Bank shall remain solely responsible to
the other parties to this Restated Loan Agreement for the performance
of such obligations, and
(iii) concurrently with such participation, the
selling Bank shall sell to such bank or other entity a participation in
an equal percentage of its rights and obligations under the related
Liquidity Agreement.
The Administrative Agent, the other Banks, the Managing Agents, the Servicer and
the Borrower shall have the right to continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Restated Loan Agreement.
(e) The Borrower may not assign its rights or obligations
hereunder or any interest herein without the prior written consent of the
Administrative Agent, each Managing Agent, and each Lender.
(f) The parties hereto acknowledge that Atlantic has
granted to the Atlantic Program Agent for the benefit of holders of its
Commercial Paper Notes, its liquidity banks, and certain other creditors of
Atlantic, a security interest in its right, title and interest in and to the
Advances, the Transaction Documents and the Collateral. Each reference herein or
in any of the other Transaction Documents to the Liens in the Collateral granted
to Atlantic under the Transaction Documents shall be deemed to include a
reference to such security interest of the Atlantic Program Agent.
95
13.10. Survival of Termination.
The provisions of Article X and Sections 2.12, 11.4, 13.14,
13.15 and 13.20 shall survive any termination of this Restated Loan Agreement.
13.11. Exhibits.
The exhibits attached to this Restated Loan Agreement are
incorporated herein and shall be considered a part of this Restated Loan
Agreement for the purposes stated herein, except that in the event of any
conflict between any of the provisions of such exhibits and the provisions of
this Restated Loan Agreement, the provisions of this Restated Loan Agreement
shall prevail.
13.12. Titles of Articles, Sections and Subsections.
All titles or headings to articles, sections, subsections or
other divisions of this Restated Loan Agreement or the exhibits hereto are only
for the convenience of the parties and shall not be construed to have any effect
or meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
13.13. Counterparts.
This Restated Loan Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of each of the
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all counterparts together shall constitute one
and the same instrument.
13.14. No Proceedings.
The Borrower, the Servicer, the Administrative Agent and each
Bank hereby agrees that it will not institute against the Issuers, or join any
other Person in instituting against the Issuers, any bankruptcy, reorganization,
arrangement, insolvency, or liquidation proceeding, or other proceeding under
any federal or state bankruptcy or similar law so long as any Commercial Paper
Notes issued by the either of the Issuers shall be outstanding or there shall
not have elapsed one year plus one day since the last day on which any such
Commercial Paper Notes shall have been outstanding. The foregoing shall not
limit the rights of the Borrower, the Servicer, any Managing Agent, the
Administrative Agent or any Bank to file any claim in or otherwise take any
action with respect to any insolvency proceeding that was instituted by any
other Person.
13.15. Confidentiality.
The Borrower and the Servicer each hereby agrees that it will
maintain and cause its respective employees to maintain the confidentiality of
this Restated Loan Agreement, and the other Transaction Documents (and all
drafts thereof), and each Lender, each Managing Agent, and the Administrative
Agent agrees that it will maintain and cause its respective employees to
maintain the confidentiality of the Collateral and all other non-public
information with respect to
96
the Borrower and the Servicer, and their respective businesses obtained by such
party in connection with the structuring, negotiating and execution of the
transactions contemplated herein, in each case except (a) as may be required or
appropriate in communications with its respective independent public
accountants, legal advisors, or with independent financial rating agencies, (b)
as may be required or appropriate in any report, statement or testimony
submitted to any municipal, state or Federal regulatory body having or claiming
to have jurisdiction over it, (c) as may be required or appropriate in response
to any summons or subpoena or in connection with any litigation, (d) as may be
required by or in order to comply with any law, order, regulation or ruling, (e)
in the case of any Bank, any Issuer, each Managing Agent, or the Administrative
Agent, to any Liquidity Bank or provider of credit support to either of the
Issuers, either Managing Agent, any dealer or placement Administrative Agent for
either of the Issuers' commercial paper, and any actual or potential assignee
of, or participant in, any of the rights or obligations of such Lender, or (f)
in the case of any Issuer, any Managing Agent or the Administrative Agent, to
any Person whom any dealer or placement Administrative Agent for either of the
Issuers shall have identified as an actual or potential investor in Commercial
Paper Notes; provided that any proposed recipient under clause (e) or (f) shall,
as a condition to the receipt of any such information, agree to maintain the
confidentiality thereof.
13.16. Recourse Against Directors, Officers, Etc.
The Obligations are solely the corporate obligations of the
Borrower. No recourse for the Obligations shall be had hereunder against any
director, officer, employee (in its capacity as such, and not as Servicer),
trustee, Administrative Agent or any Person owning, directly or indirectly, any
legal or beneficial interest in the Borrower (in its capacity as such owner, and
not as Servicer, Performance Guarantor or otherwise as a party to any
Transaction Document). This Section 13.16 shall not, however, (a) constitute a
waiver, release or impairment of the Obligations, or (b) affect the validity or
enforceability of the Restated Performance Guaranty or any other Transaction
Document to which the Originator, the Servicer, the Performance Guarantor or any
of their Affiliates may be a party.
13.17. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS RESTATED LOAN AGREEMENT, THE NOTES, ANY OTHER TRANSACTION DOCUMENT OR
UNDER ANY AMENDMENT, INSTRUMENT OR DOCUMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING OR OTHER
RELATIONSHIP EXISTING IN CONNECTION WITH THIS RESTATED LOAN AGREEMENT, THE NOTES
OR ANY OTHER TRANSACTION DOCUMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
13.18. Consent to Jurisdiction; Waiver of Immunities.
EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT:
97
(a) IT IRREVOCABLY (i) SUBMITS TO THE JURISDICTION,
FIRST, OF ANY UNITED STATES FEDERAL COURT, AND, SECOND, IF FEDERAL JURISDICTION
IS NOT AVAILABLE, OF ANY NEW YORK STATE COURT, IN EITHER CASE SITTING IN NEW
YORK CITY, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
RESTATED LOAN AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED ONLY IN SUCH NEW YORK STATE OR FEDERAL
COURT AND NOT IN ANY OTHER COURT, AND (iii) WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO MAINTENANCE OF SUCH
ACTION OR PROCEEDING.
(b) TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID TO EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, IT HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER OR IN CONNECTION WITH THIS RESTATED LOAN AGREEMENT.
13.19. Costs, Expenses and Taxes.
In addition to its obligations under Articles II and X, the
Borrower agrees to pay on demand:
(a) (i) all out-of-pocket costs and expenses incurred by
the Administrative Agent, the Managing Agents and the Lenders, in connection
with the negotiation, preparation, execution and delivery or the administration
(including periodic auditing) of this Restated Loan Agreement, the Notes, the
other Transaction Documents, and, to the extent related to this Restated Loan
Agreement, the Program Documents (including any amendments or modifications of
or supplements to the Program Documents entered into in connection herewith),
and any amendments, consents or waivers executed in connection therewith,
including, without limitation, (A) the fees and expenses of counsel to any of
such Persons incurred in connection with any of the foregoing or in advising
such Persons as to their respective rights and remedies under any of the
Transaction Documents or (to the extent related to this Restated Loan Agreement)
the Program Documents, and (B) all out-of-pocket expenses (including fees and
expenses of independent accountants) incurred in connection with any review of
the books and records of the Borrower or the Servicer either prior to the
execution and delivery hereof or pursuant to Section 6.8, and (ii) all costs and
expenses incurred by the Administrative Agent, the Managing Agents and the
Lenders, in connection with the enforcement of, or any actual or claimed breach
of, this Restated Loan Agreement, the Notes, the other Transaction Documents
and, to the extent related to this Restated Loan Agreement, the Program
Documents (including any amendments or modifications of or supplements to the
Program Documents entered into in connection herewith), including, without
limitation, the fees and expenses of counsel to any of such Persons incurred in
connection therewith including without limitation, with respect to each
98
Issuer, the cost of rating the Commercial Paper Notes by the Rating Agencies and
the reasonable fees and out-of-pocket expenses of counsel to each Issuer; and
(b) all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing and
recording of this Restated Loan Agreement, the Notes, the other Transaction
Documents or (to the extent related to this Restated Loan Agreement) the Program
Documents, and agrees to indemnify each Indemnified Party against any
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees.
13.20. Entire Restated Loan Agreement.
THE NOTES, THIS RESTATED LOAN AGREEMENT, AND THE OTHER
TRANSACTION DOCUMENTS EXECUTED AND DELIVERED AS OF EVEN DATE HEREWITH REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND THERETO ANY MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
13.21. Excess Funds.
An Issuer shall not be obligated to pay any amount pursuant to
this Restated Loan Agreement unless such Issuer has excess cash flow from
operations or has received funds with respect to such obligation which may be
used to make such payment and which funds or excess cash flow are not required
to repay when due its Commercial Paper Note or other short term funding backing
its Commercial Paper Notes. Any amount which such Issuer does not pay pursuant
to the operation of the preceding sentence shall not constitute a claim, as
defined in Section 101(5) of the United States Bankruptcy Code, against such
Issuer for any such insufficiency unless and until such Issuer does have excess
cash flow or excess funds.
* * *
99
IN WITNESS WHEREOF, the parties hereto have caused this
Restated Loan Agreement to be duly executed as of the date first above written.
PULTE FUNDING, INC.,
as the Borrower
By: /s/ ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
Title: Vice President
ATLANTIC ASSET SECURITIZATION CORP.,
as an Issuer
By: Credit Lyonnais New York Branch, as
Attorney-in-Fact
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
JUPITER SECURITIZATION CORPORATION,
as an Issuer and a Seasonal Issuer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Authorized Signer
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank, the Administrative Agent and a
Managing Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Bank, a Seasonal Bank and a Managing
Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Director
100
LLOYDS TSB BANK PLC,
as a Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President Executive Officer
Structured Finance Structured Finance
PULTE MORTGAGE CORPORATION,
as the Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President/Chief Financial Officer
101
[Pulte Restated Loan Agreement]
SCHEDULE I
BANK COMMITMENTS AND PERCENTAGES
Bank Commitment
Bank Bank Commitment Percentage
---- --------------- ----------
CREDIT LYONNAIS NEW YORK BRANCH* $125,000,000 38.46%
BANK ONE, NA (MAIN OFFICE CHICAGO)** $125,000,000 38.46%
LLOYDS TSB BANK PLC* $75,000,000 23.08%
SEASONAL BANK COMMITMENTS AND SEASONAL PERCENTAGES
Seasonal Bank
Seasonal Bank Commitment
Seasonal Bank Commitment Percentage
------------- ---------- ----------
BANK ONE, NA (MAIN OFFICE CHICAGO)** $50,000,000 100%
* Part of the CL New York Group, related to Atlantic.
** Part of the Bank One Group, related to Jupiter.
I-1
[Pulte Restated Loan Agreement]
SCHEDULE II
APPROVED INVESTORS
▇▇▇▇▇'▇ FITCH S&P
TAKE-OUT INVESTORS LIMIT LT/ST LT/ST LT/ST RATED ENTITY
----------------------------------------------------------------------------------------------------------------------------------
ABN AMRO Incorporated 100%
Astoria Financial Corp. 10% Ba3 ▇▇ ▇▇▇▇▇'▇: JS
Aurora Loan Services, Inc. 25% NR AAA S&P: Section
BNP Paribas Securities Corp. 100%
Banc of America Securities LLC 100%
Banc One Corp. 100% A1 ▇.▇. ▇▇▇▇▇'▇: JS
Banc One Capital Markets, Inc. 100%
Banc of America Securities LLC 100%
Bank of America Mortgage (formerly Nationsbanc Mortgage Corp.) 100% Aa3/P-1 A+/A1 ▇▇▇▇▇'▇: SU S&P: SU
Barlays Capital Inc. 100%
Bear, ▇▇▇▇▇▇▇ & Co., Inc. 100%
Charter One Financial Inc. 25% NR BBB S&P: SU
Chase Financial Corp. 100% NR ▇▇
▇▇▇▇▇ Manhattan Mortgage Corporation 100% A1 AAA ▇▇▇▇▇'▇: SB S&P: Section
Chase Securities Inc. 100%
CIBC World Markets Corp. 100%
Citicorp Mortgage Corp. 100% Aaa NR Citi Mtg. Sec. ▇▇▇▇▇'▇: SS S&P:
Section
Commercial Federal Corp. 10% B1 BB+ ▇▇▇▇▇'▇: SB S&P: SB
Countrywide 100% A3/P-2 A/A1 ▇▇▇▇▇'▇: SU S&P: SU
Credit Suisse First Boston 100%
Credit Suisse First Boston Corporation/▇▇▇▇▇▇▇▇▇, Lufkin & 100%
▇▇▇▇▇▇▇▇ Securities Corporation
Daiwa Securities America, Inc. 100%
Deutsche Bank Securities Inc. 100%
----------------------------------------------------------------------------------------------------------------------------------
II-1
[Pulte Restated Loan Agreement]
▇▇▇▇▇'▇ FITCH S&P
TAKE-OUT INVESTORS LIMIT LT/ST LT/ST LT/ST RATED ENTITY
----------------------------------------------------------------------------------------------------------------------------------
Dresdner Kleinwort ▇▇▇▇▇▇ North America LLC 100%
----------------------------------------------------------------------------------------------------------------------------------
Federal Home Mortgage Corp. 100% Aaa/P-1 AAA/ A1+ ▇▇▇▇▇'▇: SU S&P: SU
Federal National Mortgage Association 100% Aaa/P-1 AAA ▇▇▇▇▇'▇: SU S&P: SU
Fidelity BancShares, Inc. 10% NR NR
First Franklin 10% NR NR
First Nationwide Mortgage Corporation 25% NR NR
First Union Mortgage Corporation 100% A1/P-1 A/A1 First Union Corp. ▇▇▇▇▇'▇:
SU S&P: SU
Fleet Mortgage group 100% A2 A+ ▇▇▇▇▇'▇: SS S&P: Section
Fuji Securities Inc. 100%
GE Capital Mortgage Services Inc. 100% Aaa AAA ▇▇▇▇▇'▇: SS S&P: Section
GMAC Mortgage 100% NR AAA ▇▇▇▇▇'▇: SS S&P: Section
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 100%
Government National Mortgage Association. 100% Aaa AAA
Greenwich Capital Markets, Inc. 100%
Greenpoint Mortgage (formerly Headlands Mortgage) 50% ▇▇▇▇ ▇▇▇/▇▇ ▇▇▇▇▇▇▇▇▇▇ Bank ▇▇▇▇▇'▇:
SU S&P : SU
HSBC Securities (USA) Inc. 100%
Homeside Lending Inc. 100% A1 A+/A1 ▇▇▇▇▇'▇: SU S&P: SU
Indy Mac (Independent National Mortgage Corp.) 100% BBB-
▇. ▇. ▇▇▇▇▇▇ Securities, Inc. 100%
Leader Mortgage Corp. 10% NR ▇▇
▇▇▇▇▇▇ Brothers Inc. 100%
Long Beach Financial Corp. 25% NR ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Government Securities Inc. 100%
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 100%
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Inc. 100%
Nomura Securities International, Inc. 100%
Ohio Savings Financial Corp. (Ohio Savings Bank) 10% NR NR
PaineWebber Incorporated 100%
----------------------------------------------------------------------------------------------------------------------------------
II-2
[Pulte Restated Loan Agreement]
▇▇▇▇▇'▇ FITCH S&P
TAKE-OUT INVESTORS LIMIT LT/ST LT/ST LT/ST RATED ENTITY
----------------------------------------------------------------------------------------------------------------------------------
Pulte Corporation 25% BBB Baa3 ▇▇▇▇▇'▇: SU S&P: SU
Regions Mortgage, Inc. (Regions Bank) 100% Aa3/P-1 A+/A1
----------------------------------------------------------------------------------------------------------------------------------
Residential Mortgage Inc. 10% NR ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 100%
▇▇ ▇▇▇▇▇ Securities Corporation 100%
Saxon Mortgage, Inc. 100% A ▇▇ ▇▇▇▇▇'▇: SU
UBS Warburg LLC 100%
Washington Mutual (formerly Alta Residential Mortgage) 100% A2 A- ▇▇▇▇▇'▇: SU S&P: ▇▇
▇▇▇▇▇ Fargo Funding, Inc. (formerly Norwest mortgage) 100% Aa2/ P-1 A+/A1 ▇▇▇▇▇ Fargo & Co.▇▇▇▇▇'▇:
SU S&P: ▇▇
▇▇▇▇▇ Fargo Mortgage Resources (formerly Director's Acceptance) 100% Aa2/ P-2 A+/A2 ▇▇▇▇▇ Fargo & Co.▇▇▇▇▇'▇:
SU S&P: SU
Zions First National Bank 100%
Colorado Housing Finance Authority 10% Aaa AA-/A1+ ▇▇▇▇▇'▇: RB S&P: SS
Dakota County Bond (Minnesota) 10% Aaa ▇▇ ▇▇▇▇▇'▇: RB
Florida Housing Finance Agency 10% Aa1 ▇▇ ▇▇▇▇▇'▇: RB
Housing Finance Authority of Broward County (FL) 10% Aaa ▇▇ ▇▇▇▇▇'▇: SS
Illinois Housing Development Authority 10% Aaa AA-/A1+ ▇▇▇▇▇'▇: RB S&P: SS
Maryland Housing Opportunities Commission (HOC) 10% NR NR
Minnesota Housing Finance Agency 10% NR NR
Nevada State Housing Finance Agency 10% NR NR
New Jersey Housing Finance Agency 10% NR NR
North Carolina HFA 10% Aa3 AA-/A1+ ▇▇▇▇▇'▇: RB S&P: SS
The Industrial Development Authority of the County of Pima, AZ 10% Ba3 B+ ▇▇▇▇▇'▇: SU S&P: SU
The Industrial Development Authority of the County of Maricopa, AZ 10% WR A/A1 ▇▇▇▇▇'▇: RB S&P: SU
Pinellas County Finance Authority 10% Aaa A- ▇▇▇▇▇'▇: SS S&P: SS
Texas Department of Housing and Community Affairs (TDHCA) 10% Aaa AA/A1+ ▇▇▇▇▇'▇: RB S&P: SS
Texas Veteran Land Bond and bon VLB Loans 10% NR NR
----------------------------------------------------------------------------------------------------------------------------------
II-3
[Pulte Restated Loan Agreement]
JS: Junior Subordinated
RB: Revenue Bonds
SB: Subordinated
SS: Senior Secured
SU: Senior Unsecured
II-4
[Pulte Restated Loan Agreement]
SCHEDULE III
UCC SEARCH
No Exceptions.
III-1
[Pulte Restated Loan Agreement]
SCHEDULE IV
LITIGATION
None.
IV-1
[Pulte Restated Loan Agreement]
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated ________, 20__
Reference is made to the Amended and Restated Loan Agreement dated as
of August 23, 2002, among PULTE FUNDING, INC., as the Borrower (hereinafter,
together with its successors and assigns, the "Borrower"), ATLANTIC ASSET
SECURITIZATION CORP., as an Issuer (hereinafter, together with its successors
and assigns, "Atlantic"), JUPITER SECURITIZATION CORPORATION, as an Issuer
(hereinafter, together with its successors and assigns, "Jupiter") CREDIT
LYONNAIS NEW YORK BRANCH ("CL New York"), as a Bank, the Administrative Agent
and a Managing Agent, BANK ONE, NA (MAIN OFFICE CHICAGO), (hereinafter, together
with its successors and assigns, "Bank One"), as a Bank, a Seasonal Bank and as
a Managing Agent, LLOYDS TSB BANK PLC, as a Bank (hereinafter, together with its
successors and assigns, "Lloyds") and PULTE MORTGAGE CORPORATION, as the
Servicer (hereinafter, together with its successors and assigns, "PMC" or the
"Originator") (such agreement, as from time to time supplemented, amended,
restated or extended, the "Restated Loan Agreement").
_______________ (the "Assignor") and ________________ (the "Assignee")
agree as follows:
1. Purchase and Sale of Interest. The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to all of the Assignor's rights and obligations as
a [Bank][Seasonal Bank] under the Restated Loan Agreement as of the date hereof
equal to the [Bank Commitment Percentage] [Seasonal Bank Commitment Percentage]
specified on the signature page hereto of all outstanding rights and obligations
of [all Banks] [the Seasonal Bank] under the Restated Loan Agreement. After
giving effect to such sale and assignment, the Assignee's [Bank Commitment]
[Seasonal Bank Commitment] and the principal amount of [Advances] [Seasonal
Advances] held by the Assignee will be as set forth in Section 2 of the
signature page hereto.
2. Representations and Disclaimers of Assignor. The Assignor
(1) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim;
(2) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Restated Loan
Agreement or the execution, legality, validity, enforceability,
genuineness,
A-1
[Pulte Restated Loan Agreement]
sufficiency or value of the Restated Loan Agreement or any other
instrument or document furnished pursuant thereto; and
(3) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower,
the Originator, or the Servicer or the performance or observance by the
Borrower, the Originator, or the Servicer of any of its respective
obligations under the Restated Loan Agreement or any other instrument
or document furnished pursuant thereto.
3. Representations and Agreements of Assignee. The Assignee
(1) confirms that it has received a copy of the Restated
Loan Agreement, together with copies of the most recent financial
statements referred to in Section 6.1 thereto 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 Acceptance
Agreement (this "Assignment and Acceptance");
(2) agrees that it will, independently and without
reliance upon the Administrative Agent or the Assignor 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 Restated Loan Agreement;
(3) appoints and authorizes the Administrative Agent and
__________________ as its Managing Agent to take such action as agent
on its behalf and to exercise such powers under the Restated Loan
Agreement as are delegated to the Administrative Agent and such
Managing Agent by the terms thereof, together with such powers as are
reasonably incidental thereto;
(4) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Restated Loan
Agreement are required to be performed by it as a [Bank] [Seasonal
Bank];
(5) specifies as its address for notices the office set
forth beneath its name on the signature pages hereof;
(6) represents that this Assignment and Acceptance has
been duly authorized, executed and delivered by such Assignee pursuant
to its entity powers and constitutes the legal, valid and binding
obligation of such Assignee; and
(7) if the Assignee is organized under the laws of a
jurisdiction outside the United States, (a) attaches the forms
prescribed by the Internal Revenue Service of the United States
certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all
payments to be made to the Assignee under the Restated Loan Agreement
or such other documents as are necessary to indicate that all such
payments are subject to such taxes at a rate reduced by
A-2
[Pulte Restated Loan Agreement]
an applicable tax treaty, and (b) agrees to provide its Managing Agent
(to the extent permitted by applicable law) with similar forms for each
subsequent tax year of the Assignee in which payments are to be made to
the Assignee under the Restated Loan Agreement.
4. Effectiveness of Assignment. (a) Following the execution of
this Assignment and Acceptance by the Assignor and the Assignee, counterparts
will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent and to the Assignor's Managing Agent. The effective
date of this Assignment and Acceptance shall be the date of acceptance thereof
by the Administrative Agent and acknowledgement of receipt by the applicable
Managing Agent, unless otherwise specified in Section 3 of the signature page
hereto (the "Effective Date").
(1) Upon such acceptance and recording by the
Administrative Agent and acknowledgement of receipt by the applicable Managing
Agent, as of the Effective Date, (i) the Assignee shall be a party to the
Restated Loan Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a [Bank] [Seasonal Bank]
thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Restated Loan Agreement.
(2) Upon such acceptance and recording by the
Administrative Agent and acknowledgement of receipt by the applicable Managing
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Restated Loan Agreement in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Restated
Loan Agreement for periods prior to the Effective Date directly between
themselves.
5. Obligations of the Assignee, Including Confidentiality. The
Assignee agrees to abide by any obligations set forth in the Restated Loan
Agreement on the part of the [Bank] [Seasonal Bank] including, without
limitation, the obligations as to confidentiality set forth in Section 12.15 of
the Restated Loan Agreement.
6. GOVERNING LAW. THIS ASSIGNMENT AND ASSUMPTION AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER
THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH
SHALL APPLY HERETO).
[Signatures Follow]
A-3
[Pulte Restated Loan Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers
thereunto duly authorized, as of the date first above written, such execution
being made on the signature page hereto.
Section 1.
[Bank Commitment Percentage]
[Seasonal Bank Commitment Percentage]:(2) ______%
Section 2.
Assignee's [Bank]
[Seasonal Bank] Commitment: $______
Aggregate principal amount of
[Advances] [Seasonal Advances] held by the Assignee: $______
Section 3.
Effective Date:(3) _______, 20__
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:__________________________ By:__________________________
Title: Title:
Address for Notices:
[Insert]
--------
(2) This percentage must be the same percentage as for the
Assignee under its Liquidity Agreement.
(3) This date should be no earlier than the date of acceptance by the
Administrative Agent.
A-4
[Pulte Restated Loan Agreement]
Accepted this _____ day of
______________,_____
CREDIT LYONNAIS NEW YORK BRANCH,
as Administrative Agent
By: ____________________________
Name:
Title:
Receipt Acknowledged:
___________________________,
as Managing Agent
By: _______________________
Name:
Title:
A-5
[Pulte Restated Loan Agreement]
EXHIBIT B
FORM OF AMENDED AND RESTATED SUBORDINATION AGREEMENT
THIS AMENDED AND RESTATED SUBORDINATION AGREEMENT (this
"Restated Subordination Agreement") is entered into as of August 23, 2002, by
PULTE HOMES, INC., a Michigan corporation (formerly known as Pulte Corporation)
("Pulte"), in favor of PULTE FUNDING, INC., a Michigan corporation, ("Borrower")
and CREDIT LYONNAIS NEW YORK BRANCH, as administrative agent (the
"Administrative Agent") under the Restated Loan Agreement referred to below.
RECITALS
A. Pulte Mortgage Corporation, a Delaware corporation,
("PMC" or the "Originator") and the Borrower have entered into a Amended and
Restated Addendum to the Master Repurchase Agreement dated as of August 23, 2002
(as amended or restated from time to time, the "Restated Repurchase Agreement")
pursuant to which the Originator may sell to the Borrower, and the Borrower may
acquire from the Originator, certain Mortgage Loans and pursuant to which the
Originator may repurchase those Mortgage Loans.
B. Borrower has entered into an Amended and Restated
Loan Agreement dated as of August 23, 2002 (as amended or restated from time to
time, the "Restated Loan Agreement") with the Administrative Agent, the Managing
Agents parties thereto, the Issuers parties thereto, the Banks party thereto,
and PMC, as Servicer, (in such capacity, the "Servicer"), pursuant to which, and
subject to the terms of which, the Lenders have agreed to make loans to the
Borrower secured by Mortgage Loans and other collateral, and PMC has agreed to
provide certain administration and collection services.
C. It is a condition precedent to the initial purchase
under the Restated Repurchase Agreement and the initial loan under the Restated
Loan Agreement that the Companies shall have entered into this Agreement,
pursuant to which all existing and future obligations of the Originator to Pulte
or to any Affiliate of Pulte or the Originator is subordinated to certain
obligations of the Originator under the Restated Repurchase Agreement and of the
Servicer under the Restated Loan Agreement.
AGREEMENTS
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Companies hereby covenant and agree with Borrower and the Administrative Agent
as follows:
1. Terms defined in the Restated Repurchase Agreement or
the Restated Loan Agreement have the same meanings when used in this
Restated Subordination Agreement, except that, solely for the purpose
of this Restated Subordination Agreement, the term "Affiliate", when
used in connection with Pulte, the Companies or the
B-1
[Pulte Restated Loan Agreement]
Originator, shall not include Borrower. As used in this Restated
Subordination Agreement:
"Senior Debt" means all obligations for the payment of money
which are or may become due and owing by (a) the Originator under the
Restated Repurchase Agreement, whether for repurchase prices, fees,
expenses (including counsel fees), indemnified amounts or otherwise or
(b) the Servicer, whether for the deposit of collections received by it
or for fees, expenses (including counsel fees), indemnified amounts or
otherwise.
"Subordinated Debt" means all present and future indebtedness
for borrowed money, of the Originator to Pulte or to any Affiliate of
the Originator, the Companies or Pulte, whether (i) principal, interest
(before or after the beginning of any proceedings under any Debtor
Law), premium, court costs, attorneys' fees, or other costs of
collection, (ii) direct, indirect, fixed, contingent, liquidated,
unliquidated, joint, several, or joint and several, (iii) created
directly or acquired by assignment or otherwise, or (iv) whether or not
evidenced in writing.
"Senior Liens" means all present and future security interests
and liens, if any, directly or indirectly securing any Senior Debt.
"Subordinated Liens" means all present and future security
interests and liens, if any, directly or indirectly securing any
Subordinated Debt.
2. Until the Facility Termination Date under the
Restated Repurchase Agreement, the Drawdown Termination Date under the
Restated Loan Agreement and the Seasonal Facility Termination Date
under the Restated Loan Agreement have expired and the Senior Debt has
been paid in full, all Subordinated Debt and the proceeds of all
Subordinated Liens are hereby subordinated to all Senior Debt and the
proceeds of all Senior Liens as provided in this Restated Subordination
Agreement. For purposes hereof, Senior Debt shall not be deemed paid in
full unless it has been paid in full for more than 366 days and such
payment is final and indefeasible and not subject to rescission or
setting aside for any reason whatsoever.
(a) Unless a Default or an Event of Default under the
Restated Repurchase Agreement or (so long as the Originator is the
Servicer) a Servicer Default (each, a "Senior Debt Default") is
continuing, the Companies may receive payments of principal on
Subordinated Debt, and interest accruing on Subordinated Debt at a
reasonable market rate as agreed upon between the Originator and the
Companies.
(b) While a Senior Debt Default is continuing, the
Companies may not receive any payment directly or indirectly related to
any Subordinated Debt or proceeds of any Subordinated Lien.
3. Pulte agrees that (a) all existing and future
obligations of any nature owed
B-2
[Pulte Restated Loan Agreement]
or owing by the Originator to any Affiliates of the Originator or Pulte
shall also be Subordinated Debt and (b) it will cause each such
Affiliate that may provide credit to, or otherwise have obligations
owing to it by, the Originator to subordinate its rights of repayment
and security therefor to the rights of the Senior Debt holders, and the
priorities and rights of the Senior Liens, as herein provided, the same
as if each such Affiliate was a party to this Restated Subordination
Agreement in like capacity to that of Pulte, and for such purpose each
reference to Pulte in this Agreement (other than this paragraph 3)
shall be deemed to refer to such Affiliate.
4. To the extent of the subordination provided in
paragraph 2 above, if any payment or distribution of assets or
securities of the Originator of any kind or character, whether in cash,
property or securities, is made or to be made upon any dissolution or
winding up or total or partial liquidation or reorganization of the
Originator, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, then and in any such
event, all principal of and interest then due upon all Senior Debt,
whether or not the Senior Debt is then due or matured, shall first be
paid in full, or full payment thereof provided for in money or money's
worth, before a Company, or any trustee or receiver acting on its or
their behalf, shall be entitled to receive any assets or securities
other than (a) shares of stock ("Stock") of the Originator as
reorganized or readjusted or (b) securities ("Subordinated Securities")
of the Originator or any other corporation provided for by a plan of
reorganization or readjustment, junior to (or the payment of which is
subordinated by a written instrument in form and substance satisfactory
to and approved in writing by Borrower and the Administrative Agent, to
the payment of), all Senior Debt which may at the time be outstanding
or contemplated, in payment of, partial or complete compensation for or
otherwise in respect of any of the Subordinated Debt. Upon any such
dissolution, winding up, liquidation or reorganization, any payment or
distribution of assets or securities of the Originator of any kind or
character, whether in cash, properties or securities (other than as
aforesaid) which, but for the provisions of this paragraph 4, would
then be made to the Companies or any Affiliate of the Companies shall,
to the extent of the subordination provided in paragraph 2 above,
instead be made by the Originator or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, directly to the holder or holders of Senior
Debt, or their representatives, to the extent necessary to pay all
Senior Debt in full, in money or money's worth, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Debt.
5. If any Company or any Affiliate of the Companies or
anyone else acting on its or their behalf shall receive any payment or
distribution of assets or securities of the Originator of any kind or
character, or for the Originator, whether in cash, property or
securities (other than Stock or Subordinated Securities) before all
Senior Debt is paid in full or full payment thereof is provided for in
money or money's worth to the satisfaction of Borrower and the
Administrative Agent, then and in that event, to the extent of the
subordination provided in paragraph 2 above, the recipient of such
assets or securities of
B-3
[Pulte Restated Loan Agreement]
the Originator so paid or distributed shall pay over and deliver all
such payments and distributions forthwith to the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person responsible for
making payment or distribution of assets or securities of the
Originator, who shall then pay or distribute such assets or securities
to the holders of the Senior Debt for application to the Senior Debt
remaining unpaid, to the extent necessary to pay all Senior Debt in
full, in money or money's worth, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt. Each
Company or anyone else acting in its behalf will not be required to pay
over and deliver any sums paid to or for the benefit of such Company to
the extent that such payments or distributions were permitted, at the
time paid or distributed, under subparagraph 2(a).
6. Each Company hereby, unconditionally and irrevocably,
waives and releases any and all rights which it now has or may
hereafter acquire to be subrogated to the rights of the holder of the
Senior Debt or to receive payments or distributions of assets or
securities of the Originator applicable to the Senior Debt and to any
of the Senior Liens, either before or after all obligations to the
holders of the Senior Debt shall be paid in full, although no such
payments or distributions applicable to Senior Debt shall (as between
the Originator, its creditors other than holders of the Senior Debt and
the Companies) be deemed to be a payment by the Originator to or on
account of its obligations to the Companies or any Affiliate of the
Companies. The provisions of this paragraph 6 are (and are intended
solely) for the purpose of defining the relative rights of the
Companies or any Affiliate of the Companies, on the one hand, and the
holders of Senior Debt, on the other hand, and nothing contained in
this paragraph 6 or elsewhere in this Agreement is intended to impair,
or shall impair, as between the Originator and the Companies or any
Affiliate of the Companies, the obligations of the Originator to the
Companies or any Affiliate of the Companies or to affect (except to the
extent specifically provided above in this paragraph 6) the relative
rights of the Companies, the Affiliates of the Companies and creditors
of the Originator other than the holders of Senior Debt. Nothing herein
contained shall prevent the Companies or any Affiliate of the Companies
from exercising all remedies otherwise permitted by applicable law,
upon default under the Originator' obligations to the Companies or the
Affiliates of the Companies, subject to the rights under this Restated
Subordination Agreement of the holders of Senior Debt in respect of
assets or securities of the Originator of any kind of character,
whether cash, property or securities, received upon the exercise of any
such remedy.
7. Before the time of the occurrence of any Senior Debt
Default, the Companies and the Affiliates of the Companies shall have
the right to receive and retain payments on Subordinated Debt to the
extent provided in paragraph 2 hereof; however, automatically and
without any requirement for notice or any other action by Borrower or
the Administrative Agent, from and after the occurrence of any Senior
Debt Default and until Borrower and the Administrative Agent shall have
declared in writing that such Senior Debt Default has been cured or
waived or ceased to exist or that the Senior Debt has been fully paid
and satisfied, no payment shall be made, directly or indirectly, by the
B-4
[Pulte Restated Loan Agreement]
Originator or with any of its funds, or accepted by such Company or any
Affiliate of such Company on, against or on account of any of the
Subordinated Debt, and no remedies against the Originator or any of its
property or interests shall be enforced by or for the account of such
Company or any Affiliate of such Company.
8. From and after the date of maturity (however it may
occur or be brought about), and until such Senior Debt so matured shall
have been fully paid and satisfied, all of such matured Senior Debt
shall first be paid in full before any payment or distribution is made
by Originator or accepted by the Companies or any Affiliate of the
Companies on, against or on account of any Subordinated Debt and before
any remedy against either Originator or any of its property or
interests may be enforced.
9. The subordination provided for in this Restated
Subordination Agreement is unconditional, and no right of any present
or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time or in any way be prejudiced or impaired by
any act or failure to act on the part of the Originator or the
Companies or any Affiliate of the Companies or by any act or failure to
act by any holder of any Senior Debt or Borrower or the Administrative
Agent or by any noncompliance by the Originator or the Companies or any
Affiliate of the Companies with the terms, provisions and covenants of
the Transaction Documents, regardless of any knowledge thereof any such
holder might have or be chargeable or charged with. The obligations of
the Companies are unconditional irrespective of the validity or
enforceability or collectibility of the Senior Debt or any other
circumstance whatsoever which might constitute a legal or equitable
defense of a guarantor or of the Companies hereunder, any and all such
defenses being hereby expressly waived by the Companies.
10. Borrower or the Administrative Agent or any other
holder of Senior Debt may, at any time without the consent of or notice
to the Companies or any other holder of Subordinated Debt, without
incurring responsibility to the Companies or such other holder of
Subordinated Debt, without impairing or releasing the terms or
obligations of this Restated Subordination Agreement, upon or without
any terms or conditions and in whole or in part:
(1) change the manner, place or terms of payment or
change or extend the time of payment of, renew, increase or alter any
Senior Debt and the subordinations herein made and provided for shall
apply to the Senior Debt as so changed, extended, increased, renewed or
altered in any manner;
(2) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property at any
time pledged or mortgaged to secure or securing the Senior Debt or any
offset against any Senior Debt;
(3) exercise, delay exercising or refrain from exercising
any rights against the Originator or others, or otherwise act or
refrain from acting;
B-5
[Pulte Restated Loan Agreement]
(4) settle or compromise any Senior Debt.
Notwithstanding any provision hereof to the contrary, or any
prior termination hereof, this Agreement and the obligations of the
Companies hereunder shall be automatically reinstated if at any time
any payment, settlement or compromise of any of the Senior Debt is
rescinded, set aside or vacated by a Governmental Authority or required
to be returned or repaid to the Originator or any Person on its behalf
for any reason whatsoever. No delay on the part of Borrower, the
Administrative Agent or any other holder of Senior Debt in exercising
any right under this or any other agreement, including the Transaction
Documents, or failure to exercise any such right shall operate as a
waiver of such right. In no event shall any modification or waiver of
the provisions of this Restated Subordination Agreement be effective
unless in writing, nor shall any such waiver be applicable except in
the specific instance for which it may be given.
Each Company, for itself and all other present and future
holders of Subordinated Debt (including, without limitation,
Subordinated Debt held or originated by Affiliates of the Originator
other than such Company), agrees to execute and deliver to Borrower,
the Administrative Agent and to any other holder or holders of Senior
Debt requesting it, such further instruments, and to take such other
action, as may be necessary or appropriate in the reasonable opinion of
Borrower, the Administrative Agent or such other holder or holders of
Senior Debt, and upon request of Borrower, the Administrative Agent or
such other holder or holders, to fully effectuate the subordinations
provided for in this Restated Subordination Agreement and in accordance
with its terms.
11. This Restated Subordination Agreement shall bind and
benefit the parties hereto and their respective successors, custodians,
receivers, trustees and assigns, and the provisions of this Restated
Subordination Agreement shall be enforceable by Borrower, the
Administrative Agent or directly by the holders of Senior Debt.
Borrower (and any assignee of Borrower) may at any time assign any and
all of its rights hereunder to any other person or entity without the
consent of any of the Companies, whereupon (i) each reference herein to
Borrower shall mean and be a reference to such assignee and (ii) such
assignee may enforce this Restated Subordination Agreement to the
fullest extent as if it were a named party hereto. Without limiting the
generality of the foregoing, each Company acknowledges and consents to
the assignment by Borrower, under and in connection with the Restated
Loan Agreement, of all of Borrower's right, title and interest in, to
and under this Restated Subordination Agreement to the Administrative
Agent for the benefit of the Lenders, and each Company agrees that at
all times that the Restated Loan Agreement shall be in effect (i) any
claim made by Borrower hereunder shall be deemed made for the benefit
of the Administrative Agent and the Lenders and (ii) any payment or
remittance to be made hereunder by any Company in respect of any claim
being made by or in respect of Borrower or Senior Debt due to Borrower
under the Restated Repurchase Agreement shall be paid or remitted to
the Administrative Agent for the benefit of the Lenders.
B-6
[Pulte Restated Loan Agreement]
12. THIS RESTATED SUBORDINATION AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF, OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW WHICH SHALL APPLY HERETO). Neither acceptance nor
execution of this Restated Subordination Agreement by Borrower, the
Administrative Agent or any holder of Senior Debt shall be necessary to
cause this Restated Subordination Agreement to be or remain in full
force and effect from and after the date of its execution and delivery
by the Companies to Borrower and the Administrative Agent, and each
Company's obligations under this Restated Subordination Agreement are
unconditional. This Restated Subordination Agreement may not be revoked
or amended except by an instrument in writing executed by each Company,
Borrower and the Administrative Agent. Any holder of Senior Debt may at
any time and without notice waive in whole or in part any provision of
this Restated Subordination Agreement as to all or part of the Senior
Debt held by such holder (but may not affect or impair the rights of
any other holder of Senior Debt), but no such waiver shall be effective
unless expressly stated in a writing signed by such holder.
13. THIS RESTATED SUBORDINATION AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
14. EACH COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT IT
IRREVOCABLY (i) SUBMITS TO THE JURISDICTION, FIRST, OF ANY UNITED
STATES FEDERAL COURT, AND, SECOND, IF FEDERAL JURISDICTION IS NOT
AVAILABLE, OF ANY NEW YORK STATE COURT, IN EITHER CASE SITTING IN NEW
YORK CITY, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, (ii) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED ONLY IN SUCH NEW YORK STATE
OR FEDERAL COURT AND NOT IN ANY OTHER COURT, AND (iii) WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT
FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. TO THE EXTENT
THAT IT HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM THE JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID TO EXECUTION,
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH
COMPANY HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER OR IN CONNECTION WITH THIS RESTATED SUBORDINATION
AGREEMENT.
B-7
[Pulte Restated Loan Agreement]
EXECUTED as of the date first stated in this Restated
Subordination Agreement.
PULTE HOMES, INC.
By:
------------------------------
Name:
Title:
ACCEPTED AND
AGREED TO:
PULTE FUNDING, INC.
By:_________________________________________
Name:____________________________________
Title:___________________________________
CREDIT LYONNAIS NEW YORK BRANCH,
as Administrative Agent
By: _________________________________________
Name:____________________________________
Title: __________________________________
B-8
[Pulte Restated Loan Agreement]
ASSIGNMENT OF
AMENDED AND RESTATED SUBORDINATION AGREEMENT
The undersigned hereby assigns all of its right, title and interest in
and to the foregoing Restated Subordination Agreement to Credit Lyonnais New
York Branch, in its capacity as administrative agent (the "Administrative
Agent") for the "Lenders" under and as defined in that certain Restated Loan
Agreement dated as of August 23, 2002 by and among Pulte Funding, Inc.
("Borrower"), certain Banks parties thereto, certain Issuers parties thereto,
the Administrative Agent, certain Managing Agents parties thereto and Pulte
Mortgage Corporation, as servicer thereunder, as the same may be amended,
restated, supplemented or otherwise modified from time to time. Pulte Homes,
Inc. ("Pulte"), for itself and on behalf of the other Companies, acknowledges
such assignment and agrees that the Administrative Agent may further assign,
without notice, its right, title and interest in and to the Restated
Subordination Agreement without consent of any person or entity. The
Administrative Agent, as the assignee of Borrower, shall have the right to
enforce the Restated Subordination Agreement and to directly exercise all of
Borrower's rights and remedies under the Restated Subordination Agreement, and
Pulte agrees to cooperate fully with the Administrative Agent in the exercise of
such rights and remedies thereunder.
Dated: August 23, 2002
PULTE FUNDING, INC.
By: ______________________________
Name:__________________________
Title:_________________________
Acknowledged and agreed to
this 23rd day of August, 2002
PULTE HOMES, INC.
By: ________________________________________
Name: __________________________________
Title: _________________________________
B-9
[Pulte Restated Loan Agreement]
EXHIBIT C
FORM OF BORROWING REQUEST
TO: CREDIT LYONNAIS NEW YORK BRANCH,
as Administrative Agent and a Managing Agent
under the Restated Loan Agreement
referred to below
BANK ONE TRUST COMPANY, N.A.
(MAIN OFFICE CHICAGO), as a Managing
Agent under the Restated Loan Agreement
referred to below
LASALLE BANK NATIONAL ASSOCIATION,
as the Collateral Agent under the Restated Loan
Agreement referred to below
1. Pulte Funding Inc. hereby requests a Borrowing (the "Requested
Borrowing") in the amount and on the Borrowing Date herein specified on Schedule
I attached hereto, pursuant to the Amended and Restated Loan Agreement dated as
of August 23, 2002, among PULTE FUNDING, INC., as the Borrower (hereinafter,
together with its successors and assigns, the "Borrower"), ATLANTIC ASSET
SECURITIZATION CORP., as an Issuer (hereinafter, together with its successors
and assigns, "Atlantic"), JUPITER SECURITIZATION CORPORATION, as an Issuer
(hereinafter, together with its successors and assigns, "Jupiter") CREDIT
LYONNAIS NEW YORK BRANCH ("CL New York"), as a Bank, the Administrative Agent
and a Managing Agent, BANK ONE, NA (MAIN OFFICE CHICAGO), (hereinafter, together
with its successors and assigns, "Bank One"), as a Bank and as a Managing Agent,
LLOYDS TSB BANK PLC, as a Bank (hereinafter, together with its successors and
assigns, "Lloyds") and PULTE MORTGAGE CORPORATION, as the Servicer (hereinafter,
together with its successors and assigns, "PMC") (such agreement, as from time
to time supplemented, amended, restated or extended, the "Restated Loan
Agreement"). Capitalized terms used and not otherwise defined herein have the
meanings given thereto in the Restated Loan Agreement.
2. The undersigned officer of the Borrower hereby represents and
warrants for the benefit of the Lenders and the Agent that:
(1) The Borrower is entitled to receive the Requested Borrowing
under the terms and conditions of the Restated Loan Agreement
(and pursuant to the Assignment, if any, executed in
connection herewith, the Borrower grants to the Administrative
Agent a
security interest in the Collateral described in such Assignment)
C-1-1
[Pulte Restated Loan Agreement]
(2) (i) if the Borrowing requested hereunder is not a Special
Borrowing, all Principal Mortgage Documents required under
Section 3.2(b) of the Restated Loan Agreement and which relate
to the Mortgage Loans identified on Schedule I to the
Assignment, if any, executed in connection herewith have been
delivered to the Collateral Agent, and (ii) if the Borrowing
requested hereunder is a Special Borrowing, either (A) all
such documents which relate to Schedule II to the Assignment
shall be delivered to the Collateral Agent within 9 Business
Days after the Borrowing Date set forth in item 1(c) above, as
required under Section 2.3(c) of the Restated Loan Agreement,
or (B) the Principal Debt that has been borrowed against such
Mortgage Loans shall be repaid in full as and to the extent
required under Section 2.3(d) of the Restated Loan Agreement;
(3) all Mortgage Loans, Principal Mortgage Documents and Other
Mortgage Documents in which the Administrative Agent is
granted a security interest pursuant to the Assignment, if
any, in connection herewith, comply in all material respects
with the applicable requirements set forth in the Restated
Loan Agreement and the Restated Security Agreement;
(4) at all times relevant to this Agreement, total Collateral
Value attributable to the types or categories of Collateral
referred to in the definition of Collateral Value has not, and
does not now, exceed the limitations established in such
definition;
(5) no Default or Event of Default has occurred or is continuing;
and
(6) no change or event which constitutes a Material Adverse Effect
as to the Borrower has occurred.
3. The representations and warranties of the Borrower contained
in the Restated Loan Agreement and those contained in each
other Transaction Document to which the Borrower is a party
are true and correct in all material respects on and as of the
date hereof.
4. All of the conditions applicable to the Requested Borrowing
pursuant to Section 4.2 of the Restated Loan Agreement are and
will be satisfied immediately before and after giving effect
to the Requested Borrowing.
C-1-2
[Pulte Restated Loan Agreement]
PULTE FUNDING, INC.,
as the Borrower
Date: ______________________________ By: ______________________________
Name:_________________________
Title:________________________
C-1-3
[Pulte Restated Loan Agreement]
SCHEDULE I TO FORM OF BORROWING REQUEST
NON-SEASONAL BORROWING
Borrowing Date
Maturity Date
Days in Interest Period
Max Facility Amount
Existing Funded CP
Expiring CP
New Request Total
Atlantic
Jupiter
Proceeds
Atlantic
Jupiter
Principal Debt
Availability
Cannot be used if there is
availability remaining under
the non-seasonal facility
SEASONAL BORROWING
Borrowing Date
Maturity Date
Days in Interest Period
Seasonal Facility Amount
Existing Funded CP
Expiring CP
New Request
Proceeds
Principal Debt
Availability
C-1-4
[Pulte Restated Loan Agreement]
SCHEDULE II TO FORM OF BORROWING REQUEST
SERVICER PERIODIC REPORT
[DATE]
PULTE FUNDING, INC.
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
LASALLE BANK NATIONAL ASSOCIATION
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: PULTE FUNDING, INC.
We refer to the Amended and Restated Loan Agreement, dated as of August
23, 2002, among PULTE FUNDING, INC., as the Borrower (hereinafter, together with
its successors and assigns, the "Borrower"), ATLANTIC ASSET SECURITIZATION
CORP., as an Issuer (hereinafter, together with its successors and assigns,
"Atlantic"), JUPITER SECURITIZATION CORPORATION, as an Issuer (hereinafter,
together with its successors and assigns, "Jupiter"), CREDIT LYONNAIS NEW YORK
BRANCH ("CL New York"), as a Bank, the Administrative Agent and a Managing
Agent, BANK ONE, NA (MAIN OFFICE CHICAGO) (hereinafter, together with its
successors and assigns, "Bank One"), as a Bank and as a Managing Agent, LLOYDS
TSB BANK PLC, as a Bank (hereinafter, together with its successors and assigns,
"Lloyds") and PULTE MORTGAGE CORPORATION, as the Servicer (hereinafter, together
with its successors and assigns, "PMC") (such agreement, as from time to time
supplemented, amended, restated or extended, the "Restated Loan Agreement").
Capitalized terms used and not otherwise defined herein have the meanings given
thereto in the Restated Loan Agreement.
Pursuant to Section 3.10 of the Restated Loan Agreement, the Servicer
hereby confirms that as of the date hereof the Collateral Value of all Eligible
Mortgage Collateral is $_______, the total of the Principal Debt (including
Advances and Seasonal Advances requested but not then funded) is
$________________, and the Principal Debt does not exceed the Collateral Value.
C-2-5
[Pulte Restated Loan Agreement]
Very truly yours,
Pulte Mortgage Corporation, as Servicer
By: ____________________________________
Name: _______________________________
Title: ______________________________
C-2-6
[Pulte Loan Agreement]
EXHIBIT D
COLLATERAL AGENCY AGREEMENT
See Tab ___.
D-1
[Pulte Restated Loan Agreement]
EXHIBITS TO COLLATERAL AGENCY AGREEMENT
D-1 through D-12
See Tab 6
D-1
[Pulte Restated Loan Agreement]
EXHIBIT E-1
FORM OF PROMISSORY NOTE
$_________ ____, 2002
FOR VALUE RECEIVED, on the Drawdown Termination Date (as
defined in the Restated Loan Agreement referred to below), PULTE FUNDING, INC.,
a Michigan corporation ("Maker"), promises to pay to the order of [ATLANTIC
ASSET SECURITIZATION CORP.] [CREDIT LYONNAIS NEW YORK BRANCH] [LLOYDS TSB BANK
PLC] ("Payee") at the offices of CREDIT LYONNAIS NEW YORK BRANCH, as Managing
Agent for Payee ("Agent") at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, the principal sum of $___________ or, if less, the aggregate unpaid
principal amount of Advances made by the Payee to the Maker pursuant to the
terms of the Restated Loan Agreement referred to below, together with interest,
as provided below.
This note is one of the "Notes" described in the Amended and
Restated Loan Agreement dated as of August 23, 2002, (such agreement, as from
time to time supplemented, amended, restated or extended, the "Restated Loan
Agreement"), among Maker, Payee, the Agent, PULTE MORTGAGE CORPORATION and
certain other parties. Terms defined in the Restated Loan Agreement have the
same meanings when used in this Note. The Restated Loan Agreement contains
provisions that affect this Note relating to, among other things, interest rate
options, calculation of interest, voluntary and mandatory prepayments,
acceleration of maturity, exercise of rights, payment of attorneys' fees, court
costs, and other costs of collection, certain waivers by Maker and others, and
security for the payment of this Note.
The unpaid principal balance of Advances under this Note bears
interest at the interest rates set forth in the Restated Loan Agreement. So long
as an Event of Default exists, the unpaid principal and accrued interest shall
bear interest at the Default Rate, until paid.
Each Advance owing to the Payee by the Maker pursuant to the
Restated Loan Agreement, and all payments made on account of principal thereof,
shall be recorded by the Payee and, prior to any transfer hereof, endorsed on
the grid attached hereto which is part of this Promissory Note.
This Note shall be construed in accordance with and governed
by the laws of the State of New York.
Maker:
PULTE FUNDING, INC.
By: ____________________________________
Name: _______________________________
Title: ______________________________
E-1-1
[Pulte Restated Loan Agreement]
ADVANCES AND PAYMENTS OF PRINCIPAL DEBT
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Amount of Principal Unpaid Principal Notation
Date Amount of Advance Debt Paid or Prepaid Debt Balance Made By
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E-1-2
[Pulte Restated Loan Agreement]
EXHIBIT E-2
FORM OF PROMISSORY NOTE
$_________ ___, 2002
FOR VALUE RECEIVED, on the Drawdown Termination Date (as
defined in the Restated Loan Agreement referred to below), PULTE FUNDING, INC.,
a Michigan corporation ("Maker"), promises to pay to the order of [BANK ONE, NA
(MAIN OFFICE CHICAGO)] [JUPITER SECURITIZATION CORPORATION] ("Payee") at the
offices of Bank One, NA (Main Office Chicago) as Managing Agent for Payee
("Agent") at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of
$___________ or, if less, the aggregate unpaid principal amount of Advances made
by the Payee to the Maker pursuant to the terms of the Restated Loan Agreement
referred to below, together with interest, as provided below.
This note is one of the "Notes" described in the Amended and
Restated Loan Agreement dated as of August 23, 2002, (such agreement, as from
time to time supplemented, amended, restated or extended, the "Restated Loan
Agreement"), among Maker, Payee, the Agent, PULTE MORTGAGE CORPORATION and
certain other parties. Terms defined in the Restated Loan Agreement have the
same meanings when used in this Note. The Restated Loan Agreement contains
provisions that affect this Note relating to, among other things, interest rate
options, calculation of interest, voluntary and mandatory prepayments,
acceleration of maturity, exercise of rights, payment of attorneys' fees, court
costs, and other costs of collection, certain waivers by Maker and others, and
security for the payment of this Note.
The unpaid principal balance of Advances under this Note bears
interest at the interest rates set forth in the Restated Loan Agreement. So long
as an Event of Default exists, the unpaid principal and accrued interest shall
bear interest at the Default Rate, until paid.
Each Advance owing to the Payee by the Maker pursuant to the
Restated Loan Agreement, and all payments made on account of principal thereof,
shall be recorded by the Payee and, prior to any transfer hereof, endorsed on
the grid attached hereto which is part of this Promissory Note.
This Note shall be construed in accordance with and governed
by the laws of the State of New York.
Maker:
PULTE FUNDING, INC.
By: ______________________________
Name:_________________________
Title:________________________
E-2-1
[Pulte Restated Loan Agreement]
ADVANCES AND PAYMENTS OF PRINCIPAL DEBT
--------------------------------------------------------------------------------
Amount of Principal Unpaid Principal Notation
Date Amount of Advance Debt Paid or Prepaid Debt Balance Made By
--------------------------------------------------------------------------------
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E-2-2
[Pulte Restated Loan Agreement]
EXHIBIT E-3
FORM OF PROMISSORY NOTE
$_________ ___, 2002
FOR VALUE RECEIVED, on the Drawdown Termination Date (as
defined in the Restated Loan Agreement referred to below), PULTE FUNDING, INC.,
a Michigan corporation ("Maker"), promises to pay to the order of [BANK ONE, NA
(MAIN OFFICE CHICAGO)] [JUPITER SECURITIZATION CORPORATION] ("Payee") at the
offices of Bank One, NA (Main Office Chicago) as Managing Agent for Payee
("Agent") at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the principal sum of
$__________ or, if less, the aggregate unpaid principal amount of Seasonal
Advances made by the Payee to the Maker pursuant to the terms of the Restated
Loan Agreement referred to below, together with interest, as provided below.
This note is one of the "Notes" described in the Amended and
Restated Loan Agreement dated as of August 23, 2002, (such agreement, as from
time to time supplemented, amended, restated or extended, the "Restated Loan
Agreement"), among Maker, Payee, the Agent, PULTE MORTGAGE CORPORATION and
certain other parties. Terms defined in the Restated Loan Agreement have the
same meanings when used in this Note. The Restated Loan Agreement contains
provisions that affect this Note relating to, among other things, interest rate
options, calculation of interest, voluntary and mandatory prepayments,
acceleration of maturity, exercise of rights, payment of attorneys' fees, court
costs, and other costs of collection, certain waivers by Maker and others, and
security for the payment of this Note.
The unpaid principal balance of Seasonal Advances under this
Note bears interest at the interest rates set forth in the Restated Loan
Agreement. So long as an Event of Default exists, the unpaid principal and
accrued interest shall bear interest at the Default Rate, until paid.
Each Seasonal Advance owing to the Payee by the Maker pursuant
to the Restated Loan Agreement, and all payments made on account of principal
thereof, shall be recorded by the Payee and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.
This Note shall be construed in accordance with and governed
by the laws of the State of New York.
Maker:
PULTE FUNDING, INC.
By: ___________________________________
Name: _____________________________
Title: ____________________________
E-3-1
[Pulte Restated Loan Agreement]
SEASONAL ADVANCES AND PAYMENTS OF PRINCIPAL DEBT
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Amount of Seasonal Amount of Principal Unpaid Principal Notation
Date Advance Debt Paid or Prepaid Debt Balance Made By
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E-3-2
[Pulte Restated Loan Agreement]
EXHIBIT F
FORM OF SERVICER MONTHLY REPORT
[Date]
Credit Lyonnais New York Branch,
as Administrative Agent under the
Restated Loan Agreement
referred to below
Credit Lyonnais Building
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Pulte Funding, Inc.,
as Borrower under the
Restated Loan Agreement
referred to below
c/o Pulte Mortgage Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Amended and Restated Loan Agreement dated as of August 23, 2002,
among PULTE FUNDING, INC., as the Borrower (hereinafter, together with its
successors and assigns, the "Borrower"), ATLANTIC ASSET SECURITIZATION CORP., as
an Issuer (hereinafter, together with its successors and assigns, "Atlantic"),
JUPITER SECURITIZATION CORPORATION, as an Issuer (hereinafter, together with its
successors and assigns, "Jupiter") CREDIT LYONNAIS NEW YORK BRANCH ("CL New
York"), as a Bank, the Administrative Agent and a Managing Agent, BANK ONE, NA
(MAIN OFFICE CHICAGO), (hereinafter, together with its successors and assigns,
"Bank One"), as a Bank and as a Managing Agent, LLOYDS TSB BANK PLC, as a Bank
(hereinafter, together with its successors and assigns, "Lloyds") and PULTE
MORTGAGE CORPORATION, as the Servicer (hereinafter, together with its successors
and assigns, "PMC") (such agreement, as from time to time supplemented, amended,
restated or extended, the "Restated Loan Agreement").
Pursuant to Section 3.8 of the Restated Loan Agreement (terms
not otherwise defined herein being used as defined in the Restated Loan
Agreement), the Servicer hereby confirms that as of the date hereof:
1. The Default Ratio does not exceed 1%. Computations of the
Default Ratio and the Sixty-Day Default Ratio are attached on Schedule I.
F-1
[Pulte Restated Loan Agreement]
2. (A) Set forth on Schedule I is (i) a computation of the
Default Ratio and Sixty-Day Default Ratio (as defined in the Restated Loan
Agreement), (ii) an aging of Mortgage Loans owned by the Borrower that are
financed by the Lenders and constitute Collateral hereunder, and (B) and other
information set forth on Schedule I is true and correct.
3. No Default, Event of Default or Servicer Default exists.
4. The total of the Principal Debt (including Advances and
Seasonal Advances requested but not then funded) is $________________, and the
Principal Debt does not exceed the Collateral Value.
5. The ratings of the Approved Investors set forth on Schedule II
have not changed since [the latest of August 23, 2002, June 30, 2003 or each
anniversary of June 30, 2003], except for the ratings which have changed since
such date, if any, as listed on Schedule II attached hereto.
6. The aggregate Collateral Value of Mortgage Loans at the
beginning of the first day of the previous month was $_____. The amount of
Collections used to repurchase Mortgage Loans by PMC during such month was
$____. The amount of Collections used to purchase Mortgage Loans by the Borrower
during the previous month was $____. The amount of the aggregate Collateral
Value of Mortgage Loans at the end of the last day of the previous month was
$____.
Very truly yours,
PULTE MORTGAGE CORPORATION
as Servicer
By:_____________________________
Name:_________________________
Title:________________________
F-2
Schedule I
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MAXIMUM FACILITY AMOUNT
-------------
Collateral Report
-------------
Reporting period ending:
-------------
[1] BORROWER DEFAULT RATIO:
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[2] BORROWER SIXTY DAY DEFAULT RATIO:
-------------
[3] PULTE MORTGAGE DEFAULT RATIO:
[4] PULTE FUNDING (SPV) MORTGAGE LOAN DELINQUENCY DATA:
[A] [B] [C] [D] [E]
Total 31-60 DPD 61-70 DPD 71-90 DPD 91+ DPD
[i] # of loans
[ii]Principal amount of Mortgage Loans
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[iii] % of Total Principal Amount of Mortgage Loans 100%
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[5] PULTE MORTGAGE LOAN DELINQUENCY DATA:
[A] [B] [C] [D] [E]
Total 31-60 DPD 61-70 DPD 71-90 DPD 91+ DPD
[i] # of loans
[ii]Principal amount of Mortgage Loans
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[iii% of Total Principal Amount of Mortgage Loans 100%
-----------------------------------------------------------
F-3
Schedule I
[6] EXCESS SPREAD
---------------------------------------
Portfolio Yield
---------------------------------------
Conduit Spread _________ %
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Euro Dollar Rate
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[7] RESERVE AMOUNT
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REQUIRED RESERVE AMOUNT
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[8] Pulte Mortgage Net Worth
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F-4
EXHIBIT A TO SERVICER MONTHLY REPORT
[DATE]
(1) Maximum Combined Facility [________]
Amount
(2) Original Principal Amount of
Eligible Mortgage Loan
(3) Take Out Commitment Price (WA
calculated every Monday)
(4) Loan amount before applying
the Advance Rate (lesser of (2)
and (3) Advance Rate
------------
Breakdown of (4) Conforming & Jumbo 98%
ALT-A 97%
2nds, Bridges & Super 95%
Jumbos
Total
Blended Advance Rate [___]%
(5) Collateral Value
(6) Collateral in Pool for 120-180 10% of Max. Facility [__]% OK
days Amount.
(7) Wet Amount (Total Sub-Limit) 30% of Max Facility [__]% OK
<<9 Day Max>> Amount.
(8) Wet Amount (Only first and 50% of Max. Facility [__]% OK
last 5 Days) <<9 Day Max>> Amount.
(9) Jumbo Amount <650K 25% of Max. Facility [__]% OK
Amount.
(10) Super Jumbo Amount >650K & 10% of Max. Facility [__]% OK
<1000K Amount.
(11) ALT-A Amount 15% of Max. Facility [__]% OK
Amount.
BBT
(12) Total Principal Debt (CP
Previous day's Total Principal
Debt (CP Amount)
Change in Principal Debt CP PAYDOWN
F-5
[Pulte Restated Loan Agreement]
EXHIBIT G-1
FORM OF AMENDED AND RESTATED SERVICER PERFORMANCE GUARANTY
This Amended and Restated Servicer Performance Guaranty (the
"Guaranty"), dated as of August 23, 2002, is executed by Pulte Homes, Inc., a
Michigan corporation (formerly known as Pulte Corporation) (the "Performance
Guarantor") in favor of Credit Lyonnais New York Branch, as administrative agent
for the Lenders party to the Restated Loan Agreement referred to below (the
"Administrative Agent") and the Lenders.
WHEREAS, Pulte Mortgage Corporation, a Delaware Corporation ("Pulte
Mortgage") has entered into an Amended and Restated Addendum to Master
Repurchase Agreement with Pulte Funding, Inc. a Michigan corporation ("PFI"),
dated as of August 23, 2002 (the "Restated Repurchase Agreement "), pursuant to
which Pulte Mortgage, subject to the terms and conditions therein, has agreed to
sell certain Mortgage Assets to PFI, subject to the right and obligation of
Pulte Mortgage to repurchase such Mortgage Assets.
WHEREAS, PFI has entered into an Amended and Restated Loan Agreement
dated as of August 23, 2002 (as the same may be amended, restated, supplemented
or otherwise modified from time to time, the "Restated Loan Agreement") by and
among PFI, certain Issuers parties thereto, certain Banks parties thereto,
certain Managing Agents parties thereto, the Administrative Agent and Pulte
Mortgage, as the servicer thereunder (in such capacity, the "Servicer"),
pursuant to which (x) the Lenders, subject to the terms and conditions contained
therein, have agreed to make certain revolving loans to PFI and (y) Pulte
Mortgage, pursuant to the terms and conditions contained therein, has agreed to
perform the duties and obligations as "Servicer" thereunder;
WHEREAS, as an inducement for the Lenders to make revolving loans to
PFI pursuant to the Restated Loan Agreement, which in turn will enable PFI to
purchase the Mortgage Assets from Pulte Mortgage, the Performance Guarantor has
agreed to guaranty the due and punctual performance of Pulte Mortgage as
"Servicer" under the Restated Loan Agreement;
WHEREAS, it is a condition precedent to the Lenders agreeing to make
revolving loans pursuant to the Restated Loan Agreement that the Performance
Guarantor execute and deliver to the Administrative Agent a performance guaranty
substantially in the form hereof; and
WHEREAS, the Performance Guarantor wishes to guaranty the due and
punctual performance of Pulte Mortgage's obligations as "Servicer" to the
Administrative Agent and the Lenders under or in respect of the Restated Loan
Agreement as provided herein, and the Performance Guarantor, as the owner,
directly or indirectly, of all of the outstanding shares of capital stock of
Pulte Mortgage, will derive substantial benefit from the transactions
contemplated under the Restated Loan Agreement;
NOW, THEREFORE, the Performance Guarantor hereby agrees with the
Administrative Agent and the Lenders as follows:
G-1-1
[Pulte Restated Loan Agreement]
Section 1. Definitions.
As used herein:
"Bankruptcy Code" means the United States Bankruptcy Code, 11
U.S.C. Sections 101 et seq., as amended.
"Obligations" means, collectively, all covenants, agreements,
terms, conditions and indemnities to be performed and observed by Pulte
Mortgage solely in its capacity as "Servicer" under and pursuant to the
Restated Loan Agreement and each other document executed and delivered
by Pulte Mortgage as "Servicer" pursuant to the Restated Loan
Agreement, including, without limitation, the due and punctual payment
of all sums which are or may become due and owing by Pulte Mortgage as
"Servicer" under the Restated Loan Agreement, whether for the deposit
of collections received by it or for fees, expenses (including counsel
fees), indemnified amounts or otherwise, whether upon any termination
or for any other reason, including any renewals, extensions and
modifications thereof.
"Pulte Entities" means, collectively, the Performance Guarantor, Pulte
Mortgage, and PFI.
All capitalized terms used herein, and not otherwise herein defined
shall have their respective meanings as defined in the Restated Loan Agreement.
Section 2. Guaranty of Performance of Obligations. The
Performance Guarantor hereby unconditionally guarantees to the Administrative
Agent and the Lenders, the full and punctual payment and performance by Pulte
Mortgage of the Obligations.
This Guaranty is an absolute, unconditional and continuing guaranty of
the full and punctual performance of all of the Obligations and is in no way
conditioned upon any requirement that the Administrative Agent or the Lenders
first take any action against Pulte Mortgage with respect to the Obligations or
attempt to collect any of the amounts owing by Pulte Mortgage to the Lenders
from Pulte Mortgage or resort to any collateral security, any balance of any
deposit account or credit on the books of any Lenders in favor of Pulte
Mortgage, any guarantor of the Obligations or any other Person. Should Pulte
Mortgage default in the payment or performance of any of the Obligations, the
Administrative Agent or the Majority Banks may cause the immediate performance
by the Performance Guarantor of the Obligations and cause any payment
Obligations to become forthwith due and payable to the Administrative Agent and
the Lenders, without demand or notice of any nature (other than as expressly
provided herein), all of which are expressly waived by the Performance
Guarantor.
The Performance Guarantor's liability under this Guaranty shall be
absolute and unconditional irrespective of (i) any lack of validity or
enforceability of the Restated Loan Agreement or any other document executed in
connection therewith or delivered thereunder, (ii) any change in the time,
manner or place of payment of, or in any other term of, all or any of the
G-1-2
[Pulte Restated Loan Agreement]
Obligations, or any other amendment or waiver of or any consent to departure
from the Restated Loan Agreement or any other document executed in connection
therewith or delivered thereunder, (iii) any taking, exchange, release or
non-perfection of any collateral, or any taking, release or amendment or waiver
of or consent to departure from any other guaranty, for all or any of the
Obligations, (iv) any law, regulation or order of any jurisdiction affecting any
term of all or any Obligations or the rights of the Administrative Agent or any
of the Lenders, (v) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Obligations or any other
assets of Pulte Mortgage, (vi) any change, restructuring or termination of the
corporate structure or existence of Pulte Mortgage, or (vii) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, Pulte Mortgage or a guarantor. In the event that performance of
any of the Obligations is stayed upon the insolvency, bankruptcy or
reorganization of Pulte Mortgage, or for any other reason, all such Obligations
shall be immediately performed by the Performance Guarantor.
Section 3. Performance Guarantor's Further Agreements to Pay.
The Performance Guarantor further agrees, in the event the Performance Guarantor
fails to perform its obligations under this Guaranty, to pay to the
Administrative Agent and the Lenders, forthwith upon demand all reasonable costs
and expenses (including court costs and legal expenses) incurred or expended by
the Administrative Agent and the Lenders in connection with the enforcement of
this Guaranty.
Section 4. Waivers by Performance Guarantor; Administrative
Agent's and Lenders' Freedom to Act. The Performance Guarantor waives notice of
(a) acceptance of this Guaranty, (b) any action taken or omitted by the
Administrative Agent or any Lender in reliance on this Guaranty, and (c) any
requirement that the Administrative Agent or the Lenders be diligent or prompt
in making demands under this Guaranty, giving notice of any Default, Event of
Default or Servicer Default, default or omission by Pulte Mortgage or asserting
any other rights of the Administrative Agent or any Lender under this Guaranty.
To the maximum extent permitted by applicable law, the Performance Guarantor
also irrevocably waives all defenses that at any time may be available in
respect of the Obligations by virtue of any statute of limitations, valuation,
stay, moratorium law or other similar law now or thereafter in effect.
The Administrative Agent shall be at liberty, upon its own initiative
or at the request of the Majority Banks, without giving notice to or obtaining
the assent of the Performance Guarantor and without relieving the Performance
Guarantor of any liability under this Guaranty, to deal with Pulte Mortgage and
with each other party who now is or after the date hereof becomes liable in any
manner for any of the Obligations, in such manner as the Administrative Agent in
its sole discretion deems fit or the Majority Banks in their sole discretion
deem fit, and to this end the Performance Guarantor agrees that the validity and
enforceability of this Guaranty, including without limitation, the provisions of
Section 8 hereof, shall not be impaired or affected by any of the following: (a)
any extension, modification or renewal of, or indulgence with respect to, or
substitutions for, the Obligations or any part thereof or any agreement relating
G-1-3
[Pulte Restated Loan Agreement]
thereto at any time; (b) any failure or omission to enforce any right, power or
remedy with respect to the Obligations or any part thereof or any agreement
relating thereto, or any collateral securing the Obligations or any part
thereof; (c) any waiver of any right, power or remedy or of any Default, Event
of Default, Servicer Default or default with respect to the Obligations or any
part thereof or any agreement relating thereto; (d) any release, surrender,
compromise, settlement, waiver, subordination or modification, with or without
consideration, of any other obligation of any person or entity with respect to
the Obligations or any part thereof; (e) the enforceability or validity of the
Obligations or any part thereof or the genuineness, enforceability or validity
of any agreement relating thereto or with respect to the Obligations or any part
thereof; (f) the application of payments received from any source to the payment
of any payment Obligations of Pulte Mortgage, any part thereof or amounts which
are not covered by this Guaranty even though the Administrative Agent or the
Lenders might lawfully have elected to apply such payments to any part or all of
the payment Obligations of Pulte Mortgage or to amounts which are not covered by
this Guaranty; (g) the existence of any claim, setoff or other rights which the
Performance Guarantor may have at any time against Pulte Mortgage in connection
herewith or any unrelated transaction; (h) any assignment or transfer of the
Obligations or any part thereof; or (i) any failure on the part of Pulte
Mortgage to perform or comply with any term of the Restated Loan Agreement or
any other document executed in connection therewith or delivered thereunder, all
whether or not the Performance Guarantor shall have had notice or knowledge of
any act or omission referred to in the foregoing clauses (a) through (i) of this
Section.
Section 5. Unenforceability of Obligations Against Pulte
Mortgage. Notwithstanding (a) any change of ownership of Pulte Mortgage or the
insolvency, bankruptcy or any other change in the legal status of Pulte
Mortgage; (b) the change in or the imposition of any law, decree, regulation or
other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Obligations; (c) the
failure of Pulte Mortgage or the Performance Guarantor to maintain in full
force, validity or effect or to obtain or renew when required all governmental
and other approvals, licenses or consents required in connection with the
Obligations or this Guaranty, or to take any other action required in connection
with the performance of all obligations pursuant to the Obligations or this
Guaranty; or (d) if any of the moneys included in the Obligations have become
unrecoverable from Pulte Mortgage for any reason other than final payment in
full of the payment Obligations in accordance with their terms, this Guaranty
shall nevertheless be binding on the Performance Guarantor. This Guaranty shall
be in addition to any other guaranty or other security for the Obligations, and
it shall not be rendered unenforceable by the invalidity of any such other
guaranty or security.
Section 6. Representations and Warranties.
Section 6.1. Existence and Standing. The Performance Guarantor
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all requisite corporate
authority to conduct its business in each jurisdiction in which its business is
conducted.
G-1-4
[Pulte Restated Loan Agreement]
Section 6.2. Authorization; Validity. The Performance
Guarantor has the corporate power and authority to execute and deliver this
Guaranty, perform its obligations hereunder and consummate the transactions
herein contemplated. The execution and delivery by the Performance Guarantor of
this Guaranty, the performance of its obligations and consummation of the
transactions contemplated hereunder have been duly authorized by proper
corporate proceedings, and this Guaranty constitutes the legal, valid and
binding obligation of the Performance Guarantor enforceable against the
Performance Guarantor in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and by general equity principles (whether
considered as a proceeding at law or in equity).
Section 6.3. No Conflict; Government Consent. Neither the
execution and delivery by the Performance Guarantor of this Guaranty, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof will contravene or conflict with any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on the Performance
Guarantor or any of the other Pulte Entities, except where such contravention or
conflict would not reasonably be expected to have a Material Adverse Effect, or
the Performance Guarantor's certificate of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which the Performance
Guarantor is a party or is subject, or by which it, or its property, is bound,
except where such contravention or conflict would not reasonably be expected to
have a Material Adverse Effect, or result in the creation or imposition of any
Lien in, of or on the property of the Performance Guarantor or any of its
subsidiaries pursuant to the terms of any such indenture, instrument or
agreement.
Section 6.4. Financial Statements. The consolidated financial
statements of the Performance Guarantor and its subsidiaries, heretofore
delivered to the Lenders were prepared in accordance with generally accepted
accounting principles in effect on the date such statements were prepared and
fairly present the consolidated financial condition and operations of the
Performance Guarantor and its Subsidiaries at such date and the consolidated
results of their operations for the period then ended.
Section 6.5. Material Adverse Change. Since June 30, 2002,
there has been no change in the business, properties, financial condition or
results of operations of the Performance Guarantor and its Subsidiaries which is
reasonably likely to have a Material Adverse Effect on (i) the business,
properties, financial condition or results of operations of the Performance
Guarantor and the other Pulte Entities taken as a whole, (ii) the ability of the
Performance Guarantor to perform its obligations under this Guaranty, or (iii)
the validity or enforceability of any portion of this Guaranty or the rights or
remedies of the Administrative Agent or the Lenders hereunder.
Section 6.6. Taxes. The Performance Guarantor and the other
Pulte Entities have filed all United States federal tax returns and all other
tax returns which are required to be filed, except where the failure to file
would not reasonably be expected to have a Material Adverse Effect, and have
paid all taxes due pursuant to said returns or pursuant to any
G-1-5
[Pulte Restated Loan Agreement]
assessment received by the Performance Guarantor or any of the other Pulte
Entities, except such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided. No tax liens have been filed
which are reasonably likely to have a Material Adverse Effect on (i) the
business, properties, financial condition or results of operations of the
Performance Guarantor and the other Pulte Entities taken as a whole, (ii) the
ability of the Performance Guarantor to perform its obligations under this
Guaranty, or (iii) the validity or enforceability of any portion of this
Guaranty or the rights or remedies of the Administrative Agent or the Lenders
hereunder, and no claims are being asserted in writing with respect to any such
taxes. The charges, accruals and reserves on the books of the Performance
Guarantor and the other Pulte Entities in respect of any taxes or other
governmental charges are adequate.
Section 6.7. Litigation and Contingent Obligations. There is
no litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any of their officers, threatened against or
affecting the Performance Guarantor or its Subsidiaries which is reasonably
likely to have a Material Adverse Effect on (i) the business, properties,
financial condition or results of operations of the Performance Guarantor and
the other Pulte Entities taken as a whole, (ii) the ability of the Performance
Guarantor to perform its obligations under this Guaranty, or (iii) the validity
or enforceability of any portion of this Guaranty or the rights or remedies of
the Administrative Agent or the Lenders hereunder. The Performance Guarantor has
no material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 6.4.
Section 7. Covenants. The Performance Guarantor hereby
covenants and agrees for the benefit of the Administrative Agent and the
Lenders, until the Obligations have been satisfied in full and the Restated Loan
Agreement has been terminated, as follows:
(a) to promptly notify PFI upon (i) any dispute between
the Performance Guarantor and any Governmental Authority or any other
Person that, if adversely determined, would have a Material Adverse
Effect; (ii) any material adverse change in the business, operations or
financial condition of the Performance Guarantor, including, without
limitation, such Performance Guarantor's insolvency; (iii) any event or
condition known to it that, if adversely determined, would have a
Material Adverse Effect; and (iv) the receipt of any notice of any
final judgment or order for payment of money applicable to the
Performance Guarantor in excess of $10,000,000;
(b) to pay and discharge promptly all taxes, assessments
and governmental charges or levies imposed upon it or upon its income
or upon any of its Property as well as all claims of any kind
(including claims for labor, materials, supplies and rent) that, if
unpaid, might become a Lien upon any or all of its Property; provided,
however, the Performance Guarantor shall not be required to pay any
such tax, assessment, charge, levy or claim if the amount,
applicability or validity thereof shall currently be contested in good
faith by appropriate proceedings diligently conducted by it or on its
behalf and if it shall have set up reserves therefor adequate under
GAAP;
G-1-6
[Pulte Restated Loan Agreement]
(c) to maintain its corporate existence, rights and
franchises; and
(d) to observe and comply in all material respects with
all Governmental Requirements.
Section 8. Subrogation; Subordination. The Performance
Guarantor shall not enforce or otherwise exercise any right of subrogation to
any of the rights of the Administrative Agent or the Lenders against Pulte
Mortgage, until the Obligations have been indefeasibly paid in full;
notwithstanding anything to the contrary contained herein, until the Obligations
have been indefeasibly paid in full, the Performance Guarantor hereby waives all
rights of subrogation (whether contractual, under Section 509 of the United
States Bankruptcy Code, at law or in equity or otherwise) to the claims of the
Administrative Agent or any Lender against Pulte Mortgage and all contractual,
statutory or legal or equitable rights of contribution, reimbursement,
indemnification and similar rights and "claims" (as that term is defined in the
United States Bankruptcy Code) which the Performance Guarantor might now have or
hereafter acquire against Pulte Mortgage that arises from the existence or
performance of the Performance Guarantor's obligations hereunder; until the
Obligations have been indefeasibly paid in full, the Performance Guarantor will
not claim any setoff, recoupment or counterclaim against Pulte Mortgage in
respect of any liability of the Performance Guarantor to Pulte Mortgage; and the
Performance Guarantor waives any benefit of and any right to participate in any
collateral security which may be held by the Administrative Agent or any Lender.
Unless otherwise provided for in the Restated Subordination Agreement, the
payment of any amounts due with respect to any indebtedness for borrowed money
of Pulte Mortgage now or thereafter owed to the Performance Guarantor is hereby
subordinated to the prior payment in full of all of the Obligations. The
Performance Guarantor agrees that, after the occurrence, and during the
continuation, of any default in the payment or performance of any of the
Obligations, the Performance Guarantor will not demand, ▇▇▇ for or otherwise
attempt to collect any such indebtedness of Pulte Mortgage to the Performance
Guarantor until all of the Obligations shall have been paid and performed in
full. If, notwithstanding the foregoing sentence, the Performance Guarantor
shall collect, enforce or receive any amounts in respect of such indebtedness
while any Obligations are still unperformed or outstanding, such amounts shall
be collected, enforced and received by the Performance Guarantor as trustee for
the Lenders and be paid over to the Administrative Agent on account of the
Obligations without affecting in any manner the liability of the Performance
Guarantor under the other provisions of this Guaranty. The provisions of this
Section 8 shall be supplemental to and not in derogation of any rights and
remedies of the Administrative Agent and the Lenders under any separate
subordination agreement which the Administrative Agent and the Lenders may at
any time and from time to time enter into with the Performance Guarantor.
Section 9. Termination of Guaranty. The Performance
Guarantor's obligations hereunder shall continue in full force and effect until
all Obligations are finally paid and satisfied in full and the Restated Loan
Agreement is terminated; provided, however, that this Guaranty shall continue to
be effective or shall be reinstated, as the case may be, if at any time payment
or other satisfaction of any of the Obligations is rescinded or must otherwise
be restored
G-1-7
[Pulte Restated Loan Agreement]
or returned upon the bankruptcy, insolvency, or reorganization of Pulte
Mortgage, or otherwise, as though such payment had not been made or other
satisfaction occurred, whether or not the Administrative Agent is in possession
of this Guaranty. No invalidity, irregularity or unenforceability by reason of
the Bankruptcy Code or any insolvency or other similar law, or any law or order
of any government or agency thereof purporting to reduce, amend or otherwise
affect the Obligations shall impair, affect, be a defense to or claim against
the obligations of the Performance Guarantor under this Guaranty.
Section 10. Effect of Bankruptcy. This Guaranty shall survive
the insolvency of Pulte Mortgage and the commencement of any case or proceeding
by or against Pulte Mortgage under the federal Bankruptcy Code or other federal,
state or other applicable bankruptcy, insolvency or reorganization statutes. No
automatic stay under the federal Bankruptcy Code or other federal, state or
other applicable bankruptcy, insolvency or reorganization statutes to which
Pulte Mortgage is subject shall postpone the obligations of the Performance
Guarantor under this Guaranty.
Section 11. Setoff. Regardless of the other means of obtaining
payment of any of the Obligations, each of the Administrative Agent and the
Lenders is hereby authorized at any time and from time to time during the
existence of a Servicer Default, without notice to the Performance Guarantor
(any such notice being expressly waived by the Performance Guarantor) and to the
fullest extent permitted by law, to set off and apply such deposits and other
sums against the obligations of the Performance Guarantor under this Guaranty,
whether or not the Administrative Agent and the Lenders shall have made any
demand under this Guaranty and although such obligations may be contingent or
unmatured.
Section 12. Taxes. All payments to be made by the Performance
Guarantor hereunder shall be made free and clear of any deduction or
withholding. If the Performance Guarantor is required by law to make any
deduction or withholding on account of tax or otherwise from any such payment,
the sum due from it in respect of such payment shall be increased to the extent
necessary to ensure that, after the making of such deduction or withholding, the
Administrative Agent and the Lenders receive a net sum equal to the sum which
they would have received had no deduction or withholding been made.
Section 13. Further Assurances. The Performance Guarantor
agrees that it will permit the Administrative Agent and the Lenders or any of
their duly authorized representatives, during normal business hours, and upon
reasonable notice to consult and discuss with the Performance Guarantor's
Treasurer or Controller, with respect to the Performance Guarantor's business,
finances, accounts and affairs. The Performance Guarantor agrees that it will
from time to time, at the request of the Administrative Agent and the Lenders,
provide to the Administrative Agent and the Lenders information relating to the
business and affairs of the Performance Guarantor as the Administrative Agent
and the Lenders may reasonably request. The Performance Guarantor also agrees to
do all such things and execute all such documents as the Administrative Agent
and the Lenders may reasonably consider necessary or desirable to
G-1-8
[Pulte Restated Loan Agreement]
give full effect to this Guaranty and to perfect and preserve the rights and
powers of the Administrative Agent and the Lenders hereunder.
Section 14. Successors and Assigns. This Guaranty shall be
binding upon the Performance Guarantor, its successors and assigns, and shall
inure to the benefit of and be enforceable by the Administrative Agent and the
Lenders and their successors, transferees and assigns. The Performance Guarantor
may not assign or transfer any of its obligations hereunder without the prior
written consent of each of the Lenders.
Section 15. Amendments and Waivers. No amendment or waiver of
any provision of this Guaranty nor consent to any departure by the Performance
Guarantor therefrom shall be effective unless the same shall be in writing and
signed by the Administrative Agent and the Performance Guarantor. No failure on
the part of the Administrative Agent or any Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
Section 16. Notices. All notices and other communications
called for hereunder shall be made in writing and, unless otherwise specifically
provided herein, shall be deemed to have been duly made or given when delivered
by hand or mailed first class, postage prepaid, or, in the case of telegraphic,
telecopied or telexed notice, when transmitted, answer back received, addressed
as follows: if to the Performance Guarantor, at the address set forth beneath
its signature hereto, and if to the Administrative Agent and the Lenders at its
address specified in the Restated Loan Agreement, or at such other address as
either party may designate in writing to the other.
SECTION 17. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY
HERETO).
SECTION 18. CONSENT TO JURISDICTION. THE PERFORMANCE GUARANTOR
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, THE RESTATED
LOAN AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR
DELIVERED THEREUNDER AND THE PERFORMANCE GUARANTOR 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
G-1-9
[Pulte Restated Loan Agreement]
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 ADMINISTRATIVE
AGENT, ANY MANAGING AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
PERFORMANCE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
Section 19. Miscellaneous. This Guaranty constitutes the
entire agreement of the Performance Guarantor with respect to the matters set
forth herein. The rights and remedies herein provided are cumulative and not
exclusive of any remedies provided by law or any other agreement, and this
Guaranty shall be in addition to any other guaranty of or collateral security
for any of the Obligations. The provisions of this Guaranty are severable, and
in any action or proceeding involving any state corporate law, or any state or
federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of the Performance Guarantor
hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of the Performance Guarantor's liability
under this Guaranty, then, notwithstanding any other provision of this Guaranty
to the contrary, the amount of such liability shall, without any further action
by the Performance Guarantor, the Administrative Agent or any Lender, be
automatically limited and reduced to the highest amount that is valid and
enforceable as determined in such action or proceeding. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
[Signatures Follow]
G-1-10
[Pulte Restated Loan Agreement]
IN WITNESS WHEREOF, the Performance Guarantor has caused this Guaranty
to be executed and delivered as of the date first above written.
PULTE HOMES, INC.
By:_________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
G-1-11
[Pulte Restated Loan Agreement]
EXHIBIT G-2
FORM OF AMENDED AND RESTATED ORIGINATOR PERFORMANCE GUARANTY
This Amended and Restated Originator Performance Guaranty (the
"Guaranty"), dated as of August 23, 2002, is executed by Pulte Homes, Inc., a
Michigan corporation (formerly known as Pulte Corporation) (the "Performance
Guarantor"), in favor of Pulte Funding, Inc., a Michigan corporation ("PFI").
WHEREAS, PFI has entered into an Amended and Restated Addendum to
Master Repurchase Agreement dated as of August 23, 2002 (as amended, restated,
supplemented or otherwise modified from time to time, the "Repurchase
Agreement"), with Pulte Mortgage Corporation, a Delaware corporation ("Pulte
Mortgage"), pursuant to which PFI has agreed to purchase from time to time
certain Mortgage Assets from Pulte Mortgage;
WHEREAS, as an inducement for PFI to purchase Mortgage Assets pursuant
to the Repurchase Agreement, the Performance Guarantor has agreed to guaranty
the due and punctual performance of Pulte Mortgage's obligations under the
Repurchase Agreement, including any obligation to repurchase Mortgage Assets as
a result of a breach pursuant to Section 2.05 of the Addendum to the Repurchase
Agreement, provided that the Performance Guarantor shall not guaranty Pulte
Mortgage's obligations to repurchase Mortgage Assets on the Repurchase Date
pursuant to Sections 3(b) and 3(c) of the Repurchase Agreement;
WHEREAS, it is a condition precedent to PFI agreeing to purchase
Mortgage Assets pursuant to the Repurchase Agreement that the Performance
Guarantor execute and deliver to PFI a performance guaranty substantially in the
form hereof; and
WHEREAS, the Performance Guarantor wishes to guaranty the due and
punctual performance of Pulte Mortgage's obligations to PFI under or in respect
of the Repurchase Agreement as provided herein, and the Performance Guarantor,
as the owner, directly or indirectly, of all of the outstanding shares of
capital stock of Pulte Mortgage, will derive substantial benefit from the
transactions contemplated under the Repurchase Agreement;
NOW, THEREFORE, the Performance Guarantor hereby agrees with PFI as
follows:
Section 1. Definitions.
As used herein:
"Bankruptcy Code" means the United States Bankruptcy Code, 11
U.S.C. Sections 101 et seq., as amended.
"Obligations" means, collectively, all covenants, agreements,
terms, conditions and indemnities to be performed and observed by Pulte
Mortgage under and pursuant to the Repurchase Agreement and each other
document executed and delivered by Pulte
G-2-1
[Pulte Restated Loan Agreement]
Mortgage pursuant to the Repurchase Agreement (other than the Restated
Loan Agreement), except for Pulte Mortgage's obligation to repurchase
Mortgage Assets on the Repurchase Date pursuant to Sections 3(b) and
3(c) of the Repurchase Agreement, including, without limitation, the
due and punctual payment of all sums which are or may become due and
owing by Pulte Mortgage under the Repurchase Agreement whether for
repurchase prices for repurchases pursuant to Section 2.05 of the
Addendum to the Repurchase Agreement, fees, expenses (including counsel
fees), indemnified amounts or otherwise, whether upon any termination
or for any other reason, including any renewals, extensions and
modifications thereof.
"Restated Loan Agreement" means that certain Amended and
Restated Loan Agreement dated as of August 23, 2002 by and among PFI,
certain Issuers parties thereto, certain Banks parties thereto, Credit
Lyonnais New York Branch, as administrative agent for the Issuer and
Banks, certain Managing Agents parties thereto, and Pulte Mortgage, as
the servicer thereunder, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Pulte Entities" means, collectively, the Performance
Guarantor, Pulte Mortgage, and PFI.
All capitalized terms used herein, and not otherwise herein defined
shall have their respective meanings as defined in the Repurchase Agreement.
Section 2. Guaranty of Performance of Obligations. The
Performance Guarantor hereby unconditionally guarantees to PFI, the full and
punctual payment and performance by Pulte Mortgage of the Obligations.
This Guaranty is an absolute, unconditional and continuing guaranty of
the full and punctual performance of all of the Obligations and is in no way
conditioned upon any requirement that PFI first take any action against Pulte
Mortgage with respect to the Obligations or attempt to collect any of the
amounts owing by Pulte Mortgage to PFI from Pulte Mortgage or resort to any
collateral security, any balance of any deposit account or credit on the books
of PFI in favor of Pulte Mortgage, any guarantor of the Obligations or any other
Person. Should Pulte Mortgage default in the payment or performance of any of
the Obligations, PFI may cause the immediate performance by the Performance
Guarantor of the Obligations and cause any payment Obligations to become
forthwith due and payable to PFI, without demand or notice of any nature (other
than as expressly provided herein), all of which are expressly waived by the
Performance Guarantor.
The Performance Guarantor's liability under this Guaranty shall be
absolute and unconditional irrespective of (i) any lack of validity or
enforceability of the Repurchase Agreement, the Restated Loan Agreement or any
other document executed in connection therewith or delivered thereunder, (ii)
any change in the time, manner or place of payment of, or in any other term of,
all or any of the Obligations, or any other amendment or waiver of or any
consent to departure from the Repurchase Agreement, the Restated Loan Agreement
or any other
G-2-2
[Pulte Restated Loan Agreement]
document executed in connection therewith or delivered thereunder, (iii) any
taking, exchange, release or non-perfection of any collateral, or any taking,
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the Obligations, (iv) any law, regulation or order
of any jurisdiction affecting any term of all or any Obligations or the rights
of PFI, (v) any manner of application of collateral, or proceeds thereof, to all
or any of the Obligations, or any manner of sale or other disposition of any
collateral for all or any of the Obligations or any other assets of Pulte
Mortgage, (vi) any change, restructuring or termination of the corporate
structure or existence of Pulte Mortgage, or (vii) any other circumstance which
might otherwise constitute a defense available to, or a discharge of, Pulte
Mortgage or a guarantor. In the event that performance of any of the Obligations
is stayed upon the insolvency, bankruptcy or reorganization of Pulte Mortgage,
or for any other reason, all such Obligations shall be immediately performed by
the Performance Guarantor.
Section 3. Performance Guarantor's Further Agreements to Pay.
The Performance Guarantor further agrees, in the event the Performance Guarantor
fails to perform its obligations under this Guaranty, to pay to PFI, forthwith
upon demand all reasonable costs and expenses (including court costs and legal
expenses) incurred or expended by PFI in connection with the enforcement of this
Guaranty.
Section 4. Waivers by Performance Guarantor; PFI's Freedom to
Act. The Performance Guarantor waives notice of (a) acceptance of this Guaranty,
(b) any action taken or omitted by PFI in reliance on this Guaranty, and (c) any
requirement that PFI be diligent or prompt in making demands under this
Guaranty, giving notice of any Default, Event of Default, default or omission by
Pulte Mortgage or asserting any other rights of PFI under this Guaranty. To the
maximum extent permitted by applicable law, the Performance Guarantor also
irrevocably waives all defenses that at any time may be available in respect of
the Obligations by virtue of any statute of limitations, valuation, stay,
moratorium law or other similar law now or thereafter in effect.
PFI shall be at liberty, without giving notice to or obtaining the
assent of the Performance Guarantor and without relieving the Performance
Guarantor of any liability under this Guaranty, to deal with Pulte Mortgage and
with each other party who now is or after the date hereof becomes liable in any
manner for any of the Obligations, in such manner as PFI in its sole discretion
deems fit, and to this end the Performance Guarantor agrees that the validity
and enforceability of this Guaranty, including without limitation, the
provisions of Section 8 hereof, shall not be impaired or affected by any of the
following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Obligations or any part thereof or any
agreement relating thereto at any time; (b) any failure or omission to enforce
any right, power or remedy with respect to the Obligations or any part thereof
or any agreement relating thereto, or any collateral securing the Obligations or
any part thereof; (c) any waiver of any right, power or remedy or of any
Default, Event of Default, default with respect to the Obligations or any part
thereof or any agreement relating thereto; (d) any release, surrender,
compromise, settlement, waiver, subordination or modification, with or without
consideration, of any other obligation of any person or entity with respect to
the Obligations or any part thereof; (e) the
G-2-3
[Pulte Restated Loan Agreement]
enforceability or validity of the Obligations or any part thereof or the
genuineness, enforceability or validity of any agreement relating thereto or
with respect to the Obligations or any part thereof; (f) the application of
payments received from any source to the payment of any payment Obligations of
Pulte Mortgage, any part thereof or amounts which are not covered by this
Guaranty even though PFI might lawfully have elected to apply such payments to
any part or all of the payment Obligations of Pulte Mortgage or to amounts which
are not covered by this Guaranty; (g) the existence of any claim, setoff or
other rights which the Performance Guarantor may have at any time against Pulte
Mortgage in connection herewith or any unrelated transaction; (h) any assignment
or transfer of the Obligations or any part thereof; or (i) any failure on the
part of Pulte Mortgage to perform or comply with any term of the Repurchase
Agreement or any other document executed in connection therewith or delivered
thereunder, all whether or not the Performance Guarantor shall have had notice
or knowledge of any act or omission referred to in the foregoing clauses (a)
through (i) of this Section.
Section 5. Unenforceability of Obligations Against Pulte
Mortgage. Notwithstanding (a) any change of ownership of Pulte Mortgage or the
insolvency, bankruptcy or any other change in the legal status of Pulte
Mortgage; (b) the change in or the imposition of any law, decree, regulation or
other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Obligations; (c) the
failure of Pulte Mortgage or the Performance Guarantor to maintain in full
force, validity or effect or to obtain or renew when required all governmental
and other approvals, licenses or consents required in connection with the
Obligations or this Guaranty, or to take any other action required in connection
with the performance of all obligations pursuant to the Obligations or this
Guaranty; or (d) if any of the moneys included in the Obligations have become
unrecoverable from Pulte Mortgage for any reason other than final payment in
full of the payment Obligations in accordance with their terms, this Guaranty
shall nevertheless be binding on the Performance Guarantor. This Guaranty shall
be in addition to any other guaranty or other security for the Obligations, and
it shall not be rendered unenforceable by the invalidity of any such other
guaranty or security.
Section 6. Representations and Warranties.
Section 6.1. Existence and Standing. The Performance Guarantor
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all requisite corporate
authority to conduct its business in each jurisdiction in which its business is
conducted.
Section 6.2. Authorization; Validity. The Performance
Guarantor has the corporate power and authority to execute and deliver this
Guaranty, perform its obligations hereunder and consummate the transactions
herein contemplated. The execution and delivery by the Performance Guarantor of
this Guaranty, the performance of its obligations and consummation of the
transactions contemplated hereunder have been duly authorized by proper
corporate proceedings, and this Guaranty constitutes the legal, valid and
binding obligation of the Performance Guarantor enforceable against the
Performance Guarantor in accordance with
G-2-4
[Pulte Restated Loan Agreement]
its terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles (whether considered as a proceeding at law or in
equity).
Section 6.3. No Conflict; Government Consent. Neither the
execution and delivery by the Performance Guarantor of this Guaranty, nor the
consummation of the transactions herein contemplated, nor compliance with the
provisions hereof will contravene or conflict with any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on the Performance
Guarantor or any of the other Pulte Entities, except where such contravention or
conflict would reasonably be expected to have a Material Adverse Effect, or the
Performance Guarantor's certificate of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which the Performance
Guarantor is a party or is subject, or by which it, or its property, is bound,
except where such contravention or conflict would not reasonably be expected to
have a Material Adverse Effect, or result in the creation or imposition of any
Lien in, of or on the property of the Performance Guarantor or any of its
Subsidiaries pursuant to the terms of any such indenture, instrument or
agreement.
Section 6.4. Financial Statements. The consolidated financial
statements of the Performance Guarantor and its Subsidiaries, heretofore
delivered to PFI were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Performance
Guarantor and its Subsidiaries at such date and the consolidated results of
their operations for the period then ended.
Section 6.5. Material Adverse Change. Since June 30, 2002,
there has been no change in the business, properties, financial condition or
results of operations of the Performance Guarantor and its Subsidiaries which is
reasonably likely to have a Material Adverse Effect on (i) the business,
properties, financial condition or results of operations of the Performance
Guarantor and its subsidiaries taken as a whole, (ii) the ability of the
Performance Guarantor to perform its obligations under this Guaranty, or (iii)
the validity or enforceability of any portion of this Guaranty or the rights or
remedies of PFI hereunder.
Section 6.6. Taxes. The Performance Guarantor and the other
Pulte Entities have filed all United States federal tax returns and all other
tax returns which are required to be filed, except where the failure to file
would not reasonably be expected to have a Material Adverse Effect, and have
paid all taxes due pursuant to said returns or pursuant to any assessment
received by the Performance Guarantor or any of the other Pulte Entities, except
such taxes, if any, as are being contested in good faith and as to which
adequate reserves have been provided. No tax liens have been filed which are
reasonably likely to have a Material Adverse Effect on (i) the business,
properties, financial condition or results of operations of the Performance
Guarantor and the other Pulte Entities taken as a whole, (ii) the ability of the
Performance Guarantor to perform its obligations under this Guaranty, or (iii)
the validity or enforceability of any portion of this Guaranty or the rights or
remedies of PFI hereunder, and no claims are being asserted in writing with
respect to any such taxes. The charges, accruals and
G-2-5
[Pulte Restated Loan Agreement]
reserves on the books of the Performance Guarantor and the other Pulte Entities
in respect of any taxes or other governmental charges are adequate.
Section 6.7. Litigation and Contingent Obligations. There is
no litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any of their officers, threatened against or
affecting the Performance Guarantor or its Subsidiaries which is reasonably
likely to have a Material Adverse Effect on (i) the business, properties,
financial condition or results of operations of the Performance Guarantor and
the other Pulte Entities taken as a whole, (ii) the ability of the Performance
Guarantor to perform its obligations under this Guaranty, or (iii) the validity
or enforceability of any of this Guaranty or the rights or remedies of PFI
hereunder. The Performance Guarantor has no material contingent obligations not
provided for or disclosed in the financial statements referred to in Section
6.4.
Section 7. Covenants. The Performance Guarantor hereby
covenants and agrees for the benefit of PFI, until the Obligations have been
satisfied in full and the Repurchase Agreement and the Restated Loan Agreement
have been terminated, as follows:
(a) to promptly notify PFI upon (i) any dispute between the
Performance Guarantor and any Governmental Authority or any other Person that,
if adversely determined, would have a Material Adverse Effect; (ii) any material
adverse change in the business, operations or financial condition of the
Performance Guarantor, including, without limitation, such Performance
Guarantor's insolvency; (iii) any event or condition known to it that, if
adversely determined, would have a Material Adverse Effect; and (iv) the receipt
of any notice of any final judgment or order for payment of money applicable to
the Performance Guarantor in excess of $10,000,000;
(b) to comply with (a) all applicable laws, rules, regulations and
orders, and (b) material agreements, indentures, mortgages and corporate
documents, except to the extent that the failure so to comply would not be
reasonably expected to have a Material Adverse Effect;
(c) to maintain its corporate existence, rights and franchises;
and
(d) observe and comply in all material respects with all
Governmental Requirements.
Section 8. Subrogation; Subordination. The Performance
Guarantor shall not enforce or otherwise exercise any right of subrogation to
any of the rights of PFI against Pulte Mortgage, until the Obligations have been
indefeasibly paid in full; notwithstanding anything to the contrary contained
herein, until the Obligations have been indefeasibly paid in full, the
Performance Guarantor hereby waives all rights of subrogation (whether
contractual, under Section 509 of the United States Bankruptcy Code, at law or
in equity or otherwise) to the claims of PFI against Pulte Mortgage and all
contractual, statutory or legal or equitable rights of contribution,
reimbursement, indemnification and similar rights and "claims" (as that term is
defined in the United States Bankruptcy Code) which the Performance Guarantor
might now have or hereafter acquire against Pulte Mortgage that arises from the
existence or performance of the Performance Guarantor's obligations hereunder;
the Performance Guarantor will not claim any setoff, recoupment or counterclaim
against Pulte Mortgage in respect of any liability of the
G-2-6
[Pulte Restated Loan Agreement]
Performance Guarantor to Pulte Mortgage, until any of the Obligations have been
indefeasibly paid in full; and the Performance Guarantor waives any benefit of
and any right to participate in any collateral security which may be held by
PFI. Unless otherwise provided for in the Restated Subordination Agreement, the
payment of any amounts due with respect to any indebtedness for borrowed money
of Pulte Mortgage now or thereafter owed to the Performance Guarantor is hereby
subordinated to the prior payment in full of all the Obligations. The
Performance Guarantor agrees that, after the occurrence, and during the
continuation, of any default in the payment or performance of any of the
Obligations, the Performance Guarantor will not demand, ▇▇▇ for or otherwise
attempt to collect any such indebtedness of Pulte Mortgage to the Performance
Guarantor until all of the Obligations shall have been paid and performed in
full. If, notwithstanding the foregoing sentence, the Performance Guarantor
shall collect, enforce or receive any amounts in respect of such indebtedness
while any Obligations are still unperformed or outstanding, such amounts shall
be collected, enforced and received by the Performance Guarantor as trustee for
PFI and be paid over to PFI on account of the Obligations without affecting in
any manner the liability of the Performance Guarantor under the other provisions
of this Guaranty. The provisions of this Section 8 shall be supplemental to and
not in derogation of any rights and remedies of PFI under any separate
subordination agreement that PFI may at any time and from time to time enter
into with the Performance Guarantor.
Section 9. Termination of Guaranty. The Performance
Guarantor's obligations hereunder shall continue in full force and effect until
all Obligations are finally paid and satisfied in full and the Repurchase
Agreement and Restated Loan Agreement are terminated; provided, however, that
this Guaranty shall continue to be effective or shall be reinstated, as the case
may be, if at any time payment or other satisfaction of any of the Obligations
is rescinded or must otherwise be restored or returned upon the bankruptcy,
insolvency, or reorganization of Pulte Mortgage, or otherwise, as though such
payment had not been made or other satisfaction occurred, whether or not PFI is
in possession of this Guaranty. No invalidity, irregularity or unenforceability
by reason of the Bankruptcy Code or any insolvency or other similar law, or any
law or order of any government or agency thereof purporting to reduce, amend or
otherwise affect the Obligations shall impair, affect, be a defense to or claim
against the obligations of the Performance Guarantor under this Guaranty.
Section 10. Effect of Bankruptcy. This Guaranty shall survive
the insolvency of Pulte Mortgage and the commencement of any case or proceeding
by or against Pulte Mortgage under the federal Bankruptcy Code or other federal,
state or other applicable bankruptcy, insolvency or reorganization statutes. No
automatic stay under the federal Bankruptcy Code or other federal, state or
other applicable bankruptcy, insolvency or reorganization statutes to which
Pulte Mortgage is subject shall postpone the obligations of the Performance
Guarantor under this Guaranty.
Section 11. Setoff. PFI is not authorized at any time to set
off and apply any deposits or other sums against the obligations of the
Performance Guarantor under this Guaranty.
G-2-7
[Pulte Restated Loan Agreement]
Section 12. Taxes. All payments to be made by the Performance
Guarantor hereunder shall be made free and clear of any deduction or
withholding. If the Performance Guarantor is required by law to make any
deduction or withholding on account of tax or otherwise from any such payment,
the sum due from it in respect of such payment shall be increased to the extent
necessary to ensure that, after the making of such deduction or withholding, PFI
receives a net sum equal to the sum which it would have received had no
deduction or withholding been made.
Section 13. Further Assurances. The Performance Guarantor
agrees that it will permit PFI or any of its duly authorized representatives,
during normal business hours, and upon reasonable notice to consult and discuss
with the Performance Guarantor's Treasurer or Controller, with respect to the
Performance Guarantor's business, finances, accounts and affairs. The
Performance Guarantor agrees that it will from time to time, at the request of
PFI, provide to PFI information relating to the business and affairs of the
Performance Guarantor as PFI may reasonably request. The Performance Guarantor
also agrees to do all such things and execute all such documents as PFI may
reasonably consider necessary or desirable to give full effect to this Guaranty
and to perfect and preserve the rights and powers of PFI hereunder.
Section 14. Successors and Assigns. This Guaranty shall be
binding upon the Performance Guarantor, its successors and assigns, and shall
inure to the benefit of and be enforceable by PFI and its successors,
transferees and assigns. The Performance Guarantor may not assign or transfer
any of its obligations hereunder without the prior written consent of PFI.
PFI (and any assignee of PFI) may at any time assign any and all of its
rights hereunder to any other person or entity without the consent of the
Performance Guarantor or Pulte Mortgage, whereupon (i) each reference herein to
PFI shall mean and be a reference to such assignee and (ii) such assignee may
enforce the Guaranty to the fullest extent as if it were a named party hereto.
Without limiting the generality of the foregoing, the Performance Guarantor
acknowledges and consents to the assignment by PFI, under and in connection with
the Restated Loan Agreement, of all of PFI's right, title and interest in, to
and under this Guaranty to the Administrative Agent for the benefit of the
Lenders, and the Performance Guarantor agrees that at all times that the
Restated Loan Agreement shall be in effect (i) any claim made by PFI hereunder
shall be deemed made for the benefit of the Administrative Agent and Lenders and
(ii) any payment or remittance to be made hereunder by the Performance Guarantor
in respect of any claim being made by or in respect of PFI or PFI's interest
under the Repurchase Agreement shall be paid or remitted to the Administrative
Agent for the benefit of the Lenders.
Section 15. Amendments and Waivers. No amendment or waiver of
any provision of this Guaranty nor consent to any departure by the Performance
Guarantor therefrom shall be effective unless the same shall be in writing and
signed by PFI and the Performance Guarantor. No failure on the part of PFI to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of
G-2-8
[Pulte Restated Loan Agreement]
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right.
Section 16. Notices. All notices and other communications
called for hereunder shall be made in writing and, unless otherwise specifically
provided herein, shall be deemed to have been duly made or given when delivered
by hand or mailed first class, postage prepaid, or, in the case of telegraphic,
telecopied or telexed notice, when transmitted, answer back received, addressed
as follows: if to the Performance Guarantor, at the address set forth beneath
its signature hereto, and if to PFI at its address specified in the Repurchase
Agreement, or at such other address as either party may designate in writing to
the other.
SECTION 17. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF, OTHER THAN SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL APPLY
HERETO).
SECTION 18. CONSENT TO JURISDICTION. THE PERFORMANCE GUARANTOR
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, THE REPURCHASE
AGREEMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH OR DELIVERED
THEREUNDER AND THE PERFORMANCE GUARANTOR 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 PFI OR ANY OF ITS ASSIGNS TO BRING PROCEEDINGS AGAINST THE PERFORMANCE
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION.
Section 19. Miscellaneous. This Guaranty constitutes the
entire agreement of the Performance Guarantor with respect to the matters set
forth herein. The rights and remedies herein provided are cumulative and not
exclusive of any remedies provided by law or any other agreement, and this
Guaranty shall be in addition to any other guaranty of or collateral security
for any of the Obligations. The provisions of this Guaranty are severable, and
in any action or proceeding involving any state corporate law, or any state or
federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of the Performance Guarantor
hereunder would otherwise be held or determined to be avoidable, invalid or
unenforceable on account of the amount of the Performance Guarantor's
G-2-9
[Pulte Restated Loan Agreement]
liability under this Guaranty, then, notwithstanding any other provision of this
Guaranty to the contrary, the amount of such liability shall, without any
further action by the Performance Guarantor or PFI, be automatically limited and
reduced to the highest amount that is valid and enforceable as determined in
such action or proceeding. The invalidity or unenforceability of any one or more
sections of this Guaranty shall not affect the validity or enforceability of its
remaining provisions. Captions are for the ease of reference only and shall not
affect the meaning of the relevant provisions. The meanings of all defined terms
used in this Guaranty shall be equally applicable to the singular and plural
forms of the terms defined.
G-2-10
[Pulte Restated Loan Agreement]
IN WITNESS WHEREOF, the Performance Guarantor has caused this
Guaranty to be executed and delivered as of the date first above written.
PULTE HOMES, INC.
By:__________________________________________
Name:
Title:
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
G-2-11
[Pulte Restated Loan Agreement]
ASSIGNMENT TO
AMENDED AND RESTATED ORIGINATOR PERFORMANCE GUARANTY
The undersigned hereby assigns all of its right, title and interest in
and to the foregoing Amended and Restated Originator Performance Guaranty to
Credit Lyonnais New York Branch, in its capacity as administrative agent (the
"Administrative Agent") for the "Lenders" under and as defined in that certain
Amended and Restated Loan Agreement dated as of August 23, 2002 by and among
Pulte Funding, Inc. ("PFI"), certain parties thereto, the Administrative Agent
and Pulte Mortgage Corporation, as servicer thereunder, as the same may be
amended, restated, supplemented or otherwise modified from time to time. Pulte
Homes, Inc. ("Pulte") acknowledges such assignment, and agrees that the
Administrative Agent may further assign, without notice, its right, title and
interest in and to the Restated Originator Performance Guaranty without the
consent of any person or entity. The Administrative Agent, as the assignee of
PFI, shall have the right to enforce the Restated Originator Performance
Guaranty and to directly exercise all of PFI's rights and remedies under the
Restated Originator Performance Guaranty, and Pulte agrees to cooperate fully
with the Administrative Agent in the exercise of such rights and remedies
thereunder. Pulte further agrees to give the Administrative Agent copies of all
notices it is required to give to PFI under the Restated Originator Performance
Guaranty.
Dated: August 23, 2002
PULTE FUNDING, INC.
By:_____________________________
Name:
Title:
Acknowledged and agreed to
this 23rd day of August, 2002
PULTE HOMES, INC.
By:_________________________________
Name:
Title:
G-2-12
[Pulte Restated Loan Agreement]
EXHIBIT H-1
PULTE MORTGAGE CORPORATION
QUARTERLY OFFICER'S CERTIFICATE
FOR THE PERIOD FROM ____________ TO _________________,
Credit Lyonnais New York Branch
as a Managing Agent under the Restated
Loan Agreement referred to below
Credit Lyonnais Building
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Bank One, NA (Main Office Chicago),
as a Managing Agent under the
Restated Loan Agreement as referred to below
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Restated Loan Agreement
This Certificate is delivered pursuant to Section 6.1(e) of
the Amended and Restated Loan Agreement, dated as of August 23, 2002, among
PULTE FUNDING, INC., as the Borrower (hereinafter, together with its successors
and assigns, the "Borrower"), ATLANTIC ASSET SECURITIZATION CORP., as an Issuer
(hereinafter, together with its successors and assigns, "Atlantic"), JUPITER
SECURITIZATION CORPORATION, as an Issuer (hereinafter, together with its
successors and assigns, "Jupiter") CREDIT LYONNAIS NEW YORK BRANCH ("CL New
York"), as a Bank, the Administrative Agent and a Managing Agent, BANK ONE, NA
(MAIN OFFICE CHICAGO), (hereinafter, together with its successors and assigns,
"Bank One"), as a Bank and as a Managing Agent, LLOYDS TSB BANK PLC, as a Bank
(hereinafter, together with its successors and assigns, "Lloyds") and PULTE
MORTGAGE CORPORATION, as the Servicer (hereinafter, together with its successors
and assigns, "PMC") (such agreement, as from time to time supplemented, amended,
restated or extended, the "Restated Loan Agreement"). Capitalized terms used and
not otherwise defined herein have the meanings given thereto in the Restated
Loan Agreement.
I hereby certify to the Managing Agents and the Lenders as
follows:
1. I am, and at all times mentioned herein have been,
the duly elected, qualified and acting [president] [chief financial officer] of
the Servicer.
H-1-1
[Pulte Restated Loan Agreement]
2. I have individually reviewed the provisions of the
Restated Loan Agreement, and a review of the activities of the Servicer during
the fiscal quarter ending as of ___________________, ____ (the "Subject Period")
has been made under my supervision with a view toward determining whether,
during the Subject Period, the Servicer has kept, observed, performed and
fulfilled its obligations under the Restated Loan Agreement.
3. To the best of my knowledge, and based upon the
review referred to in paragraph 2, above, the representations and warranties of
the Servicer in Article V of the Restated Loan Agreement are true and correct in
all material respects on the date hereof as though made on and as of the date
hereof, and no Default, Event of Default, Servicer Default or Event of
Termination has occurred and is continuing or is imminent.
4. The Net Worth of the Servicer, as of the last day of
the Subject Period, is:
$_____________.
Requirement of Restated Loan Agreement (clause (b) of
definition of Servicer Default): Not less than
$__________.
Condition satisfied _______________.
Condition not satisfied ________________.
5. Maximum Leverage - Computation. As of _________ __,:
(a) Servicer's total liabilities as shown on its
balance sheet are:
$____________.
(b) Servicer's total contingent liabilities for
borrowed money Indebtedness:
$____________.
(c) To the extent not already included in total
liabilities, Servicer's total obligations to
fund either the origination or the purchase
of mortgage loans that are closed but not
funded are: $____________.
(d) Subtotal of Items 5(a), (b) and (c) is:
$____________.
(e) Servicer's total trade payables and accrued
expenses, arising out of the ordinary course
of business and that are not related to
funding or purchasing any specific mortgage
loan:
$____________.
H-1-2
[Pulte Restated Loan Agreement]
(f) Servicer's total deferred federal income tax
liabilities:
$____________.
(g) Adjusted Liabilities (Item 5(d) minus the
sum of Item 5(e) and Item 5(f) is:
$____________.
(h) Servicer's stockholders' equity
$____________.
(i) Servicer's deferred income less reasonable
adjustments for reserves for related
deferred income tax liabilities is:
$____________.
(j) Adjusted Net Worth (Sum of
Items 5(h) and 5(i)) is: $____________.
(k) 15 x Item 5(j) $____________.
(l) Requirement of Restated Loan Agreement
(Section 7.10).
Item 5(g) shall not be greater than
Item 5(k).
Covenant satisfied ____________.
Covenant not satisfied ____________.
EXECUTED and delivered this ____ day of _______________, ____.
____________________________________
[President][Chief Financial Officer] of
PULTE MORTGAGE CORPORATION
H-1-3
[Pulte Restated Loan Agreement]
EXHIBIT H-2
PULTE FUNDING, INC.
QUARTERLY OFFICER'S CERTIFICATE
FOR THE PERIOD FROM ____________, 20__ TO _________________, 20__
Credit Lyonnais New York Branch
as Managing Agent under the Restated
Loan Agreement referred to below
Credit Lyonnais Building
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Bank One, NA (Main Office Chicago),
as Managing Agent under the Restated
Loan Agreement referred to below
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Restated Loan Agreement
This Certificate is delivered pursuant to Section 6.1(e) of
the Amended and Restated Loan Agreement, dated as of August 23, 2002, among
PULTE FUNDING, INC., as the Borrower (hereinafter, together with its successors
and assigns, the "Borrower"), ATLANTIC ASSET SECURITIZATION CORP., as an Issuer
(hereinafter, together with its successors and assigns, "Atlantic"), JUPITER
SECURITIZATION CORPORATION, as an Issuer (hereinafter, together with its
successors and assigns, "Jupiter") CREDIT LYONNAIS NEW YORK BRANCH ("CL New
York"), as a Bank, the Administrative Agent and a Managing Agent, BANK ONE, NA
(MAIN OFFICE CHICAGO), (hereinafter, together with its successors and assigns,
"Bank One"), as a Bank and as a Managing Agent, LLOYDS TSB BANK PLC, as a Bank
(hereinafter, together with its successors and assigns, "Lloyds") and PULTE
MORTGAGE CORPORATION, as the Servicer (hereinafter, together with its successors
and assigns, "PMC") (such agreement, as from time to time supplemented, amended,
restated or extended, the "Restated Loan Agreement"). Capitalized terms used and
not otherwise defined herein have the meanings given thereto in the Restated
Loan Agreement.
I hereby certify to the Managing Agents and the Lenders as
follows:
1. I am, and at all times mentioned herein have been,
the duly elected, qualified and acting [president] [chief financial officer] of
the Borrower.
2. I have individually reviewed the provisions of the
Restated Loan Agreement, and a review of the activities of the Borrower during
the fiscal quarter ending as of
H-2-1
[Pulte Restated Loan Agreement]
_______________, 20__ (the "Subject Period") has been made under my supervision
with a view toward determining whether, during the Subject Period, the Borrower
has kept, observed, performed and fulfilled its obligations under the Restated
Loan Agreement.
3. To the best of my knowledge, and based upon the
review referred to in paragraph 2, above, the representations and warranties of
the Borrower in Article V of the Restated Loan Agreement are true and correct in
all material respects on the date hereof as though made on and as of the date
hereof, and no Default or Event of Default has occurred and is continuing or is
imminent.
EXECUTED and delivered this ____ day of _______________, 2002.
PULTE FUNDING, INC.
By:_____________________________
Name:________________________
Title:_______________________
H-2-2
[Pulte Restated Loan Agreement]
EXHIBIT I-1
Opinion of Counsel
To Borrower
On Corporate Matters
See Tab ___.
I-1-1
[Pulte Restated Loan Agreement]
EXHIBIT I-2
Opinion of Counsel
To Borrower and Originator
On Security Interest Matters
See Tab ___.
I-2-1
[Pulte Restated Loan Agreement]
EXHIBIT J
Opinion of Counsel
To Originator
On Bankruptcy Matters
See Tab ___.
J-1
[Pulte Restated Loan Agreement]
EXHIBIT K
PULTE MORTGAGE CORPORATION
As of:
FORM OF HEDGE REPORT
-----------------------------------------------------------------------------------------------------------------
Price PSA TBA Take-Out
Trade # Trade Date Broker Security Coupon (32nd's) Settle Amount Amount*
-----------------------------------------------------------------------------------------------------------------
TRADES: % $ $
-------- -------
TRADES: $ $
======== =======
CONFORMING $
COLLATERAL $
AT BANK:
-------
CUSHION:
=======
* Take-out amount must exceed collateral.
K-1
[Pulte Restated Loan Agreement]
EXHIBIT L
[RESERVED]
L-1
[Pulte Restated Loan Agreement]
EXHIBIT M
SERVICER PERIODIC REPORT
[DATE]
PULTE FUNDING, INC.
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
LASALLE BANK NATIONAL ASSOCIATION
Fax No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: PULTE FUNDING, INC.
We refer to the Amended and Restated Loan Agreement, dated as of August
23, 2002, among PULTE FUNDING, INC., as the Borrower (hereinafter, together with
its successors and assigns, the "Borrower"), ATLANTIC ASSET SECURITIZATION
CORP., as an Issuer (hereinafter, together with its successors and assigns,
"Atlantic"), JUPITER SECURITIZATION CORPORATION, as an Issuer (hereinafter,
together with its successors and assigns, "Jupiter") CREDIT LYONNAIS NEW YORK
BRANCH ("CL New York"), as a Bank, the Administrative Agent and a Managing
Agent, BANK ONE, NA (MAIN OFFICE CHICAGO), (hereinafter, together with its
successors and assigns, "Bank One"), as a Bank and as a Managing Agent, LLOYDS
TSB BANK PLC, as a Bank (hereinafter, together with its successors and assigns,
"Lloyds") and PULTE MORTGAGE CORPORATION, as the Servicer (hereinafter, together
with its successors and assigns, "PMC") (such agreement, as from time to time
supplemented, amended, restated or extended, the "Restated Loan Agreement").
Capitalized terms used and not otherwise defined herein have the meanings given
thereto in the Restated Loan Agreement.
Pursuant to Section 3.10 of the Restated Loan Agreement, the Servicer
hereby confirms that as of the date hereof the Collateral Value of all Eligible
Mortgage Collateral is $_______, the total of the Principal Debt (including
Advances and Seasonal Advances requested but not then funded) is
$________________, and the Principal Debt does not exceed the Collateral Value.
M-1
[Pulte Restated Loan Agreement]
Very truly yours,
Pulte Mortgage Corporation, as Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
M-2
[Pulte Restated Loan Agreement]
EXHIBIT N
RESERVE ACCOUNT CONTROL AGREEMENT
N-1